Month: February 2017

On January 18, 2017, the Supreme Court heard oral argument in Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab non-citizens who were who were detained after the terrorist attacks on September 11, 2001 and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. -- The questions now before the Supreme Court are threefold: (1) whether the Second Circuit, in finding that Plaintiffs’ due process claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality; (2) whether the Second Circuit erred in denying qualified immunity to Defendant Ziglar; and (3) whether the Second Circuit erred in holding that Plaintiffs’ Fourth Amendment Complaint met the pleading requirements identified by the Supreme Court in its 2009 decision in Ashcroft v. Iqbal. -- To discuss the case, we have Jamil N. Jaffer, who is Adjunct Professor of Law and Director of the Homeland and National Security Law Program at the Antonin Scalia Law School.

On January 18, 2017, the Supreme Court heard oral arguments in Lee v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal to the U.S. Court of Appeals for the Federal Circuit, a panel of judges determined that the Office officials were within their rights to refuse the application. The Federal Circuit then reviewed the case en banc and found that the Disparagement Clause violated the First Amendment and that the Office should not have refused the application. -- The question before the Supreme Court is whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment. -- To discuss the case, we have Megan L. Brown, who is Partner at Wiley Rein LLP.