By Michael Moffitt . 114 Penn St. L. Rev. Penn Statim 51.
Published July 26, 2010. View as PDF.

Preferred Citation: Michael Moffitt, Iqbal and Settlement, 114 Penn St. L. Rev. Penn Statim 51 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 51.pdf.

Iqbal and Settlement
By Michael Moffitt

The Supreme Court’s decision in Iqbal was good news for defendants. By increasing the scrutiny with which a plaintiff’s complaint is to be examined, the “plausibility” standard articulated by the Court makes motions to dismiss a more potent tool.

A nearly implausible amount of scholarly ink has already been spilled in an endeavor to answer descriptive, predictive, and normative questions about Iqbal. What does the plausibility standard really mean? How much of a change does this represent? Who will be most affected? And are those changes wonderful, awful, or something else? The sky either is or is not falling on some or all of us, according to Iqbal analysts.

Much of what has been written about Iqbal has been written from the perspective of litigation, and that is perfectly sensible. After all, Iqbal is a decision about Federal Rule of Civil Procedure 8, at its heart. Questions of access to the court and defenses like immunity are bread and butter Civil Procedure topics. Of course many of those who have commented on the case do so from a litigation perspective.

As Nancy Welsh suggests, however, the realities of modern litigation present another frame through which to assess Iqbal—that of settlement dynamics. My question is not whether Iqbal will have this or that effect on litigation. My question is whether Iqbal will create a change in disputants’ conversations about settlement. [keep reading]

By Angelique EagleWoman . 114 Penn St. L. Rev. Penn Statim 41.
Published July 9, 2010. View as PDF.

Preferred Citation: Angelique EagleWoman, A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards, 114 Penn St. L. Rev. Penn Statim 41 (2010), available at http://www.pennstatelawreview.org/114/114 Penn Statim 41.pdf.

A Constitutional Crisis When the U.S. Supreme Court Acts in a Legislative Manner? An Essay Offering a Perspective on Judicial Activism in Federal Indian Law and Federal Civil Procedure Pleading Standards
By Angelique EagleWoman (Wambdi A. WasteWin)

The United States Supreme Court is one of the three branches of federal government in the U.S. governmental system of checks and balances. The primary purpose of the Court is to resolve live controversies as final arbiter on the interpretation of the U.S. Constitution and the federal legislation implementing that foundational document. For scholars of federal Indian law, the U.S. Supreme Court has acted extra-constitutionally since it first heard a case involving tribal rights and has continued its “legislative” function in this area of the law ever since. Recently, the Court has stepped outside of the bounds of textual interpretation by creating a new level of civil pleading standards based on a “plausibility” requirement, rather than on the established Federal Rules of Civil Procedure notice pleading standard. While the judicial activism and unrestrained extra-textual interpretations in federal Indian law have been known to a core group in the field, the Court’s recent unmooring of civil pleading standards from the Federal Rules and settled precedent has come as a shock to many.

This essay will examine the U.S. Supreme Court’s judicial activism in relation to federal Indian law as a beginning point to discuss the recent introduction of the “plausibility” requirement in federal pleading sufficiency determinations. By examining the decisional law in the field of federal Indian law, the claimed power by the Court to redefine the legal status of Tribal Nations will become apparent. Next, the consequences of the U.S. Supreme Court’s unfettered ability to reshape law and limit access to the federal courts will be discussed. Finally, the essay will offer some conclusions on the constitutional crisis presented by the Court’s lack of judicial restraint in the legislative and political arenas. [keep reading]

By Elizabeth Kukura. 114 Penn St. L. Rev. 955

The reproductive rights movement has fought many uphill battles for the rights of women to decide how to use their bodies in matters of sex and reproduction. Since the earliest battles over access to contraception, control over women‘s bodies and sexuality has been contested terrain where reproductive rights advocates have used autonomy and liberty arguments in attempts to stake out space for women to determine their reproductive lives. During periods of victory in the courts of justice and public opinion, women have experienced fewer barriers to accessing abortion and have benefited from a richer, more nuanced understanding of the conditions required for truly unconstrained decision-making about reproductive and sexual health. During periods of backlash and retrenchment, women have suffered burdensome restrictions on access to critical services, as the concept of reproductive autonomy has been whittled away by legislators, judges, and prosecutors. Throughout these ups and downs, the debate has unfolded with abortion at the center of the struggle for reproductive freedom. [keep reading]

By David B. Kopel, Paul Gallant, and Joanne D. Eisen. 114 Penn St. L. Rev. 891

Abstract: Advocates of the proposed United Nations Arms Trade Treaty (ATT) promise that it will prevent the flow of arms to human rights violators. This Article first examines the ATT and observes that the ATT, if implemented as promised, would require dozens of additional arms embargoes, including embargoes on much of Africa. The Article then provides case studies of the current supply of arms to the dictatorship in Zimbabwe and to the warlords in the eastern Democratic Republic of the Congo (DRC). The Article argues that the ATT would do nothing to remediate the conditions that have allowed so many arms to be acquired by human rights violators. The ATT would have no more effective force than the embargoes that are already imposed by the U.N. Security Council; therefore U.N. member states, including China, which violate current Security Council embargoes, could just as well violate ATT embargoes. Accordingly, the ATT is a distraction, and human rights activists should instead examine alternative methods of addressing the problem of arms in the hands of human rights violators.
At the end of this Article, there is an abstract in Spanish, and a detailed summary of the Article in French. [keep reading]

By Martin J. Katz. 114 Penn St. L. Rev. 857

The Supreme Court has done a turn-about on the value of uniformity in employment discrimination law. For many years, the Court embraced the idea that different employment discrimination statutes that use identical language should be understood to impose identical requirements. So, for example, a plaintiff claiming age discrimination under the Age Discrimination in Employment Act (ADEA) would face the same requirements as a plaintiff claiming race or sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII). More recently, the Court has moved away from this ideal of uniformity. And last summer, in Gross v. FBL Financial Services, the Court completely rejected that ideal. [keep reading]

By M. Ryan Calo. 114 Penn St. L. Rev. 809.

This article updates the traditional discussion of privacy and technology, focused since the days of Warren and Brandeis on the capacity of technology to manipulate information. It proposes a novel dimension to the impact of anthropomorphic or social design on privacy.

Technologies designed to imitate people—through voice, animation, and natural language—are increasingly commonplace, showing up in our cars, computers, phones, and homes. A rich literature in communications and psychology suggests that we are hardwired to react to such technology as though a person were actually present. Social interfaces accordingly capture our attention, improve interactivity, and can free up our hands for other tasks.

At the same time, technologies that imitate people have the potential to implicate long-standing privacy values. One of the well-documented effects on users of interfaces and devices that emulate people is the sensation of being observed and evaluated. Their presence can alter our attitude, behavior, and physiological state. Widespread adoption of such technology may accordingly lessen opportunities for solitude and chill curiosity and self-development. These effects are all the more dangerous in that they cannot be addressed through traditional privacy protections such as encryption or anonymization. At the same time, the unique properties of social technology also present an opportunity to improve privacy, particularly online. [keep reading]

By Michael J. Kelly. 114 Penn St. L. Rev. 707.

The Kurds have long struggled to control their own destiny. Through centuries of cyclical oppression and autonomy, the Kurds of northern Iraq finally united and seized an opportunity to secure a firm legal status for their de facto state within a federal Iraqi state in the aftermath of the Iraq War. In March 2009, I traveled to Erbil, the capital of Iraqi Kurdistan, and consulted with the Kurdish regional parliament‘s constitutional drafting committee as they finalized their new constitution.1 As a professor of comparative constitutional and international law, this was a rewarding experience to say the least. [keep reading]

By Eric Engle.  114 Penn St. L. Rev. Penn Statim 34.

Published March 23, 2010.  View as PDF.

Preferred citation:  Eric Engle, U.N. Packing the State’s Reputation? A Response to Professor Brewster’s “Unpacking the State’s Reputation”, 114 Penn St. L. Rev. Penn Statim 34 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 34.pdf.

Rachel Brewster is an assistant professor of law at Harvard Law School.  Her article Unpacking the State’s Reputation appeared in Harvard International Law Journal. Rachel Brewster, Unpacking the State’s Reputation, 50 Harv. Int’l L.J. 231 (2009).

U.N. Packing the State’s Reputation? A Response to Professor Brewster’s “Unpacking the State’s Reputation”

I wish to address some cursory statements made by Professor Brewster, mostly in the introduction of her recent article Unpacking the State’s Reputation.[1] I present my ideas point by point as “responsa” to her work[2] – as expansions on her points – rather than present my own views (a monist, materialist, cognitivist theory of international law).[3] This has the benefit of limiting my commentary to some brief positive points of public international law.[4]

Professor Brewster stated that: “The defining characteristic of international law is the lack of a centralized enforcement mechanism.”[5] That statement is a bit simplistic and inaccurate. The United Nations (UN) operates as a central clearinghouse for the formation of global and regional multilateral conventions – treaty law. The UN also regularly promulgates “soft” law:  non-binding, persuasive, and hortatory international norms. As to enforcement, the UN regularly sends out peacekeeping forces throughout the world to enforce international law. Moreover, several international tribunals (ICJ, ECtHR, IACtHR, ITLOS, ECJ, WTO-DSB, ICTY, ICTR)[6] adjudicate international claims.[7]

As to international law itself, there is no question that since World War II there are rules of international law, jus cogens, which bind all states regardless of the state’s consent.[8] Similarly, norms erga omnes, are owed by all states to the international system as a whole.[9] Thus, any state may (not must) enforce such norms.  The concept of erga omnes norms (norms owed to the international system as a whole), though recognized internationally is not so well developed in U.S. legal discourse.[10] In contrast, the concept of jus cogens norms (non-derogable norms) is well developed in U.S. legal discourse,[11] as well as internationally.[12] The existence of norms erga omnes and jus cogens norms show that the international system as a system offers rights and remedies regardless of the opinions of any particular state.

Professor Brewster is most likely aware of all that – and would probably also point out the limitations of the ICJ and the UN as global (and globalizing) institutions. However, whatever her views are, the international system is not a lawless state of nature inhabited by self-interested power-maximizing states, which only interact in zero sum conflict like isolated billiard balls.[13] The international system is something much more complex, beautiful, and rational.  It is a self-governing society comprised of 1) states with unlimited international legal personality; 2) international organizations with derived international legal personality; and 3) even non-state actors with limited international legal personality interacting almost always in positive sum economic terms and only very exceptionally in negative sum violent conflict.

International organizations today enjoy derived international legal personality.[14] They are subjects (not objects) of international law.  They make and enforce international laws, and yet they are not states.  The WTO is not a state, yet its Dispute Settlement Understanding is a global, centralized quasi-judicial mechanism for resolving international conflict.  I have argued elsewhere that the European Union (E.U.) is a confederation, a weak state, alongside its Member States.  My view, though defensible, is not the majority view.[15] The majority view is that the E.U. is becoming a state and is already a state-like body.  Most international lawyers regard the E.U. as a “mere” international organization, and not (yet) a state. [16] However, in any case, the E.U. makes and enforces international laws by and for its Member States.  Many international organizations (UN, MERCOSUR, Andean Community, ASEAN, African Union) contribute to the formation and enforcement of international law. True, only states were subjects of international law in the Westphalian state system.  However, since 1945, States are definitely no longer the only subjects of international law.  Today, a variety of actors have varying degrees of international legal personality under international law. [17]

Even private actors shape and enforce international law today.  For example, works of learned scholars form doctrine (Fr. jurisprudence, Ger., Rechtslehre), which in turn shapes opinio juris – one element of customary international law.  Moreover, private law actors form contracts with state actors; they also promulgate model codes and codes of good conduct.  Private actors also contribute to usages, one element of customary international law.  The second necessary element of customary international law is opinio juris – that not only do states act as they do, but they also believe that they are obligated to act as they do.[18]

States simply do not have a monopoly on the formation or enforcement of international law.  Public international law contains several enforcement mechanisms for international law.  Some enforcement mechanisms, such as customary international law and jus cogens, operate in a manner similar to legislation produced by private citizens through voting and their representatives.  International law also permits private law enforcement of some claims and international law generally can be, and is, invoked before national courts.  For example, the Alien Torts Statute (28 U.S.C. § 1350) allows private persons to sue for monetary damages when they are tortiously injured in violation of the law of nations (i.e. public international law).[19] Similar statutes can be found in the laws of Europe and even in the laws of some third-world countries.[20]

Though Professor Brewster clearly states that international law is enforced by states (just like national law) and points out that international law is not always enforced, it is simply not the case that only states enforce public international law (or private national law for that matter). [21] Exile governments and insurgencies are examples of non-state actors that enforce international law against states via self-help. [22] Exile governments make de jure claims to auctoritas – one element of sovereignty (that they “ought” to rule) while insurgencies claim, de facto, potestas (that they in fact do rule – practice) without having yet obtained the auctoritas to rule.[23] These non-state actors (or if you prefer quasi-state actors) seek to, and at times do in fact, enforce legal claims under international law against the states opposing them.

Professor Brewster also points out that international law is not always enforced – implying that the non-enforcement of international law warrants a claim against the validity of international law.   Professor Brewster writes it “is not shocking that international law is not always a meaningful constraint on state action.”[24] However, national laws likewise often go unenforced.  Sometimes criminals are not caught.  At other times the state sees no reason to enforce laws with no real victims (minor infractions), or in unusual cases (e.g. suicides). Laws aren’t always enforced, whether in national or international law.  That does not mean laws do not exist or lack validity.

We can also look at the problem the other way:  is there always a central enforcement mechanism in private national law?  No.  Private law actors often use contracts to shape their legitimate expectations.  Private law parties also may resort to arbitration, whether binding or not.  In cases of private law contracts, just as in treaties, there is no centralized legal enforcement mechanism, yet the contract or treaty is nonetheless valid and enforceable law.

Professor Brewster’s understanding of international law seems formed by a state-centered realist paradigm. That model emphasizes the use of force as the key central issue of interstate relations. That model may have been somewhat accurate in early modernity, following the Treaty of Westphalia.  However, since 1989 at latest, if not already since 1945, states have interacted with each other primarily in positive sum economic terms, not in zero sum or negative sum military terms.  The realist model of state interactions is outmoded, inaccurate, and even dangerous.

What are we to make of the ideas Professor Brewster alludes to so perfunctorily?  Professor Brewster’s sketch seems to reflect a shorthand view of international law as the law of armed conflict and humanitarian law:  respectively jus ad bello (the right to go to war) and jus in bello (rights during armed conflict).  If so, that is the wrong focus for an accurate understanding of international law and politics.  The overwhelming majority of transactions among states are commercial and positive sum, not militaristic and zero or negative sum.  There is much more to public international law than the right to go to war (when may a state go to war?) and rights during armed hostilities (the rights of warring parties).

Methodologically, Professor Brewster analyzes the problem of state compliance with international law using economic analysis (cost/benefit comparisons) and game theory.  That is not legal analysis.  It is game theory and economics and sometimes misses the mark.  For example, Professor Brewster writes: “Reputation can pull states toward compliance when the realpolitik tool of retaliation is insufficient.”[25] Her invocation of Realpolitik implies that states do not have legal self-help remedies.  In fact, states can legally undertake retorsions and reprisal as self-help remedies.  Retorsions are unilateral measures of self-help undertaken by a state which would be valid regardless of the actions of other states.[26] Reprisals, in contrast, are self-help remedies which are only legal due to a justificatory wrongful act by another state.[27]

Similarly, Professor Brewster discusses expropriations, apparently assuming such are illegal under international law.[28] There, a deeper legal analysis of treaty law and court cases on the specific issue of the legality of expropriation under international law – as opposed to economic theories of gamesmanship, which have been well analyzed already – would have been more fruitful.  According to Banco Nacional de Cuba v. Sabbatino,[29] there was no recognized right to compensation for expropriation under international law in 1963.  Subsequent U.S. court cases (e.g., Bigio v. Coca-Cola[30]) seem to confirm that view, as does the general principle that the state, as sovereign, has absolute and arbitrary power over the lives and property of its subjects – a principle which is increasingly derogated from in the contemporary post-Westphalian system.  True, cases litigating the meaning of the European Convention of Human Rights seem to evidence the existence of a basic right to compensation for expropriation.[31] So, one could argue that there is now a right to compensation for expropriation under international law.  But that is at best unsettled issue – and if settled, is likely settled against what seems to be Professor Brewster’s view.

Inasmuch as international legal scholarship contributes to the formation of opinio juris, one has the right to demand rigorous legal analysis from international law scholars:  a searching examination of cases, treaties, legislation, history, and actual state practices. Economic analysis can be a useful supplement to legal analysis but is no substitute for the necessary investigation and exposition of cases, treaties, laws, and usages to determine not just what international law ought to be but also what it is.

My points here are intended to complete rather than correct Professor Brewster’s work. I am sure she must be aware of these basic rules of public international law. However, I think it would have been better had she elucidated them rather than glossing over such major points in a perfunctory fashion.

[2] To understand the responsa format, see Thomas Aquinas, Summa Theologica; see also the Decisions of the European Court of Justice which, doubtless under the Thomist influence, also used a response format.

[3] See Eric Engle, Ontology, Epistemology, Axiology: Bases for a Comprehensive Theory of Law, 8 Appalachian J.L. 103 (2008),.

[4] See id. Responsa present answers to legal questions; they are found in Jewish law. Their most famous civilianist is Thomas Aquinas, Summa Theologica. Decisions of the European Court of Justice are issued in responsa format: a question is posed, each contrary argument is presented, and the Court’s decision is then presented, point by point.

[5] Brewster, supra note 1, at 231.

[6] MERCOSUR – Southern Market; ASEAN – Association of Southeast Asian Nations;  ECtHR – European Court of Human Rights; IACtHR – Inter-American Court of Human Rights; ITLOS – International Tribunal for the Law of the Sea;  ECJ – European Court of Justice; WTO-DSB – World Trade Organization, Dispute Settlement Body.

[7] ICJ – International Court of Justice; European Court of Human Rights (ECtHR); Inter-American Court of Human Rights (IACtHR); International Tribunal for the Law of the Sea (ITLOS); European Court of Justice (ECJ); Dispute Settlement Body of the World Trade Organization (DSB).

[8] See Siderman de Blake v. Republic of Arg., 965 F.2d 699, 714-19 (9th Cir. 1992).

[9] See Barcelona Traction, Light & Power Co. (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).

[10] For example, a search in the “tp-all” database of Westlaw for works with “erga omnes” in the title yields just eight results, most of which are book reviews by foreign authors. In contrast, a title search in the same database for “jus cogens” yields 45 results; a title search for “ius cogens” yields two more results.

[11] See, e.g. Matar v. Dichter, 563 F.3d 9 (2d. Cir. 2009); Enahoro v. Abubakar, 408 F.3d 877,(7th Cir. 2005).

[12] See, e.g., ICJ, Nicaragua v. Columbia (2007) CR 2007/19, available at http://www.icj-cij.org/docket/files/124/13889.pdf#view=FitH&pagemode=none&search=”COGENS”.

[13] See generally Hedley Bull, The Anarchical Society, A Study of Order in World Politics viii-ix, 23, 36 (3d ed. 2002) (describing competing theories of international relations).

[14] See The Structure and Process of International Law:  Essays in Legal Philosophy Doctrine and Theory 890 (Ronald St. J. Macdonald & Douglad M. Johnston eds., 1983).

[15] See Eric Allen Engle, The Professionalization Thesis:  The TBR, the WTO and World Economic Integration, 11 Currents: Int’l Trade L.J. 16 (2002); Eric Engle, Theseus’s Ship of State:  Confederated Europa Between the Scylla of Mere Alliance and the Charybdis of Unitary Federalism, 8 Fla. Coastal L. Rev. 27 (2006).

[16] Eric Engle, Theseus’s Ship of State:  Confederated Europa Between the Scylla of Mere Alliance and the Charybdis of Unitary Federalism, 8 Fla. Coastal L. Rev. 27 (2006).

[17] See generally Eric Allen Engle, The Transformation of the International Legal System:  The Post-Westphalian Legal Order, 23 Quinnipiac L. Rev. 23 (2004) (describing the transformation of the international system from the Westphalian model of isolated sovereign states acting as rational zero or negative sum power maximizers to the post-Westphalian model of relativized sovereignty centered on human rights and commerce as the basis of an integrated globalized world order).

[18] Customary international law consists of two elements: usages (state practice) combined with opinio juris— the belief that such usages are consistent with or even obligated by international law.  Judge Blackstone states that “custom must:  (1) have been ‘used so long, that the memory of man runneth not to the contrary;’ (2) be continued without interruption; (3) be peaceably acquiesced; (4) be reasonable; (5) be certain in its terms; (6) be accepted as compulsory; and (7) be consistent with other customs.’  Jo Lynn Slama, Opinio Juris in Customary International Law, 15 Okla. City U. L. Rev. 603, 610-11 (1990).  Caveat: Blackstone was describing national customary law although ceteris paribus what holds true nationally should also apply internationally.

[19] See Eric Engle, Alvarez-Machain v. United States and Alvarez-Machain v. Sosa: The Brooding Omnipresence Of Natural Law, 13 Willamette J. Int’l L. & Disp. Resol. 149 (2005).

[20] See Eric Engle, Alien Torts in Europe? Human Rights and Tort in European Law, ZERP Discussion Paper No. 1/2005, Zentrum Für Europaische Rechtspolitik – Center for European Economic Research (2005) (Germany).

[21] “International law is enforced (when it is enforced) by states themselves.”  Brewster, supra note 1, at 231. So? National law, likewise, is generally enforced by states.

[22] See Robert D. Sloane, The Changing Face Of Recognition In International Law: A Case Study Of Tibet, 16 Emory Int’l L. Rev. 107, 170-71 (2002); A. F. M. Maniruzzaman, International Development Law as Applicable Law to Economic Development Agreements: A Prognostic View, 20 Wis. Int’l L.J. 1, 13 (2001) (arguing that international organizations, insurgents, and even individuals may have some form of international legal personality).

[23] See generally Eric Engle, Beyond Sovereignty? The State After the Failure of Sovereignty, 15 ILSA J. Int’l & Comp. L. 33 (2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1269445.

[24] Brewster, supra note 1, at 231.

[25] Id.

[26] Marks v. United States, 28 Ct. Cl. 147 (1893) (stating that retorsions are retaliatory acts short of war), aff’d, 161 U.S. 297 (1896); see also George K. Walker, The Lawfulness of Operation Enduring Freedom’s Self-Defense Responses, 37 Val. U. L. Rev. 489, 534 (2003) (stating that “[r]etorsions are unfriendly but lawful acts,” such as mobilizing reserves or recalling ambassadors).

[27] The power of reprisal is explicitly recognized in the U.S. Constitution. “[Congress shall have the power] to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” U.S. Const. art I, § 8, cl. 11. See also Michael J. Kelly, Time Warp To 1945–Resurrection Of The Reprisal And Anticipatory Self- Defense Doctrines In International Law, 13 J. Transnat’l L. & Pol’y 1, 7 (2003) (“While acts that constitute reprisals would normally be illegal, they become legal because of the aggressor’s previous illegal act. Moreover, reprisals contain a distinctly punitive purpose and are frequently viewed as justified sanctions.”).

[28] See Brewster, supra note 1, at 251.

[29] See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 461 (1963) (White, J., dissenting).

[30] Bigio v. Coca-Cola Co. 448 F.3d 176 (2d. Cir. 2006).

[31] See, e.g., Loizidou v. Turkey, 1996-VI Eur. Ct. H.R. 2216 (1996); Brumarescu v. Romania, 1999-VII Eur. Ct. H.R. 201 (1999). Right to compensation for expropriation under the European Convention of Human Rights – not customary international law.

By Wendy Gerwick Couture.  114 Penn St. L. Rev. Penn Statim 19.

Published March 19, 2010. View as PDF.

Preferred citation:  Wendy Couture, Conley v. Gibson’s “No Set of Facts” Test:  Neither Cancer Nor Cure, 114 Penn St. L. Rev. Penn Statim 19 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 19.pdf.

Abstract:

In this essay, the author distinguishes between factual sufficiency and legal sufficiency challenges to a complaint.  Drawing from this distinction, the author argues that Conley v. Gibson’s “no set of facts” test, which the Supreme Court disavowed in Bell Atlantic Corp. v. Twombly, is properly understood as a legal sufficiency test.  Moreover, the author contends that Twombly and Ashcroft v. Iqbal addressed factual sufficiency rather than legal sufficiency.  As a consequence, the “no set of facts” test is neither the cancer maligned by the Twombly Court nor the cure to Iqbal.  The author draws from the analytical distinction between factual and legal sufficiency to propose a new factual sufficiency test that would overrule Iqbal and work symbiotically with legal sufficiency challenges:  Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

Conley v. Gibson’s “No Set of Facts” Test:  Neither Cancer Nor Cure

I.  Introduction

In Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court instituted a “plausibility” standard for assessing the sufficiency of a plaintiff’s complaint—in the process disavowing Conley v. Gibson’s “no set of facts” test.[1] Reaction to the new “plausibility” standard has been generally critical, leading to calls for the reinstatement of the “no set of facts” test.  This essay argues that the “no set of facts” test is a legal sufficiency test and thus inapplicable to the factual sufficiency challenges in Twombly and Iqbal.  As a consequence, the “no set of facts” test is neither the cancer maligned by Twombly nor the cure to Iqbal.  Rather, this essay draws from the analytical distinction between legal and factual sufficiency to propose a new factual sufficiency test: Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

Part II of this essay explains the distinction between legal and factual sufficiency challenges to a complaint and applies this distinction to Twombly and Iqbal.  Part III demonstrates that the Conley “no set of facts” standard is a legal sufficiency test.  Part IV explains why Twombly did not need to overrule the “no set of facts” test to institute a “plausibility” standard, and Part V explains why the “no set of facts” test is not a solution to the “plausibility” standard.  Part VI draws from the preceding sections to propose a new factual sufficiency test that would work symbiotically with the legal sufficiency standard, and Part VII briefly concludes.

II.  The Distinction Between Legal and Factual Sufficiency

Under Federal Rule of Civil Procedure 8(a)(2), a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[2] A pleading that fails to satisfy this test is subject to dismissal under Rule 12(b)(6) for “fail[ing] to state a claim upon which relief can be granted.”[3]

A pleading can fall short of this standard in two analytically distinct ways: (1) by failing to assert a legally actionable claim (i.e., legal insufficiency); and (2) by failing to allege enough facts (i.e., factual insufficiency).[4] Twombly and Iqbal addressed the latter standard—not the former.

A.  Legal Sufficiency

A pleading fails a legal sufficiency challenge if the complainant’s allegations, even if true, are not legally actionable.[5] In Neitzke v. Williams, the Supreme Court described this standard as follows: “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”[6] Courts and commentators have characterized successful legal sufficiency challenges as “relatively unusual”[7] and “extraordinary,”[8] but, in fact, courts routinely dismiss claims at the pleading stage for legal insufficiency.  Recent examples include the following:

• Dismissal of a claim asserted under 30 U.S.C. § 185(r)(2)(A) because the statute does not create a private right of action.[9]
• Dismissal of claims asserted under §§ 11 and 12(a) of the Securities Act because the alleged misrepresentations are immaterial as a matter of law.[10]
• Dismissal of a negligence claim because Indiana’s economic loss doctrine precludes an action in tort for economic losses arising from breach of contract.[11]
• Dismissal of a claim for intentional infliction of emotional distress because the alleged conduct is not sufficiently outrageous to be actionable.[12]
• Dismissal of a claim for negligent misrepresentation because “Virginia law does not recognize such a tort.”[13]

As recognized by the Supreme Court in Neitzke, dismissal of claims for legal insufficiency “streamlines litigation by dispensing with needless discovery and factfinding.”[14]

B.  Factual Sufficiency

A pleading fails a factual sufficiency challenge if the complainant fails to allege sufficient facts in support of the asserted claims.  Until Twombly and Iqbal, courts dismissed a pleading for factual insufficiency only if it failed to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”[15] Under this standard, a plaintiff was merely required to give “fair notice of the operative facts or the gravamen of the statement for relief.”[16] For example, courts dismissed complaints under the “fair notice” standard in the following cases predating Twombly and Iqbal:

Dismissal of gender discrimination claim where the plaintiff’s complaint failed to “identify her gender” or “allege any fact from which to infer that she was subjected to unequal treatment because she is a woman.”[17]

Dismissal of a claim that “appear[ed] to be a legal malpractice claim” where the plaintiffs failed to “identify the case which the defendants allegedly failed to prosecute.”[18]

Affirming the dismissal of a First Amendment retaliation claim where the plaintiff failed “to identify any activity on his part, even in the most general terms, that triggered his termination.”[19]

Dismissal of a variety of claims based on alleged illegality of bank loans where the complaint failed to “assert any details specifically against each individual Defendant,” “to allege that he was a customer of each Defendant,” “to identify the loans extended to him by each Defendant,” and “to identify any loans on which the Defendants foreclosed.”[20]

As explained by the Supreme Court in Swierkiewicz v. Sorema N.A., which predates Twombly and Iqbal, “[t]his simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.”[21]

C.  Twombly and Iqbal

Neither Twombly nor Iqbal addressed the legal sufficiency of the complaint.  In Twombly, it was undisputed that if, as alleged in the complaint, the defendants had entered into an agreement to “prevent competitive entry” into their markets and “not to compete with one another,”[22] they would have violated § 1 of the Sherman Act.[23] Similarly, in Iqbal, no one disputed that if, as alleged in the complaint, the defendants had “adopted an unconstitutional policy that subjected [the plaintiff] to harsh conditions of confinement on account of race, religion, or national origin,”[24] they would have been subject to Bivens liability.[25]

Rather, Twombly and Iqbal turned on the factual sufficiency of the plaintiffs’ complaints.  In Twombly, the issue was whether the plaintiff had alleged sufficient factual support for the existence of an unlawful agreement among the defendants,[26] and in Iqbal, the issue was whether the plaintiff had pleaded “sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue . . . for the purpose of discriminating on account of race, religion, or national origin.”[27]

The first step in Twombly and Iqbal was to identify and disregard mere “legal conclusions.”[28] Thus, in Twombly, the Court disregarded the plaintiffs’ allegations that the defendants “entered into a contract, combination, or conspiracy” and “agreed not to compete with one another.”[29] Similarly, in Iqbal, the Court disregarded the plaintiff’s allegations that the defendants “each knew of, condoned, and willfully and maliciously agreed to subject” Iqbal to the confinement at issue “as a matter of policy, solely on account of religion, race, and/or national origin and for no legitimate penological interest;” that Ashcroft was the “principal architect” of the detention policy; and that Mueller was “instrumental in adoption, promulgation, and implementation.”[30]

The second step in both cases was to identify the well-pleaded factual allegations, assume their truth, and assess whether they “plausibly give rise to an entitlement to relief.”[31] In performing this plausibility analysis, the Court emphasized that factual allegations that are “merely consistent” with the element at issue are insufficient if a “more likely” explanation exists.[32] Thus, in Twombly, allegations of parallel conduct among the defendants failed to satisfy the plausibility standard.[33] The defendants’ “resistance to the upstarts” was merely “the natural, unilateral reaction of each ILEC intent on keeping its regional dominance;” and the defendants’ “competitive reticence” had “an obvious alternative explanation.”[34] Similarly, in Iqbal, allegations that the FBI, under the defendants’ direction, “arrested and detained thousands of Arab Muslim men” and that the defendants approved a “policy of holding post-September-11th detainees in highly restrictive conditions of confinement” were consistent with purposeful discrimination, but—”given more likely explanations”—the Court held that these allegations failed the plausibility standard. [35] In short, Twombly and Iqbal reinterpreted the “fair notice” standard for factual sufficiency as a “plausibility” standard.[36]

III.  Conley v. Gibson’s Analysis of Factual and Legal Sufficiency

Conley v. Gibson’s “no set of facts” test is central to the debate about Twombly and Iqbal.  In Twombly, the Supreme Court, after articulating the plausibility standard, explicitly disavowed the “no set of facts” test.[37] Moreover, some opponents of Twombly and Iqbal have called for a return to the “no set of facts” test.[38]

Yet, the “no set of facts” test has been misunderstood by the Supreme Court and many—but not all[39]—commentators.  As a detailed examination of the case background and the Conley Court’s opinion demonstrate, the “no set of facts” test addresses legal sufficiency—not factual sufficiency.  As a consequence, the “no set of facts” test is neither the cancer maligned by Twombly nor the cure to Iqbal.

A.  Case Background

In Conley v. Gibson, the plaintiffs, African-American union members, filed a putative class action on behalf of similarly situated union members, against their union and some of its agents.[40] The plaintiffs alleged that the union, in violation of the Railway Labor Act, had discriminated against them on the basis of race or color by segregating them “into a local union of the craft in which they are cut off from and denied effective representation on a par equal to that afforded to white employees who are members of the same craft or class.”[41] In particular, the plaintiffs alleged that the union refused to represent their interests when their employer abolished 45 jobs held by African-American employees and then immediately rehired white employees and some of the previously fired African-American employees—with a loss of seniority.[42]

The defendants moved to dismiss the complaint on the following grounds: (1)  the court lacked subject matter jurisdiction because the National Railroad Adjustment Board had exclusive jurisdiction over disputes involving collective bargaining agreements in the railroad industry; (2) the suit was missing an indispensible party defendant, the plaintiffs’ employer; (3) the allegations about the agreement between the employer and the union failed “to present a justifiable issue;” and (4) the complaint “fail[ed] to state a claim upon which relief can be granted.”[43]

The district court granted the motion to dismiss on the first asserted ground—lack of subject matter jurisdiction.[44] The Fifth Circuit Court of Appeals affirmed the judgment, without opinion,[45] and the Supreme Court granted the petitioners’ petition for writ of certiorari.[46] In their Supreme Court briefing, the respondents reasserted the grounds raised in their motion to dismiss.[47] The Supreme Court, after rejecting the first two grounds,[48] addressed the respondents’ sufficiency arguments, which challenged both the legal and the factual sufficiency of the complaint.

B.  Conley’s Analysis of Legal Sufficiency

First, the respondents challenged the legal sufficiency of the complaint, arguing that a union’s duty to act without discrimination “cannot be extended to the field of policing or administering agreements and redressing individual grievances.”[49] The respondents argued that the union’s duty to act without discrimination extends only to the union’s exclusive authority “to bind the individual employee in contract negotiations with the carrier.”[50]

The Supreme Court soundly rejected this legal sufficiency challenge pursuant to the “no set of facts” test.  First, the Supreme Court stated the applicable test for assessing the complaint’s sufficiency:

In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.[51]

Applying this “no set of facts” test, the Supreme Court rejected the respondents’ legal sufficiency argument that the “duty not to draw ‘irrelevant and invidious’ discrimination among those it represents” comes to an “abrupt end . . . with the making of an agreement between union and employer.”[52] Rather, the Court recognized that collective bargaining is an ongoing process, and the prohibition on discrimination applies to the entire process.[53]

C.  Conley’s Analysis of Factual Sufficiency

The respondents also challenged the factual sufficiency of the complaint, arguing that there was insufficient factual support for alleged discriminatory conduct by the union.  For example, the respondents argued: “The factual allegations of the Complaint are completely vague as to what provision of, or in what manner, the bargaining agreement was violated by the Railroad when it abolished the particular jobs in question, and equally vague as to how Respondents could have prevented such action by the Railroad or successfully protested it.”[54]

The Supreme Court rejected this factual sufficiency challenge pursuant to the “fair notice” standard.  The Court first clarified the applicable test: “[A]ll the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”[55] Applying this test, the Court rejected the factual sufficiency challenge because the “petitioners’ complaint adequately set forth a claim and gave the respondents fair notice of its basis.”[56]

D.  Distinction Between Conley’s Tests for Legal and Factual Sufficiency

In sum, the Conley Court addressed both legal and factual sufficiency challenges.  In addressing the former, the Court applied the “no set of facts” test; and in addressing the latter, the Court applied the “fair notice” test.

The three cases cited by the Supreme Court as authority for the “no set of facts” test[57] further demonstrate that this test is properly understood as a legal sufficiency test.  In the first, Leimer v. State Mutual Life Assurance Co., the Eighth Circuit reversed the dismissal of the plaintiff’s complaint because “[t]hat plaintiff’s claim is barred by estoppels and laches . . . does not conclusively appear from the facts stated in the amended complaint.”[58] The court contrasted the case at hand with cases where a complaint is properly dismissed for legal insufficiency: “Such a motion, of course, serves a useful purpose where, for instance, a complaint states a claim based upon a wrong for which there is clearly no remedy . . . .”[59] Similarly, in Dioguardi v. Durning, the Second Circuit reversed the dismissal of a complaint because “[i]t appears to be well settled that the collector may be held personally for a default or for negligence in the performance of his duties.”[60] Finally, in Continental Collieries, Inc. v. Shober, the Third Circuit reversed the dismissal of the complaint because, under the facts alleged, it was not “a certainty” that the cause of action was unenforceable under the applicable statute of frauds.[61]

Subsequent courts and commentators have contributed to the confusion between the “no set of facts” legal sufficiency test and the “fair notice” factual sufficiency test by conflating the two standards and treating them as synonymous.[62] Indeed, the Second Circuit in its Twombly opinion used the “no set of facts” test to assess the factual sufficiency of the complaint,[63] which perhaps explains why the Supreme Court felt the need to overrule the “no set of facts” test when overruling the Court of Appeals in Twombly.

IV.  The “No Set of Facts” Test is Not the Cancer Maligned by Twombly

In Twombly, after setting forth the “plausibility” standard for assessing factual sufficiency, the Supreme Court expressly disavowed the “no set of facts” test.[64] The Court reasoned: “This ‘no set of facts’ language can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings.”[65]

Indeed, the “no set of facts” test would be unworkable as a factual sufficiency test.  For example, a complaint alleging merely “the defendant was negligent” would pass a “no set of facts” test of factual sufficiency.  Many courts and commentators have expressed skepticism about the “no set of facts” test for this very reason.[66]

As shown above, however, the “no set of facts” test is a legal sufficiency test.  Since the issue in Twombly was the factual sufficiency of the complaint, the Supreme Court had no need to address—let alone overrule—the “no set of facts” test.  Ultimately, the “no set of facts” test is not the cancer maligned by the Twombly Court.

V.  The “No Set of Facts” Test is Not a Cure to Iqbal

By the same token, the “no set of facts” test is not a cure to Iqbal.  Twombly and Iqbal instituted a “plausibility” standard for assessing factual sufficiency.  Reinstating the “no set of facts” test—a legal sufficiency standard—would not overrule the plausibility standard.  Yet several legislative proposals attempt to do just that.

The Open Access to Courts Act of 2009 proposes to reinstate the “no set of facts” test: “A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.”[67]

Similarly, the Notice Pleading Restoration Act of 2009 proposes to reinstate “the standards set forth by the Supreme Court of the United States in Conley v. Gibson.”[68] The Conley v. Gibson opinion contains both the “no set of facts” legal sufficiency test and the “fair notice” factual sufficiency test, but this bill would most likely be interpreted as reinstating the “no set of facts” test because, although Conley has been cited for both tests, it is most famous for its “no set of facts” test.  According to Westlaw, Conley’s “no set of facts” test has been cited by courts 45,090 times,[69] while Conley’s “fair notice” test has been cited by courts only 7,063 times.[70] Additionally, the Supreme Court did not explicitly overrule Conley’s “fair notice” standard in Twombly and Iqbal.  Indeed, in Twombly, the Court cited Conley with approval as the source of the “fair notice” test.[71] Rather, the Court reinterpreted the “fair notice” test as requiring plausibility.[72] Therefore, even if the bill were understood as reinforcing the “fair notice” test, it would not necessarily follow that the Twombly/Iqbal gloss on the “fair notice” standard would be overruled.

VI.  Reform of Factual Sufficiency Test

The “plausibility” standard in Twombly and Iqbal has been roundly criticized,[73] perhaps most compellingly because it denies court access to prospective plaintiffs with meritorious claims but without the resources to gather proof without the benefit of discovery.[74] As explained above, however, reinstating the “no set of facts” test would not accomplish the desired reform.

A.  Reinstatement of “Fair Notice” Test of Factual Sufficiency

Certainly the most obvious reform would be to reinstate the “fair notice” standard for factual sufficiency as it was interpreted before Twombly.  For example, Professor Stephen Burbank in testimony before Congress proposed the reinstatement of “interpretations of the Federal Rules of Civil Procedure by the Supreme Court of the United States, and by lower decisions consistent with such interpretations, that existed on May 20, 2007.”[75] Draft legislation to this effect is currently pending before the Senate.[76]

The “fair notice” factual sufficiency standard has always been somewhat problematic, however, because it renders superfluous Federal Rule of Civil Procedure 12(e), which allows a party to move for a more definite statement if a pleading “is so vague or ambiguous that the party cannot reasonably prepare a response.”[77] Moreover, the existence of separate legal and factual sufficiency standards, which do not work symbiotically, results in a disjointed interpretation of Rule 8(a)(2), perhaps best exemplified by the Twombly and Iqbal opinions.

B.  Proposal for a New Factual Sufficiency Test

This essay proposes that, rather than merely reinstating the old factual sufficiency test, Congress take this opportunity to reassess the appropriate factual sufficiency standard.  As explained above, factual sufficiency and legal sufficiency are analytically distinct.  Rather than operating as different frameworks, however, the factual sufficiency test and legal sufficiency test should work symbiotically.

In particular, this essay proposes the following factual sufficiency test: Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

Rather than focusing on “fair notice” to the defendant, who has resort to Rule 12(e) if unable to discern the plaintiff’s allegations, this factual sufficiency standard would focus on notice to the court.  Indeed, some district courts already include themselves as part of the intended audience to whom “fair notice” must be given.[78] The crucial inquiry in assessing whether a pleading affords the court sufficient notice would be whether the court possesses enough information about the plaintiff’s version of events to determine whether the complaint is legally sufficient.[79]

Applying this standard to Twombly and Iqbal, both complaints would survive dismissal because they apprise the court of the plaintiffs’ versions of events, thus enabling the court to rule that – assuming the veracity of the plaintiffs’ versions—the claims are legally actionable.  In other words, assuming that the Twombly defendants had entered into an agreement to “prevent competitive entry” into their markets and “not to compete with one another,”[80] they would have violated § 1 of the Sherman Act.[81] Similarly, assuming that the Iqbal defendants had “adopted an unconstitutional policy that subjected [the plaintiff] to harsh conditions of confinement on account of race, religion, or national origin,”[82] they would have been subject to Bivens liability.[83]

By the same token, a complaint that merely alleges that “the defendant was negligent” would fail this standard because, without an understanding of the plaintiff’s version of events, the court would be unable to assess whether the claim is legally actionable.[84] For example, in most jurisdictions, if the plaintiff’s negligence claim sought purely economic damages for breach of a contractual duty, the economic loss rule would bar the claim.[85] Therefore, the plaintiff must plead sufficient facts to allow the court to assess whether, under the plaintiff’s version of events, the negligence claim survives the economic loss rule.

Under this proposal, factual and legal sufficiency tests would operate symbiotically to allow the court to dismiss claims that are not actionable under the plaintiff’s version of events, thus “dispens[ing] with needless discovery and factfinding.”[86] At the same time, this proposal would reopen the courthouse doors to plaintiffs with meritorious claims but without the resources to compile their evidence without the aid of discovery.  Finally, under this proposal, defendants whose only quibble is the lack of notice to themselves would have to resort to a Rule 12(e) motion for more definite statement rather than rely on a Rule 12(b)(6) motion to dismiss.

VII.  Conclusion

Several conclusions follow from the analytical distinction between factual and legal sufficiency and the classification of the “no set of facts” test as a legal sufficiency test.  First, the Twombly Court’s disavowal of the test was unnecessary.  More importantly, efforts to reverse Iqbal by reinstating the “no set of facts” test are misguided.  Rather, if Congress wishes to reverse the plausibility standard, it should do so with a factual sufficiency test.  One example is to reinstate the “fair notice” standard without a “plausibility” gloss.  This essay proposes that, rather than merely reinstating the pre-Twombly standard, Congress should enact a factual sufficiency test that works symbiotically with the legal sufficiency test.  In particular, this essay proposes the following factual sufficiency test: Does the complaint allege sufficient facts to allow the court to assess the legal sufficiency of the complaint?

[2].    Fed. R. Civ. P. 8(a)(2).

[3].    Fed. R. Civ. P. 12(b)(6); 5 Charles Alan Wright & Arthur R. Miller,  Federal Practice & Procedure § 1356 (3d ed. 2009) (“Thus, the provision [Rule 12(b)(6)] must be read in conjunction with Rule 8(a), which sets forth the requirements for pleading a claim for relief in federal court and calls for ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’  Only when the plaintiff’s complaint fails to meet this liberal pleading standard is it subject to dismissal under Rule 12(b)(6).”) (citing authority).

[4].    See Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (“Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.”); Stephen C. Yeazell, Civil Procedure 363 (7th ed. 2008) (“Pleading problems fall roughly into two groups.  In one group the underlying dispute is about the substantive law: What facts justify relief for this kind of claim?  In the other group there is no dispute about the content of substantive law, but there is a disagreement about whether the facts pleaded justify relief under that law.”).

[5].    5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1215 (3d ed. 2009) (“If the plaintiff does plead particulars, and they show he has no claim, then the plaintiff has pleaded himself out of court.”).

[6].    Neitzke v. Williams, 490 U.S. 319, 326 (1989).

[7].    5 Charles Alan Wright & Arthur R. Miller, 5 Federal Practice & Procedure § 1357 (3d ed. 2009).

[8].    Corsican Prods. v. Pitchess, 338 F.2d 441, 442 (1964) (quoting Wright, Federal Courts 250 (1963)).

[9].    Riviera Drilling & Exploration. Co. v. Gunnison Energy Corp., No. 08-CV-02486-REB-CBS, 2009 WL 3158163, at *3 (D. Colo. Sept. 20, 2009).

[10].    Landmen Partners Inc. v. Blackstone Group, L.P., 659 F. Supp. 2d 532, 544 (S.D.N.Y 2009).

[11].    Hasse Construction Co. v. Gary Sanitary District Bd. of Comm’rs, No. 2:06-CV-322-PRC, 2008 WL 2169000, at *6 (N.D. Ind. May 23, 2008).

[12].    Hamilton v. Prudential Financial, No. 2:07-CV-00944-MCE-DAD, 2007 WL 2827792, at *4 (E.D. Cal. Sept. 27, 2007).

[13].    JTH Tax, Inc. v. Whitaker, No. 2:07-CV-170, 2007 WL 2821830, at *3 (E.D. Va. Sept. 27, 2007).

[14].    Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

[15].    Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1215 (3d ed. 2009) (“In federal practice, the test of a complaint’s sufficiency simply is whether the document’s allegations are detailed and informative enough to enable the defendant to respond.”).

[16].    Kyle v. Morton High Sch., 144 F.3d 448, 456 (7th Cir. 1999) (citing supportive authority); see Charles 5 Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1215 (“Of course, great generality in the statement of these circumstances will be permitted as long as the defendant is given fair notice of what is claimed; nonetheless, Rule 8(a)(2) does require that the pleader disclose adequate information concerning the basis of his claim for relief as distinguished from a bare averment that he wants relief and is entitled to it.”).

[17].    Baldwin v. LIJ N. Shore Health Sys., 392 F. Supp. 2d 479, 483-84 (E.D.N.Y. 2005) (“This claim must fail because the plaintiff has not alleged facts which give the defendant fair notice of her gender discrimination claim and the grounds upon which it rests.”).

[18].    Schwartz v. Steven Kramer & Assocs., No. 90-4943, 1991 WL 133507, at *2 (E.D. Pa. July 17, 1991) (“Count 3 fails to place the defendants on adequate notice as to the plaintiffs’ claim.”).

[19].    Kyle, 144 F.3d at 457 (“Kyle’s complaint fails to give fair notice to the court and the opposing party of the operational facts of his complaint.”).

[20].    Rudd v. Keybank, N.A., No. C2-05-CV-0523, 2006 WL 212096, at *3 (S.D. Ohio Jan. 25, 2006) (“Rudd fails to provide sufficient details to put Defendants on notice of the claims he asserts against them.”).

[21].    Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

[22].    Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 551 (2007) (quoting the plaintiffs’ complaint).

[23].    See id. at 571 (Stevens, J., dissenting) (“Thus, this is a case in which there is no dispute about the substantive law.  If the defendants acted individually, their conduct was perfectly lawful.  If, however, that conduct is the product of a horizontal agreement among potential competitors, it was unlawful.”); id. at 588 (Stevens, J. dissenting) (“The Court does not suggest that an agreement to do what the plaintiffs allege would be permissible under the antitrust laws.  Nor does the Court hold that these plaintiffs have failed to allege an injury entitling them to sue for damages under those laws.”) (citations omitted).

[24].    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1942 (2009).

[25].    See id. at 1947-48 (recognizing the existence of a Bivens action “to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment” and “assum[ing], without deciding, that respondent’s First Amendment claim is actionable under Bivens”).

[26].    See Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950.

[27].    Iqbal, 129 S. Ct. at 1948-49.

[28].    Twombly, 550 U.S. at 557; Iqbal, 129 S. Ct. at 1944.

[29].    Twombly, 550 U.S. at 551 (quoting the complaint); id. at 557 (“[A] conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.”); id. at 564 (“Although in form a few stray statements speak directly of agreement, on fair reading these are merely legal conclusions resting on prior allegations.”).

[30].    Iqbal, 129 S. Ct. at 1944 (quoting the plaintiff’s complaint); id. at 1951 (disregarding these allegations as “conclusory and not entitled to be assumed true”).

[31].    Id. at 1950.

[32].    See Twombly, 550 U.S. at 557 (recognizing “[t]he need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement”); Iqbal, 129 S. Ct. at 1950 (describing the Court’s reasoning in Twombly) (“Acknowleding that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concluded that it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likely explained by, lawful, unchoreographed free-market behavior.”).

[33].    See Twombly, 550 U.S. at 565 (stating the “nub of the complaint”); id. at 570 (“Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.”).

[34].    Id. at 566-68.

[35].    Iqbal, 129 S. Ct. at 1951.

[36].    Id. at 1949 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”) (quoting Twombly, 550 U.S. at 570).

[37].    See Twombly, 550 U.S. at 563.

[38].    See Part V infra.

[39].    Professor Stephen B. Burbank, after conducting an in-depth analysis of the Conley v. Gibson opinion, reaches the same conclusion as this author—that the “no set of facts” test addressed legal sufficiency, not factual sufficiency.  Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. 11 (Dec. 2, 2009) (prepared statement of Stephen B. Burbank), available at http://www.pennstatelawreview.org/iqbal-portal/; Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. 13-16 (Dec. 2, 2009) (Stephen B. Burbank’s Answers to Senator Arlen Specter’s Post-Hearing Questions), available at http://www.pennstatelawreview.org/iqbal-portal/.

[40].    See Compl. § IV, Trans. of Record at 7, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[41].    Compl. § III, Trans. of Record at 6, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[42].    See Compl. § IV, Trans. of Record at 11-12, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[43].    Mot. to Dis., Trans. of Record at 17-18, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7).

[44].    Conley v. Gibson, 138 F. Supp. 60, 62 (S.D. Tex. 1955).

[45].    Conley v. Gibson, 229 F.2d 436 (5th Cir. 1956).

[46].    Conley v. Gibson, 352 U.S. 818 (1956).

[47].    Brief for Respondents, Conley v. Gibson, 355 U.S. 41 (1957), available at 1957 WL 87662, at *4-5 (U.S. Oct. 2, 1957).

[48].    Conley v. Gibson, 355 U.S. 41, 44-45 (1957).

[49].    Brief for Respondents, Conley v. Gibson, 355 U.S. 41 (1957), available at 1957 WL 87662, at *30 (U.S. Oct. 2, 1957).

[50].    Id. (“In short, if the exclusive authority to act does not exist, neither does the obligation.”).

[51].    Conley, 355 U.S. at 46.

[52].    Id. (internal citation omitted).

[53].    See id.

[54].    Brief for Respondents, Conley v. Gibson, 355 U.S. 41 (1957), available at 1957 WL 87662, at *26 (U.S. Oct. 2, 1957); id. at *18 (“In short, with the single exception of the allegations of the Complaint concerning the maintenance of a separate Negro Lodge by the Brotherhood . . . the only acts of discrimination alleged by the Complaint appear to be on the part of the Railroad . . . .”).

[55].    Conley, 355 U.S. at 47 (quoting Fed. R. Civ. P. 8(a)(2)).

[56].    Id.

[57].    Id. at 46 n.5.

[58].    Leimer v. State Mut. Life Assur. Co., 108 F.2d 302, 305 (8th Cir. 1940).

[59].    Id. at 305-06.

[60].    Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944).

[61].    Continental Collieries, Inc. v. Shober, 130 F.2d 631, 635 (3d Cir. 1942).

[62].    See, e.g., Jay S. Goodman, Two, New, U.S. Supreme Court Cases Raise the Question: Is Notice Pleading Dead?, 58 R.I. Bar J. 5, 5 (Jan/Feb 2010) (“That rule became known as notice pleading, as encapsulated in the rule that a 12(b)(6) motion had to be denied if ‘it cannot be said that there (is) no set of facts on which (a respondent) would be entitled to relief.’”) (quoting Conley, 355 U.S. at 47); Emily Sherwin, The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson, 52 How. L. J. 73, 73 (2008) (using ellipses to join the two tests); see also Patricia W. Hatamyer, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 561-62 (2010) (“For decades, courts have started their opinions with boilerplate language about the governing standards of a 12(b)(6) motion . . .  Of course, courts frequently begin their recitations by quoting Rule 8(a)(2). After Conley, the boilerplate language almost always included that case’s two best-known quotes: the ‘no set of facts’ quote and the ‘fair notice’ quote.”).

[63].    See Twombly v. Bell Atlantic Corp., 425 F.3d 99, 107, 114 (2d Cir. 2005).

[64].    See Twombly, 550 U.S. at 563 (“[T]his famous observation has earned its retirement.”).

[65].    Id. at 561.

[66].    See id. at 562 (citing courts and commentators that “have balked at taking the literal terms of the Conley passage as a pleading standard”).

[67].    Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009).

[68].    Notice Pleading Restoration Act of 2010, S. 1504, 111th Cong. (2009).

[69].    See Westlaw.com (last visited February 20, 2010).  West Headnote 5, containing the “no set of facts” test, has 45,090 case citations.

[70].    See Westlaw.com (last visited March 5, 2010).  No West Headnote directly states the “fair notice” test.  Therefore, the author ran the following terms and connectors search in the “allcases” database: (conley gibson) /50 “fair notice.”  This search generated 7,063 results.

[71].    See Twombly, 550 U.S. at 555.

[72].    See id. at 570.

[73].    See, e.g., Elizabeth Thornburg, Law, Facts, and Power, 114 Penn St. L. Rev. Penn Statim 1 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 1.pdf; see also Symposium: Pondering Iqbal, 14 Lewis & Clark L. Rev. 1-450 (2010) (compiling numerous scholarly critiques of Iqbal).

[74].    See Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. 11 (Dec. 2, 2009) (prepared statement of Stephen B. Burbank), available at http://www.pennstatelawreview.org/iqbal-portal/.

[75].    Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. App. A (Dec. 2, 2009) (prepared statement of Stephen B. Burbank), available at http://www.pennstatelawreview.org/iqbal-portal/.

[76].    Notice Pleading Restoration Act of 2010, S. 1504, 111th Cong. (2010) (proposing an almost identical standard).

[77].    Fed. R. Civ. P. 12(e); see Hearing on Whether the Supreme Court has Limited Americans’ Access to Court: Hearing Before the Committee on the Judiciary, 111th Cong. App. A (Dec. 2, 2009) (prepared statement of Stephen B. Burbank) (arguing that factual sufficiency should be tested only under Rule 12(e)), available at http://www.pennstatelawreview.org/iqbal-portal/.

[78].    See, e.g., Gregory v. TCF Bank, No. 09-C-5243, 2009 WL 4823907, at *2 (N.D. Ill. Dec. 10, 2009) (“The purpose behind Rule 8 is to ensure that both the defendant and the court have fair notice of the claims alleged.”) (citation omitted) (emphasis added); Potts v. Pike County Sheriff’s Office, No. 2:09-CV-974-ID, 2009 WL 3747213, at *2 (M.D. Ala. Nov. 5, 2009) (stating that, in order to comply with Rule 8(a), a complaint must “provide [] fair notice to the court and a defendant of the claim against the defendant”) (emphasis added); McCarthy v. Stollman, No. 06-Civ-2613, 2009 WL 1159197, at *3 (S.D.N.Y. Apr. 29, 2009) (stating that a pleading “must give the court and the defendant fair notice of what [the] plaintiff’s claim is and the grounds upon which it rests”) (citation omitted) (emphasis added); Rourke v. Rhode Island, No. 09-10S, 2009 WL 1160255, at *2 (D.R.I. Apr. 27, 2009) (“One of the primary purposes of Rule 8(a) is to give the defendant(s) and the Court fair notice of the claim being made by a plaintiff.”) (emphasis added).

[79].    Accord Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 435 (1986) (“Contrary to the conventional wisdom that the sole purpose of pleadings is to give notice, this Article suggests that their role should be to enable courts to decide cases on their merits.”).

[80].    Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 551 (2007) (quoting the plaintiffs’ complaint).

[81].    Id. at 571.

[82].    Ashcroft v. Iqbal, 129 S. Ct. 1937, 1942 (2009).

[83].    Id. at 1947-48.

[84].    See Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 Tex. L. Rev. 1749, 1770-71 (1998) (recognizing that courts may vary the level of factual detail required at the pleading stage depending on whether additional factual allegations will resolve the case); id. at 1771 (“Even though Palsgraf was also a claim for negligence, such a delphic complaint cries out for inclusion of more details, not only to give defendant notice but also to permit the court to scrutinize the legal sufficiency of plaintiff’s claim in terms of the necessary elements of foreseeability and proximate cause.”).

[85].    Vincent R. Johnson, The Boundary-Line Function of the Economic Loss Rule, 66 Wash. & Lee L. Rev. 523, 526 (2009).

[86].    Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

By Jeffrey Shulman. 114 Penn St. L. Rev. Penn Statim 13.

Published March 11, 2010.  View as PDF.

Preferred citation:  Jeffrey Shulman, When is Religious Speech Outrageous?:  Snyder v. Phelps and the Limitations on Religious Advocacy, 114 Penn St. L. Rev. Penn Statim 13 (2010), available at http://pennstatelawreview.org/114/114 Penn Statim 13.pdf.

When Is Religious Speech Outrageous?: Snyder v. Phelps and the Limits of Religious Advocacy

The Constitution affords great protection to religiously motivated speech.  Religious liberty would mean little if it did not mean the right to profess and practice as well as to believe.  But are there limits beyond which religious speech loses its constitutional shield?  Would it violate the First Amendment to subject a religious entity to tort liability if its religious profession causes emotional distress?  When is religious speech outrageous?

These are vexing questions, to say the least; but the United States Supreme Court will take them up next term—and it will do so in a factual context that has generated as much heat as light.  On March 8, 2010, the Court granted certiorari in Snyder v. Phelps.[1] It is a tort case brought by a family grieving the untimely death of their son.  It is a free speech case, testing the boundaries of the constitutional commitment to the marketplace of ideas.  It is a religious liberty case that has made unlikely allies of those on opposite sides of the political and cultural divides that make our liberal democracy such a challenging enterprise.

The most common of legal commonplaces is that the First Amendment protects speech that some people—perhaps, most people—will find offensive.  Indeed, the protection of offensive speech is one of the great hallmarks of our constitutional order, the stamp that establishes the genuineness and the generosity of our freedoms, including a longstanding tradition of religious liberty.  It is no surprise that our courts, by training and instinct, want to protect the right to speak—and nowhere more so than where speech is religiously motivated.  It may be this very protectiveness that led the Fourth Circuit to make such a mess of things.

The basic facts of the case are clear enough.  Marine Lance Corporal Matthew A. Snyder was killed in Iraq in the line of duty.  His funeral, held in Westminster, Maryland, was picketed by the Westboro Baptist Church.  The church held signs that read, “You are going to hell,” “God hates you,” “Thank God for dead soldiers,” and “Semper fi fags.”  Following the funeral, the church posted on its website (godhatesfags.com) an “epic” entitled “The Burden of Marine Lance Cpl. Matthew Snyder.”  Matthew’s burden, as the church saw it, was that he had been “raised for the devil” and “taught to defy God.”  Matthew’s father, Albert Snyder, brought a civil action against the Westboro Baptist Church in federal district court, asserting a claim for intentional infliction of mental and emotional distress (among other causes of action).[2] He was awarded $10.9 million in compensatory and punitive damages.

That judgment was reversed by the Fourth Circuit.[3] The court could have avoided the constitutional question by holding that Mr. Snyder failed to prove at trial sufficient evidence to support his tort claims.[4] But the court waded into murky doctrinal waters—and made them a whole lot murkier.

The court reasoned that the church’s speech was constitutionally protected unless a reasonable person would understand it to be communicating objectively verifiable facts.  There are, the court went on to say, two categories of speech that cannot reasonably be interpreted as stating actual facts about an individual.  The first is statements of public concern that fail to contain a provably false factual connotation.  The second is rhetorical statements employing loose, figurative, or hyperbolic language.  These statements are categorically protected, regardless of the plaintiff’s status as a public or private figure.

Had the court gone no further, it would have generated confusion enough for sorting out by the Supreme Court.  To begin with, Mr. Snyder was not making a defamation claim.  So it is not clear why the dispositive question is whether the church’s assertions were susceptible of being proved true or false.  Nor is it clear why, whether the claim is defamation or emotional distress, the plaintiff’s status as a private figure is irrelevant.

But the court gave short shrift to the complexities of the case law.  It did not matter whether the church’s statements were of public concern because they did not assert provable facts.  They employed “hyperbolic rhetoric” to spark debate.  The court noted that some signs (those reading “You’re Going to Hell” and “God Hates You”) could be interpreted by a reasonable reader as referring specifically to Matthew Snyder.  No matter, because, as the court concluded, “[w]hether an individual is ‘Going to Hell’ or whether God approves of someone’s character could not possibly be subject to objective verification.”[5] With its single-minded focus on the factualness of the church’s claims (again, the wrong focus for an emotional distress case), the court looked for contextual evidence that would support its conclusion that no reasonable person could think the church was asserting provable facts.  Remarkably, it found that evidence in the very outrageousness of the church’s speech:

The general context of the speech in this proceeding is one of impassioned (and highly offensive) protest, with the speech at issue conveyed on handheld placards.  A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts.  In addition, the words on these signs were rude, figurative, and incapable of being objectively proven or disproven.  Given the context and tenor of these two signs, a reasonable reader would not interpret them as asserting actual facts about either Snyder or his son.[6]

With perverse illogic, the Fourth Circuit has created a legal incentive for religious speakers to be especially abusive and inflammatory: by its own calculus, the more “hyperbolic” the speech, the more it is constitutionally protected.  But nothing in the law suggests that the First Amendment requires courts to engage in such hermeneutic gymnastics.

What the Westboro Baptist Church wants is the right to make any private individual the target of personal verbal assault about matters of private concern—and to do so with complete immunity from the law.  The Supreme Court has said that speech about public officials or public figures, or speech about matters of public concern, may be constitutionally protected, even if it causes emotional distress (though even these forms of speech do not get absolute protection).  But the Court has never held that the First Amendment protects personal invective “delivered in the milieu of religious practice.”[7]

This case tests the proposition stated in Cantwell v. Connecticut that “[r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution.”[8] If the speech at question here was directed toward a private person and was not a matter of public concern—if, in other words, this case is about mere personal invective—there is no reason to grant the church constitutional protection.[9] If the church’s speech was targeted toward a most unwilling listener, one who was held captive by special circumstances, there is even more reason why the church should be adjudged to have forfeited any claim to constitutional immunity from tort suit. [10]

Tort liability subjects religious entities to neutral and generally applicable principles of tort law.  If the church’s religious advocacy amounts to tortious conduct, it would be subject to suit, as would any other religious, or non-religious, group.  But tort liability places no special burden on religious entities.  Nor does the resolution of tort disputes necessarily involve any intermeddling in internal church affairs.[11] If anything, the Fourth Circuit treads on dangerous ground when it concludes that the church does not literally mean what it says.  Because it focused on the factualness, and not the hurtfulness, of the church’s statements, the court dismissed those statements as figurative and irreverent.  That is an odd judgment.  Certainly, the Westboro Baptist Church does not think its speech was mere rhetorical overkill.  Irreverent?  As distasteful as the church’s language might be to others, its message is the heart—and, I suppose, the soul—of the church.  This is a church that finds reverence in outrageousness.

Personally abusive speech directed toward a private target held hostage by special circumstances—this is not the type of speech that has merited immunity from tort liability.  To find that such speech is constitutionally protected would not foster the robust debate sought by the Fourth Circuit.  Rather, by protecting the personal vilification of private individuals, such immunity would work against a civic order where all people are equally free to express their deepest beliefs.  That freedom, like all freedoms, has it limits.  In granting certiorari in Snyder v. Phelps, the Supreme Court may help us better understand the limits of religious advocacy.

[1] Snyder v. Phelps, 2010 WL 757695 (U.S. March 08, 2010).

[2] Snyder originally brought suit on five counts: defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  Snyder v. Phelps, 533 F. Supp. 2d  567 (D. Md. 2008).  The district court granted defendants’ motions for summary judgment on the claims for defamation and publicity given to private life.  Id. at 572-73.  The court held, however, that the remaining claims raised genuine issues of material fact.  Id. at 573.

[3] Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2008).

[4] See id. at 227-33 (Shedd, J., concurring in the judgment).

[5] Id. at 224.

[6] Id. Similarly, the court concluded that “the written Epic published on the website of the Church is also protected by the First Amendment, in that a reasonable reader would understand it to contain rhetorical hyperbole, and not actual, provable facts about Snyder and his son.”  See id.

[7] Hester v. Barnett, 723 S.W.2d 544, 559 (Mo. Ct. App. 1987).

[8] Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940).  See id. at 309 (“One may, however, be guilty of [breach of the peace] if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended.  Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer.”) (emphasis added); cf. Cohen v. California, 403 U.S. 15, 20 (1971) (“While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not ‘directed to the person of the hearer.’”) (quoting Cantwell, 310 U.S. at 309).

[9] The district court concluded that it was Defendants who thrust the Snyder family into the unwelcome glare of national media coverage, “transform[ing] a private funeral into a public event.”  Snyder v. Phelps, 533 F. Supp. 2d 567, 577 (D. Md. 2008).  The fact that Matthew’s funeral attracted public attention does not make him a public figure. “A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.”  Wolston v. Reader’s Digest Ass’n, 443 U.S. 157, 167 (1979).  Defendants’ reasoning would in effect nullify the Supreme Court’s precedents that establish the contours of the public figure doctrine.  See Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); cf. St. Luke Evangelical Lutheran Church v. Smith, 537 A.2d 1196, 1202-04 (Md. Ct. Spec. App. 1988) (plaintiffs objection to pastor at church meeting does not render her a public figure) (citing Gertz and Firestone). If there is no evidence that Matthew or his family assumed a prominent role in public controversy, see Gertz., 418 U.S. at 351, or that the Snyders sought to use Matthew’s funeral “as a fulcrum to create public discussion,” see Wolston, 443 U.S. at 168, the district court rightly rejected Defendants’ attempt to “bootstrap their position by arguing that Matthew Snyder was a public figure,” Snyder, 533 F. Supp. 2d at 577.

[10] When speech is forced upon “an audience incapable of declining to receive it,” Lehman v. City of Shaker Heights, 418 U.S. 298, 307 (1974) (Douglas, J., concurring), the Court has not hesitated to uphold the regulation of expressive activity.  See Hill v. Colorado, 530 U.S. 703 (2000); Madsen v. Women’s Health Ctr., 512 U.S. 753 (1994); Frisby v. Schultz, 487 U.S. 474 (1988); F.C.C. v. Pacifica Found., 438 U.S. 726 (1978); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974); Rowan v. United States Post Office Dep’t, 397 U.S. 728 (1970); Kovacs v. Cooper, 336 U.S. 77 (1949); Packer Corp. v. Utah, 285 U.S. 105 (1932); cf. Cohen v. California, 403 U.S. 15, 21 (1971) (persons confronted with defendant’s jacket bearing the words “Fuck the Draft” could have avoided “further bombardment of their sensibilities simply by averting their eyes”); Collin v. Smith, 578 F.2d 1197, 1207 (7th Cir. 1978) (residents could “simply avoid” Nazi-affiliated party protest activities).  If there are places outside the home where we need not be held hostage to verbal confrontation, the setting where we mourn the dead certainly must be one of them.

[11] See Jones v. Wolf, 443 U.S. 595, 606 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976); Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969); Kedroff v. St. Nicholas Cathedral of Russian Orthodox in N. Am., 344 U.S. 94, 116 (1952); Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16-17 (1929).