Firm Wins Victory Before the Fourth Circuit in First Amendment Case about Use of Social Media By Public Officials
The firm secured a victory in a pro bono matter that focused on whether the First Amendment applies to a government official’s Facebook page. At issue in Davison v. Randall was a trial court’s decision regarding whether Phyllis Randall, chair of the Loudoun County Board of Supervisors, violated the First Amendment rights of resident Brian Davison when she banned him from the “Chair Phyllis J. Randall” Facebook page she administered. The trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
Partner Jessica Ring Amunson and Associate Tali R. Leinwand represented the Knight First Amendment Institute at Columbia University, which argued on behalf of Mr. Davison.
Mr. Davison had used his personal Facebook page to post comments on Ms. Randall’s Facebook page that criticized the Loudoun Board and Ms. Randall for actions taken in their official capacities. Ms. Randall subsequently deleted Mr. Davison’s posts and banned Mr. Davison’s account from her Facebook page. In November 2016, Mr. Davison filed a complaint against Ms. Randall and the Loudoun board, alleging that Ms. Randall’s decision to ban Mr. Davison for expressing critical speech amounted to “viewpoint discrimination.” Following a one-day bench trial,
the trial court ruled that Ms. Randall had unconstitutionally barred Mr. Davison from her Facebook page based on Mr. Davison’s viewpoint, and Ms. Randall appealed.
On January 7, 2019, the Fourth Circuit held that the Chair’s Facebook page “bear[s] the hallmarks of a legal forum.” “In sum,” wrote Judge James A. Wynn, “the interactive component of the Chair’s Facebook page constituted a public forum, and Randall engaged in unconstitutional viewpoint discrimination when she banned Davison’s [private page] from that forum.”
The Fourth Circuit’s decision marks the first time an appellate court has addressed the applicability of the First Amendment to social media accounts run by government officials. In May 2018, a federal trial court in New York held that President Trump’s blocking of critics on his Twitter page violates the First Amendment. That case, in which the firm serves as co-counsel with the Knight Institute, is currently pending before the Second Circuit.
Seventh Circuit Unanimously Rules Pro Bono Client is Entitled to Evidentiary Hearing
A Jenner & Block team secured a significant win from the Seventh Circuit on behalf of pro bono client Anthony Lee, who has been incarcerated since 1995. On December 21, a panel of judges unanimously ruled Mr. Lee was entitled to an evidentiary hearing on his claim for ineffective assistance of counsel based on his trial counsel’s failure to investigate and call five witnesses at trial.
In 1996, Mr. Lee was convicted of aggravated sexual assault and kidnapping and sentenced to 100 years in prison. The trial had no physical evidence or eyewitness testimonies other than testimony from Mr. Lee and his accuser, L.M. Prior to Mr. Lee’s trial, five potential witnesses submitted affidavits to Mr. Lee’s trial counsel that corroborated Mr. Lee’s testimony and contradicted his accuser’s. However, trial counsel did not call any of the five witnesses to testify at trial and never contacted them.
In 1998, Mr. Lee began pursuing a claim for ineffective assistance of counsel in state court. Although Mr. Lee pleaded a prima facie claim under Strickland v. Washington, 466 U.S. 668 (1984), the state courts rejected his claim without ever granting him an evidentiary hearing on the merits. The state courts reasoned that Mr. Lee suffered no prejudice from trial counsel’s apparent failure to investigate the witnesses because the affidavits did not necessarily demonstrate that the witnesses would have made a difference at trial.
Jenner & Block began representing Mr. Lee in 2013. In 2017, the firm filed a federal habeas petition in the Northern District of Illinois. Although stating that it was a “close call” and “perhaps not the result this Court would reach on a blank slate,” the federal court held that the state courts did not unreasonably apply Strickland, and therefore dismissal was required. The firm filed an appeal to the Seventh Circuit.
On October 22, 2018, Jenner & Block Associate Abraham M. Salander argued the appeal before a panel of judges. Judge Easterbrook led the court’s questioning and focused on whether Mr. Lee’s requests for an evidentiary hearing in state court were sufficiently detailed to entitle him to a hearing in federal court under the federal habeas statute. After oral argument, the court ordered the parties to submit copies of Mr. Lee’s requests for an evidentiary hearing in state court along with the state courts’ rulings on those requests. Jenner & Block submitted a brief supported by 37 documents demonstrating that Mr. Lee’s requests were sufficient under federal law.
On December 21, the Seventh Circuit unanimously ruled Mr. Lee was entitled to an evidentiary hearing because, if the witnesses were called to testify, it was “unlikely” they “would have parroted their affidavits and refused to say another word.” The court specifically praised the firm’s “enthusiasm” and collection of relevant information in response to the court’s post-argument order.
The firm team was led by Partners Bradley M. Yusim and Barry Levenstam, who, along with Paralegal Mary Frances Patston, were on the case since the beginning of the firm’s representation.
Partners Michael T. Brody, Anton R. Valukas, Randall E. Mehrberg and Megan B. Poetzel assisted with oral argument preparation. Partner Jessica Ring Amunson and Associate William L. Von Hoene worked on the case at earlier stages.
Partner Bradford Lyerla Discusses Significance of William J. Hibbler Memorial Pro Se Assistance Program
Jenner & Block Partner Bradford P. Lyerla is quoted in The Circuit Rider regarding his involvement with the William J. Hibbler Memorial Pro Se Assistance Program. The program provides a free help desk for pro se parties in federal civil cases. Most often, the desk’s visitors are plaintiffs in civil rights and employment cases. Volunteer lawyers act as a resource to help analyze claims, draft pleadings, review documents and understand rulings. “Gratitude and service to others are keys to happiness,” Mr. Lyerla tells The Circuit Rider, the journal of the Seventh Circuit Bar Association. “I think the main kick that I get out of Hibbler is that I feel like I am helping real people with real problems. I also like the fact that Hibbler work is under the radar. At my firm, we do a lot of high profile pro bono, and I have done that myself. But Hibbler has no glory attached to it, and at this stage of my life, I prefer personal and low-key pro bono service.” To learn more about the program, contact the Legal Assistance Foundation at 312 229-6060 or visit the LAF online.
Firm Files Amicus Brief Supporting Chicago Museums in Obama Presidential Center Dispute
Jenner & Block filed an amicus brief, pro bono, on behalf of all 11 museums located on Chicago parkland. In Protect Our Parks, Inc. v. Chicago Park District, the plaintiffs allege that creating the Obama Presidential Center in Jackson Park—and allowing the Obama Foundation to operate the Center under an agreement that the Chicago City Council unanimously approved—would violate the Public Trust Doctrine and certain other laws. The City of Chicago and the Chicago Park District moved to dismiss the complaint, arguing that the Obama Center’s creation and operation is consistent with the Public Trust Doctrine and all other federal and state laws. The amici supported that motion by offering their unique insight and perspective. In particular, the museums provided the court with historical context about the long tradition of locating museums in Chicago’s public parks and highlighted the potential practical consequences that may result if the Obama Presidential Center is not allowed to open on parkland.
“The Park Museums believe the Obama Presidential Center will be a cultural and economic treasure for Chicago that will bring new amenities and positive development to the surrounding community, boost the local economy, and serve as a magnet for visitors the City and the region,” the brief says. “It will serve as an enduring and powerful symbol of the promise of America and the American Dream.”
Briefing is currently underway in the district court.
The 11 museums that currently operate on parkland in Chicago include the Adler Planetarium, Art Institute of Chicago, Chicago History Museum, DuSable Museum of African American History, The Field Museum of Natural History, Museum of Contemporary Art, Museum of Science and Industry, National Museum of Mexican Art, National Museum of Puerto Rican Arts and Culture, The Chicago Academy of Sciences/Peggy Notebaert Nature Museum and John G. Shedd Aquarium.
The team authoring the brief includes Litigation Department Chair Craig C. Martin, Partner Daniel J. Weiss and Associates Gabriel K. Gillett and Henry C. Thomas.
Veterans Obtain Class Certification over Discharge Policy
On November 16, the firm won a pro bono victory on behalf of thousands of veterans when a judge certified a nationwide class-action lawsuit against the Navy Discharge Review Board (NDRB) and the US Department of Defense. The lawsuit challenges the NDRB’s process for granting upgrades when a veteran has been given a “less-than-honorable,” or “bad paper,” discharge. Acting as co-counsel with Yale Law School’s Legal Services Organization Veterans Clinic, the firm represents veterans who say they were denied the upgrade because they had undiagnosed mental health issues, such as PTSD.
The newly certified class in Manker v. Spencer will consist of thousands of Marines or sailors who have or would be subjected to unfair procedures in front of the NDRB. The veterans seek a change in their review process.
Since 2001, more than 2 million Americans have served in either Iraq or Afghanistan, and nearly a third of them suffer from PTSD and related mental health conditions, according to a press release issued by Yale about the judge’s decision. In 2014, the Defense Department ordered the US armed services to consider PTSD as a mitigating factor in the misconduct that causes bad paper discharges. But in 2017, the Navy review board granted upgrades to only 16 percent of applications—far fewer than the approximately 51 percent of upgrades given by Army and Air Force review boards, according to the press release.
Veterans who suffer from mental health conditions were not only denied upgrades to their discharges, but that denial “affected their eligibility for benefits like the GI Bill program, and, ironically, PTSD treatment from the Department of Veterans Affairs,” wrote Judge Haight of the Connecticut district court.
The team included Partners Jeremy M. Creelan and Susan J. Kohlmann and Associates Jeremy H. Ershow and Jessica A. Martinez. In 2015, the New York Law Journal named Mr. Creelan among the “Lawyers Who Lead by Example,” in part because of his work on this case.
Several media outlets, including Law360, covered the judge's decision.
In Celebrating Its 225th Year Anniversary, University of North Carolina Notes Alum and Partner Andrew Vail’s Contribution
The university is sharing profiles of some of the many “Tar Heels who have left their heelprint on the campus, their communities, the state, the nation and the world.” On November 14, the university featured a profile of 1929 graduate Henry Owl, a member of the Eastern band of Cherokee Indians who was the first person of color to be admitted to –– and graduate from –– the university. At UNC, Mr. Owls’ master’s thesis was titled “The Eastern Band of Cherokee Indians: Before and After the Removal.” In 1930, Mr. Owl was denied the right on the grounds that Indians were illiterate; he presented his thesis to the county voting registrar. But he was denied a second time on the grounds that Cherokees were wards of the government and not US citizens, in opposition to a 1924 law. Owl later testified before Congress, which then passed a law guaranteeing the Eastern Band of Cherokee Indians citizenship and the right to vote.
The profile of Mr. Owl notes that Jenner & Block Partner Andrew W. Vail, a 1999 UNC graduate who concentrated in American Indian history, established the Henry Owl Scholarship Fund for Undergraduate Students. The scholarship provides need-based funds to one or more undergraduate majors in the American studies department, with a preference for students in American Indian and indigenous studies.
“My major concentration was in Native American history, so I felt an immediate connection to Owl’s background,” Mr. Vail said in a 2014 interview with the university. “The distinction of being the first person of color to get a degree from Carolina is extremely significant and something that should be recognized. Also, Owl’s lifelong dedication to education –– to building a better life for himself, his family and community and those around him –– it all struck a chord in me.”