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  • Writer's pictureAnastasia Boden

Oral argument recap: 11/3/23

What happened this week at SCOTUS? Four oral arguments. And as a special treat to us constitutional law nerds, all were important constitutional cases.


On Monday the Court heard Culley v. Marshall, which asks what procedural protections apply when government takes your stuff. Under a process called civil asset forfeiture, the gov’t can take your things—ie. cash, televisions, jewelry, real estate, cars—without ever arresting you, let alone convicting you of a crime. (For a bit more background, read my earlier preview here).

In Culley’s case, her son was pulled over while driving and charged with possessing 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. In the meanwhile, she had no way of challenging the seizure or getting her car back.

Cops bragging about seizing a car because the driver was using a dab pen

Culley contends that she was entitled to a post-deprivation hearing so she could have challenged the seizure earlier, rather than waiting for the state enforcement action to conclude. The question for the Court is what standard should judges 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. As you can imagine, application of the Sixth Amendment would mean no hearing is required and application of the Fourteenth Amendment is much more likely to mean some additional procedure is needed.

Shay Devoretzky argued on behalf of Culley, just weeks after arguing Pulsifer a couple of weeks ago. (Catch my thread on oral argument in that case here).

Most of the justices seemed to think the facts weren’t egregious enough to warrant a hearing. Justice Thomas, for example, asked whether Culley could have filed an early motion for summary judgment, which would’ve expedited the whole process. Gorsuch observed that civil asset forfeiture can entail abuse (kangaroo courts and what not), but that didn’t seem to be the case here. Instead, it was sort of run-of-the-mill delay.

Sotomayor feared that bad facts may make bad law and did her best to prevent the Court from missing the forest for the trees. If the Court doesn’t jump in here, she said, they’ll give carte blanche to states to provide as little and as poor process as they want.

Kavanaugh seemed to think that all of this is one big policy question, and noted that historically these proceedings have not been required. (My constitutional rights are not your policy matter!)

Dvoretzky responded that civil forfeiture looks much different now than it did at the time of the founding. In some ways it was easier to take property (no post-deprivation hearing, for example), but forfeiture related to a few discrete categories like customs or piracy, and trial came pretty quickly. Nowadays government takes all sorts of property and trials come slowly. Plus, the state in this case had created an innocent owner defense, and with new substantive protections come new procedural protections. As civil rights attorneys like to say, there are no rights without remedies.

It’s all to say: we should apply the principles of due process to new situations; not enshrine certain practices that were understood to satisfy due process at the time of the founding. Given the hyper-obsession with historical practice in recent terms, I appreciated Dvoretzky’s framing of originalism. History informs meaning; it doesn’t determine outcomes.

Justice Alito, for his part, seemed to think the plaintiffs’ argument would require judges to make things up. What process, exactly, is constitutionally required? And is it even feasible for government to provide it? Dvoretzky said we should let judges be judges and figure what procedures satisfy due process using the framework established by the Fourteenth Amendment.

Though the justices seemed skeptical that Culley’s rights were violated, they were equally skeptical of the government’s argument that the proper framework for deciding the case was the Sixth Amendment. The two Amendments are concerned with different things. Where plaintiffs are lodging a fairness concern, most of the judges seemed to agree that the Fourteenth Amendment’s Due Process Clause applies.

The government’s attorney began his argument by complaining that more due process would result in more errors and more crime, and ended his argument by suggesting that, rather than imposing a constitutional requirement of more due process, the justices should “trust judges to judge well.” The Founders would be rolling in their graves at the suggestion that we don’t need to worry about due process because we can trust the government---including judges---to do the right thing. The Constitution is founded on a healthy dose of skepticism towards government actors. As John Adams once said, “The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.”

The government’s argument elicited an excellent rebuttal from Dvoretzky, who said yes we should trust judges to judge… which means allowing them to decide what process is due, case by case, using the Fourteenth Amendment as a guide. Oh, also: due process may be inconvenient to the government, but it’s required in a free and just society.


On Tuesday the Court heard a pair of cases asking when government officials’ private social media use constitutes “state action,” meaning it’s subject to First Amendment restrictions. In O’Connor-Ratcliff v. Garnier and Lindke v. Freed, public officials blocked their critics from accessing their private social media accounts (and in many cases, from important information about the government). The question is when quasi-private conduct by public officials transforms into state action, making them liable for constitutional violations, including violating the blockees’ First Amendment rights.

In O’Connor-Ratcliff, the Ninth Circuit used an appearance and function test. The appropriate inquiry, it said, 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 that the officials had given the appearance of using the account for official duties, and because there was a close nexus between the officials’ online conduct and their jobs, the Ninth Circuit ruled that the pages were public fora.

In Lindke, the Sixth Circuit applied a far stricter test than the Ninth Circuit and asked whether the official 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 when posting or blocking, the Sixth Circuit ruled that he had not engaged in state action.

The justices seemed to struggle during oral argument to reconcile two First Amendment interests: the interests of government employees in maintaining their own free speech rights, and the interests of the public to access government officials and information or to be free from viewpoint discrimination. And each of the attorneys (which included lawyers for each of the state officials, two different lawyers from the Solicitor General’s office, the parents in O’Connor Ratcliff, and the plaintiff in Lindke), all seemed to have a slightly different test for when private conduct turns into state action.

An apt cartoon from The Economist

In O’Connor-Ratcliff, the state urged a “duties and authority” test, which would make the speech state action only where the official was acting pursuant to an official duty or exercising authority of his or her position. Factors to consider would be whether the person is using state resources and whether the government employer has control over the speech. If the official had the option of saying the speech in a personal or official capacity, it would remain private speech. If president did campaign rallies at Mar A Lago, counsel said, it would be able to exclude people from its private property. (Nice to see the government care about the right to exclude!) So too with private social media accounts.

Much of the argument centered around what “duty” means. The Sixth Circuit indicated the duty had to be a written duty, but pretty much everyone agreed that exercising unwritten, customary duties can result in state action. But then, where does that end? According to the plaintiffs’ lawyers, state officials have a duty to interact with constituents. Does that turn every interaction into an official one? This is a hard balance to strike and it could mean the difference between when government officials are subject to constitutional constraints when they block or exclude people perniciously (based on race or viewpoint) and when they do not.

There was also some talk of whether a disclaimer (ie. “This is my private social media account”) was constitutionally required. All seemed to agree a disclaimer is a good idea, and many justices (namely, Justices Alito, Kagan, and Jackson) were concerned with the fact that members of the public can’t figure out which capacity the official is speaking in, but as the government’s attorney argued, that doesn’t mean its constitutionally required.

The solicitor general’s office argued a slightly stricter test based largely on whether the the official is using a private account.

The justices asked several hypotheticals related to when government officials could discriminate, since it was their private conduct, and when they could not, because it was public. If the test is too lax, we could see officials setting up important meetings on private property and excluding people based on race, religion, or viewpoint. The SG retorted that there are many things that public actors shouldn’t do (ie. discriminate), but that doesn’t mean such conduct is unconstitutional. Or to use Justice Scalia’s phrasing, there are things that are “stupid but constitutional.” It’s quite rich for the government to argue it’s allowed to be stupid even when it’s harming us, because quite frequently it doesn’t allow us to be stupid, even when we harm no one. (See, e.g., the innumerable laws prohibiting consensual behavior, whether economic or social).

Arguing for the parents in O’Connor-Ratcliff, Pamela Karlan argued that officials are engaged in government speech when they are “doing their job.” Justice Alito, however, worried that her test was too capacious, given that officials are frequently conversing with constituents in public and might also be perceived as engaging in official business.

Some of the first words out of the plaintiff’s mouth in Lindke was that “social media accounts are the new town square,” making them subject to regulation. That’s an unwelcome statement to those of us concerned with the long-term fate of social media companies, since it could justify not only regulation of what government actors say but regulation of the companies themselves. His preferred test was when an official creates a channel for communication with the public about in-office conduct, that channel is public, not private, conduct.

All in all, it was a Goldilocks and the six lawyer bears situation. Some formulations seemed too hot and other too cold. We have yet to see which one the Court will consider just right.


On Wednesday the Supreme Court heard oral arguments in Vidal v. Elster, which asked whether the government can deny a trademark when the proposed mark contains critiques of government officials (here, Donald Trump). It was a particularly interesting argument because the justices didn’t seem to buy either side’s argument.

The origins of the case lie in Marco Rubio’s observation during a 2016 presidential debate that Donald Trump had “small hands,” a comment that spurred memes, late night jokes, and thanks to the great American spirit of entrepreneurship, endless paraphernalia.

Art or not art? Somebody call the ArtDecider.

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, because the law will most often affect famous people, and because those people now enjoy a heckler’s veto over trademarks with their name, this restriction results in one-sided speech that is flattering to public officials. Its therefore a viewpoint-based restriction on speech subject to heightened judicial scrutiny. And because he sees the law as only related to protecting the feelings of famous people, he argues it violates the First Amendment.

The government argues that the rule does not restrict speech; after all, it doesn’t explicitly ban viewpoints of any kind. And Elster can still use the phrase “Trump too small;” he can even put it on shirts and sell them! He just can’t trademark it. Thus, the restriction imposes a viewpoint neutral condition on a government benefit, meaning it only need be “reasonable” to satisfy the Constitution. The government further argues that the law is not aimed at protecting officials from criticism, but rather protecting all people from having their name commercially appropriated without consent (ie. a pizza joint claiming to be Barack Obama’s favorite pizza parlor).

The justices weren’t fully buying either side’s argument. Elster’s attorney failed to convince the justices that the rule is a restriction on speech, let alone a viewpoint-based one. As Justice Thomas noted, Elster is free to “make the shirts or mugs or whatever he wants to make now unregistered,” so “what speech precisely,” he asked, “is being burdened?” In fact, it’s Elster who is trying to restrict speech by obtaining a mark and preventing others from making shirts with the same political statement.

Yet, neither could Assistant Solicitor General Malcolm Stewart (arguing his 100th case before the Court) convince the justices that the rule merely imposed a condition on a government benefit. Justice Alito was downright hostile to this theory, telling Stewart one point that if that if it was the government’s only theory, then it had lost his vote.

Referencing his opinion in Matal v. Tam (which invalidated a restriction on “disparaging” trademarks), Justice Alito said that a “governmental benefit” usually refers to a monetary benefit. Extending the definition to the trademark program would have implications for all sorts of government programs, since “just about every government service requires the expenditure of government funds.” Police and fire protection, courts, public parks, highways, and the innumerable governmental registration schemes, like driver’s licenses, motor vehicle registration, hunting, fishing, and boating licenses or permits, would all be implicated. As Justice Gorsuch observed, the government’s theory meant that just “because the government gives [any of these things] to you, it can do whatever it wants with [them].”

Justices Amy Coney Barrett and Clarence Thomas were especially concerned about the theory’s implication on copyright law, where it might actually have a meaningful impact on speech. Justice Barrett asked about somebody who “want[s] to write a book called ‘Trump Too Small’ that details Trump's pettiness over the years” (Nb. !!!) and “argues that he's not a fit public official.” Under the government’s theory, it could restrict that author from getting a copyright for such a book and that restriction would be subject only to rational basis review---the lowest level of judicial scrutiny.

So if the rule isn’t a restriction on speech, but it’s not a condition on a government benefit, what is it? And what level of judicial scrutiny applies?

The debate highlights a problem with a major premise of constitutional law: the idea that judges must first identify the right at issue to determine which of the three made-up levels of judicial scrutiny apply. Picking apart rights is hard to do. Some conduct implicates all sorts of rights, and rights are often related. This endeavor also has no basis in the Constitution. The Ninth Amendment states that the Constitution protects far more than just those rights that are explicitly listed, and the enumeration of some rights shouldn’t be taken to mean they are privileged compared to others.

On the whole, the justices’ discomfort with the tiers of scrutiny is welcome. The trouble is, based on this oral argument, the cure might be worse than the disease.

Justices Gorsuch and Kavanaugh for example, suggested that rather than defining the right at issue or determining the level of scrutiny, courts should look at historical practice (thus demonstrating the continuing influence of Bruen). The two justices would let history be the judge… literally. In a rather extended (and interesting) history lesson, Justice Gorsuch noted that content-based restrictions have long existed in the realm of trademark, and that alone is sufficient to indicate their constitutionality.

The problem with that approach (once again, for those in the back!) is that the Constitution enacts principles, not practices. I, for one, don’t want to be beholden to laws merely because they existed at the time the Constitution was ratified. We’re not bound by what the framers did; we’re bound by what they said in the Constitution. While historical practice can be useful to determining the meaning of the words in the Constitution, it’s not determinative. The meaning of words is locked in at the time of ratification, but the application of those concepts can change over time. The trademark restriction might be a perfectly constitutional law, but that’s not solely because such restrictions existed in the 19th (or even 18th) century.

Justice Sotomayor had an alternative approach. She too didn’t want to be “straightjacketed” by labels, so she argued that judges should just focus on whether the government had a rational basis for its action. Anyone familiar with that test in practice knows that it’s a toothless one that’s dangerous to liberty.

Justices Kagan and Jackson suggested using a “reasonableness” standard that’s more robust than rational basis review but less demanding that strict, or even intermediate scrutiny. That may be better from a liberty-favoring standpoint than Justice Sotomayor’s, but it’s also made up.

Though there was no consensus on how to characterize the restriction at issue or what level of scrutiny should apply, the justices seemed poised to uphold the law under any standard. And that stemmed from their belief that the law was both viewpoint neutral and reasonable. Even Elster’s attorney admitted the law wasn’t explicitly viewpoint based. Instead, he said, it’s “speaker-based” in a way that “gives rise” to “viewpoint based concerns,” which is all merely a “plus factor” in favor the law’s unconstitutionality.

And while he argued the rule was aimed at protecting the feelings of famous people, Justice Jackson, among others, noted that the government had given a robust defense of the law wholly unrelated to feelings: preventing people from profiting off other people’s names.

In sum, while the justices granted cert to resolve a long-open question about the constitutional status of restrictions on trademarks, oral argument seemed to indicate we might not get a majority to agree.

A few of my favorite SCOTUS things from this week:

Kagan: “Why don’t we do my example.”

Sotomayor calls out bad behavior:

SCOTUS pro Shay Dvoretzky drops the mic after his rebuttal:

Pam Karlan on tapeworms and the royal "we":


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