Fed. judge rules New York photographer must photograph same-sex weddings if she wants to provide wedding photography services.

Agrees with the 10th Cir.'s troubling "unique market" narrow tailoring analysis. ag.ny.gov/sites/default/… Image
My criticisms of the 10th Cir. reasoning on "unique market" public accommodation law overriding the First Amendment are in a thread here:
Also, toss that one in the "sure wish SCOTUS hadn't punted in Masterpiece Cakeshop" pile.
The issue here, non-lawgeeks, is that to survive strict scrutiny in one of these First Amendment vs. public accommodation cases the state needs to demonstrate (1) compelling interest (2) that is narrowly tailored as applied to the plaintiff.
As a general matter, all courts agree antidiscrimination in public accommodations is a compelling interest. That's not controversial. The next part is the hard part.
The real question: Is the imposition of a nondiscrimination law on a particular business narrowly tailored if alternatives to that businesses goods and services are widely available?
The 10th Cir. in the web design case and this district court in a photographer case deny the premise: according to them, these services are unique—that's the whole point of their First Amendment challenge. They are market's of one.
The problem, as I see it though, is that this turns the First Amendment upside down.

It can't possibly be the case that the First Amendment only protects non-unique expressive goods or services. That's offensive to the very concept of free speech.
It's almost too cute a solution to an actually important problem.

The whole point here is that public accommo law collides with certain, often disfavored, First Amendment interests.

These courts are simply avoiding the problem by saying, "nuh uh, you have a unique market."

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More from @gabrielmalor

17 Dec
Flipping through the state court's denial of Fox News' attempt to have the Dominion defamation lawsuit dismissed.

Three notes.

(1) Judge is skeptical there even is a neutral reportage privilege (he's right to be), but concludes that even if it exists, FNC wasn't neutral. Image
(2) The fair reportage privilege wouldn't apply to FNC statements that occurred before there were lawsuits to report on.

(IOW, to come within the privilege, you have to be covering actual proceedings, not Powell's on-camera fundraising.) Image
(3) Judge thinks these are statements of fact (and therefore actionable), but ultimately punts that to a later stage of proceedings.

There's also a section in here where he suggests some of the statements are mixed statements of fact and opinion, which would also be actionable. Image
Read 7 tweets
16 Dec
5th Cir. revives excessive force and bystander liability suit from family of a man having a mental health crisis who died after officers restrained him with a five-man takedown during which he fell unconscious and then asphyxiated.

No QI. ca5.uscourts.gov/opinions/pub/2…
I like this approach a lot. They start with the first prong for evaluating QI, making clear that, if the facts are as alleged, a Fourth Amendment violation occurred before moving on to the whether that was clearly established law at the time.
This is the meat of the discussion of whether it was clearly established in 2016 that officers engage in objectively unreasonable use of force by continuing to kneel on the back of an individual who has been subdued.
Read 5 tweets
15 Dec
Since Democrats want to talk about their voting rights bill, a reminder that much of HR1 is unconstitutional. A list:

(1) Requiring websites/media to keep logs of ads about politics for disclosure (violates 1A);
(2) Requiring disclosure of donors to private advocacy groups (violates 1A);
(3) Imposing redistricting commissions (violates anti-commandeering doctrine);
(4) Mandating manner of presidential elections (violates Art. II, sec. 1);
(5) Requiring a code of conduct for SCOTUS justices (violates sep. of powers);
(6) Requiring POTUS candidates to release tax returns (violates Art. II, sec. 1);
(7) Overturning Citizens United (violates 1A)
Read 4 tweets
15 Dec
Not the first employer this week to require vaccine and booster even for those who telework.

We're moving back into a socially conscious phase of the pandemic. Which we had early then lost and now private employers seem to think the pendulum is swinging back.
These private employers are saying "you should be vaccinated even if there's no danger of you infecting our customers/clients/students/coworkers."
(They're right. And employers should be free to set workplace policies in their own workforces free from the imposition of government interference.)
Read 4 tweets
14 Dec
Meh. A lot of the "election integrity" bullshit is a way for the "it was fraud" people to launder their culpability over being morons about Biden's election.

It's goalpost-moving. "Fine, it wasn't fraud. But what about no excuse absentee ballots, huh, HUH?!"
And BTW, whereas fraud can typically be proven or disproven, "ballot integrity" is one of those amazingly squishy "we just have a feeling these states are bad at voting and these states are good at voting" things that will be a cash cow for activist groups for decades to come.
It's a perfect racket for activist groups and commentators. It's the flip side of Marc Elias' million frivolous voter ID lawsuits.
Read 4 tweets
14 Dec
Finally had a chance to read through the Assange extradition appeal decision.

It was the assurances the U.S. made that Assange would not be subject to SAMS or held at Supermax and that the U.S. was willing to let him serve any sentence in Australia. judiciary.uk/wp-content/upl…
(Those assurances apply only to his behavior *before* they were given. If he's a cut-up while awaiting trial, they can still punish him with SAMs.)
The court wasn't sympathetic to the idea that extradition alone would be oppressive, as that term is used in the extradition context.
Read 4 tweets

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