from the a-little-constitutionalism,-as-a-treat dept

Shortly before the Supreme Court inflicted enormous damage on the Voting Rights Act, the Reconstruction Amendments of the Constitution, any pretense of constitutionally guaranteed Equal Protection, the civil rights movement, its credibility, and our democracy writ large with its Alito-penned decision in Louisiana v. Callais, it released a separate decision in First Women’s Choice Resource Centers v. Davenport.

In terms of overall substance, this latter case was one where an anti-choice plaintiff got a win, which perhaps is why there was little trouble in the Court reaching a unanimous result in its favor. But it is just a procedural win, allowing its case to go forward, rather than a judicial validation of its actual viewpoint. (“This case presents a narrow question. We are not asked to decide the merits of First Choice’s federal lawsuit, only whether it may proceed.” [p. 5]). And, more importantly, it is a strong First Amendment win, with language that will be useful in later cases, including ones where more liberal positions have been impacted by government overreach. (“We have recognized […] that associational rights carry
special significance for political, social, religious, and other minorities. With the freedom to associate, minorities can ‘show their numerical strength,’ influence policy, and ‘stimulate competition’ in the marketplace of ideas. But take that freedom away and ‘dissident expression’ stands particularly vulnerable to marginalization or outright ‘suppression by the majority,’ leaving all of society poorer for it.” [p. 7]). And it will be useful in cases in federal and state courts all over the country, where it is binding precedent, and not just at the Supreme Court, which can blow with the wind depending on whose case is before it.

In other words, it is a decision that is likely to matter, and in a way that is good news for the First Amendment and the rights it protects, particularly with respect to associative freedom, the anonymity such expressive relationships depend on, and the standing needed to be able to challenge government intrusions on either, including by way of subpoenas.

In this case the plaintiff, First Women’s Choice Resource Centers, Inc., is what is sometimes referred to as a crisis pregnancy center. Despite the plaintiff’s name invoking “choice” such places are not about informing pregnant women about the full range of choices available to them. They instead steer them towards avenues that do not include the medical care needed to potentially terminate their pregnancy. The issue however is not that those running these centers don’t wish to support abortion but that they may be deceptively ensnaring vulnerable women who think they are getting more comprehensive advice about their choices than the limited information these centers offer, which has led some states, like New Jersey, to investigate whether they are indeed duping people.

But in this case New Jersey—the defendant in this case—as part of its investigation tried to subpoena the plaintiff for names of its donors (“Effectively, that demand required First Choice to provide personal information about donors who gave through two other websites, through the group’s various social media pages, by mail, in person, or by any other means.” [p. 2-3]). The stated rationale for seeking this data was to ensure that no donor had similarly been deceived as to the services the plaintiff delivered. [p. 3]. The plaintiff’s attempt to avoid the subpoena led to litigation in both state and federal courts, with the state seeking to enforce the subpoena in the former and the plaintiff bringing a civil rights lawsuit in the latter, alleging that the subpoena violated its First Amendment rights.

A federal law—42 U. S. C. §1983—authorizes suits against any person who, under color of state law, deprives another of his federal constitutional rights. First Choice filed a complaint under that statute, arguing, among other things, that the Attorney General’s demand for information about its donors violated its First Amendment rights. Specifically, First Choice observed that the First Amendment “prohibits the government from discouraging people from associating with others” “in pursuit of many political, social, economic, educational, religious, and cultural ends.” And, First Choice alleged, the Attorney General’s subpoena had just that impermissible effect. For its donors, the group represented, “anonymity is of paramount importance,” and its inability to guarantee that anonymity in the face of the Attorney General’s demands injured the group by discouraging donors from associating with it. [p. 3-4]

The federal district court dismissed the suit, largely on the grounds that because the state litigation had not yet resulted in the subpoena being enforced the plaintiff hadn’t suffered an injury it could sue over, [p. 4-5], and the Third Circuit upheld the dismissal. [p. 5]. With this decision, however, the Supreme Court has now allowed the federal lawsuit to go forward, finding that the plaintiff indeed has the standing to challenge how the subpoena affects its First Amendment rights.

“Standing” has to do with whether a party is eligible to bring a certain lawsuit. Courts can only hear legitimate “cases and controversies,” [p. 5], and standing helps ensure that the litigation put before it meets that criteria by ensuring that the parties bringing it are entitled to. [p. 5-6]. They are only entitled to if they have an “injury in fact,” caused by the defendant, and the litigation is capable of redressing it. [p.5].

This case focused on whether the injury-in-fact element was satisfied. [p. 6]. It can only be satisfied when the litigation involves “an injury that is concrete, particularized, and actual or imminent.” [p. 6]. And here the Court found that there was such an “actual and ongoing” injury, caused by the subpoena itself. [p. 6]. In fact, even though the state litigation had not yet resulted in the subpoena being enforced made no difference; it was the very existence of the subpoena that was so chilling to the plaintiff’s First Amendment rights. (“Even if a subpoena targeting First Amendment activity is never enforced in court, [it] will give its targets a very good reason to clam up [and] give the target organization’s members and supporters a very good reason to abandon the cause.” [p. 12]).

The reason is that the plaintiff is allowed to hold its anti-abortion views. And others who share those views are allowed to associate with the plaintiff, including by giving it support. But if those others had to fear the government showing up at their door to discuss their views, they would be reluctant to continue their association with the plaintiff. And that reluctance would result in harm to the plaintiff, now unable to associate with others as freely as they should have been able to and would have been able to if the subpoena had not given rise to the fear that their donors’ identities would be discoverable by the government.

Finally, consider First Choice’s two unrebutted declarations. In the first, several donors represented that “[e]ach of us would have been less likely to donate to First Choice if we had known information about the donation might be disclosed” to the Attorney General. The donors added that they submitted their declaration anonymously because they feared what they called the Attorney General’s “record of hostility toward pro-life groups.” I the second declaration, First Choice’s executive director stated that the Attorney General’s demand threatened to “weaken [the group’s] ability to recruit new donors . . . as prospective partners would be hesitant to risk the revelation of their personal information through government investigation.” All this is more than enough to establish injury in fact under our precedents. An injury in fact does not arise only when a defendant causes a tangible harm to a plaintiff, like a physical injury or monetary loss. It can also arise when a defendant burdens a plaintiff ’s constitutional rights. […] All this occurs not just when a demand is enforced, but when it is made and for as long as it remains outstanding. [p. 11-12]

As the Court reminded, associative freedom is protected by the First Amendment.

The First Amendment guarantees all Americans the rights to speak, worship, publish, assemble, and petition their government freely. Each of these rights, this Court has “‘long understood,’” necessarily carries with it “‘a corresponding right to associate with others.’” […] Appreciating all this, we have held that government actions tending to “curtai[l] the freedom to associate” warrant “the closest scrutiny” under the First Amendment. […] We have also held that “compelled disclosure of affiliation with groups engaged in advocacy” can “constitute a[n] effective . . . restraint on freedom of association.” [p. 6-7]

As is the anonymity that expression, including associative expression, often requires.

[In NAACP v. Alabama we observed] the “vital relationship” between “privacy in one’s associations” and the “freedom to associate.” Strip away the ability of individuals to work together free from governmental oversight and intrusion, and the freedom to associate may become no freedom at all—individuals deterred, groups diminished, and their protected advocacy suppressed. [p. 8]

[…]

Since NAACP v. Alabama, we have faced many cases along similar lines. In them, one state authority or another has demanded private donor or member information. And in one case after another we have subjected those demands to heightened First Amendment scrutiny. Throughout, we have emphasized the critical role “‘privacy in . . . associatio[n]’” plays “‘in preserving political and cultural diversity and in shielding dissident expression from suppression.’” We have acknowledged, too, that demands for private donor information “inevitabl[y]” carry with them a “deterrent effect on the exercise of First Amendment rights.” [p. 9]

Yet here was a subpoena now threatening both.

Each of these strands tightens the braid into one conclusion. From its allegations and declarations, and given our many and longstanding precedents in the area and reasonable inferences about third party behavior, First Choice has established that the Attorney General’s demand for private donor information injures the group’s First Amendment associational rights. [p. 13]

It is conceivably possible that on remand the lower courts might find the rationale behind the subpoena “’sufficient to justify the deterrent effect’ associated with the disclosure demand, [p. 8], and narrowly-tailored enough, [p. 10], such that there was in fact no actual intrusion on the plaintiff’s First Amendment rights stemming from its issuance. This decision by the Supreme Court does not resolve the question; it only determined that the question could be brought before the courts. But the same analysis that allowed the Supreme Court to identify a likely constitutional injury, enough for the plaintiff to be able to bring the case before the courts to seek a remedy, may yet be employed to find there indeed was an injury that requires redressing—here, by quashing the subpoena.

But regardless of what ultimately happens to the plaintiff’s case, this decision by the Supreme Court has broader implications. First, it doubles-down on prior precedent protecting freedom of association and the anonymity it depends on, and second—and perhaps more practically—it directly ties these First Amendment interests to the discovery instruments propounded by government actors, often too casually, seeking to unmask people. It makes clear that the intermediaries receiving these unmasking demands have their own cognizable First Amendment rights in being able to preserve the anonymity of those who associate with them, with the standing to challenge when those rights are trampled. And although this case addressed organizations and their donors, it is but a small analytical step to apply the same or similar reasoning to Internet platforms seeking to protect the identities of their users from seeking to unmask anonymous speakers, especially in concert with McIntyre v. Ohio Elections Commission, regarding the First Amendment protection for anonymous speech, and Moody v. NetChoice, regarding the First Amendment’s protection of platforms’ editorial and associative discretion. Per this decision, those unmasking attempts can amount to a constitutional injury to the platforms themselves, which they now have compelling new precedent to use to fight them.

Filed Under: 1st amendment, anonymity, anonymous donors, associational rights, crisis pregnancy centers, donors, free speech, supreme court

Companies: first women’s choice resource centers

Skullcandy headphones aren’t always the sharpest tools in the proverbial shed, but they do have cool looks and have affordable price tags, and that gets even better with these Skullcandy promo codes on a few of the brand’s top products. If you’re after a pair of in-ear, open-ear, or over-ear headphones, Skullcandy has cut prices on several of its headphones, making now a decent time to buy. Plus, make sure you check out our Skullcandy coupons above for even more savings.

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A24 has emerged as one of the most original production companies in recent years. And while the films it produces span every genre — horror, documentary, comedy and beyond — the entertainment house has become synonymous with a certain aesthetic. 

The company has attracted singular filmmakers like Sofia Coppola, Ari Aster, Yorgos Lanthimos and Barry Jenkins, who have helped define the company’s creative ethos to the point that it’s often easy to recognize a film as being an A24 production. And its films aren’t just underground hits, either. Many of them, like Minari, The Zone of Interest and Everything Everywhere All at Once, have also won Oscars.

While HBO Max is the premier destination to stream the most A24 films, you can find some of its best movies across several free streaming services such as Kanopy, Tubi, Pluto TV and Plex. This May, watch acclaimed films like The Farewell, which won Awkwafina a Golden Globe for her lead performance, the comedy-horror Bodies Bodies Bodies, and the Oscar-nominated Past Lives, and many others, which have all recently arrived on these services. 

Here are some of our favorite A24 hits that you can watch now without spending a dime. 

2022’s Bodies Bodies Bodies is a hilarious dark comedy that features a deep bench of talent, including Amandla Stenberg, Maria Bakalova, Myha’la, Chase Sui Wonders, Rachel Sennott and Pete Davidson. Taking place mostly over the course of one night, a group of friends assembles at one of their homes to take shelter during an impending storm. They decide to play a Mafia-style parlor game where one of the guests pretends to kill another, and the others have to figure out who the murderer is. But when one of them actually ends up with a slashed throat, everyone panics and, well, the bodies, bodies, bodies start piling up for real.

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Comedian Awkwafina won a Golden Globe for her role in the great 2019 comedic drama The Farewell. She played a young Chinese-American woman, Billi, whose family learns that her grandmother, Nai Nai, is dying of cancer. They decide to keep Nai Nai’s diagnosis from her, and instead choose to hold a large wedding for Billi’s cousin without inviting Billi, fearing that she’ll tell her grandmother that she’s dying. But Billi crashes the wedding so she can spend more time with Nai Nai, knowing their time together is limited.

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Celine Song’s directorial debut, Past Lives, stars Greta Lee and Teo Yoo as childhood friends Nora and Hae Sung, who met as young children in Seoul, South Korea. The film explores their relationship over two decades as they grow apart after Nora moves to the US, then reconnect as adults. When the two reunite, Nora, now married, feels a closeness to Hae Sung, and together they wonder what would have happened had she not moved away as a child. 

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Sofia Coppola directed the 2023 biopic Priscilla, which tells the story of a young Priscilla Presley, a teen when she met her future husband, Elvis Presley. Cailee Spaeny and Jacob Elordi portray the couple in this Golden Globe-nominated film. 

Ari Aster directed this surrealist dark comedy about a man named Beau (Joaquin Phoenix) on a journey to his mother’s house for her funeral, believing she’s dead. The journey is a fever dream of unexpected detours, and when he gets there, he learns his mother (played by Patti LuPone) was not actually dead. In fact, she’s been spying on him while he’s been on his bizarre journey. Parker Posey, Nathan Lane, Amy Ryan and Zoe Lister-Jones also appear.

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Julia Louis-Dreyfus may be best known for her comedic chops, but in the 2023 fantasy drama Tuesday, she makes a major departure. She stars as a mother, Zora, desperate to keep her terminally ill daughter, Tuesday (Lola Pettigrew), alive. After she meets Death, who visits their family in the form of a giant macaw, Zora tries to prevent the bird from taking her daughter from this life. As she tries to destroy it, some unexpected consequences arise until Zora ultimately realizes you can’t stop Death.

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Set in western Massachusetts in the 1990s, Janet Planet is a coming-of-age story about a young girl, Lacy (Zoe Ziegler), growing up with her single mom, Janet (Julianne Nicholson). The critically acclaimed film is available now on Kanopy, Pluto, Plex and Tubi.

At Ulta Beauty, you can stock up on skincare, makeup, and haircare, then head to the salon to get your brows shaped, your hair styled, and your ears pierced, all in a single visit. You’ll find brands like Dior, Estée Lauder, and Gucci alongside more affordable favorites and drugstore staples. Many locations house a Benefit Cosmetics BrowBar, so you can sample products and book an in-store brow service in the same visit. Ulta’s return policy is very forgiving, allowing you to bring back “gently used” products within 30 days for a full refund. Add in its weekly sales, the 21+ Days of Beauty Event, and stackable Ulta coupons, and you’ll rarely pay full price.

I’ve tested a wide range of beauty products that are sold at Ulta, from hair tools and LED devices to pimple patches and lip balms. Here’s how to shop smarter, with the best Ulta promo codes and Ulta coupons to keep on your radar.

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Always check Ulta’s Featured Deals and Sale pages, as they regularly update with new offers. In addition to makeup and skincare products, Ulta also provides discounts on hair care tools and wellness technology that we have tested and recommended.

Look out for Dyson products, which frequently go on sale. Some of my favorites include the Supersonic Nural, the Airwrap i.d. Multistyler, and the Airstrait Wet-to-Dry Straightener. If you’re looking for a more affordable option, Shark’s FlexStyle Air Styling System and SpeedStyle Pro Flex Hair Dryer (currently on sale) are also often discounted. Other hair stylers we’ve noticed on these pages include the L’Oreal Professionnel AirLight Pro, T3 Aire IQ Intelligent Hair Dryer (currently on sale), Ghd Duet Style 2-in-1 Hot Air Styler (currently on sale), and the Bio Ionic Smart-X Dryer.

Strands is the NYT’s latest word game after the likes of Wordle, Spelling Bee and Connections – and it’s great fun. It can be difficult, though, so read on for my Strands hints.

Want more word-based fun? Then check out my NYT Connections today and Quordle today pages for hints and answers for those games, and Marc’s Wordle today page for the original viral word game.

The organization behind the Academy Awards released new Oscar rules on Friday, including several that address the use of generative artificial intelligence.

The Academy of Motion Picture Arts and Sciences said that only performances “credited in the film’s legal billing and demonstrably performed by humans with their consent” will be eligible for Academy Awards. Similarly, the academy said that screenplays must be “human-authored” to be eligible.

The academy also said it has the right to request more information about a film’s AI usage and “human authorship.”

These rule changes come as an independent film is in the works with an AI-generated version of Val Kilmer, as AI “actress” Tilly Norwood keeps making headlines, and as new video models are causing at least a few filmmakers to make sweeping declarations of despair. AI was also one of the main sticking points in the actors’ and writers’ strikes back in 2023.

Outside Hollywood, at least one novel has been pulled by its publisher due to the apparent use of AI, and other writers’ groups are declaring that AI usage makes work ineligible for awards.

The final episode of The Leaders’ Room podcast season four features Sean Gayer, VP of operations for EMEA manufacturing at Boston Scientific. This series is created in partnership with IDA Ireland.

Once again in season four of The Leaders’ Room podcast, we get to know the leaders of some of the most influential multinationals in tech, life sciences and innovation, as well as getting insights into their leadership styles and the high-tech trends that are transforming their industries.

In this final episode of season four, we speak to Sean Gayer, VP of operations for EMEA manufacturing at Boston Scientific, about his role at one of the world’s major medtech organisations, the future of human health as we all live longer, and the kind of leadership that keeps people – and patients – at the centre.

Boston Scientific was founded in 1979 and is today a global medical device company with revenues of $20bn, a presence in 127 countries, 59,000 employees and 48m patients treated annually. Its stated mission – to transform lives through innovative medical solutions – is one that comes through clearly in how Gayer talks about the company and the work being done at its three Irish facilities.

In Ireland, Boston Scientific has three manufacturing sites and around 8,000 employees in total. Galway, the largest site with more than 4,000 staff, focuses on cardiovascular products including the Watchman device – a stroke prevention product placed in the heart that reduces the risk of clotting and the need for lifelong blood thinners.

Clonmel makes active implantables: defibrillators, pacemakers and a deep brain stimulation device used in the treatment of Parkinson’s. Cork produces cancer treatment products, catheters and a device called Rotablator, which rotates at 160,000 revolutions per minute to drill out calcified plaque in the arteries, explains Gayer.

A €75m investment in R&D capabilities in Galway was announced shortly before we spoke, which Gayer says reflects the confidence the company has in the Irish sites, and the direction of travel for Boston Scientific in this country.

Scorekeeper or team player?

Gayer’s route to his current role is an unconventional one, and he tells it with good humour. A BCom from UCC, training at PwC, and then his first industry role at Millipore (now Merck), where an early manager gave him advice that has stayed with him to this day: you can be a scorekeeper or a team player, and you’ll have more fun being a team player. “Go down to the production floor, understand what is driving the numbers, and then you can actually do something about them,” explains Gayer.

It is a principle he refers to as Gemba – going to where the problem actually is, talking to the people doing the work – and he has carried it through every role since: a hearing healthcare company, a spell in telecoms and ICT, and then Boston Scientific Cork in 2013 as finance director. Two years later he became site lead, and two years ago he stepped into the EMEA regional role. An accountant, as he puts it, “who had too much interest in operations”.

On leadership, Gayer draws on the Shingo Prize model, which Boston Scientific Cork challenged for successfully during his time as site lead. At the top of the triangle is the North Star – for Boston Scientific, positively impacting patients’ lives. At the base are the cultural enablers – lead with humility, and respect every individual, says Gayer. The middle piece, he says, takes care of itself if you give the right people a well-defined problem rooted in purpose.

Looking to the future

The conversation about the future of human health is a fascinating one. We are living longer – average life expectancy in Ireland has risen by more than 20 years in the past century, and that is likely to continue. That puts real pressure on health systems, and Gayer sees AI, robotics and remote monitoring as part of the response – AI for early detection and clinical decision-making, robotic-assisted surgeries and virtual wards that allow patients to recover at home while being monitored remotely. That kind of thinking, he says, is what the health system needs more of.

In manufacturing, the focus is on supply chain resilience post-Covid and on smarter, more connected factories where pooled data supports better decision-making. Boston Scientific’s Irish workforce of 8,000 represents, as Gayer put it to the company’s board, more than 70,000 years of accumulated knowledge. That, he said without hesitation, is their greatest asset.

We’re grateful to all our interviewees again this season, for taking the time out of busy schedules to come into the studio and share their insights and their intelligence with us. And a big thanks as ever to our partners IDA Ireland who make this series possible.

The Leaders’ Room podcast is released fortnightly and can be found by searching for ‘The Leaders’ Room’ wherever you get your podcasts. For those who prefer their audio with visuals, filmed versions of the podcast interviews are all available here on SiliconRepublic.com.

Check out The Leaders’ Room podcast for in-depth insights from some of Ireland’s top leaders. Listen now on Spotify, on Apple or wherever you get your podcasts.