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Recent Supreme Court cases of municipal interest

Updated: Sep 27, 2023

In Counterman v. Colorado, ____ U.S. ____ (2023), decided June 27, 2023,the Supreme Court held that for a person posting messages on social media to be held liable for “true threats” not protected under the First Amendment, the State must prove some subjective understanding of the statements’ threatening nature. In short, to prove that a true threat is not protected by the First Amendment, the State must prove that the person making the alleged threat “consciously disregarded a substantial risk that his communications would be viewed as threatening violence” or a recklessness standard for such statements.

In Moore v. Harper, ____ U.S. ____ (2023), decided June 27, 2023, the Supreme Court rejected the Independent State Legislature Theory, a theory buttressing an ongoing saga in North Carolina state legislature’s attempt to draw legislative district maps. This theory posited that the Elections Clause of the U.S. Constitution completely divests state courts from reviewing state legislative action related to federal elections. The Supreme Court instead held that state constitutions and state courts do constrain the exercise of state legislative power in conducting federal elections; as such, state courts still have jurisdiction relating to state law claims in federal elections.

In Students for Fair Admissions v. Harvard, 600 U.S. ___ (2023), decided June 29, 2023, the Supreme Court held that the 14th Amendment Equal Protection Clause prohibited consideration of race in college admissions. The Court struck down the college admission programs of the University of North Carolina and Harvard that had allowed race to be considered on a limited basis (but not as a quota) as allowed by prior Supreme Court decisions. The Court now holds expressly that a student must not be treated “on the basis of race” and appears to essentially end the use of race even in a limited way.

While the case does not expressly deal with the use of race in municipal decisions such as minority contracting or purchasing programs or compliance with such state or federal programs, serious review of this new holding should be considered to determine what impact it may have in ending or limiting such local government actions. See J. Kavanaugh concurrence (cities have “at its disposal, a whole array of race neutral devices” to avoid use of race classifications).

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