top of page
  • Writer's pictureAnastasia Boden

Keeping up with the Court: Week of 10/30/23

Is it just me or did the Court’s oral argument hiatus feel longer than two weeks?

The Supreme Court is back, baby! And thank goodness. There’s only so many ways a person can distract themselves from the deafening silence. Bring on the hypotheticals!

This coming week the Court will hear arguments in four cases–and they’re good ones.


In Culley v. Marshall, the Court will determine what procedural protections apply when the government steals—I mean, ahem—“seizes” your stuff. Under a process called civil asset forfeiture, the government can take your personal property—including cash, televisions, jewelry, real estate, and cars—without ever arresting you, let alone convicting you of a crime. In Culley’s case, her son was pulled over while driving her car and charged with possession of marijuana. Police then seized her car incident to the arrest. She didn’t get it back until nearly two years later after the city brought a civil enforcement action and Culley prevailed under the state’s innocent owner defense. During that time, she had no way of challenging the seizure or otherwise getting her car back.

Civil asset forfeiture is a legal fiction whereby the government bypasses suing you and sues your property instead for its purported participation in a crime; that’s why you get weird case names like Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin), 215 N.W.2d 849 (Neb. 1974), or United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls, 413 F. Supp. 1281 (D. Wisc. 1976). Because the government is only suing an object, it can keep your property if it meets a far lower standard of scrutiny than it would have to meet if it were trying to convict you of a crime.

The defendant in Nebraska v. One Gremlin, looking guilty as hell.

Notably, law enforcement has a direct financial interest in taking property via civil asset forfeiture, since the seizing department can often keep or sell any forfeited property and in fact, such spoils are baked into the budgets. These incentives have led to massive amounts of money being taken. The Institute for Justice surmises that between 2002 and 2018, 20 states and the federal government secured a combined total of at least $63 billion through civil asset forfeiture, though for many reasons, that’s an underestimate.

Like Culley, victims of asset forfeiture can be separated from their property for years. The longer the process drags on, the higher the pressure to settle. As the Institute for Justice wrote in their amicus brief, “delay” has become “one of the government’s most potent weapons” against anyone who owns property, especially those with fewer means. Imagine not being able to access your car for years. For many of us, that wouldn’t just deprive us our ability to see friends or family; it would mean we’d have no way to get to work, creating tremendous pressure to settle. Civil asset forfeiture therefore allows the government to seize property under flimsy pretenses then extract settlements for far less than what the property is worth.

All of this is… not great for property rights and it’s exactly why a post-deprivation hearing is so important. If the government were forced to justify their actions in court at an early date, it would probably have to stop using people as ATMs.

The question is: what standard should courts apply when determining whether a hearing is constitutionally required? Culley argues that courts should look to the Fourteenth Amendment’s Due Process Clause, while the state argues that courts need only consider the Sixth Amendment’s speedy trial requirement.

The Eleventh Circuit sided with the government and held that the Sixth Amendment, not the Fourteenth Amendment, applies. And according to the court, the Sixth Amendment was satisfied by the enforcement hearing itself, so the state need not provide any additional post-deprivation hearing. The Supreme Court will now consider whether that decision was correct.

The case garnered a wide range of amicus briefs, including a brief submitted by my employer, the Cato Institute, who joined a brief with the American Civil Liberties Union (ACLU), Rutherford Institute, and Appellate Justice Initiative. It seems that opposition to civil asset forfeiture unites people of all perspectives. A recent Cato Institute survey of found that 84% of respondents oppose “taking a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.”

Elizabeth’s employer, the Pacific Legal Foundation, also filed a brief with the Goldwater Institute and Manhattan Institute. Other amici on the side of Culley include National Federation of Independent Business, the Buckeye Institute, Institute for Justice, and the Constitutional Accountability Center.

The amici on the other side are a locality, state, and the Federal government, which all claim they should be freer to seize. The federal government, for example, argued that requiring a post-deprivation hearing would be “disruptive” to its own interests. Due process is pesky that way.


Tuesday is another big day in constitutional law. In O’Connor-Ratcliff v. Garnier and Lindke v. Freed, the Court will consider whether and when public officials’ use of social media makes their conduct subject to the First Amendment. In those cases, the officials had blocked their critics from accessing their social media accounts.

In O’Connor-Ratcliff, two California school board officials blocked two parents who had posted lengthy and repeated comments critical of “race relations” in the district and other school board policies. The school board members had maintained these accounts in addition to their personal accounts, even naming them their “official” pages. And they used the accounts primarily to post about school district news and to solicit feedback from the public. The parents therefore sued on the theory that the officials had made their accounts a public fora and violated the parents’ right by blocking them from it. The question is when does quasi-private conduct by public officials transform into state action, making them liable for constitutional violations.

According to the Ninth Circuit, the appropriate inquiry is “whether the defendant has exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” It recognized four different tests that can identify state action, including a public function test, a joint action test, a compulsion test, and a nexus test, each of which is aimed at figuring out if the officials’ conduct is “fairly attributable” to the government. Finding a close nexus between the officials’ online conduct and their jobs, the Ninth Circuit ruled their pages public fora.

In Lindke v. Freed, a city manager in Michigan (Freed) blocked a city resident (Lindke) who was critical of how Freed was handling the pandemic. Lindke left messages on Freed’s private Facebook page, where the city manager had posted about COVID-19 policies alongside various posts about his personal life. Freed deleted the comments and blocked Lindke, who then filed a lawsuit arguing that Freed had violated his First Amendment rights.

The Sixth Circuit applied a far stricter test than the Ninth Circuit and asked whether Freed was performing an “actual or apparent official duty” or whether his action “could have been taken without the authority of his position.” After concluding that Freed was not performing any official duties by running his Facebook page and was not relying on the authority of his office, the Sixth Circuit ruled that he had not engaged in state action. Given the tension between the two appellate courts’ decisions, the Court has taken up both cases to determine when state officials’ online conduct crosses the line into state sponsored activity.

Court-watchers might recall that this issue has come up before. In 2019, the Second Circuit ruled that Donald Trump had acted in a governmental capacity when he had blocked “the haters and the losers” from his Twitter account. The Supreme Court later deemed the case moot after Trump was voted out of office. But Justice Clarence Thomas wrote separately to note that the Court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” He further suggested that common carrier doctrine might weigh in favor of “limit[ing] the right of [] private company[ies] to exclude.” That’s a striking comment that seems to be in tension with the Court’s recent affirmation of the right to exclude and even more recent affirmation that individuals cannot be compelled to engage in speech.

The Cato Institute filed an amicus brief in O’Connor-Ratcliff and Lindke with Netchoice, Chamber of Progress, and the Computer and Communications Industry Association. Though the brief took no position on the state action doctrine specifically, it argued that government officials’ use of private platforms does not affect the platforms’ status as private actors, nor those platforms’ ability to remove, block, approve, or deny any account of its choice. Moreover, any remedy should be enforced against the government, not the platforms.


On Wednesday, the Court will hear Vidal v. Elster, yet another First Amendment case. This one deals with whether the government can deny trademarks when the proposed mark contains critiques of government officials (here, Donald Trump).

You may recall that some years ago, Marco Rubio observed that Donald Trump had “small hands.” Rubio’s comment spurred a flurry of memes, late night jokes, and paraphernalia.

Donald Trump defending his handhood.

One enterprising American, Steve Elster, sought to trademark the name “Trump too small” and make t-shirts out of it. The problem is that federal law prohibits anyone from seeking a trademark that uses the name of another person without their permission. Elster argues that this restriction “makes it virtually impossible to register a mark that expresses an opinion about a public figure,” and results in one-sided speech that is flattering to public officials. He argues it’s therefore an unconstitutional viewpoint restriction that violates the First Amendment.

Elster’s case follows the Court’s recent decisions in Matal v. Tam, and Iancu v. Brunetti, which struck down restrictions on “disparaging” marks and “immoral” or “scandalous” marks respectively. In both cases, the Court left open the question of how to evaluate viewpoint neutral trademark rules. Elster insists the rules are restrictions on private speech, meaning they are subject to strict scrutiny; the government says they are merely conditions on government benefits, meaning they must only be reasonable.

Elster also argues that the restriction is not actually viewpoint neutral. But on its face, it’s a far more neutral rule than the ones struck down in Tam and Brunetti. Elster argues that the intent and the effect of the law is to stifle unfavorable speech directed at public figures. The Foundation for Individual Rights and Expression and the Manhattan Institute made a similar argument in their amicus brief, noting that in practice, the law serves only to protect government officials from critique, since they’re the only people whose names will be publicly identifiable anyway and since they now control who gets to say what about them in their trademark.

The government argues that the law is a viewpoint neutral condition on a government benefit. After all, the law doesn’t explicitly ban viewpoints of any kind. Moreover, Elster can still use the phrase “Trump too small,” he just can’t trademark it. The government further says that its interest in the law is not protecting officials from criticism, but protecting all people from having their name commercially appropriated without consent: “The government may reasonably decline to reward, or to associate itself with, such appropriation of another’s identity.”

That’s it for now! We’ll see you back at the end of the week for a recap of oral arguments and any other exciting tidbits that come up throughout the week.


bottom of page