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The Court of Appeals released a published opinion in People v Sledge, Docket Nos. 324680, 324681 (October 1, 2015), that vacated the Wayne County Circuit Court's gag order in two criminal cases against Sledge, the former Wayne County Chief Financial Officer, and Collins, the Assistant Wayne County Corporation Counsel, regarding the failure of the Wayne County Jail Project, a $300 million budgeted project to build a jail in Detroit, which shut down with only a quarter of the construction completed due to an overrun in costs of $100 million. The Detroit Free Press intervened in the case to oppose the Wayne County Circuit Court's sealing of the record and the gag order, which infringed on the Free Press's First Amendment rights. 

Though this case contains a lot of interesting legal concepts, a particularly interesting aspect is the focus on the importance of First Amendment rights as they relate to the freedom of the press. Though the Detroit Free Press's standing to contest the gag order was not contested, the Court of Appeals nevertheless took the time to explain why the Free Press had standing in the case, perhaps because the Court of Appeals had initially denied the Free Press's application for leave to appeal the Circuit Court's upholding of the gag order on the basis that "[t]he gag order placed no direct restraint of any kind on the Free Press" and the "Free Press has not identified any willing speaker who feels restrained." Slip op at 4. The Court of Appeals explained that the Free Press had standing as both a news gatherer and a recipient of the banned speech. 

The Court of Appeals' discussion of prior restraints on speech also emphasized that "the damage  of a prior restraint is especially great when the prior restraint prevents the media from publishing news stories on current events." Slip op at 7. In finding that the gag order in this case was "incredibly overbroad and vague" and that the Circuit Court had not sufficiently justified the gag order to overcome the heavy presumption of unconstitutionality, the Court of Appeals held that the the Circuit Court did not weigh the interests of a fair trial against the media and the public's interests in access to information. The Court of Appeals noted that these public and media rights were especially important in this case because of the subject matter of the case: the failed Wayne County Jail Project and the millions of taxpayers' wasted dollars.

The United States Court of Appeals for the Sixth Circuit recently released a published opinion holding that the plaintiffs, four self-described "Juggalos" and two members of the band Insane Clown Posse, had standing for their claims against the US Department of Justice and the FBI that they suffered violations of their First and Fifth Amendment rights. Parsons v US Dep't of Justice, Docket No. 14-1848 (September 17, 2015). The Sixth Circuit reversed the District Court's dismissal for lack of standing and remanded for consideration of the defendants' FRCP 12(b)(6) (failure to state a claim) arguments.

The Juggalos are fans of the Insane Clown Posse (ICP) and other bands on ICP's independent record label, Psychopathic Records. ICP plays various types of music, some of which that is self-described as "horrorcore hip hop" using harsh language. Juggalos frequently have distinctive tattoos and insignias on their clothing. They also paint their faces to look like clowns. These identifying features often use a "hatchetman" logo, which is specifically a Juggalo symbol. A simple google search will reveal information about their distinctive culture. When Congress created a National Gang Intelligence Center (NGIC), it also created a gang information database and directed the NGIC to submit a report to Congress on gang activity. The 2011 NGIC Report classified Juggalos as a "loosely-organized hybrid gang." Slip op at 4. The Report indicated that Juggalos commit crimes, but they are mostly sporadic less serious crimes; though there are some Juggalos that engage in "more gang-like criminal activity." Slip op at 4.

The plaintiffs alleged separate injuries for the complaint, though many had similar experiences. The basic categories were: "chilling effects on their freedoms of speech and association; stigmatic reputational injury; and various harms inflicted by third-party law enforcement agencies, such as improper stops, detentions, interrogations, searches, denial of employment, and interference with contractual relations." Slip op at 10. The details of each of their alleged injuries are described in the slip opinion at pages 5-7. A common thread in the injuries was that the Juggalos had visible ICP-related tattoos, clothing, or displayed insignias and were purportedly legally injured because of Juggalos classification as gang members in the 2011 NGIC Report. The two ICP band members allegedly lost a contract for an annual music event because the local police department asked the venue to cancel the event due to the federal Juggalo gang designation.

The Sixth Circuit determined that the plaintiffs had met their burden of proving cause in fact for the purposes of standing for all of their claims. For the plaintiffs' First Amendment and Due Process claims, the Sixth Circuit held that the alleged chilling effect was insufficient alone as an injury because "the 2011 NGTA Report does not regulate, constrain, or compel any action on the part of the plaintiffs." Slip op at 10 (internal quotations omitted). The alleged reputational injury, however, was enough to establish injury in fact, especially because the claims of chilling effect were combined with the "concrete allegations of reputational harm." Slip op at 11. The Sixth Circuit also held that stigmatization was injury in fact for the standing analysis. For the plaintiffs' procedural APA and Declaratory Judgment Act claims, the Sixth Circuit indicated that "procedural rights are treated uniquely under the standing inquiry" and that a "person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Slip op at 12 (internal quotations omitted). The Sixth Circuit held that similar to Wright v. O’Day, 706 F.3d 769, 771-72 (6th Cir. 2013) where the Sixth Circuit found freedom from placement on a child-abuse registry was an injury in fact for a procedural due process claim, the Juggalos "freedom from placement in the 2011 NGIC Report" was a sufficient basis to establish standing requirement of injury in fact for a procedural due process claim.

The Sixth Circuit also held that the Juggalos and ICP members had proven causation for standing, indicating that the alleged injury must only be "fairly traceable" to the challenged action and need not be proximate or but-for. Further, that third parties had to exercise independent judgment did not obviate the causation for the purpose of standing. The Sixth Circuit noted, "The Juggalos' allegations link the 2011 NGTA Report to their injuries by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question." Slip op at 14. The Sixth Circuit said that "it is still possible to motivate harmful conduct without giving a direct order to engage in said conduct." Slip op at p 14. 

The Sixth Circuit held that Juggalos requests for relief met the standing requirement of redressability because an order setting aside the 2011 NGIC Report would "abate the reflection of Juggalo criminal activity as gang or gang-like by the Agencies." Slip op at 18. The Sixth Circuit further stated the plaintiffs sufficiently argued that the reputational harm and chill would be alleviated.

The Sixth Circuit therefore reversed and remanded for consideration of the defendants' FRCP 12(b)(6) (failure to state a claim) motion to dismiss. 

*The title to this post is a play on lyrics in the ICP song "Miracles," ("Fucking magnets, how do they work?"), which is frequently poked fun at in online forums.