Milan Smith

Early life and education

Career

Federal judicial service

Notable cases

First Amendment

• Smith wrote the majority opinion, which struck down the Stolen Valor Act of 2005. The panel ruled 2 to 1 that the law violated the First Amendment. "The right to speak and write whatever one chooses—including, to some degree, worthless, offensive and demonstrable untruths—without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment," Smith wrote in the majority opinion. The U.S. Supreme Court affirmed the judgment in a 6–3 decision.
• Smith, writing for the majority of an 11-judge en banc panel, concluded that an ordinance of the City of Redondo Beach, California, that barred day laborers from soliciting work from occupants of motor vehicles violated the Free Speech Clause of the First Amendment.
• Smith, writing for a divided panel, rejected an effort by contributors to California's anti-gay marriage ballot measure, Proposition 8, to shield their identities from disclosure. The opinion rejected a Free Speech Clause challenge to the California requirement that committees report donations made before the election but after the pre-election reporting deadline, and that certain other aspects of the donors' challenges were either moot or not ripe because the information the donors sought to keep confidential had already been published across the internet.
• Writing on behalf of an undivided panel, Smith held that a high school football coach spoke as a public employee when he would kneel and pray on the 50-yard line immediately after games, in full school apparel, while in view of students and parents. Because the coach's demonstrative conduct was made in his capacity as a public employee, the school did not illegally retaliate against him when the school ordered the coach not to speak in the manner that he did. Smith also noted that the school district's action was justified in order to avoid violating the Establishment Clause. The 9th circuit denied en banc on July 19, 2021, with Smith writing a concurring opinion. Certiorari was granted in the case on January 14, 2022. The U.S. Supreme Court reversed the judgment in a 6–3 decision. In her dissent, Justice Sonia Sotomayor echoed Smith's observation that the coach's argument that he only wanted to conduct his own private prayer while seeking no attention from his players or the public was flatly contradicted by the facts in the record.
• Smith dismissed a defamation lawsuit against Rachel Maddow. He ruled that Maddow's words that OAN “really literally is paid Russian propaganda" could not amount to defamation and that her speech is protected by the First Amendment.
• Smith wrote the majority opinion, which reversed the district court’s order preliminarily enjoining the City of Seattle from enforcing its anti-graffiti ordinance. Writing for an undivided panel, Smith criticized the district court for enjoining the ordinance as overbroad without acknowledging “the numerous applications of the ordinance that would not implicate any protected speech, such as spray-painting an individual’s private home, vehicle, or other private property, or chalking messages on an individual’s private driveway.” The Seattle Times characterized the ruling as “a victory for Seattle City Attorney Ann Davison, who made public disorder and specifically graffiti crackdowns central to her campaign two years ago.”
• NetChoice v. Bonta, . Writing for a unanimous panel, Smith partially upheld and partially vacated a preliminary injunction issued by Judge Beth Labson Freeman that had previously blocked the enforcement of California's Age-Appropriate Design Code Act. Smith agreed with Judge Freeman that the CAADCA likely violated the First Amendment insofar as it required online companies to assess and report on potential content-related harms to children. However, Smith vacated the rest of the district court's injunction, finding that it was unclear whether the other provisions of the CAADCA, such as those related to default privacy settings and the prohibition of using children's data in harmful ways, also violated the First Amendment.
• Hunter v. U.S. Dep't of Educ., . Writing for an undivided panel, Smith affirmed a lower court's dismissal of a constitutional challenge to Title IX's exemption for sex-based discrimination at religious post-secondary institutions that receive federal funding. Smith held that Congress, “within its constitutional boundaries,” adequately balanced the interests of religious freedom and gender-based equality, both of which are protected under the American Constitution.
• X Corp. v. Bonta, . Smith, writing for a unanimous panel, blocked the state of California from enforcing a law that requires large social media platforms to report how they moderate especially controversial categories of speech, finding that certain provisions of the law violate the First Amendment.

  Second Amendment

• Smith, writing for a unanimous three-judge panel, upheld a conviction for the possession of a homemade machine gun. Rejecting the defendant's Second Amendment claim based on District of Columbia v. Heller, 554 U.S. 570, Smith wrote that machine guns are "dangerous and unusual weapons" that are not "typically possessed by law-abiding citizens for lawful purposes," and that their possession is not protected by the Second Amendment.
• . Smith dissented from the majority opinion, which held that the felon-in-possession statute, , violates the Second Amendment as applied to non-violent offenders who have served their time in prison and reentered society. Smith urged the court to rehear the case en banc.

  Fourth Amendment

• Smith authored the majority opinion affirming the denial of summary judgment based on qualified immunity, where a deputy sheriff fatally shot a 13-year-old boy. Viewing the facts in the light most favorable to the plaintiffs, the panel concluded that the deputy deployed deadly force within seconds after exiting his vehicle while the boy was walking in the opposite direction on an adjacent sidewalk, holding what appeared to be a gun pointed at the ground, without warning about the amount of force that would be used, and without observing any aggressive behavior by the boy. Because the boy did not pose an immediate threat to law enforcement officials or anyone else, the law clearly established that the deputy's conduct was unconstitutional and the deputy was not entitled to qualified immunity. The U.S. Supreme Court later denied cert.
• Writing for a unanimous panel, Smith rebuked the FBI for its March 2021 raid on US Private Vaults in Beverly Hills, California, in which it seized over 700 safe deposit boxes and attempted to civilly forfeit each box's contents. Smith also wrote a separate concurrence indicating his view that the inventory search doctrine should categorically not extend to searches of safe deposit boxes in a locked vault. Many observers celebrated the ruling as a crucial win for individuals' Fourth Amendment rights.

  Environmental law

• Smith dissented from an en banc decision of the court holding that a federal agency's decision to refrain from acting triggered the Endangered Species Act's interagency consultation process. The dissent began with a reproduction of a woodcut and excerpt from Jonathan Swift's Gulliver's Travels, depicting and describing the eponymous traveler's capture by the Lilliputians—an unusual sight in the Federal Reporter.
• Writing for an undivided panel, Smith held that the passage of pollutants through natural groundwater before reaching navigable waters necessarily triggered application of the Supreme Court's "functional equivalent" test from its decision in

  Intellectual Property

• Smith wrote the majority opinion for a divided panel, which upheld a jury verdict finding that the 2013 song "Blurred Lines" infringed on Marvin Gaye's estate's copyright to the 1977 song "Got To Give It Up." The decision rested on narrow grounds based on the procedural posture of the case.
• Gray v. Hudson, . Writing for a unanimous panel, Smith wrote an opinion upholding the district court's decision to overturn a $2.78 million award in a copyright lawsuit against the singer Katy Perry and several other defendants. In the lawsuit, the plaintiffs alleged that Perry's song "Dark Horse" impermissibly copied an ostinato from their song "Joyful Noise." Smith agreed with the district court that the plaintiffs failed to show that Perry or her co-defendants had copied elements of "Joyful Noise" that were sufficiently original to be protectable under copyright law, stating: "The portion of the 'Joyful Noise' ostinato that overlaps with the 'Dark Horse' ostinato consists of a manifestly conventional arrangement of musical building blocks. Allowing a copyright over this material would essentially amount to allowing an improper monopoly over two-note pitch sequences or even the minor scale itself." Smith's opinion did not comment on other issues decided by the district court, concluding that it was unnecessary to "reach any other issue in this case." Smith's ruling was recognized within the legal community as one of the most important copyright decisions of 2022.