Take the Fifth

Designated for publication

• Russell v. Jones, 21-20269, appeal from S.D. Tex.
  • Elrod, J. (Stewart, Clement, Elrod), subpoenas, sovereign immunity
  • Reversing partial denial of motions to quash subpoenas duces tecum that had been served on county district judges to determine their role in creating and enforcing Harris County’s bail schedule, which was the subject of plaintiffs’ constitutional challenge to the county’s felony-bail system.
  • The Court held that sovereign immunity barred the subpoenas served on the judges. The plaintiffs had dismissed the county district judges from the lawsuit in the wake of the Court’s decision dismissing county judges as defendants on sovereign immunity grounds in the similar case in Daves v. Dallas County, 984 F.3d 381 (5th Cir. 2020), but had served the subpoenas on those judges as third-party witnesses in the case as it continued against other defendants. The Court held that the judges were acting as state officials acting in their official capacities, thus entitled to share in the state’s sovereign immunity; and that compliance with the subpoenas would operated against the state in a way that implicates state sovereign immunity. The Court held that the plaintiffs “are wrong to conclude that sovereign immunity protects against judgments alone. Just as sovereign immunity’s preference for substance over form means that it applies to state officials—and not just states—sovereign immunity also applies to state officials as third parties, not just as defendants.”

• BRFHH Shreveport, LLC v. Willis-Knighton Medical Center, 21-30622, appeal from W.D. La.
  • Oldham, J. (Smith, Duncan, Oldham), antitrust
  • Affirming 12(b)(6) dismissal of antitrust claims by operator of state university hospital against company that owned four of city’s six hospitals. Plaintiff alleged that defendant had used a carrot-and-stick approach to donations to state university to coerce the state university into minimizing and then eliminating its operator relationship with the plaintiff.
  • The Court held that the plaintiff did not plausibly allege an agreement between the defendant and the state university, such that the Sherman Act section 1 claim failed. The Court held that “[a] plaintiff proceeding on a threat-and-accession theory must plausibly allege three things: first, that A made a threat; second, that B subsequently did what A wanted; and third, that B did so because of A’s threat. That third requirement is often the hardest to satisfy. It’s not enough to allege that B’s behavior was merely consistent with caving to the threat.” Here, the Court held that, on the face of the complaint, the state university had an independent basis to reduce its cooperation with the plaintiff that predated the allegedly coercive activities of the defendant.
  • The Court also held that the plaintiff failed to state a Sherman Act section 2 claim because it failed to establish exclusionary or anticompetitive conduct.

• NetChoice, L.L.C. v. Paxton, 21-51178, appeal from W.D. Tex.
  • Oldham, J. (Jones, Southwick, Oldham), Jones, J., concurring; Southwick, J., concurring in part and dissenting in part; First Amendment
  • Reversing district court’s injunction against enforcement of House Bill 20, which prohibits large social media platforms from censoring speech on their platforms based on the viewpoint of the speaker/user. The platforms/plaintiffs sought a holding that HB20 was facially unconstitutional.
  • The Court observed, “In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to ‘“’the freedom of speech.’”’ But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.”
  • The Court rejected the plaintiffs’ facial overbreadth challenge that HB20 chills speech, holding that instead it chilled censorship. “Consistent with the overbreadth doctrine’s rationale, the Supreme Court has only applied it where there is a substantial risk that the challenged law will chill protected speech or association.”
  • The Court held that the First Amendment did not provide a right to censor. “The Platforms operate ‘the modern public square,’ Packingham, 137 S. Ct. at 1737, and it is they—not the government—who seek to defend viewpoint-based censorship in this litigation. Second, Section 7 does not prevent anyone from expressing their good-faith opinions on matters of public concern. Precisely the opposite: Section 7 protects Texans’ ability to freely express a diverse set of opinions through one of the most important communications mediums used in that State. And it leaves the Platforms free to similarly opine: They can still say whatever they want (or decline to say anything) about any post by any user.”
  • The Court held that HB20 did not even regulate the platforms’ speech at all, but protected other people’s (users’) speech and merely regulated the platforms’ conduct. “We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.”
  • The Court held that its ruling was reinforced by 47 U.S.C. § 230, “which reflects Congress’s judgment that the Platforms are not ‘speaking’ when they host other people’s speech.”
  • The Court held that its ruling was bolstered by the common carrier doctrine. (Judge Southwick interprets this holding, as well as the 47 U.S.C. § 230 holding, as only being made by one judge, the author of the majority opinion, so query the precedential value of these points).
  • The Court held that, regardless, HB20 satisfies intermediate scrutiny that applies to content-neutral rules.
  • Judge Jones concurred. She opined, “[I]n arbitrarily excluding from their platforms the makers of speech and preventing disfavored speech from reaching potential audiences (‘censoring,’ in the comprehensive statutory term), they are not themselves ‘speaking’ for First Amendment purposes.”
  • Judge Southwick dissented in part. He agreed that a facial challenge was unlikely to succeed on the merits; however, he opined that, fundamentally, the platforms’ moderation of users’ content was itself protected speech. “[T]he majority is forcing the picture of what the Platforms do into a frame that is too small. The frame must be large enough to fit the wide-ranging, free-wheeling, unlimited variety of expression— ranging from the perfectly fair and reasonable to the impossibly biased and outrageous — that is the picture of the First Amendment as envisioned by those who designed the initial amendments to the Constitution. I do not celebrate the excesses, but the Constitution wisely allows for them.”

• Defense Distributed v. Platkin, 22-50669, appeal from W.D. Tex.
  • per curiam (Elrod, Graves, Ho), Ho, J., concurring (joined by Elrod, J.); venue transfer
  • Granting order to expedite appeal, and carrying other motions with case.
  • Judge Ho, joined by Judge Elrod, concurred, to urge the District of New Jersey to transfer the severed claims against the Attorney General of New Jersey back to the Western District of Texas.

Unpublished

• Razvi v. Dallas Fort Worth International Airport, 21-10016, appeal from N.D. Tex.
  • per curiam (Richman, Clement, Duncan), Rule 60(b), personal tort
  • Reversing dismissal of case and denial of Rule 60(b)(1) motion on excusable-neglect grounds.

• U.S. v. Collazo, 21-11233, appeal from N.D. Tex.
  • per curiam (Higginbotham, Graves, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Moore, 21-11240, appeal from N.D. Tex.
  • per curiam (Davis, Smith, Dennis), criminal, sentencing, Armed Career Criminal Act
  • Granting summary affirmance of 180-month sentence on conviction of being a felon in possession of a firearm.

• Heather B. v. Houston Independent School District, 21-20229, appeal from S.D. Tex.
  • per curiam (Jones, Stewart, Duncan), Individuals with Disabilities Act
  • Affirming summary judgment in favor of defendants on plaintiff’s IDEA claim.

• U.S. v. Rodriguez-Puente, 21-20531, appeal from S.D. Tex.
  • per curiam (Higginbotham, Graves, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Medina-Rodriguez, 21-51013, appeal from W.D. Tex.
  • per curiam (Smith, Dennis, Southwick), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Munoz, 21-51196, appeal from W.D. Tex.
  • per curiam (Davis, Smith, Dennis), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Gonzalez-De Valle v. Garland, 21-60138, petition for review BIA order
  • per curiam (Wiener, Elrod, Engelhardt), immigration
  • Denying Salvadoran citizen’s petition for review of BIA order denying her motion to reconsider its decision affirming an Immigration Judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the CAT.

• Gonzalez-Jimenes v. Garland, 21-60424, petition for review of BIA order
  • per curiam (Davis, Smith, Dennis), immigration
  • Denying Honduran citizen’s petition for review of BIA order denying her motion to reconsider its decision affirming an Immigration Judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the CAT.

• Dominguez v. Garland, 21-60890, petition for review of BIA order
  • per curiam (Smith, Dennis, Southwick), immigration
  • Denying Mexican citizen’s petition for review of BIA order affirming removal order by IJ pretermitting a ruling on application for cancellation of removal and denying withholding of removal.

• Martinez-Montes v. Garland, 21-60905, petition for review of BIA order
  • per curiam (Wiener, Elrod, Engelhardt), immigration
  • Denying in part and dismissing in part Honduran citizens’ petition for review of BIA order denying their asylum, withholding of removal, and CAT claims.

• U.S. v. Leal, 22-10098, appeal from N.D. Tex.
  • per curiam (Smith, Dennis, Southwick), criminal, sentencing
  • Granting summary affirmance of conviction and 46-month sentence for being a felon in possession of a firearm.

• U.S. v. Williams, 22-10312, appeal from N.D. Tex.
  • per curiam (Wiener, Elrod, Engelhardt), criminal, sentencing
  • Affirming sentence on conviction of being a felon in possession of a firearm.

• Rhone v. City of Texas City, 22-40551, appeal from S.D. Tex.
  • per curiam (Haynes, Engelhardt, Oldham), ripeness
  • Denying as premature motion to restrain city from demolishing premises subject to litigation, for failure to comply with FRAP 8.

• U.S. v. Renteria-Herrera, 22-50258, appeal from W.D. Tex.
  • per curiam (Smith, Dennis, Southwick), criminal, sentencing
  • Affirming 21-month sentence on conviction of illegal reentry.