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 supports the cert petition filed by the Arkansas Times newspaper, asking the U.S. Supreme Court to review the decision of the Eighth Circuit Court of Appeals, which ruled against the paper.

The question at the heart of the Arkansas Times case is whether an Arkansas law requiring state contractors to certify that they are not supporting boycotts of Israel violates the First Amendment.  The Arkansas Times has argued that the anti-boycott contract provision both prohibits speech, and amounts to compelled speech, and as such is 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 argue that the Arkansas Times case poses a critical test of the U.S. Supreme Court’s First Amendment precedents, including 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 reviews the current cultural moment that America finds itself in, and describes 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.

FCR and FIRE were represented by Mahesha Subbaraman of Subbaraman, PLLC.  The Arkansas Times is 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.

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.