Category: First Amendment

Enjoining State Prosecutions in Federal Court

by · May 15, 2025 10:32 am

After the Texas Attorney General gave Yelp, Inc. notice of intent to file a quasi-criminal enforcement suit against it, Yelp went yelping to the federal district court in San Francisco for an injunction against the enforcement.

Can they do that? No, said the district judge, and today a three-judge panel of the Ninth Circuit affirmed. This isn’t a new rule. It’s an old case called Younger.

Over 55 years ago, a federal district court enjoined a prosecution in California state court. The Los Angeles District Attorney (and future California Attorney General) Evelle Younger, took it all the way to the Supreme Court. In Younger v. Harris , 401 U.S. 37 (1971), the high court established a general rule that federal courts should abstain from using their injunctive powers against prosecutions in state courts. Federal-law defenses must generally be asserted in the state court. There is an exception for bad faith prosecutions.

First Amendment defenses generally are not an exception. Younger itself was such a case. Yelp did not succeed in showing bad faith here. Continue reading . . .

Counterman Follow-Up: Prosecuting Stalkers

by · Feb 7, 2025 4:00 pm

Two years ago, the U.S. Supreme Court decided in Counterman v. Colorado that if a stalker is prosecuted on the ground that his communications are threats, the prosecution must show a mental state of at least recklessness regarding the threatening nature of the communications. At the time, I thought it was unfortunate that the case went up as a “threats” case because there was a much better basis available. See this post. With stalkers, it is usually not so much the threatening content of the communication that is the problem, but rather the extreme persistence even after they have been told to buzz off. A long series of cases gives the government much more latitude to regulate the “time, place, and manner” of speech. The failure of the majority opinion to address this raised a danger that stalkers could get off when the case cannot be made that the speech amounts to a threat and the stalker knows or should know that.

Sure enough, this happened in Colorado, with the trial judge acquitting the stalker. But in Colorado the prosecution can ask the Court of Appeals to disapprove the trial court’s ruling for future cases, even though this perpetrator cannot be retried. Continue reading . . .

Supreme Court’s ruling on online harassment outrages victims, advocates

by · Jun 29, 2023 3:34 pm

On Tuesday, I noted the danger that the Supreme Court’s opinion in Counterman v. Colorado might be interpreted to require that speech must be classifiable as  a “true threat” in all stalking cases before a prosecution can go forward. Taylor Lorenz has this article in the WaPo with the above title reporting that the effects are being felt already. See below.

I can understand how the Court went forward with the threats analysis in light of the fact that that was how the decision being reviewed justified the prosecution, and that was how both parties presented it. The Court does not normally rule on issues raised only by amici curiae, although it does occasionally.

But there is no excuse for not stating explicitly that the Court was not holding or implying that all stalking cases based solely on communications must pass muster as “true threats” rather than the “time, place, or manner” doctrine. That question should have been expressly left for another day. Continue reading . . .

A Mixed Bag in the Stalking/Threats Case

by · Jun 27, 2023 4:05 pm

This morning the U.S. Supreme Court decided the stalking/threats case of Counterman v. Colorado, No. 22-138. The decision is a mixed bag for the ability of government to protect people from threats and for its ability to protect people from stalking. To punish speech on the basis that it is a threat, the Court held that, at a minimum, “The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The State need not prove any more demanding form of subjective intent to threaten another.”

As to stalking by speech (or other communication) the need to invoke the “true threats” doctrine under the First Amendment at all is unclear. Continue reading . . .

Supreme Court Narrows and Upholds Illegal Immigration Encouragement Law

by · Jun 23, 2023 8:00 am

The U.S. Supreme Court today decided United States v. Hansen, No. 22-179. The first paragraph of Justice Barrett’s opinion for the Court summarizes the decision well:

A federal law prohibits “encourag[ing] or induc[ing]” illegal immigration. 8 U. S. C. §1324(a)(1)(A)(iv). After concluding that this statute criminalizes immigration advocacy and other protected speech, the Ninth Circuit held it unconstitutionally overbroad under the First Amendment. That was error. Properly interpreted, this provision forbids only the intentional solicitation or facilitation of certain unlawful acts. It does not “prohibi[t] a substantial amount of protected speech”—let alone enough to justify throwing out the law’s “plainly legitimate sweep.” United States v. Williams, 553 U. S. 285, 292 (2008). We reverse. Continue reading . . .

The “True Threats” Doctrine

by · Apr 21, 2023 2:15 pm

On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado, No. 22-138 (transcript here, audio here).

The issue in this case involves how courts should determine what constitutes a “true threat.”  True threats are not protected by the First Amendment.  The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat.

In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman’s messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public. Continue reading . . .

Forbidding Candid Speech About Crime

by · Apr 20, 2023 1:41 pm

From an op-ed in the WSJ:

The Consumer Financial Protection Bureau, a federal bureaucracy with a vast jurisdiction, is testing a novel approach to crime and punishment. In a lawsuit against Townstone Financial, a small Chicago-area nonbank mortgage firm, the CFPB is signaling that it may attempt to punish anyone who complains about neighborhood crime.

The article is by John Berlau and Stone Washington of the Competitive Enterprise Institute. The essence of the CFPB complaint is that candid speech about high crime areas discourages people from those areas from applying for mortgage loans, with a disparate impact by race. Continue reading . . .

Forfeiture Procedure

by · Apr 17, 2023 7:57 am

The U.S. Supreme Court today took up a case on forfeiture procedure for full briefing in the coming months and argument next fall.

The Question Presented in Culley v. Marshall, No. 22-585, as framed by the attorney for the petitioner, is:

In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits.

Counterman v. Colorado, No. 22-138, on anti-stalking laws and the First Amendment, will be argued Wednesday. CJLF’s amicus brief is here.

Inducing Illegal Actions and Freedom of Speech

by · Dec 12, 2022 8:52 am

The U.S. Supreme Court has taken up the case of United States v. Hansen, No 22-179, for full briefing and argument. Here is the Question Presented, as phrased by the Solicitor General:

Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

The answer would seem to be a clear “no,” but the Ninth Circuit held to the contrary. Continue reading . . .