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petitions of the week

First Amendment questions and California arbitration battles

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the scope of the First Amendment — specifically, whether a law forbidding clandestine recordings is overbroad and whether a state may require individuals to carry identification cards labeled “SEX OFFENDER.” Next, we explore the bounds of the Federal Arbitration Act, with a pair of petitions arguing that California’s efforts to restrict arbitration agreements undermine federal law.

Two petitions ask the justices to take up novel First Amendment issues. Project Veritas Action Fund v. Rollins challenges a Massachusetts law that makes it a felony to secretly record the speech of anyone other than a law enforcement officer, irrespective of motive. At its broadest application, this could include speech at public events, protests or public forums. The U.S. Court of Appeals for the 1st Circuit dismissed the challenge on ripeness grounds, ruling that mere “plans” to engage in secretive recordings are not enough to create a real and concrete controversy. If the justices grant the petition, it would be the first time the Supreme Court addresses the First Amendment implications of secret audio recordings.

The next free-speech challenge involves the limits of the First Amendment’s prohibition on compelled speech. In Louisiana v. Hill, the Louisiana Supreme Court affirmed a district court ruling that struck down two state statutes — one requiring sex offenders to obtain specialized identification cards (with the words “SEX OFFENDER” in all caps) and the other prohibiting alteration of such identification documents. The district court found both statutes to violate the First and 14th Amendments, explaining that the sex offender designation is “not the least restrictive way to further the State’s legitimate interest of notifying law enforcement.” Louisiana argues that this decision conflicts with the Supreme Court’s prior decisions on compelled speech and government speech, and threatens the state’s ability to comply with the Sex Offender Registration and Notification Act.

Two more petitions ask the court to weigh in on arbitration issues. HRB Tax Group, Inc. v. Snarr is a class-action lawsuit brought in California against H&R Block and its subsidiaries. The U.S. Court of Appeals for the 9th Circuit applied California state law – as articulated by a California Supreme Court decision – and concluded that a provision in a pre-dispute arbitration agreement for individualized proceedings that waives the right to “public injunctive relief” is contrary to California public policy and thus unenforceable. Two H&R Block subsidiaries argue that the Federal Arbitration Act preempts state law and directs courts to enforce arbitration agreements according to their terms. The company says the FAA would be undermined if plaintiffs could include a public-injunction claim in every consumer case in which the parties agreed to arbitrate.

The second FAA petition also arises out of California. In Viking River Cruises, Inc. v. Moriana, a former employee of a cruise company sued the company under California’s Private Attorneys General Act, which allows workers to recover civil damages on behalf of themselves, other employees and the state. The company sought to compel arbitration, citing a provision in the parties’ arbitration agreement that waived the right to bring PAGA claims. A state court in California ruled that such a waiver is against California public policy and unenforceable. Arguing that this holding directly conflicts with the Supreme Court’s rulings in AT&T Mobility, LLC v. Concepcion and Epic Systems Corp. v. Lewis, the cruise company asks for the justices’ review.

These and other petitions of the week are below:

Rivas-Villegas v. Cortesluna
Issues: (1) Whether the U.S. Court of Appeals for the 9th Circuit departed from the Supreme Court’s decisions in Graham v. Connor and Plumhoff v. Rickard in denying qualified immunity to Daniel Rivas-Villegas based upon the absence of a constitutional violation, by concluding that pushing a suspect down with a foot and briefly placing a knee against the back of a prone, armed suspect while handcuffing him, could constitute excessive force; and (2) whether the 9th Circuit departed from the Supreme Court’s decision in Kisela v. Hughes and numerous other cases by denying qualified immunity even though two judges concluded the use of force was reasonable, and notwithstanding the absence of clearly established law imposing liability under circumstances closely analogous to those confronting Rivas-Villegas.

Pivotal Software, Inc. v. Tran
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to SCOTUSblog in various capacities, is counsel to the respondents in this case. This listing occurs without regard to the likelihood that certiorari will be granted.]
Issue: Whether the Private Securities Litigation Reform Act’s discovery-stay provision applies to a private action under the Securities Act of 1933 in state or federal court, or solely to a private action in federal court.

HRB Tax Group, Inc. v. Snarr
Issue: Whether California’s public-policy rule declining to enforce agreements for individualized arbitration whenever a plaintiff seeks a public injunction is preempted by the Federal Arbitration Act.

Viking River Cruises, Inc. v. Moriana
Issue: Whether the Federal Arbitration Act requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act.

Louisiana v. Hill
Issues: (1) Whether a state may require convicted sex offenders to obtain and carry a state identification bearing the words “sex offender” without facially violating the First Amendment’s prohibition on compelled speech; and (2) whether a convicted sex offender has a First Amendment right not to be prosecuted for fraudulently altering a state identification card after scratching off a statutorily required sex offender designation.

Project Veritas Action Fund v. Rollins
Issues: (1) Whether a recording law, which makes it a felony for individuals to secretly record under any circumstances, is not facially overbroad under the First Amendment; and (2) whether a party challenging a speech suppressive law has the burden to precisely articulate every type of contemplated speech activity to satisfy ripeness for as-applied challenges.

Recommended Citation: Mitchell Jagodinski, First Amendment questions and California arbitration battles, SCOTUSblog (May. 28, 2021, 5:20 PM),