Since 2013, U.S. citizen Yonas Fikre had been involved in legal proceedings against the U.S. government related to his inclusion on the federal “No Fly List” (the “List”).  Through multiple years of litigation, Fikre challenged the government’s initial determination to place him in the List, and claimed that he was placed there improperly.

In 2016, the government informed Fikre that he had been removed from the List, and he was subsequently allowed to fly on commercial aircraft.  Fikre’s litigation continued, though, since he contended that removal from the List did not moot his initial legal claims about improper inclusion on the List.

Fikre’s case reached the Ninth Circuit Court of Appeals on two occasions. In 2022 — Fikre’s second appearance before the Court — the Court of Appeals held that Fikre’s case was not moot, and instructed the district court below to consider whether Fikre stated a viable substantive or due process claim “with respect to his inclusion on the government’s watchlists.”

The Federal Bureau of Investigation (FBI) appealed, and the U.S. Supreme Court granted review.  The question presented was whether Fikre’s “No Fly List” claims were moot.

In its briefing, the FBI asked the Supreme Court to view the “voluntary cessation” exception to mootness in a light more deferential to the government, especially in the national security context.

FCR filed an amicus brief on Fikre’s behalf — along with the non-profit organization Restore the Fourth — asking the Court to recognize that the government bears a “heavy burden” in escaping mootness, so that “government misconduct does not elide judicial review.”

FCR further wrote:  “The Court should hold that when it comes to applying the voluntary-cessation doctrine against government defendants, the doctrine’s core purpose—having the legality of challenged practices settled—favors holding government defendants to a higher standard than private defendants.”

FCR’s brief cited examples from the COVID era in which government actors attempted to escape judicial review by ending or modifying executive actions before courts could rule on their legality.  

UPDATE 1:  On March 19, 2024, the U.S. Supreme Court issued a unanimous opinion in the FBI v. Fikre case.  The Court held that “the government has failed to demonstrate that this case is moot” and affirmed that the standard for mootness was the same for both government and private defendants.

In December of 2022, a Minnesota district court judge issued an order in ongoing litigation between Energy Transfer, LP and Greenpeace International related to 2016-era protests aimed at shutting down the Dakota Access Pipeline.  The order pertained to subpoenas served on the media activist organization Unicorn Riot, which had live-streamed much of the pipeline protest activity. Through its subpoenas, Energy Transfer sought the production of video recordings and related documents.  Unicorn Riot refused to produce the materials, by asserting “shield law” protections under Minnesota’s Free Flow of Information Act (MFFIA).

The December 16 district court order held that Unicorn Riot was “news media” covered by the MFFIA, and that Energy Transfer had failed to show that document production could be achieved via a statutory exception to that law. (“Plaintiff has failed to show by clear and convincing evidence that the statutory exception applies.”)

Energy Transfer then appealed to the Minnesota Court of Appeals. FCR, along with journalist Tony Webster and the Reporters’ Committee for Freedom of the Press, all submitted participation requests to file amicus briefs. FCR’s amicus participation request can be found here, and it focused on defending the court’s holding that Unicorn Riot constituted “news media’ under the MFFIA.

On March 21, 2023, the Minnesota Court of Appeals turned away the appeal by Energy Transfer on the grounds that it was premature, but noted that “[a]ppellants may seek relief of the December 16, 2022 order” at some future point.

UPDATE 1:  After developments in the underlying case, the Minnesota Court of Appeals took up Energy Transfer’s appeal, and FCR filed its amicus brief. FCR’s brief focused on ensuring that the MFFIA was read broadly enough to cover non-traditional media — including the live-streaming and web-based publication methods used by Unicorn Riot.  

The internet, with its global reach, can provide non-traditional content-creators with audiences that rival those of “legacy” media outlets, given the right set of circumstances.  And beyond the internet, a whole host of lower-grade technologies co-exist with traditional media networks — everything from Xerox paper-based “zines” to low-wattage, unlicensed radio stations.

These platforms are used by all manner of journalistic and editorial entities — entities that gather, curate, and edit information for presentation to audiences large and small. And in doing so, those persons fall within the plain language scope of the MFFIA — meaning that they are afforded its “shield law” protections, unless a statutory exception applies.

The Minnesota Legislature passed the MFFIA in the late 1970s in response to the journalistic needs of newspapers, broadcast entities, and other media outlets.  After the Watergate scandal (which the press had a key role in uncovering), lawmakers across the nation recognized the importance of media independence through the enactment of journalist “shield laws” like the MFFIA.  

The Unicorn Riot case presented the first opportunity for the Minnesota Court of Appeals to address whether the MFFIA applied to non-traditional media.  Although this was not the central question for the Court’s review, the issue hung in the background, since briefing by Energy Transfer characterized members of Unicorn Riot as “purported newsgatherers” to which the MFFIA “does not apply.”

By filing a brief in the Unicorn Riot case, FCR sought to ensure that the MFFIA’s protections extend to all journalistic voices participating in today’s media landscape.

UPDATE 2:  On May 6, 2024, the Minnesota Court of Appeals issued its decision in the Unicorn Riot case, and held that “the protection of the Minnesota Free Flow of Information Act (MFFIA) … [is] not limited only to newsgathering information obtained by means of lawful, nontortious conduct” and that a “court may not require [a] third party to produce a privilege log or submit information for in camera inspection that is privileged under the MFFIA and does not fall within a statutory exception.”

Since the court’s ruling encompassed Unicorn Riot, it effectively recognized that the MFFIA’s broad language covers both traditional and non-traditional publishers alike.

UPDATE 3:  On June 5, 2024, Energy Transfer LP appealed the decision of the Minnesota Court of Appeals to the Minnesota Supreme Court.

UPDATE 4:  On August 6, 2024, the Minnesota Supreme Court granted review of the Minnesota Court of Appeals decision in the Unicorn Riot case.

UPDATE 5: On August 20, 2024, FCR submitted a request for leave to file an amicus brief in the Minnesota Supreme Court’s review of the Energy Transfer, LP v. Greenpeace International case.

UPDATE 6: On August 29th, the Minnesota Supreme Court granted FCR leave to file and amicus brief in the Energy Transfer, LC v. Greenpeace International case.

On November 23, 2022, FCR submitted an amici brief in the Arkansas Times LP v. Mark Waldrip free speech case.  The brief was submitted in conjunction with the Foundation for Individual Rights and Expression (FIRE).  

The FCR/FIRE brief supported the cert petition filed by the Arkansas Times newspaper, which asked the U.S. Supreme Court to review an adverse decision of the Eighth Circuit Court of Appeals.

The question at the heart of the Arkansas Times case was whether an Arkansas law requiring state contractors to certify that they do not support boycotts of Israel violated the First Amendment.  The Arkansas Times had argued that the anti-boycott contract provision prohibited speech, and also amounted to compelled speech, making it unconstitutional.  The Eighth Circuit, sitting en banc, held that the contract provision only pertained to commercial conduct, and did not extend to protected speech. 

In their amici brief, FCR and FIRE argued that the Arkansas Times case posed a critical test to one of the U.S. Supreme Court’s First Amendment precedents – its 1982 decision in NAACP v. Clairborne Hardware, which held that boycotts involve “constitutionally protected activity” including “speech, assembly, association, and petition.”

The brief also reviewed the current cultural moment that America finds itself in, and described how government is increasingly being enlisted to suppress or compel speech.  Pressure to dictate political orthodoxy has been coming from both the left and the right in recent years.  At public universities, left-leaning administrators have sought to suppress disfavored student speech and compel faculty speech.  At the same time, right-leaning state governors and legislatures have proposed or implemented bans on the teaching of “divisive concepts.”

The anti-boycott statute passed by the State of Arkansas is one more example of this trend, with the state requiring all contractors doing business with Arkansas to forfeit their free-speech rights related to boycotts of Israel, despite clear Supreme Court precedents that both protect speech and association rights related to boycotts, and which bar the state from viewpoint discrimination in regard to those speech rights.

In February of 2023, the U.S. Supreme Court declined to hear the Arkansas Times case, despite federal judges in Arizona, Kansas, Texas, and Georgia finding that similar anti-boycott bills did not pass constitutional muster.

FCR and FIRE were represented by Mahesha Subbaraman of Subbaraman, PLLC.  The Arkansas Times was represented by the American Civil Liberties Union.

In Minnesota, the administration of Governor Tim Walz relied on Minnesota’s Emergency Management Statute (MEMA) to implement a wide variety of COVID-19 mitigation measures – from state-wide business closures to a ban on residential evictions.  The scope of the activities that the administration engaged in under MEMA was unprecedented, and disputes arose over the bounds of that statute’s authority.  

Drake Snell v. Tim Walz is a case that challenges the imposition of a state-wide mask mandate under MEMA, but it has much wider implications regarding the scope of powers granted by MEMA – particularly in regard to the interaction between executive actions taken under MEMA, and other statutes passed by the legislature.  Snell and related plaintiffs lost their case at the district court level, and then appealed to the Minnesota Court of Appeals.  By that time, the executive order that established the mask mandate had been rescinded, and the Court of Appeals held that the case was moot.  Snell appealed to the Minnesota Supreme Court, which agreed to hear arguments related to the mooting of the case. 

Snell’s counsel, the Upper Midwest Law Center, argued that even though the mask mandate executive order had been terminated, Snell’s case was not moot under exceptions to mootness currently recognized by Minnesota courts. Counsel also advocated for Minnesota adoption of the “voluntary cessation” exception to mootness long-recognized by federal courts. 

The Forum for Constitutional Rights (FCR) filed an amicus brief on behalf of the plaintiffs in Snell, arguing that Minnesota courts should recognize the “voluntary cessation” doctrine. FCR’s brief also highlighted how emergency government actions which rely on broad new claims of power – like those taken by the Walz administration in regard to COVID-19 – need to have comprehensive review by courts.

In February of 2023, the Minnesota Supreme Court issued its opinion in Snell V. Walz, and remanded the case back to the Minnesota Court of Appeals for further review.  The Court also adopted the voluntary cessation doctrine, making it applicable to controversies heard in Minnesota courts.

FCR was represented by Subbaraman, PLLC. Find FCR’s amicus brief here.

The Forum For Constitutional Rights (FCR) filed an amicus brief on behalf of the Appellants in the Northland Baptist Church v. Tim Walz (now Glow in One v. Tim Walz) case, which challenged certain COVID-19 “shutdown” orders issued by Governor Walz under Minnesota Statutes Chapter 12. A group of churches and small businesses brought suit against Governor Walz in May of 2020 on a variety of grounds, challenging harsh capacity limitations enforced on houses of worship, and seeking relief for small businesses negatively impacted by the state’s selective business closure orders.

For the church plaintiffs, the case led to a settlement agreement with the state that ensures future protections for houses of worship. Claims for the small business plaintiffs were dismissed, and were then appealed to the Eighth Circuit Court of Appeals. FCR’s amicus brief supported the small business Appellants, and addressed their regulatory takings claim. The plaintiffs are represented by The Upper Midwest Law Center. FCR was represented by Thom Ellingson, PLLP.

A copy of FCR’s amicus brief is available here.

UPDATE 1:  On June 16th, the Eighth Circuit Court of Appeals affirmed the district court’s dismissal of the small business plaintiffs’ takings claim in Glow in One.  The Eighth Circuit panel found that Governor Walz was entitled to qualified immunity, and was thus immune from suit.  The Eighth Circuit panel noted that “to avoid pretrial dismissal, a plaintiff must present facts showing the violation of a constitutional right that was clearly established at the time of the defendant’s act.”  

The panel further wrote that it “need not parse through whether or not a taking occurred … because even assuming a taking did occur, whatever its type, appellants have offered nothing to support their contention that, in 2020, the law was clearly established such that Governor Walz would have understood that his EOs constituted a taking.”

In the Glow in One case, appellants had argued that either a per se physical taking had occurred, or that a regulatory taking had occurred.  FCR’s amicus brief elaborated on the regulatory taking claim, and stressed that when government regulatory action disproportionately falls on a select few while others are spared, that action is indicative of a taking requiring just compensation. 

Earlier in the year, a different Eighth Circuit panel reversed the dismissal of Takings Claims In the Heights Apartments case, a lawsuit brought by apartment owners against Governor Walz for imposing a COVID-era eviction moratorium through a Chapter 12 executive order.

In Heights Apartments, the Eighth Circuit panel noted that  “In certain instances, the Supreme Court has found that a regulation’s effects are so publicly beneficial that the regulation ‘does not constitute a taking requiring Government compensation’” (citing Connelly v. Pension Benefit Guarantee Corp.).  The panel then went on to note that:

“Accepting the facts pleaded by Heights as true and construing all reasonable inferences in its favor, the EOs are not like the legislation in Connolly. The legislation in Connolly imposed proportional liability on employers when they withdrew from multiemployer pension plans to ensure employers funded their employees’ vested pension obligations without leaving the few remaining participating employers to carry others’ financial burdens. Id. at 226–28. In contrast, Heights alleged the EOs directly benefitted only some Minnesotans (residential renters) and perhaps incidentally benefitted others by not having more people in homeless shelters. But, as Heights highlights, those benefits were not the same widespread interests created by the pension protection program in Connolly. Additionally, the problem that the legislation in Connolly sought to solve was of a different nature than the issue here.”

The panel concluded its analysis by noting that both the physical takings and regulatory takings claims had been sufficiently plead, and remanded the case to the district court for further proceedings.

In remanding the case, the appellate court panel in Heights echoed the types of arguments made in FCR’s amicus brief, as well as the plaintiffs’ briefs in the Glow in One case.

Read the Eighth Circuit Court of Appeals opinion in Glow in One et al v. Tim Walz here.

Read the Eighth Circuit Court of Appeals opinion in Heights Apartments et al v. Tim Walz here.

UPDATE 2: On August 9, 2022, the Eighth Circuit Court of Appeals denied Appellants’ petition for re-hearing en banc. Read the document here.