The BLT: The Blog of Legal Times

Court Upholds Airline Passenger’s Claim of First Amendment Retaliation

Aaron Tobey had the text of the Fourth Amendment written on his chest as he went through an airline security checkpoint two years ago in Richmond. He was soon detained, arrested and charged with disorderly conduct. State prosecutors later dropped the case.

Tobey sued in Alexandria federal district court, alleging speech and detention constitutional violations. A trial judge dismissed the Fourth Amendment claims but kept alive Tobey's allegation that the authorities retaliated against him for exercising First Amendment rights.

Today, a federal appeals court declined to overturn the trial judge's ruling in a lengthy, divided opinion that explored the scope of protected speech in the sometimes-tense environment of an airport security checkpoint.

The appellate court decision means Tobey's claims under the First Amendment can proceed in the trial court. The ruling, however, doesn’t necessarily mean he will win the case. Lawyers for TSA, represented by the U.S. Justice Department, had argued there was no violation and that, assuming Tobey had a valid claim, the defendants are immune from suit because the speech right wasn't clearly established.

Writing for the majority, Judge Roger Gregory, joined by Judge Allyson Duncan, said it is "crystal clear that the First Amendment protects peaceful nondisruptive speech in an airport, and that such speech cannot be suppressed solely because the government disagrees with it."

D.C. Circuit Upholds Conviction of Former Abramoff Lobbying Associate

The distinction between legal lobbying and criminal conduct may be subtle, the U.S. Court of Appeals for the D.C. Circuit ruled Friday, but it spells the difference between honest politics and corruption.

In upholding the criminal conviction of a former member of Jack Abramoff's former lobbying team, the court sharpened the legal boundaries of giving politicians campaign contributions, dinners, travel and Washington Wizards tickets.

Honest-services fraud does not require public officials to explicitly agree to a quid pro quo arrangement to do an official act in exchange for "things of value," the court ruled. An implicit agreement with the public official is enough, and the official doesn't even have to accept the free meal, trip or tickets.

Chamber Adds Bingham McCutchen to Its Long List of Lobby Shops

The U.S. Chamber of Commerce has added Bingham McCutchen to its lobbying cadre of about two dozen firms.

John Schmitz, a Bingham partner who has offices in Washington and Frankfurt, Germany, is advocating for the business federation on the "[i]mplementation of Dodd-Frank and litigation reform issues," according to lobbying registration paperwork he filed with Congress on Thursday. Schmitz, who served as White House deputy counsel to President George H. W. Bush, focuses on regulatory matters and international transactions at Bingham.

He previously lobbied for the Chamber from 1999 to 2009 at Mayer Brown and 2009 to 2012 at Schmitz Global Partners, according to congressional records. Schmitz Global Partners didn't report any payments in excess of $5,000 from the organization when Schmitz was at the firm. But Mayer Brown reported that the Chamber paid it at least $1 million for three of the years he was lobbying for the group at the firm.

FTC Urges Tennessee Court to Ease Off Lawyer Ad Restrictions

The Federal Trade Commission is urging the Tennessee Supreme Court not to adopt sweeping new restrictions on attorney advertising, calling the proposed new rules unnecessarily broad and not in the best interest of consumers.

Tennessee is considering proposals that would ban the use of actors playing the role of clients, prohibit ads narrated by well-known spokespeople (here's looking at you, William Shatner) and forbid certain background sounds.

Also on the table: a rule that would limit the images in ads to gavels, scales of justice, the Statue of Liberty, flags, eagles, courthouses, columns, law books or photos of attorneys ("against a plain, single-colored background or unadorned set of law books.") Specifically forbidden: talking dogs and space aliens.

D.C. Lawyer Pleads Guilty to Stealing $109K

Updated at 12:52 p.m.

A now-disbarred Washington lawyer and former D.C. Council candidate, Deairich Hunter, pleaded guilty this week in federal court to stealing more than $109,000 in funds intended for his clients.

At a plea hearing January 23 before U.S. District Judge Beryl Howell, Hunter, a former solo practitioner, admitted to keeping thousands of dollars in settlements for clients in disability and personal injury cases. In at least one instance cited in court filings, he stole funds that he was supposed to use to pay the medical bills of a client injured in a car accident.

Hunter is scheduled for sentencing before Howell on April 26. He was released on personal recognizance until the hearing, and was ordered to stay in the Washington area and surrender his passport.

Deadline Approaching for D.C.-Area In-House Legal Departments Contest

The National Law Journal is seeking nominations for our Washington Legal Departments of the Year Contest for 2013. We will recognize the Washington region's top in-house departments in six categories. To qualify, the departments must be led by lawyers from the D.C. metro area. Law firms may nominate their clients' legal departments for the contest.

Please send completed submissions to nljsurvey@alm.com, and include "Washington" and the company's name in the subject line. The deadline for submissions is January 31.

More information on the contest is available here.

D.C. Circuit Declares NLRB Recess Appointments Unconstitutional

Updated 12:18 p.m.

A federal appeals court in Washington today declared unconstitutional a series of recess appointments President Barack Obama made to the National Labor Relations Board, setting up a potential government request that the U.S. Supreme Court weigh the scope of presidential appointment power.

The ruling in the U.S. Court of Appeals for the D.C. Circuit was a major blow to the U.S. Justice Department, which defended the appointments as a valid exercise of presidential authority.

The appeals court in Washington today said the president has power to make appointments only during "the recess" of the Senate—that is, the period between the sessions of the Senate when it is not in session and therefore unavailable to assess and vote on presidential nominations. (The decision today was made in a case in which a bottling company challenged the validity of a NLRB ruling.)

Writing for the panel, Chief Judge David Sentelle of the D.C. Circuit said the NLRB appointments of Sharon Block, Terence Flynn and Richard Griffin, made without Senate consideration in January 2012, were "invalid from their inception" because the U.S. Senate had not gone into recess. The Senate, at the time, was meeting in "pro forma" sessions every three business days.

Obama Taps DOJ Official for White House Post

President Obama will nominate Lisa Monaco today as the deputy national security advisor for homeland security and counterterrorism and assistant to the president, a White House official confirmed.

Monaco, the assistant attorney general for the Department of Justice's National Security Division since the Senate confirmed her to that position in 2011, is among a list of nominees Obama will announce today at 12:10 p.m. at the White House.

She would replace John Brennan in the position. Because of that, her nomination depends on Brennan's confirmation as director of the Central Intelligence Agency. Brennan was nominated to the post earlier this month.

The Morning Wrap

'Tough sheriff': "The nomination of Debevoise & Plimpton partner Mary Jo White as the next chairman of the U.S. Securities and Exchange Commission means that the agency will continue with an aggressive approach to Wall Street enforcement, financial regulation attorneys say," The National Law Journal reports. More coverage of White's nomination here and here.

No damages: From today's Recorder: "The long-running IP war between Mattel Inc. and MGA Entertainment Inc. over the Bratz line of dolls has ended — for now — with zero damages. The U.S. Court of Appeals for the Ninth Circuit on Thursday laid waste to Bratz maker MGA's $170 million trade secret award — an award procured on retrial after the appeals court wiped out Barbie maker Mattel's $100 million copyright verdict and constructive trust."

Tweaks: NPR reports: "The Senate voted Thursday to limit filibusters in a rare bipartisan vote that would reduce but not end the number of times opponents can use the procedure."

Seduction or obscene act?: An undercover sex sting on a forest trail in North Carolina is the centerpiece of a dispute in the U.S. Court of Appeals for the Fourth Circuit over the scope of a federal disorderly conduct regulation. The American Civil Liberties Union filed a brief in support of a man who was arrested and prosecuted after grabbing the crotch of an undercover agent.

Informal Senate Agreement on Filibuster Reform Could Speed Confirmations

The Senate has informally agreed to change its rules on filibusters, including a new provision that will streamline confirmation votes on federal district court judges.

Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) came to an agreement Thursday on reforms to the filibuster, which has been blamed for the gridlock in the Senate and long delays for judicial nominees.

While the agreement does not include many of the key changes that some filibuster reformers sought, it does reduce the amount of floor time needed to overcome a filibuster and force a vote on a judicial confirmation, called cloture.