The post Today in Supreme Court History: July 20, 1990 appeared first on Reason.com.

Plaintiff Dr. Eugene Gu, appearing pro se in this media defamation case, is an online activist involved in a series of controversies, ranging from a Congressional investigation into research use of human fetal tissue, to online debates about racial discrimination and white supremacy, to a federal lawsuit challenging former President Trump's use of Twitter to block critics. Dr. Gu claims, on Twitter and elsewhere, to be the victim of retaliation, harassment, and online bullying for his activism, while his critics, on Twitter and elsewhere, claim that he is the bully and harasser.

In this action, Dr. Gu challenges a news profile about him which was published on March 5, 2019 … by defendants Vox Media, LLC, and its reporter, Laura Yan …. The Article chronicles Dr. Gu's rise to fame and the controversies in which he has been embroiled, including interviews with Dr. Gu and a number of his critics. Dr. Gu contends that seven discrete statements within the Article are defamatory, and asserts claims for defamation and intentional infliction of emotional distress….

Dr. Gu is a doctor and an outspoken social justice advocate on Twitter. On his Twitter account, @eugenegu, he has more than 443,000 followers. He posts regularly about his experiences as an Asian American in the medical field, his activism on Twitter, and retaliation and online harassment he has received in response.

Dr. Gu has also published opinion pieces, appeared on camera for interviews, and been the subject of numerous press reports on these topics (see e.g. Democracy Now interview transcript [NYSCEF Doc No. 11], at 8 ["I took the knee to fight against the very racism that I was the victim of …. And I was punished for it"]; Independent article [NYSCEF Doc No. 12], at 3 [discussing "Republican war on medical research involving fetal tissue" and Congressional subpoena]; Buzzfeed article [NYSCEF Doc No. 12] [discussing viral Tweet in support of Colin Kaepernick]).

Dr. Gu has also appeared as a named plaintiff in a widely publicized lawsuit challenging former President Trump's practice of blocking critics on Twitter as a violation of his and other Twitter users' First Amendment rights….

On February 20, 2018, Yan contacted Dr. Gu, identifying herself as a freelance writer from Brooklyn who wanted to do a profile or story on him. Dr. Gu agreed to an interview, and spoke with Yan via Skype on February 22, 2018, and then again on April 2, 2018. Dr. Gu alleges that most of the discussion was about activism for Asian American issues that he was involved in on social media.

Dr. Gu further alleges that, in May 2018, he discovered that Yan was publicly communicating on Twitter with an anonymous user claiming to be a physician called #MedTwitter. This anonymous user went by various Twitter handles including @nefariousMD, @nefariousBFT, and @thephoenixMD1. Dr. Gu alleges that, on multiple occasions, this anonymous account harassed him with racial epithets about his Asian American heritage, false accusations of domestic violence, and ganged up with other physicians on #MedTwitter to publicly ask him to commit suicide, and donate his organs to these physicians for further study. On June 7, 2018, Gu emailed Yan, explaining that, because of her tweets to anonymous user @nefariousMD, @thephoenixMD1, and @ñcfariousBFT who are believed to be the same individual, he would terminate communication with Yan, and pursue a defamation lawsuit if any malicious article resulted from baseless accusations without evidence.

The ensuing Article was published on the Vox Media website The Verge on March 5, 2019, and is entitled, "The Strange Case of Eugene Gu," with the subheading, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse." The Article starts with an overview of Dr. Gu's rise to fame on Twitter, including his growing number of followers, a viral tweet showing Dr. Gu taking a knee to protest white supremacy, and his participation in the First Amendment challenge to the President's Twitter practices. Next, the Article states that "Gu had learned just how powerful the platform [Twitter] could be …. Eventually, the same platform that built him up would threaten to be his undoing."

The court concludes that some of the allegations were substantially true and some were opinions, and thus weren't actionable as defamation or as intentional infliction of emotional distress; here's an excerpt (though you can also read the whole opinion):

Dr. Gu challenges the Article's subheading, which reads, "Behind one of Twitter's most outspoken social justice personalities is a history of abuse." … Here, the subheading is a fair summary of the content in the Article, which reports on the various allegations of verbal, domestic, and sexual abuse that have been levied against Dr. Gu. As such, it is not actionable…. "If the headline is a fair index of an accurate article, it is not actionable" ….

Moreover, this statement is substantially true, because Dr. Gu does not dispute key factual statements that the subheading merely summarizes. The Article describes allegations of domestic violence, claims of sexual misconduct, and reports of online harassment surrounding Gu, as well as his response to these allegations….

Finally, even if the court were to construe the first statement as endorsing the veracity of these allegations, rather than just reporting on their existence, the statement would still be protected as non-actionable opinion based on disclosed facts. New York courts recognize an important distinction between a statement of opinion that implies a basis in facts which are not disclosed to the reader or listener, and a statement of opinion that is accompanied by a recitation of the facts on which it is based, or one that does not imply the existence of undisclosed underlying fact. The Article here fulfils those requirements, setting forth the facts supporting the suggestion that there is "a history of abuse," and that "each reader may draw his own conclusion." …

The Second Statement, "Warning: this piece contains descriptions of sexual assault," is also non-actionable opinion…. [A] reasonable reader would consider this statement in context, and understand that it was an alert to readers who may be sensitive to certain subjects, commonly known as a trigger warning…. At most, a reasonable reader would understand this to be defendants' opinion that some readers might find portions of the story about a disputed sexual encounter uncomfortable, not any statement of fact about Dr. Gu that could be proven true or false….

The third, fifth and sixth statements identified by Dr. Gu are not actionable because they are not capable of a defamatory meaning as a matter of law:

"'Eventually, the same platform that built him up would threaten to be his undoing.'

'Maybe it was how easily Gu sounded indignant during our interviews, or the tense, charged terms he used to describe the alleged discrimination he suffered, or how, in every narrative, he was always the victim.'

'You're the only person in the world I can talk to,' Gu told her. 'If it wasn't for you, I might have killed myself tonight.'"

.In the amended complaint, Dr. Gu does not suggest any reason why these statements would "expose the plaintiff to public contempt, ridicule, aversion or disgrace," and no reasonable reader would understand them as such. There is nothing inherently defamatory about being characterized as "indignant" or being a victim, nor is it defamatory to say that Dr. Gu was threatened by the very platform that made him famous. Indeed, the third and fifth statements are also clear expressions of an opinion (that Twitter would threaten to undo Gu or that Gu played the victim), supported by the facts in the Article, and not actionable on that ground as well.

Likewise, with regard to the potential suicide reference, this statement is not defamatory as a matter of law, as millions of people in the United States suffer with mental health issues on a daily basis, and thus "does not arouse in the mind of the average person in the community an evil or unsavory opinion [] or expose plaintiff to public hatred, contempt, or aversion." Rather, such a statement would tend to induce sympathy or empathy in the mind of the average reader….

The statement regarding @NefariousMD and his publication of allegations of domestic violence against Dr. Gu is also not actionable under New York's fair report privilege for discussions of court records:

"I tweeted at an especially ardent critic, the (now deleted) @NefariousMD, asking for his perspective on Gu. @NefariousMD often posted screenshots of an unsettling piece of Gu's past: a series of arrest citations, including filed restraining orders and allegations of domestic violence" …

Court files from Dr. Gu's divorce show that his ex-wife sought and obtained a Temporary Restraining Order for domestic violence prevention against Dr. Gu on February 9, 2015, and that the order remained in place until March 9, 2015, when she declined to pursue the matter further….

The final statement upon which the amended complaint asserts a claim is also substantially true and/or protected as opinion:

"Back at Gu's apartment, he started 'pawing' at her while she tried to refuse. She tried to push him away. He kept at it. "It was just like that until he passed out. That's when I got up, turned on the shower, and was crying."

Such a statement might potentially be actionable as a statement of false fact if, for example, a plaintiff denied that an incident occurred. But here Dr. Gu does not deny his relationship with Allison, the in-person visit, or that they had a sexual relationship . The only dispute is how the two parties to that encounter characterized the interaction. Dr. Gu has contended—as defendants reported—that "Allison was the seducer, and he the unwilling victim." Dr. Gu only takes issue only with Allison's characterization of their tryst—i.e., that he was "pawing" at her, that she tried to push him away—but this is opinion, based on disclosed facts, and is not actionable. The Article explains the basis for Allison's opinion, provides Dr. Gu's response, and discusses the contradiction in the two individuals' opinions. Indeed, the author even describes her own conflict over including the "unresolved questions from [Dr. Gu's] past." This statement is therefore protected opinion, and thus cannot properly provide the basis for his defamation claim….

The court also concluded that, in any event, Gu was a limited purpose public figure and thus had to show defendants made their statements knowing they were false or at least likely false, something that Gu hadn't adequately alleged:

New York courts have found plaintiffs to be limited purpose public figures based on their political activities, solicitation of press coverage, and involvement in public controversies (see e.g. James, 40 NY2d at 423 [dancer became a limited purpose public figure by participating in interviews about and "welcome[ing] publicity regarding her performances"]; Blum v State of New York, 255 AD2d 878, 880 [4th Dept 1998] [former professor was a limited purpose public figure with regard to his public dispute with law school]; see also Perks v Town of Huntington, 251 F Supp 2d 1143, 1168-69 [ED NY 2003] [plaintiff became limited purpose public figure by giving press conferences and availing himself of the media to report harassment claims]).

Here, Dr. Gu has plainly "thrust [him] self into the public spotlight and sought a continuing public interest in [his] activities," by writing; appearing on camera; granting press interviews; and tweeting extensively about his social activism, racial discrimination against Asian Americans, and the retaliation and harassment he claims to have endured in response. Accordingly, Dr. Gu has clearly sought the public spotlight, and is thus a limited purpose public figure as it relates to his activism and the harassment and bullying surrounding it—precisely the issues explored by the Article….

The post Court Rejects Online Activist Eugene Gu's #TheyLied Libel Suit Over Abuse Allegations in <i>The Verge</i> appeared first on Reason.com.

This case concerns whether, under the Fifth Amendment's guarantee of equal protection, Defendants the United States' Department of Agriculture ("USDA") and the Small Business Administration ("SBA") may use a "rebuttable presumption" of social disadvantage for certain minority groups to qualify them for inclusion in a federal program that awards government contracts on a preferred basis to businesses owned by individuals in those minority groups.

The court generally answers this "no"; here's an excerpt, though if you're interested in the details you should read the whole opinion:

"The liberty protected by the Fifth Amendment's Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws." United States v. Windsor (2013); see also Bolling v. Sharpe (1954); Ctr. for Bio-Ethical Reform v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) ("The Fifth Amendment, of course, does not itself contain a guarantee of equal protection, but instead incorporates, as against the federal government, the Equal Protection Clause of the Fourteenth Amendment."). Courts, therefore, "evaluate equal protection claims against the federal government under the Fifth Amendment just as [they] would evaluate equal protection claims against state and local governments under the Fourteenth Amendment." …

To satisfy the compelling-interest prong [of the strict scrutiny applicable to race classifications], the government must both identify a compelling interest and provide evidentiary support concerning the need for the proposed remedial action. The Supreme Court has held that the government has a compelling interest in "remediating specific, identified instances of past discrimination that violated the Constitution or a statute." Students for Fair Admissions, Inc. Additionally, the government must present goals that are "sufficiently coherent for purposes of strict scrutiny."

Defendants assert that their use of the rebuttable presumption in the 8(a) program is to remedy the effects of past racial discrimination in federal contracting. But Defendant USDA admits it does not maintain goals for the 8(a) program. And Defendant SBA admits that it does not require agencies to have goals for the 8(a) program. Defendants also do not examine whether any racial group is underrepresented in a particular industry relevant to a specific contract in the 8(a) program. Without stated goals for the 8(a) program or an understanding of whether certain minorities are underrepresented in a particular industry, Defendants cannot measure the utility of the rebuttable presumption in remedying the effects of past racial discrimination. In such circumstances, Defendants' use of the rebuttable presumption "cannot be subjected to meaningful judicial review." The lack of any stated goals for Defendants' continued use of the rebuttable presumption does not support Defendants' stated interest in "remediating specific, identified instances of past discrimination[.]"If the rebuttable presumption were a tool to remediate specific instances of past discrimination, Defendants should be able to tie the use of that presumption to a goal within the 8(a) program.

Even if Defendants stated a sufficiently compelling interest, they still must demonstrate "a strong basis in evidence" to support the use of the race-based rebuttable presumption…. Recently, the Sixth Circuit addressed a challenge similar to the one Ultima raises here. In [that case], the Sixth Circuit reviewed the way in which Defendant SBA distributed coronavirus relief funds to help restaurants impacted by the coronavirus pandemic. Defendant SBA distributed the funds on a first come, first served basis. But during the first 21 days that the funds were available Defendant SBA distributed funds to priority applicants, which included restaurants that were "socially and economically disadvantaged." To determine which restaurants qualified as socially and economically disadvantaged, Defendant SBA relied on the same statutory and regulatory framework at issue here—particularly, the race-based rebuttable presumption. The plaintiff, a white, male 50% owner of a restaurant, sued to end Defendant SBA's racial preferences in distributing funding and sought a temporary restraining order and preliminary injunction. The district court denied both of the plaintiff's motions, and the plaintiff appealed those denials. The Sixth Circuit concluded that the plaintiff had a likelihood of success on the merits of his claims and that Defendant SBA's rebuttable presumption likely was unconstitutional because it did not serve a compelling interest and was not narrowly tailored….

Michael Rosman and Michelle Scott (Center for Individual Rights) and M. Dale Conder, Jr. (Rainey, Kizer, Reviere & Bell P.L.C.) represent plaintiff. I am on the CIR Board of Legal Advisors, though I wasn't at all involved with this case.

The post District Court Strikes Down Race Preference in USDA's and SBA's Contracting Schemes appeared first on Reason.com.

Today, the District Court granted the District Attorney's motion to remand the case to the Federal Court. There are three paragraphs that discuss this "officer" issue:

The parties assume, and I hold, that Trump, although not presently a federal officer, can remove a case otherwise qualified for removal. It would make little sense if this were not the rule, for the very purpose of the Removal Statute is to allow federal courts to adjudicate challenges to acts done under color of federal authority.

The more difficult question is whether a President is an "officer … of the United States" within the meaning of§ 1442(a)(l). The People argue that the Supreme Court has interpreted federal statutes referring to an "officer of the United States" to include appointed, but not elected, officers. See Free Enter. Fund v. Public Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) ("The people do not vote for the 'Officers of the United States."' (quoting U.S. Const. art. II,§ 2, cl. 2)); United States v. Mouat, 124 U.S. 303, 307 (1888) ("[A] person in the service of the government" who does not "hold[] his place by virtue of an appointment … is not, strictly speaking, an officer of the United States."). Trump notes that the D.C. Circuit previously allowed him to remove a civil action to federal court under § 1442 while in office, K&D LLC v. Trump Old Post Off LLC, 951 F.3d 503, 505 (D.C. Cir. 2020), and cites to several cases permitting federal officer removal for elected members of Congress, see Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 412-415 (D.C. Cir. 1995); Williams v. Brooks, 945 F.2d 1322, 1324 n.2 (5th Cir. 1991); Richards v. Harper, 864 F.2d 85, 86 (9th Cir. 1988).

I believe that the President should qualify as a "federal officer" under the removal statute but, as is evident from the discussion below, the proposition is dictum, unnecessary for the decision that I reach.

It is unusual for an opinion to use the verb "believe," rather than conclude or determine. There is also no analysis here. I'm not sure how much weight we can place in this dictum, if any.

In any event, the issue is clearly preserved for appeal. (Remember, remand orders for the federal officer removal statute can be appealed.)

The post SDNY "Believe[s]" In Dictum That President An "Officer of the United States" for purposes of Federal Officer Removal Statute appeared first on Reason.com.

The Manhattan Institute's Judge Glock has a favorable review of Climate Liberalism: Perspectives on Liberty Porperty & Pollution over at Law & Liberty. Here is a taste:

A recent collection of essays edited by Jonathan Adler seeks to answer the question of whether "classical-liberal principles" can provide a distinctive perspective on climate change. After reading Climate Liberalism, I think the answer is no, they cannot. Insofar as government is going to respond to climate change, this book shows that the classical liberal or even libertarian response will look a lot like the modern liberal response.

Yet the book is a success at demonstrating, first, how contemporary responses to climate change can be fit into a classically liberal perspective, and, second, how much the free-market response to environmental problems in general has come to inform modern liberals' response, including their response to climate change. If classical liberals are going to wrestle with this issue, this book should make them comfortable that they can do so in their own tradition and without falling into anti-capitalist extremes.

I take the point, but I might shift the emphasis. Yes, I believe some contributions to the book suggest that classical liberals need to think about how government should respond to the threat of climate change more than whether it should respond. I further agree that climate change (like, perhaps, national security and disease) requires the consideration of governmental actions that classical liberals would generally (and rightly) resist. But I also believe—and hope the book helps suggest—that a classical liberal perspective is useful in evaluating competing climate policy options, both in terms of what sorts of policies may be effective and what sorts of policies are most compatible with a concern for individual liberty.

As Glock notes, the book focuses on political theory and policy, not science, and there is a reason for that.

The book makes a wise decision to separate the question of the science of climate change from the political question of what to do about it. Since there is no "classical liberal science" just as there is no "socialist science," this book does not try to contribute to that debate. But, as several authors note, even if one thinks the scientific consensus on climate is open to question, and even if one brings an appropriate humility to our ability to imagine the future, that provides little reason to pretend there could not be any costs to climate change, or at least that there could not be some risk to it.

For myself, a classical liberal skepticism of centralized governmental action, combined with an appreciation for how slow and brittle regulatory measures can be, cautions strongly against the sort of regulatory measures favored by progressives, particularly when there are alternative ways to mitigate the threat of climate change. A revenue-neutral carbon tax, for instance, leaves individuals and firms free to respond to energy prices along any margin they wish, providing incentives for emission reduction where such reductions can be achieved efficiently and with only a minimal reduction in the degrees of freedom individuals and firms have to act. Such a policy also avoids the fatal  conceit of regulators and planners who think they know when and in what form emission reductions should be achieved. Even an imperfectly calculated tax can fulfill this purpose, and significantly more effectively than the regulatory alternative.

Glock's review concludes:

Insofar as there is a single message in this book, it is the simple but powerful reminder that a classically liberal perspective demands humility—humility about how well policymakers can understand humanity's well-being and also about the ability of government to improve that well-being. But the book also reminds us that humility does not mean indolence. Just as classical liberals or libertarians cannot punt on the issues of national defense or public safety and merely gesture to the free market, despite some heroic attempts at trying, they also cannot pretend any attempt at addressing climate change is beyond the ideological pale. Climate change will remain a political issue, which means it will involve weighing evidence, trying to align public and private incentives, and coming to a political agreement on complex and almost unknowable issues. The best tradition of classical liberalism has done that in other spheres, and it can do it here.

I appreciate the engagement and the kind words for the book and the project it represents.

The post Judge Glock on "Climate Liberalism" appeared first on Reason.com.

Flash back to 2011, as the constitutional challenges to the Affordable Care Act were trickling up to the Supreme Court. One of the cases, Seven-Sky v. Holder landed before Judge Kavanaugh on the D.C. Circuit Court of Appeals. The other two judges on the panel (Silberman and Edwards) upheld the ACA's individual mandate. This provision, the panel found, could require people to purchase health insurance based on Congress's power to regulate interstate commerce. But Judge Kavanaugh took a very different path based on Congress's taxing power. The analysis here is very complex. Indeed, I devoted an entire chapter of my 2013 book on the Obamacare litigation to Kavanaugh's approach. (You can read an excerpt here.) To over-simplify things, there are four things to know about Kavanaugh's opinion. 

First, Kavanaugh found that the court lacked jurisdiction because the "tax" that enforced the ACA would not be collected until 2014. Critical to that jurisdictional analysis, however, was a finding that the Affordable Care Act in fact imposed a tax, rather than a penalty. Kavanaugh repeatedly referred to a "tax penalty." Having found that the court lacked jurisdiction, Judge Kavanaugh should have simply ended his opinion. But he didn't. He never does. He always keeps writing.

Second, Kavanaugh made a comment in dicta about how the ACA could be put on a surer footing. Specifically, Congress could make "just a minor tweak" to the law, and "eliminate the legal mandate language." Rather than penalizing people who failed to comply with the individual mandate, people without insurance could simply pay a tax to the IRS. The law would shift from a mandate enforced by a penalty, to a choice that resulted in a tax. This change would not be merely one of semantics. This alternative law would be grounded in Congress's broad taxing power, and would avoid the thorny question of whether the federal government could require people to engage in a commercial transaction. 

Third, the federal government expressly invoked Judge Kavanaugh's opinion before the Supreme Court. The Solicitor General argued that no "minor tweak" was needed because the ACA was "materially indistinguishable from Judge Kavanaugh's proposed revision." The argument tracked many of Kavanaugh's observations about how the ACA operates. In the reply brief, the Solicitor General then built on Judge Kavanaugh's observation, and wrote the Court should not construe the ACA to "create[] an independent legal obligation." Rather, the government contended, the ACA as drafted gave people a choice: purchase insurance or don't purchase insurance. And if they chose the latter option, they would have to pay a tax.

Fourth, Judge Kavanaugh's decisions planted the seeds for Chief Justice Roberts's saving construction. Shortly after the case was argued, Harvard Law School Professor Laurence Tribe observed that it was "considerably more plausible to see the law being upheld under the taxing power, as Judge Kavanaugh suggested it would be [as] if the law were interpreted this way." Tribe was right. To save the law, Roberts read the Affordable Care Act in the same fashion as Kavanaugh's tweaked version. Under the so-called "saving construction," the law did not actually impose a mandate to  purchase insurance, but instead merely taxed the uninsured. 

For my book, I interviewed a senior DOJ official who relayed that "Judge Kavanaugh's opinion convinced the Solicitor General's office that the 'tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax.'" DOJ credited Judge Kavanaugh with the "assist" for the argument that would save Obamacare.

Judge Kavanaugh's opinion in Seven-Sky was like a carbon copy of his nascent Supreme Court jurisprudence. First, his lodestar is avoiding controversy, especially in polarized cases. During oral argument, Kavanaugh analogized the Obamacare litigation to the New Deal clash between the Supreme Court and President Roosevelt. He asked, "[W]hy should a court get in the middle of that and risk being another 1935 situation"? Now, Justice Kavanaugh's consistent voting pattern with the Chief Justice reflects a similar mode of avoiding controversy. Public perception pervades all aspects of his judging. Indeed, in his recent remarks to the Eighth Circuit judicial conference, Kavanaugh cited his decisions in Allen v. Milligan and Moore v. Harper as evidence that the Court is not "partisan." In both cases, Kavanaugh voted with the Court's progressive wing. To paraphrase Chief Justice Roberts, the Court as an "institution" functions better when there are fewer 5-4 cases, where all the conservatives vote together. And that is apparently how Kavanaugh defines the Court's legitimacy.

Second, Kavanaugh can never fully remove himself from the political process. He consistently offers compromises as a way to signal moderation. In Seven-Sky, he felt compelled to offer Congress advice on how to modify a statute, even after finding that the court lacked jurisdiction. But why? His efforts to reach out to resolve issues that are not properly before the Court are flatly inconsistent with any professed fidelity to judicial restraint. Yet, to this day, Justice Kavanaugh routinely writes concurrences that purport to settle issues that are not properly before the Court, especially in high profile cases involving abortion and guns.

Third, Kavanaugh employed Roberts-esque dexterity to avoid difficult legal questions. After Justice Kennedy announced his retirement, SCOTUSBlog observed that Kavanaugh in Seven-Sky was "willing to look for artful ways to avoid deciding questions he does not want to decide." Artful? More like inventive. None of the parties raised the specific taxing power argument he relied on. Indeed, during oral argument in Seven-Sky, Judge Edwards asked Beth Brinkmann, who headed DOJ Civil Appellate, whether she had read the obscure provision of the tax code that Judge Kavanaugh was asking about. She replied, "No." Rather, Kavanaugh developed a convoluted argument based on the tax code all by himself–an argument that allowed him to duck the most consequential constitutional question in a generation. SCOTUSBlog concluded that Kavanaugh "recognized that the litigation over the ACA was politically fraught for both the judiciary as a whole and for individual judges who might have aspirations to higher courts, and so he decided to find a way out." Kavanaugh surely knew that his future Supreme Court nomination would hinge largely on that decision, and like Chief Justice Roberts, Kavanaugh found a way to avoid striking down the statute. Indeed Kavanaugh apparently had such aspirations for some time. I wrote the chapters of my book with some precision in order to provide a complete record, should Kavanaugh ever be nominated to the Supreme Court. And so it came to be. 

Justice Kavanaugh is performing just as Judge Kavanaugh's record would have predicted. His record was in plain sight for all to see. Recently, Senator Mitch McConnell observed, "Those who have paid attention to his earlier career are familiar with [Kavanaugh's] restrained, case-by-case jurisprudence." (Kavanaugh was not McConnell's preferred pick after Justice Kennedy announced his retirement.) Indeed, at least with regard to Obamacare, Judge Kavanaugh was to the left of his former boss, Justice Anthony Kennedy. The Court's longtime swing vote would have invalidated the entire Affordable Care Act. Those who were responsible for selecting Justice Kavanaugh were no doubt aware of Seven-Sky, but recommended him nonetheless. But we have at least some evidence that Kavanaugh initially met some resistance.

In May 2016, then-candidate Donald Trump released a list of eleven possible candidates to fill the seat caused by Justice Antonin Scalia's passing. Indeed, two names were glaringly absent from that initial list: Judges Brett Kavanaugh of the D.C. Circuit Court of Appeals and Judge Neil Gorsuch of the Tenth Circuit Court of Appeals. Both were well-known appointees of President George W. Bush. I can only conclude that Kavanaugh's omission was deliberate–perhaps due to Seven-Sky v. Holder. At the time, the Wall Street Journal Editorial Board wrote that Trump should add Kavanaugh to the list, who "could replace some of the conservative intellectual heft that the Court has lost in Justice Scalia." The Journal did not mention Gorsuch. 

In September 2016, Trump would release the second iteration of the list, now with 21 names. This time, Gorsuch made the cut. But Kavanaugh was still missing. Again, I can only conclude this omission was deliberate. In November 2016, after the election, the Wall Street Journal editorialized once again that Kavanaugh should be added to the list. In January 2017, shortly after the inauguration, President Trump nominated Gorsuch to fill the Scalia vacancy. Ultimately, no one on the initial list would be nominated to the Supreme Court. 

Ten months later, in November 2017, President Trump released the third iteration of his list, which ballooned to twenty-five names. Two conspicuous names made the cut. At long last, Judge Kavanaugh was included. I don't think Kavanaugh had done anything over the prior year to warrant his inclusion. Rather, whatever resistance there was to Kavanaugh on prior lists was overcome. At the time, I thought Kavanaugh was at last added so he could be nominated to the Court. And so he was. When liberals came out in full force to oppose Kavanaugh's confirmation, I chuckled. The worst thing that could have happened to the left would have been for Kavanaugh to have withdrawn. Just about anyone else on the Trump list would have been to Kavanaugh's right, but without the baggage. Nevertheless, he persisted.

Another name was added to the November 2017 list: Amy Coney Barrett, who was confirmed to the Seventh Circuit Court of Appeals only seventeen days earlier. I will discuss Justice Barrett in the next post.

The post Conservatives Should Not Be Surprised By Justice Kavanaugh's Voting Pattern With Chief Justice Roberts appeared first on Reason.com.

T. Markus Funk, who has written extensively on self-defense law, has an article with this title here (in The Champion, the magazine of the National Association of Criminal Defense Lawyers); here's the abstract:

The cases of Jordan Neely, Ahmaud Arbery, Kyle Rittenhouse, and George Alan Kelly brought the long-simmering national debate about self-defense to a full boil. Member of the legal commentariat quickly offered their takes on all aspects of these flashpoint cases, further sparking spirited discussion.

The disrupting note in the constant drumbeat of lawyers, legislators, academics, reporters, and other legal observers, however, is the claim that US self-defense law is exceptionally severe by international standards and comparatively underappreciative of the value of human life and the need to prevent violence.

The problem with this narrative is that it fails to recognize that US self-defense law is, in fact, very much within the international mainstream and, in many respects, is significantly more protective of attackers and more carefully calibrated to reduce overall societal violence than the self-defense laws of many other nations. As this article argues, in terms of impact, such erroneous claims seriously distract from the much-needed debate over US self-defense law's deeper public policy and moral grounding.

Much worth reading.

The post "Busting the Durable Myth that US Self-Defense Law Uniquely Fails to Protect Human Life" appeared first on Reason.com.

[T]his case arises out of Mr. Doe's tenure as a student at the University of Illinois College of Law. On November 18, 2022, Mr. Doe filed this suit pursuant to 42 U.S.C. § 1983, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The Complaint alleged that Defendants—all officials, employees, and trustees of the University of Illinois—violated Mr. Doe's First, Fifth, and Fourteenth Amendment rights. According to Mr. Doe, Defendants did so by compelling him to meet with the University's Behavioral Intervention Team (BIT), retaliating against him for exercising his right of free speech, and subjecting him to an unconstitutionally vague code of conduct….

On December 5, this Court denied Mr. Doe's motion for a preliminary injunction in a written order. Noting that "the possibility of a sanction is not the same as its guarantee," the Court found that Mr. Doe's allegations of irreparable harm were too speculative to justify preliminary injunctive relief. Mr. Doe then moved for reconsideration of several of the Court's orders, including the Court's decision to deny Mr. Doe the ability to litigate under a pseudonym. The Court denied that motion, too. The Court found that "none of the reasons for sealing the record or proceeding pseudonymously were present in this case," and that in any event Mr. Doe "had waived the request to keep [his identity] sealed because he … referred to himself" in his pleadings and exhibits.

On December 7, Mr. Doe filed a notice of interlocutory appeal as to the Court's order on his motion for injunctive relief. While that appeal was pending, the Illinois Supreme Court imposed a one-year suspension on Mr. Doe's attorney, Justin K. Schwartz, for neglecting client matters and keeping unearned fees. Mr. Doe then retained new counsel. In March 2023, the parties "engaged in mediation … [and] reached a settlement agreement and mutual release of claims."

On April 19, the parties jointly moved to "seal the Court record for this matter in its entirety and replace Plaintiff's name with 'John Doe.'" In the alternative, the parties asked that the Court "reconsider its denial of Plaintiff's Motion to Proceed Under Pseudonym, permitting pseudonym treatment for 'John Doe,' and allowing Plaintiff to file redacted exhibits." The Court granted the former request in a text order dated April 28, 2023. As a result, the docket is now wholly sealed, and the caption renders Plaintiff's name as "John Doe."

On May 2, the parties made a similar request of the Seventh Circuit. The Seventh Circuit denied their motion the next day.

That court's two-sentence order read as follows: "Retroactive anonymity is an oxymoron and it is never appropriate to seal entire appeals. The Supreme Court held in U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994), that settlement does not justify vacatur."

The court concluded that I had standing to intervene, to vindicate my "right of access as a member of both 'the press and the general public.'" And it reconsidered its earlier grant of pseudonymity and decision to seal, though it allowed redactions from several exhibits:

Nearly every extant authority cautions against pseudonymous litigation. "Lawsuits are public events," and "[t]he risk that a [party] may suffer some embarrassment is not enough" to justify anonymity. And the public "has a right to know who is utilizing the federal courts that its tax dollars support." "The use of fictitious names" in federal litigation accordingly "is disfavored." Therefore, this Court "has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." A party seeking to proceed anonymously must show, against the backdrop of "exceptional circumstances," that any harm done by disclosing his identity "exceeds the likely harm from concealment." …

The parties contend that rescinding Mr. Doe's pseudonymous status would be unwarranted. They argued before that their settlement "constitutes new information which was not available" in November, when Mr. Doe first moved to litigate as "John Doe." The parties further argued (1) that Mr. Doe "faces immense reputational damage and irreparable harm to his future legal career if this Court denies [him] pseudonym status"; (2) that Mr. Doe was prejudiced by his prior counsel's "improper legal advice" and decision to file certain exhibits without redaction; and (3) that Mr. Doe "likely would have discontinued his lawsuit once he was denied pseudonym status" but never was offered a chance to do so.

These considerations, while certainly cause for the parties' concern, do not overcome the strong presumption against pseudonymity. Embarrassment is "not a compelling basis for a waiver of the general rule that parties to federal litigation must litigate under their real names." The Court notes as well that Mr. Doe's identity as the plaintiff here has been a matter of public record for some time. So even if retroactive pseudonymity were warranted—and even if the Seventh Circuit had not rejected the very concept—the parties' request would be futile. Professor Volokh's motion to depseudonymize is granted….

The cat is out of the bag on Plaintiff's identity. But whether to seal all or part of the record is a closer call. The parties previously contended that there are "sufficient grounds to seal the entire record in this case." They argued that "this case has been litigated to the fullest extent in the public domain." They also argued that "Plaintiff's privacy interests in this case"—implicated by "allegations of mental health, paranoia, and [threats to] school safety"—trumped "the presumption that judicial records be open to the public." "Given that Plaintiff disputes" the accusations of misconduct underlying this case, the parties contended "there can be no public interest" in unencumbered access to the record.

"The parties to a lawsuit are not the only people who have a legitimate interest in the record compiled in a legal proceeding." Accordingly, those records "that affect the disposition of federal litigation are presumptively open to public view." …

Upon further consideration, the parties have not shown good cause to seal the entire record. Previously, the parties' "lead reason" was "the parties' agreement." "Allowing such an agreement to hold sway," however, "would be like saying that any document deemed provisionally confidential to simplify discovery is confidential forever." Such a notion simply cannot be squared with the public-access right or the weight of diametrically opposed Circuit precedent. The Clerk, therefore, will be directed to unseal the docket.

Even so, the Court declines to sustain Professor Volokh's motion to unseal in its entirety. The Court is mindful of the negligible public interest in otherwise private educational and mental-health records. The Court finds that certain filings fall under that umbrella and so should be filed with redactions or maintained under seal….

The parties previously asked the Court to allow them to refile eleven docket entries under seal …. Many of these documents are referenced in the Court's prior orders and the parties' briefings, so the public's interest in reading them in detail is appreciably small. Others simply are "highly embarrassing to the average person yet somehow pertinent to this suit," and so are similarly suitable for filing with redactions. The Court finds that documents 1-3, 1-6, 1-7, 5-1, 7-1, 7-3, 7-4, and 9-1 satisfy that standard. Accordingly, the parties shall jointly file redacted versions of these documents as soon as practicable. The unredacted versions still on the docket will remain under seal.

As for the remaining documents … the Court concludes that neither Plaintiff's privacy interests nor the possibility of embarrassment outweighs the presumption of public access. [One] is a memorandum written by Plaintiff in which he advocates for bumping up an A- in his Constitutional Law course to an A or an A+. [A second] is an email from Plaintiff to several Defendants informing them of this litigation. And [a third] is Plaintiff's first motion for reconsideration—a filing presumptively subject to public disclosure. Beyond the fact of Plaintiff's commendable performance in a rigorous course, none of these documents contain proprietary or sensitive information. Because "[a]ny doubt whether material should be sealed should be resolved in favor of disclosure," the Court declines to seal these filings….

The post Court Unseals and Depseudonymizes Student's Settled First Amendment Lawsuit Against University appeared first on Reason.com.

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Migiel-Schwartz writes:

This year's decline is substantial: a 21.2 percent decrease from the previous 15-year average, and a 23.9 percent decrease from the previous five-year average. Even compared with the 2019-20 term's 1,478 petitions, it marks a more than 15 percent decrease. . . .

It is difficult to draw meaningful conclusions based on these numbers alone, and it is possible that the 2022-23 term is a one-year blip. The downturn does not seem to be the result of declining merits decisions in the federal courts of appeals. Although they too have decreased in recent years, that decrease has been slow and fairly steady from 2012 through 2023 — not the sudden drop seen this year in the Supreme Court's paid docket.

Whatever the cause of this term's decline, the average of 1,589 is consistent with a longer-term trend downward noted in 2007 by David Stras. "Throughout the 1980s and early 1990s, the number of paid petitions filed with the Court ranged from 1,986 petitions in 1990 to 2,417 petitions in 1981," Stras wrote. "However, beginning in 1994, or at about the time of greatest decline in the Court's plenary docket, the number of paid petitions began to plummet, with only 1,693 paid petitions filed during October Term 2004, a nearly 22% decrease since 1994."

It will be interesting to see whether the precipitous drop in petitions filed last term is a temporary blip, to which Covid-19 may have contributed, or is part of a larger trend. Among other things, the change in the Supreme Court's composition could be altering the calculus for potential filers, but it is not clear why this would produce an overall decline in cert petitions, as opposed to a shift in what sorts of petitions are filed. (That is, if there are fewer opportunities for progressive interests it would seem these could be offset by increased opportunities for conservative interests.)

The longer term drop in paid petitions for certiorari is significant, but is far less than the decline in the size of the Court's merits docket. So while the decline in petitions could contribute to the shrunken merits docket, it does not appear to be the driver. The Court is hearing fewer cases than it used to because it is choosing to hear fewer cases. So unless the justices decide to start hearing more cases, or Congress intervenes, we are likely stuck with a smaller Supreme Court docket, whether or not paid petitions for certiorari decline.

The post Are Petitions for Certiorari Declining? appeared first on Reason.com.

1. Most impressive man-made sight: Venice. Yes, it's full of tourists, but there's a reason for that. A City of Islands, a citypelago, unlike most other places on earth.
2. We spent three days in Venice, but no-one offered us any Dogecoin.
3. Most impressive natural sight: Postojna Cave in Slovenia. Glorious.
4. Leibniz cookies, continental Europe's answer to the Fig Newton.
5. Best meals, from cheapest to most expensive: Geco Pub in Trieste; Ćiri Biri Bela in Split; Arsenal in Dubrovnik; Bled Castle Restaurant in Slovenia.
6. In Trieste, we stayed on Viale 20 Settembre. (a) What's the significance of September 20? (b) That street name, unsurprisingly, is seen in many Italian cities; why is it somewhat ironic in Trieste?
7. It was very easy to get around in English (admittedly, in the relatively touristy places we visited), and the people were generally very friendly.
8. Dubrovnik in Croatia was once the Republic of Ragusa, with the motto "Non bene pro toto libertas venditur auro," meaning "Liberty isn't worth selling for all the gold in the world." Good sentiment! Also, winter is coming.

The post Venice, Trieste, Slovenia, and Croatia appeared first on Reason.com.

Meanwhile, the FTC is still doubling down (and down) in its pursuit of aggressive legal theories. Maury Shenk explains the agency's investigation of OpenAI, which raises issues not usually associated with consumer protection. Mark and Maury argue that this is just a variation of the tactic that made the FTC the de facto privacy regulator in the U.S. I ask how policing ChatGPT's hallucinatory libel problem, which the FTC seems disposed to do, constitutes consumer protection, and they answer, plausibly, that libel is a kind of deception, which the FTC does have authority to regulate.

Mark then helps us drill down on the Associated Press deal licensing its archives to OpenAI, an arrangement that may turn out to be good for both companies.

Nick Weaver and I try to make sense of the district court ruling that Ripple's XRP is a regulated investment contract when provided to sophisticated buyers but not when sold to retail customers in the market. It is hard to say that it makes policy sense, since the securities laws are meant to protect retail customers more than sophisticated buyers. But it does seem to be at least temporary good news for the cryptocurrency exchanges, who now have a basis for offering a token that the SEC has been calling an unregistered security. And it's clearly bad news for the SEC, signaling how hard it will be for the agency to litigate its way to the Cryptopocalypse it has been pursuing.

Andy Greenberg makes a guest appearance to discuss his WIRED story about the still mysterious attack that gave Chinese cyberspies the ability to forge Microsoft authentication tokens.

Maury tells us why Meta's Twitter-killer, Threads, won't be available soon in Europe. That leads me to reflect on just how disastrously Brussels has managed the EU's economy. Fifteen years ago, the U.S. and EU had roughly similar GDPs, about $15 trillion each. Today, EU GDP has scarcely grown, while U.S. GDP is close to $25 trillion. It's hard to believe that EU tech policy, which I've dubbed EUthanasia, hasn't contributed to continental impoverishment, which, Maury points out, is so bad it's even making Brexit look good.

Maury also explains the French police drive to get explicit authority to conduct surveillance through cell phones. Nick offers his take on FISA section 702 reform. And Maury evaluates Amazon's challenge to new EU content rules, a challenge that he thinks has more policy than legal appeal.

Not content with his takedown of the Ripple decision, Nick reviews the week's criminal prosecutions of cryptocurrency enthusiasts. These include the Chinese bust of Multichain, the sentencing of Variety Jones for his role in the Silk Road crime market, and the arrest of Alex Mashinsky, CEO of the cryptocurrency exchange Celsius.

Finally, in quick hits,

• Mark and I duel over the lawsuit claiming that Texas's TikTok ban on government phones will threaten academic freedom.
• I praise the surprisingly good National Cybersecurity-Strategy Implementation Plan and puzzle over the decision not to nominate Kemba Walden, the acting national cyber security director, to head the office permanently.
• And I note that the Allow States and Victims to Fight Online Sex Trafficking Act, also known as FOSTA-SESTA, reviled by the left, has withstood a constitutional challenge in the DC Circuit.

Download 468th Episode (mp3)

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The post The FTC Doubles Down, Down, Down appeared first on Reason.com.

"This Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court. … As our cases explain, the 'chilling effect' associated with a potentially unconstitutional law being 'on the books' is insufficient to 'justify federal intervention' in a pre-enforcement suit. Instead, this Court has always required proof of a more concrete injury and compliance with traditional rules of equitable practice. The Court has consistently applied these requirements whether the challenged law in question is said to chill the free exercise of religion, the freedom of speech, the right to bear arms, or any other right."

Whole Women's Health v. Jackson (2021) (majority opinion)

No one contends that pre-enforcement review should be available whenever a state law chills the exercise of a constitutional right. Rather, as this Court explained in Young, pre-enforcement review is necessary "when the penalties for disobedience are . . . so enormous" as to have the same effect "as if the law in terms prohibited the [litigant] from seeking judicial construction of laws which deeply affect its rights." 209 U. S., at 147.

Whole Women's Health v. Jackson (2021) (Sotomayor, J., concurring in part and dissenting in part) (joined by Justices Kagan and Breyer)

A couple of weeks ago I posted an article (here) criticizing the Court's decision in the website designer's case (303 Creative v. Elenis) granting Lorie Smith standing to pursue her claim in federal court. My argument, in essence, was that Lorie Smith suffered no "concrete injury" whatsoever, that the case was entirely hypothetical make-believe ("If she does this, and the State of Colorado does that, then her constitutional rights will have been violated"), and that the penalties for disobeying the statute were not "so enormous" as to justify pre-enforcement review of her hypothetical claim.

Incidentally, those of you who disagree with my contention that the Court is in the process of completely dismantling the standing requirement in federal courts should take a look at the colloquy between Justices Roberts and Kagan in the student loan case, Biden v. Nebraska, another late-Term case in which the Court allows a plaintiff (the State of Missouri) to proceed with its challenge despite having suffered no injury whatsoever.

The following is a response authored by John Ohlendorf and David Thompson of Cooper, Kirk in Washington DC, authors of an amicus brief in the 303 Creative case on behalf of Young Americas Foundation in support of Lorie Smith, taking issue with my post (and several others which had been similarly critical of the Court's standing analysis in the case).  I've reprinted it below in full (saving my response to their comments for a subsequent post).

After the Supreme Court issued its landmark decision in favor of free expression in 303 Creative LLC v. Elenis at the end of the last Term, a curious thing happened: several commentators, including Professor Post, published sharply worded criticisms of the decision not based on its interpretation of the First Amendment as barring the application of Colorado's Anti-Discrimination Act (CADA) to the Petitioners' speech, but over an issue that was not even contested before the Supreme Court at the merits stage—whether the Petitioners, 303 Creative and its owner Lorie Smith, had standing to sue. We confess to being puzzled by these criticisms—not only because we thought the Petitioners' standing was a slam-dunk (for reasons we laid out in an amicus brief we filed before the Court on behalf of the Young America Foundation), and not only because the other side apparently thought so too, given the Respondents' decision not to dispute standing before the Court (and the failure of Justice Sotomayor's to mention the issue in her dissent). The most puzzling part of these criticisms is their failure to meaningfully engage with what we thought was the most straightforward reason Ms. Smith and her company had standing to challenge Colorado's Act: the direct, imminent, and undisputed injury that the Act's "Communication Clause" inflicted on Ms. Smith's speech. In this post, after briefly discussing the background of the case, we explain why this injury unquestionably gave Ms. Smith standing to challenge the Act. We also argue the posts by Professor Post and others also fail even on their own terms to cast any doubt on the Petitioners' standing.

Lorie Smith and the Colorado Anti-Discrimination Act.

As explained in the Supreme Court's decision, Lorie Smith is a digital artist who "offers website and graphic design, marketing advice, and social media management services" through her business, 303 Creative. She recently "decided to expand her offerings to include services for couples seeking websites for their weddings," and while she "provides her website and graphic services to customers regardless of their race, creed, sex, or sexual orientation," she conscientiously objects to creating content that "contradict[s] her own views," including "her belief that marriage should be reserved to unions between one man and one woman."

Ms. Smith has not yet begun designing websites for weddings, but on September 21, 2016, she received a request from an individual who identified himself as "Stewart," who expressed interest in Ms. Smith doing design work for his upcoming wedding with "Mike." This request has been the center of some post-decision controversy—an article in The New Republic alleges that the request may have been contrived by someone other than Stewart, but Ms. Smith's attorneys insist they believed it to be genuine. Neither the Supreme Court or the Tenth Circuit relied on this request in assessing Ms. Smith's standing, but given the controversy, we will return to it below.

Whether or not an actual gay couple named Stewart and Mike wished to have Ms. Smith design content for their wedding, she certainly feared that once she expanded into the wedding business she would likely be approached to design for gay weddings. And she also feared that Colorado would interpret its broadly worded Anti-Discrimination Act as compelling her to do that design work, in spite of her religious objections. That law, CADA, contains two clauses that are particularly relevant. First, the "Accommodation Clause" makes it unlawful for any person to withhold the "services" of "a place of public accommodation" on the basis of "sexual orientation." In a series of decisions—including the State's well-known prosecutions of cake-baker Jack Phillips—Colorado has interpreted that language as forbidding creative professionals from declining to provide wedding-related services promoting same-sex weddings. Second, and importantly for our analysis, CADA's "Communication Clause" bans a person from even communicating the intent to provide services in a way that violates the Accommodation Clause.

Because of these two clauses, Ms. Smith feared she would face liability if she were to even publicly announce her plan to expand into the wedding design space (along with her religious objections to designing for same-sex weddings). Before announcing her plans, she accordingly brought a preenforcement challenge to CADA, seeking to clarify her First Amendment rights. The Supreme Court, of course, ultimately agreed with Ms. Smith that CADA could not be applied to compel her to design websites expressing views that "defy her conscience."

Ms. Smith's Standing Under the Communication Clause

The post-decision commentary surrounding Ms. Smith's standing has largely ignored CADA's Communication Clause. Professor Post does not mention it at all. But we think Ms. Smith's injury under this Clause secures her standing beyond any reasonable dispute.

Begin with the basics. It has long been black-letter law that an individual need not actually violate an unconstitutional law and then face prosecution to test the law's validity. Rather, most constitutional litigation today takes place on a preenforcement basis—with a plaintiff seeking declaratory and injunctive relief against a law that is reasonably chilling the exercise of her constitutional rights. Under the test set out in Susan B. Anthony List v. Driehaus, such a plaintiff has standing if she "alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder."

Ms. Smith's injury under the Communication Clause checks all of these boxes. She squarely alleged that she wished to post an announcement that she was expanding into the wedding design space and explaining her religious convictions about marriage. That course of conduct is obviously "affected with a constitutional interest"; indeed, the Tenth Circuit aptly referred to web design as "pure speech." Nor is there any doubt that Colorado interprets CADA as proscribing this speech, and that there is a credible risk that it would prosecute Ms. Smith for publishing her intent to create wedding websites for opposite-sex weddings only. In fact, the State admitted as much at oral argument before the district court (see here at App. 1-147–48). And just witness the State's aggressive prosecution of Jack Philips and his Masterpiece Cakeshop under the same statute. In short, Ms. Smith's injury under CADA's Communication Clause is as clear a case of preenforcement standing as we've seen.

Critically, Ms. Smith's standing to challenge the Communication Clause also necessarily gives her standing to challenge CADA's Accommodations Clause. The two clauses work in tandem: the Accommodations Clause bars an individual from denying service on certain bases, and the Communication Clause bars her from communicating the intent to deny service on those bases. The Communication Clause is thus nothing more than an enforcement mechanism implementing the Accommodations Clause: the substantive conduct that, under the Communication Clause, a person cannot say she will do—denying certain goods or services—is the very conduct that the Accommodation Clause forbids her to do. And the sole purpose of preventing a person from publishing their intent to deny service is to stop the denial itself. Indeed, prohibiting the communication of the intent to engage in such practices would be utterly pointless if the practices themselves were not prohibited by the Accommodation Clause.

An injury under the Communication Clause thus necessarily grants standing to challenge both Clauses. That is because, in the jargon of standing, the "injury-in-fact" of not being able to publish your intent to deny services is "fairly traceable" not only to the Communication Clause but also to the Accommodations Clause. The whole reason the Communication Clause bars Ms. Smith from saying that she would decline to create websites for same-sex weddings is that the Accommodation Clause bars her from declining to create such websites in the first place. If there were no bar on denying services, there would perforce be no bar on communicating the denial, and no injury; hence, that injury is traceable to the original cause.

The Supreme Court recently explained and applied precisely these principles in Federal Election Commission v. Ted Cruz for Senate. (Full disclosure: our Firm also represented Senator Cruz in that case.) In that case, Senator Cruz challenged a provision of the Bipartisan Campaign Reform Act ("BCRA") that capped, at $250,000, the amount of loans from a candidate to his own campaign committee that could be repaid by the committee with funds raised after the election. This statutory provision was implemented by a regulation promulgated by the FEC, which largely duplicated the statutory restriction but also added a few additional implementing details, including a rule requiring repayment within 20 days after the election of any portion of a candidate loan exceeding $250,000. While the FEC argued that Senator Cruz's injury ($10,000 in unpaid candidate loans arising out of the 2018 election) was purportedly caused only by the regulatory 20-day rule, the Court held that Senator Cruz also had standing to challenge BCRA itself, because his injury was fairly traceable to the statutory provision the regulation had been promulgated to implement. If there were no statutory limit on repaying loans, there would perforce be no regulation implementing that limit, and no injury—hence, Senator Cruz's injury was traceable to the original cause.

While the Supreme Court's decision in 303 Creative does not extensively discuss standing, we read it as clearly consistent with this line of reasoning. The Court explained that the "Communication Clause . . . prohibits any speech inconsistent with the Accommodation Clause," and that in fact "Colorado concedes that its authority to apply the Communication Clause to Ms. Smith stands or falls with its authority to apply the Accommodation Clause." Because Ms. Smith's injury under the former "stands or falls" with the constitutional validity of the latter, it is fairly traceable to both.

As noted above, Professor Post's criticisms of Ms. Smith's standing do not treat with the Communication Clause at all; but another widely circulated blog post, by attorney Adam Unikowsky, does address Ms. Smith's injury under the Clause in passing. His arguments are unpersuasive. Unikowsky claims Ms. Smith's injury under the Communication Clause illustrates "how this is a fake case" because most graphic designers "don't enter the wedding website design business while proudly and publicly proclaiming on their websites that they won't serve same-sex couples." That is inconsistent with the stipulated facts below, which state (here at pages 188a-189a) that Ms. Smith had a sincere religious desire to post her statement in an effort to be honest and transparent about what services she offered. And in any event,  Ms. Smith's motives for wishing to be upfront about her religious beliefs are irrelevant. For even if Ms. Smith only wished to publish her religious beliefs "in order to manufacture standing," as Unikowsky speculates, that would not affect her standing; as the Cruz case also explained, "we have made clear that an injury resulting from the application or threatened application of an unlawful enactment remains fairly traceable to such application, even if the injury could be described in some sense as willingly incurred." Indeed, as Cruz pointed out, a contrary rule would be inconsistent with several landmark civil rights cases that allowed plaintiffs to willingly subject themselves to racially discriminatory laws in order to challenge them.

Unikowsky seeks support for his "self-inflicted" argument in Clapper v. Amnesty International USA, where he says "the Court held that if a plaintiff lacks standing to challenge a government action on the ground that it's too speculative, it can't manufacture standing by taking precautions against that speculative action and then alleging standing based on those precautions." But Cruz discusses and expressly distinguishes Clapper from the situation here. In Clapper, Cruz explains, the plaintiffs' "problem . . . was that they could not show that they had been or were likely to be subjected to [the challenged surveillance] policy in any event." Here, there is no question that Colorado interprets the Communication Clause as proscribing the announcement Ms. Smith wishes to publish, or that there is a credible threat that they would enforce the Clause against her.

Finally, Unikowsky also endorses the district court's backwards reasoning that the intertwined nature of the Communication Clause and the Accommodation Clause, rather than giving Ms. Smith standing to challenge both, somehow strips away her ability to challenge even the Communication Clause. That is plainly incorrect under the settled legal principles discussed above.

In short, given the Communication Clause's clear bar on Ms. Smith's proposed (and constitutionally protected) speech, there can be no serious doubt that she had standing to challenge that the Supreme Court's decision arose out of a genuine "case or controversy."

Ms. Smith's Standing Directly Under the Accommodation Clause

While the argument above suffices to guarantee Ms. Smith's standing, we also think she clearly had standing directly under the Accommodation Clause, and that the arguments by Professor Post and Mr. Unikowky miss the mark. There is no real dispute that Ms. Smith wishes to design wedding websites (for opposite-sex weddings), or that this "course of conduct" is "affected with a constitutional interest." Instead, the controversy centers around whether or not there was a "credible threat" that Colorado would enforce the Accommodation Clause against her.

Professor Post, for example, suggests that the risk of enforcement depends on four different contingencies:

1. Smith would have had to actually open up a wedding website to the public;
2. Having done so, Smith would have had to receive a request from a same-sex couple for wedding-related web design/hosting services;
3. Having received such a request, she would have had to refuse to provide the services requested, services that she would happily provide to a heterosexual couple; and
4. Given her refusal to provide services at her website requested by a same-sex couple that she would have provided to a heterosexual couple, the Colorado Commission on Civil Rights would have to decide to file a CADA claim against her, based on that refusal, for violating CADA.

This list is far less formidable than it is made to appear. The first contingency is no contingency at all—Ms. Smith squarely alleged she intended to go into the wedding design space, and Colorado stipulated to the fact (see here at pages 186a-187a)—and Professor Post expressly concedes that the fourth contingency would also be met if the others are. So really we are talking about two contingencies: that Ms. Smith would receive a request to design for a same-sex wedding and would turn it down. And in point of fact, that final contingency is also not in dispute: for Colorado also expressly stipulated, in the district court, that Ms. Smith "will decline any request to design, create, or promote content that . . . promotes any conception of marriage other than marriage between one man and one woman." So at the end of the day, the only link in the chain of Ms. Smith's injury directly under the Accommodation Clause that is meaningfully contingent is receiving a request to provide content design services for a same-sex wedding. With respect to Professor Post, we do not think it is plausible to claim that "the likelihood of that happening [is] somewhere between 'low' and 'virtually non-existent.' " Jack Philips and Barronelle Stutzman of Arlene's Flowers would certainly agree with us.

Accordingly, we do not think Ms. Smith's standing under the Accommodation Clause—again, even setting aside her standing under the Communication Clause—is in any reasonable doubt. And that is before one even considers the 2016 request for wedding design services by a couple identified as Mike and Stewart. That is likely why neither the the Tenth Circuit nor the Supreme Court placed any weight on that request in analyzing standing. But given the controversy surrounding that request, it is worth considering how the matter would stand if the 2016 request had in fact been the lynchpin of Ms. Smith's standing—and if, as The New Republic's reporting has alleged, the request was a fake.

To begin, Ms. Smith's attorneys have stated that they believed the request was genuine, and we are not aware of anyone coming forward with any reason to doubt that representation. Under CADA, however, that reasonable belief is all that is necessary to assure Ms. Smith's standing. That is so because CADA squarely prohibits Ms. Smith from denying services not only based on a prospective customer's actual "sexual orientation," but also on her "perception thereof"—that is, her reasonable belief that the prospective customer has a particular sexual orientation. It thus matters not at all whether Mike is an actual man who wishes to marry another man named Stewart; all that matters is that Ms. Smith reasonably believed that was the case.

Unikowky does not address this point, but he might respond by arguing that Ms. Smith's belief that the request was genuine was not a reasonable one, because she should have made more of an effort "checking whether Stewart and Mike were fake." The trouble with this assertion is that an investigation into Stewart's and Mike's sexual orientation could itself have subjected Ms. Smith to liability under CADA. Unikowsky resists this conclusion, arguing interrogating a prospective customer about his sexual orientation would amount to no greater violation of CADA's Accommodation Clause than simply refusing the request. But that ignores that such an investigation (by contrast to simply refusing the request through failing to respond) would also have risked violating yet another of CADA's restrictions—barring any statement that "directly or indirectly . . . indicates . . . that an individual's patronage . . . is unwelcome, objectionable, unacceptable, or undesirable because of . . . sexual orientation." Ms. Smith quite understandably did not wish to expose herself to additional liability under this clause by interrogating the requestor about his sexual orientation.

Accordingly, Ms. Smith reasonably took the request from Stewart at face value, and that is all that is necessary for CADA's Accommodation Clause to kick in and restrict her speech. She thus had standing to challenge CADA several times over. The critics of the decision would do better to take a page from Justice Sotomayor's dissent and train their fire elsewhere.

The post More on Standing in the 303 Creative Case appeared first on Reason.com.

Still, as I have documented elsewhere, Justices Kavanaugh, Barrett, and to a lesser extent Gorsuch, have voted to the left of Justices Thomas and Alito. The three Trump appointees are simply not as conservative as they could have been. But conservatives should not be surprised by President Trump's Supreme Court picks. Their track record–both what they did and did not do–have predicted their views on the high court. This post will discuss Justice Gorsuch. Future posts will focus on Justices Kavanaugh and Barrett.

In June 2020, many conservatives were stunned by Justice Gorsuch's majority decision in Bostock v. Clayton County. He found that Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees because of their sexual orientation or gender identity. This case was 6-3, with Chief Justice John Roberts, and the progressives in the majority. Justices Thomas, Alito, and Kavanaugh dissented. This decision came as something of a shock to the right. Indeed, Senator Josh Hawley of Missouri warned that Bostock may "represent[] the end of the conservative legal movement." (The rumors of the movement's death were greatly exaggerated.)

Bostock was not a one-off for Justice Gorsuch with regard to federal protections for LGBT people. In several other lesser-profile cases, he parted company with Justices Thomas and Alito. First, in Idaho Department of Correction v. Edmo, the Ninth Circuit held that denying transition treatment for a transgender inmate was unconstitutional. Idaho asked the Supreme Court for an emergency stay of the lower court ruling. Only Justices Thomas and Alito would have granted that relief. Later, Edmo was provided the transition treatment and the case ostensibly became moot. Justices Thomas and Alito would have vacated the lower court's decision. Justice Gorsuch was once again silent, letting this precedent of the Ninth Circuit stand. (Justice Kavanaugh was confirmed one week before certiorari was denied, so he likely did not participate in that case.)

Second, Gloucester County School Board v. Grimm involved a transgender student and bathrooms at a public school. The Fourth Circuit held that both Title IX and the Equal Protection Clause of the Fourteenth Amendment prohibited denying transgender students access to the restrooms assigned to the opposite biological sex. By the time the cert petition reached the Supreme Court, the Biden administration had adopted the Fourth Circuit's reading of Title IX, in light of Bostock. However, rather than resolving whether the Department of Education was correct, the Supreme Court simply denied certiorari. Justices Thomas and Alito would have granted the petition. Justice Gorsuch was silent, as were Justices Kavanaugh and Barrett, letting this precedent of the Fourth Circuit stand

Third, in Kincaid v. Williams, the Fourth Circuit held that the Americans with Disabilities Act required a prison to accommodate an inmate's gender dysphoria. On appeal, the Supreme Court denied certiorari. Justices Alito and Thomas would have granted the petition right away, finding there was "no good reason for delay." Justice Gorsuch, as well as the other two Trump appointees, let the precedent of the Fourth Circuit stand. 

Should Bostock, Edmo, Grimm, and Kincaid have been surprises? Not really. In 2008, then-Judge Gorsuch sat by designation on the U.S. Court of Appeals for the Ninth Circuit. He heard Kastl v. Maricopa County Community College District on a panel with appointees by Presidents Carter and Clinton. The case concerned Rebecca Kastl who "presented full-time as female." After "complaints that a man was using the women's restroom," Kastl was banned "from using the women's restroom until she could prove completion of sex reassignment surgery." The Ninth Circuit had previously held that California law prohibited discrimination against "transgender individuals" based on the "victim's real or perceived non-conformance to socially-constructed gender norms." That opinion was authored by the liberal lion of the Ninth Circuit, Judge Stephen Reinhardt. The Kastl panel then extended that state law doctrine to Title VII. Gorsuch agreed with the Carter and Clinton appointees to extend that Reinhardt precedent to Title VII. Under Gorsuch's view, federal law had all along barred "impermissible gender stereotypes" of a transgender individuals. One such impermissible stereotype was the notion that bathrooms can be assigned based on a person's biological sex. Kastl was an unpublished, non-precedential three-page order. But it was cited by many district court opinions, as well as a case from the Eleventh Circuit. Here Judge Gorsuch decided an important question of federal law in a drive-by fashion.

Throughout his entire career, Justice Gorsuch has read the protections of federal law broadly–including the Equal Protection Clause, Title VII, Title IX, and the ADA–to broadly protect LGBT rights. Bostock, Edmo, Grimm, and Kincaid should not have been a surprise for anyone who read Kastl. And those who were responsible for nominating Gorsuch were no doubt aware of Kastl, and recommended him nonetheless.

The post Conservatives Should Not Be Surprised By Justice Gorsuch's Opinion in <i>Bostock</i> appeared first on Reason.com.

Plaintiff Daniel P. Regenold brought this lawsuit over a modest but important matter. He had requested to speak for no more than five minutes at a public meeting of the Ohio State Board of Education., but the Board denied his request. The Board said that it had already closed the book on the topic he wished to address – critical race theory in Ohio education. Board President Laura Kohler notified Regenold that the Board had addressed the topic at prior meetings and passed a final resolution on the matter at least nine months earlier.

Regenold filed suit …, seeking a preliminary injunction and asserting that the Board violated his rights under the First Amendment …. He alleged that the Board's decision to deny his request to speak was an overbroad, content-based restriction. Pointing to the language of the Board's applicable policy on conducting public meetings, Regenold argued that critical race theory remained an "issue of general interest" for which the Board's policy promised that the public would always have the right to speak.

Regenold's request for injunctive relief became moot about six months later when the Board allowed him and others to speak on critical race theory at public meetings. Later, defendants made an offer of judgment under Federal Rule of Civil Procedure 68, which Regenold accepted. The Court entered Judgment for plaintiff in the amount of $1,000….

Defendants concede that plaintiff is a prevailing party who is entitled to an award of attorneys' fees and costs. Judgment was entered in plaintiff's favor on his § 1983 claim, which entitles him to an award under 42 U.S.C. § 1988(b). Defendants' offer of judgment included "costs and attorneys' fees to be determined by the Court."

Defendants also do not contest the amount of costs. Plaintiff seeks costs of $2,033.27, which include the filing fee and transcript fees.

But defendants did argue, among other things, "that plaintiff should not be able to recover attorneys' fees for the [37.0] hours expended on plaintiff's motion for a preliminary injunction, which was unsuccessful in defendants' view." The court disagreed:

The motion for a preliminary injunction sought an order requiring defendants to allow plaintiff to speak for up to five minutes at a public meeting of the State Board of Education…. The Court disagrees with defendants' characterization of the motion as "unsuccessful." The motion raised significant First Amendment issues and was supported by a substantial body of case law. Plaintiff brought the motion in a thoughtful fashion, designed to vindicate his right to free speech in a public forum. Though the Court did not need to rule upon the motion, it may well have granted the motion, and ultimately plaintiff received precisely the relief he sought.

The Court also disagrees with defendants' statement that the action of "third parties" is what achieved relief for plaintiff. By "third parties," defendants seem to be referring to certain Board members who were not named as individual defendants in the complaint and who, after the lawsuit and motion were filed, voted in favor of allowing plaintiff and others to speak on critical race theory at the Board's public meetings. However, the Board itself was named as a defendant, and it was an action of the Board (through its voting members) which provided the relief plaintiff requested. See State Bd. Of Educ. Sept. 21, 2021 meeting, available at https://ohiochannel.org/video/state-board-of-education-9-21-21 at 1:12:35 to 1:15:07 (going into executive session for "the purpose of conferring with legal counsel about matters that are the subject of pending or imminent court action").

Defendants argue that the Court cannot, under binding case law, treat plaintiff's motion for a preliminary injunction as the catalyst for the Board's vote to allow plaintiff to speak. Defendants cite Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health & Hum. Resources (2001). In Buckhannon, the Supreme Court held that a "catalyst theory" cannot be used to establish that a party is the prevailing party for purposes of being entitled to a fee award under federal civil rights statutes. It takes more than the filing of an action and the defendant making concessions in order for a civil rights plaintiff to be the prevailing party. The Supreme Court required that the trial court must create an "alteration in the legal relationship of the parties" in order for the plaintiff to be a prevailing party. One way a trial court can accomplish that end is to enter judgment in plaintiff's favor, no matter how small the amount of damages.

Defendants' argument is of no avail here. Plaintiff is not asserting a catalyst theory to establish that he is the prevailing party. Indeed, the judgment entry in his favor, which awarded him $1,000 in damages, suffices under Buckhannon to establish plaintiff as the prevailing party.

Plaintiff instead is using a catalyst-type argument to support the reasonableness of expending hours in moving for a preliminary injunction. The Court agrees that it was reasonable for plaintiff to expend legal resources on pursuing preliminary injunctive relief, considering that an opportunity to speak was the primary relief he was seeking and that the Board had formally denied him of that opportunity before he filed suit. See Clark v. Sims (D. Md. 1995) ("[O]nce a party has been otherwise found to be a prevailing party, [a] catalyst theory remains available for consideration as a factor in arriving at the actual amount of the fee award, if any."); Lucas v. Guyton (D.S.C. 1995) ("agree[ing] entirely" with the analysis in Clark)….

Accordingly, … [p]laintiff is awarded $88,996.00 in attorneys' fee and $2,033.27 in costs, for a total award of $91,029.27.

Plaintiff is represented by Curt Hartman and Christopher Finney.

The post Attempt to Block Comment About Critical Race Theory at State Bd. of Ed. Meeting Yields $89K Attorney Fee Award appeared first on Reason.com.

This case concerns the Plaintiff's First Amendment rights to academic freedom, freedom of speech, and freedom of association as a professor at Cleveland State University ("CSU"). The Plaintiff alleges that the Defendants violated his constitutional rights when they investigated and fired him for advancing a "genetic hypothesis of the cause of the racial IQ gap" between black and white Americans in a published academic article….

The Plaintiff, Bryan Pesta …, was a Professor in the Department of Management at CSU. Professor Pesta received tenure at CSU in 2010 and promotion to full professor in 2016. In March 2022, CSU fired Professor Pesta….

In August 2019, the Plaintiff co-authored and published in the peer reviewed journal, Psych, an article entitled "Global Ancestry and Cognitive Ability." The article essentially concluded that an IQ gap between white and black Americans was, at least in part, hereditary and the result of genetics. This conclusion is called a "hereditarian hypothesis." … In conducting research for the article, the Plaintiff used National Institute of Health ("NIH") data that consisted of over 9,000 individuals' actual DNA samples. The Plaintiff's article concluded that this data supported the belief that "genetics played a role in the mean differences in general intelligence between White and Black Americans."

The Plaintiff acknowledges that the article "proved controversial." In the aftermath, CSU students and faculty, along with non-affiliated individuals and groups, publicly criticized the article and petitioned CSU to discipline Professor Pesta. One notable critic was Dr. Kent Taylor …. In April 2021, Dr. Taylor—a UCLA Professor of Pediatric Medicine—wrote President Sands and alleged that the article's "[u]se of NIH data for studies of racial differences in this way [was] both a violation of data use agreement and unethical."

At some point after the article's publication but before the Plaintiff's firing, CSU removed online access from its website to Professor Pesta's prior academic work. Specifically, CSU removed the online link to Professor Pesta's 2008 published article, "Black-White differences on IQ and grades: The mediating role of elementary cognitive tasks" from its "Engaged Scholarship at CSU" website. CSU never provided a website link to the Plaintiff's article "Global Ancestry and Cognitive Ability."

In Spring 2021, CSU formed a committee to investigate Professor Pesta…. Later that same month, the committee contacted Dr. Taylor and then interviewed him in October 2021. Dr. Taylor took issue with the final sentence of the article's abstract that read, "Results converge on genetics as a potential partial explanation for group mean differences in intelligence." In email correspondence with the committee, Dr. Taylor wrote, "In my opinion, this statement conflicts with the NIH policy NOT-OK-07-088 on taking care that data avoids stigmatization of US population sub-groups." Dr. Taylor further explained during his interview why he believed that the Plaintiff's use of the NIH data violated the NIH data use agreement, why it was unethical, and why he was professionally opposed to Professor Pesta's research into the hereditability of intelligence traits.

In January 2022, the committee issued a report that recommended terminating Professor Pesta. Provost Bloomberg accepted the committee's recommendation and fired the Plaintiff ….

Prof. Pesta sued, and the court allowed his claim to go forward:

A First Amendment retaliation claim requires the Plaintiff to prove three elements, that: (1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action; and (3) the adverse action was motivated at least in part in response to the exercise of his constitutional rights. The Plaintiff's firing satisfies the second element. The Defendants' arguments center on the first and third elements.

Under the first element, courts determine whether protected First Amendment speech is at issue by applying the "longstanding Pickering-Connick framework," which involves two additional questions: A) whether the Plaintiff was speaking as a citizen, on a matter of public concern; and B) whether the Plaintiff's interest in doing so outweighs the individual Defendants' interest in promoting the efficiency of the public services they perform through their employees.

The first sub-element is met. The Defendants do not dispute that the Plaintiff was speaking as a citizen and addressing a matter of public concern.. The Court agrees. The Plaintiff spoke as a citizen—and not as a CSU employee—because his speech occurred publicly, outside his office, and his expressions were not made pursuant to his duties as a CSU professor. Moreover, his speech addressed matters of public concern because the subject matter broadly related to communities' social and racial concerns. See Meriwether v. Hartop (6th Cir. 2021) ("When speech relates to any matter of political, social, or other concern to the community, it addresses a matter of public concern." (internal quotations and citation omitted)).

The second sub-element is the crux of the Defendants' argument. They contend that the Plaintiff has not alleged facts sufficient to establish that his interests outweigh the Individual Defendants' interests in executing their public services efficiently. Specifically, the Defendants argue that they had "adequate justification" to fire the Plaintiff and that the Plaintiff himself appears to concede that his termination resulted from unethical research methods, not "for exercising his First Amendment right to publish on race-based issues." The Plaintiff disputes this assertion and maintains that he "plausibly alleged that his research constituted controversial speech by an academic" that "fit[s] within the core of the area protected by the First Amendment."

While the Plaintiff's speech relates to academic scholarship, his interests center on his right as a private citizen to write publicly on contentious academic topics without retaliation from his employer. The Plaintiff was a state employee, but he nevertheless retained the right to speak as a citizen. See Garcetti v. Ceballos (2006) ("The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.").

The individual Defendants' interests center on upholding CSU's academic standards and integrity, ethical code of conduct, and professional reputation. This naturally extends to ensuring that academic instructors—especially a tenured professor—use sound research methodologies. Essentially, the weighing of interests turns on the reason CSU investigated and fired the Plaintiff, and that question is a factual one that requires discovery.

Both sides dispute why Professor Pesta was fired, and neither side provided the Court with his termination letter. Certainly, evidence of the Plaintiff's unethical or unsound practices for proposing, conducting, and reporting research could affect CSU's operation and could tip the scale in the Defendants' favor. See Meriwether v. Hartop ("[A] school's interest in limiting a teacher's speech is not great when those public statements are neither shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally."). The Plaintiff contends that he did not use unethical and unsound research techniques, but that the Defendants fired him for his viewpoint.

At this [motion-to-dismiss] stage, construing the complaint in the light most favorable to the Plaintiff and accepting his allegations as true, the Plaintiff has alleged sufficient facts that his interests outweigh the individual Defendants' interests. Accordingly, the Plaintiff has satisfied the first element—and the two Pickering-Connick sub-elements thereunder—and the second element of a First Amendment retaliation claim.

Moving to the third element, the Plaintiff has alleged sufficient facts that the Defendants were motivated, at least in part, to investigate and fire Professor Pesta for exercising his constitutional rights. The Defendants maintain that "[i]t is clear from the face of his Complaint that Pesta was investigated and terminated for misrepresenting to the NIH how he would use the data he requested in violation of NIH policy and basic research ethics." The Court disagrees.

The Plaintiff alleges that the Defendants never provided an online link to his controversial article, removed online access to his other works before rendering an official decision to fire him, waited more than a year and a half to investigate his alleged wrongdoing, and initiated an investigation only after weathering considerable public criticism. Accepting these allegations as true, the Plaintiff alleged sufficient facts that the Defendants were motivated, at least in part, to investigate and fire him for his protected speech. While this analysis may change with additional facts after discovery, at this point, the Plaintiff satisfies the third element.

Sounds generally right to me. Several circuit courts have concluded that the First Amendment generally protects public university professors from being disciplined based on the viewpoints expressed in their scholarship; the Sixth Circuit is one of them. And while professors can indeed be disciplined pursuant to viewpoint-neutral rules forbidding research misconduct (falsifying data, failing to get patients' informed consent to various procedures, and so on), it seems to be quite contested here whether such rules were really violated and whether any such violation—as opposed to the viewpoint that Pesta expressed—was the basis for the firing.

The post First Amendment Claim of Professor Fired Over Article Claiming Race-Based Genetic IQ Differences … appeared first on Reason.com.

According to the allegations in the Complaint …, Plaintiff and Defendant dated for nearly a year while enrolled at Tulane University …. After their relationship ended in October 2021, Defendant complained about Plaintiff's behavior to Tulane, which issued mutual no-contact orders the next month. Defendant also sought a protective order in Louisiana state court, claiming that Plaintiff stalked, harassed, shoved, and threatened her.

In both proceedings, Defendant did not claim that Plaintiff sexually assaulted her. Plaintiff and Defendant agreed to a state court order, pursuant to which Tulane's no-contact order became permanent, and Plaintiff agreed to withdraw from Tulane and cease all contact with Defendant. Plaintiff alleges that he never sexually assaulted Defendant, and that he left Tulane voluntarily.

In August 2022, following a "period of reflection," Plaintiff enrolled in Front Range Community College in Boulder, Colorado, although he planned to transfer to the University of Colorado ("CU Boulder") after his first year there. At CU Boulder, Plaintiff rushed and sought to pledge an unspecified fraternity, and paid its dues.

Shortly after the fraternity received his bid in September 2022, Defendant sent text messages to the fraternity's social chairs claiming, among other things, that Plaintiff transferred schools "not through his own choice, but because he was kicked out of Tulane for rape and stalking"; "sexually assaulted and raped [Defendant] countless times"; "forced [Defendant] into very uncomfortable sexual situations, forcing [her] to do painful things which [she] objected to"; "was abusive in every way"; "ha[d] been physically violent with [Defendant]"; "threatened [Defendant's] friends and family and attempted to cut [her] off from every person in [her] life"; and was "a threat to every woman's safety on [CU Boulder's] campus."

The fraternity "terminated" Plaintiff immediately, based on Defendant's allegedly defamatory claims, and refused to refund a deposit he paid. Plaintiff's college friends "cancelled him." Additionally, fraternity members "spread [Defendant's] malicious lies to numerous other students on campus, who proceeded to bully and ostracize [Plaintiff]." Plaintiff was ultimately "forced to withdraw" from CU Boulder "and return home to California." Meanwhile, Defendant has returned to Tulane, where she continues to "publish[] her false and malicious lies to numerous students there." Seeking damages, Plaintiff has brought three claims arising out of these allegations: defamation, intrusion on seclusion, and unreasonable disclosure of private facts.

The Complaint identifies the Parties with pseudonyms—"John Doe" for Plaintiff and "Jane Roe" for Defendant…. Plaintiff has filed the Motion to Restrict … [seeking permission to proceed pseudonymously]. {Plaintiff states that he "anticipates later moving for a Protective Order requesting that Defendant be prohibited from ever disclosing his identity." That contemplated relief is not before the Court at this time.} … Defendant joins Professor Volokh in opposing pseudonymity and further notes that she "will allege that she was sexually assaulted in her counterclaims," and "is choosing to proceed using her own name so as to ensure that the larger and important issues raised by this case—including ensuring that survivors of sexual assault not lose their voice through shame or the threat of legal action—are advanced." …

The United States Court of Appeals for the Tenth Circuit … has explained that "identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. It is subject to a decision by the judge as to the need for the cloak of anonymity." To justify use of a pseudonym, "the risk that a plaintiff may suffer some embarrassment is not enough." … "… [A]nonymity in court proceedings may sometimes be warranted, but it is limited to 'exceptional circumstances,' such as cases 'involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiff's identity.'" Most recently, the Tenth Circuit discussed these standards in considering whether a district court erred in denying a plaintiff's request to proceed under a pseudonym where the underlying circumstances implicated an alleged sexual assault. See Luo v. Wang (10th Cir. 2023)….

[T]he allegations at issue are sensitive and personal in nature, in that they involve details of the Parties' sexual relationship. At the same time, … Defendant opposes pseudonymity, and … takes the position that the "public has a keen interest in [this case's] subject matter, including in examining the use of litigation by perpetrators of sexual assault to curtail the #MeToo movement and to silence speech about sexual misconduct that has proven so critical in changing norms that have for far too long allowed sexual abuse to continue unabated." …

Next, Plaintiff appears to overstate the likelihood of physical harm. The initial Motion to Restrict referred only to the "academic," "financial," "mental," "emotional," "reputational," and "psychological" harm suffered by Plaintiff. Only in his Reply, once confronted with the applicable legal framework, does Plaintiff invoke "physical manifestations of emotional harm," based on alleged bullying and harassment, as well as increased attention to this case. Plaintiff cites several paragraphs of the Complaint to show that he has suffered or will suffer physical harm, but, upon review, the closest the Complaint gets is alleging generally that CU Boulder students "proceeded to bully and ostracize" Plaintiff. Even if the Court assumes that the bullying at issue had a physical component—which does not necessarily follow from the surrounding allegations, or the pairing with the word "ostracize"—the Complaint alleges in no uncertain terms that Plaintiff responded by "withdraw[ing] and return[ing] home to California." Plaintiff thus faces no further risk of harm at CU Boulder, physical or otherwise, by his own account.

With regard to the public discourse, Plaintiff speculates that denial of pseudonymity will result in "inevitable public attention," which will make physical harm likely. However, Plaintiff does not explain why that is so, and the case Plaintiff cites for support is distinguishable. In it, the court observed that the threat of harm to the movant was "all the more serious given that this case has drawn significant media attention, which means many people across the country are aware of Roe's accusations against plaintiff," and "some responses to the media's reporting on this case have been vitriolic." Doe v. The Rector & Visitors of George Mason Univ. (E.D. Va. 2016). Here, in contrast, Plaintiff recognizes (albeit in supporting a different argument) that the subject matter of this case has not been "publicized in any newspapers or online fora," and "there is nothing about his status that would heighten any public interest beyond the normal public interest in any judicial proceedings."

Third, Plaintiff does not seek injunctive relief in the Complaint, and the alleged injury involving his time at CU Boulder has already occurred. See Luo (district court did not abuse its discretion in "concluding that the injury [plaintiff] litigated against—[defendant's] previous alleged defamation and disclosure of her private information— would not be incurred because of the disclosure of her identity"). Plaintiff seeks damages for past conduct by Defendant. Plaintiff's argument that "prevailing in this litigation would be undermined if he were required to reveal his identity," ignores that by prevailing in this litigation, Plaintiff will have proven the defamatory nature of Defendant's previous statements and will likely want to publicize his own name. As the United States District Court for the Eastern District of North Carolina observed, "[i]t would be fundamentally unfair for [a] plaintiff to be able to 'clear his name' and wield a potential judgement against [his accuser] to his advantage but hide under a shield of anonymity if unsuccessful." Doe v. Doe (E.D.N.C. 2023).

The Court also acknowledges that pseudonymity could potentially prejudice Defendant in light of her stated intention to litigate a counterclaim for sexual assault "using her own name so as to ensure that the larger and important issues raised by this case—including ensuring that survivors of sexual assault not lose their voice through shame or the threat of legal action—are advanced." Indeed, unlike other cases, Plaintiff is not seeking to proceed pseudonymously so as to match his accuser's pseudonymous status.

For all these reasons, this Court concludes that Plaintiff's arguments supporting pseudonymity fail to overcome the strong presumption of public access. Chalmers v. Martin (D. Colo. 2021) ("The supposed harm from being the target of a lawsuit alleging sexual abuse is not enough to justify shrouding this case with a veil of secrecy."). As the Volokh Response points out, libel cases concerning sexual assault are routinely brought in plaintiffs' own names. Although, in some respects, Plaintiff's "desire [to proceed under a pseudonym] is understandable, our system of dispute resolution does not allow it."

The result seems correct to me, for reasons given in this amicus brief my students and I field in the pending Doe v. Doe (4th Cir.). That case, which also deals with whether a libel plaintiff could sue anonymously, is the appeal of the Doe v. Doe (E.D.N.C. 2023) case cited by Judge Wang. For more on this general issue, see my The Law of Pseudonymous Litigation. You can also read, in this case, plaintiff's Complaint and his motion for pseudonymity.

The post No Pseudonymity for #TheyLied Plaintiff Suing for Libel and Invasion of Privacy Over Rape Accusations appeared first on Reason.com.

The post Today in Supreme Court History: July 18, 1942 appeared first on Reason.com.

The language of colorblindness that Roberts and Thomas use to make their argument comes directly from Justice John Marshall Harlan's lonely dissent in Plessy v. Ferguson, the decision that upheld Jim Crow segregation. "There is no caste here. Our Constitution is colorblind, and neither knows nor tolerates classes among citizens," wrote Harlan, who would have struck down a Louisiana law establishing "equal but separate" accommodations on passenger railways.

But there's more to Harlan's dissent than his most frequently cited words would lead you to believe. When read in its entirety, the dissent gives a picture of Harlan not as a defender of equality, but as someone who thinks the Constitution can secure hierarchy and inequality without the assistance of state law. It's not that segregation was wrong but that, in Harlan's view, it was unnecessary. . . .

Harlan's brief for the colorblind Constitution rested, within the text, on a belief in the inherent superiority of white Americans and the basic inferiority of their Black counterparts. "Blacks and whites could be 'equals before the law,'" notes Hutchison, "but that did not mean they were equals in any other respect — in the social realm, racial inequality would rule 'for all time' if the nation remained blind to race 'in view of the Constitution.' "

This column prompted an extensive reply from Peter Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero in Politico. His reply begins:

There is no high court for historical injustices, no tribunal to which a historical figure can appeal when their reputation is maligned. Yet simple fairness and the need for a balanced view of the past require some attempt at reputational justice. Even in death, people should reap what they sow. It's a question that would have interested the Supreme Court Justice John Marshall Harlan, who served from 1877 to 1911. With his religious values, unusual sense of how judicial opinions shape American destiny and his many dissents that appealed to future generations, Harlan believed in the long judgment of time.

But he might have shuddered at the thought of his own reputation in the dock.

Harlan's fame rests as the sole dissenter in case after case that took away the rights that Black people were granted in the post-Civil War amendments to the Constitution. Those dissents not only inspired African American leaders in his time but provided an early roadmap for the victories that Black lawyers won in the 20th century. The fact that even one — though only one — white judge had seen the law in terms of its effect on Black people kept hope alive in the Black community. From church pulpits, he was hailed as a prophet in his time.

Canellos rejects Bouie's interpretation of Harlan, suggesting it results from wrenching Harlan's views out of context and transposing them into contemporary debates.

Bouie suggests that the notion of a purely color-blind Constitution can be used to cement white privileges in the law. Fair enough. He also goes on to suggest that this was what Harlan intended to do.

A closer look at Harlan's Plessy dissent, and the wider arc of his career, does not support that contention. . . .

Harlan was, indeed, far-sighted, but it's not credible to suggest his main concern was preserving racism at home while shielding it from critics abroad. His concern for the plight of Black people was straightforward and sincere, a feeling that Black people had been denied their legal rights as Americans. They had gotten a rotten deal. And concerns over white America's treatment of Black people were reflected in almost every aspect of his life during his years on the bench.

After a fairly thorough survey of Harlan's record (covering far more column inches than Bouie had at his disposal in the NYT) Canellos concludes:

It is commonly said that all such figures were "of their times." Certainly, their words and actions should be judged in the context of their times, including the prejudices that attached to that period. But that doesn't mean that every person is fated to share those biases, or that anyone whose work responds to the peculiar challenges of their era must be held in suspicion.

In Harlan's case, his willingness to acknowledge the wrongs done to Black people helped sustain faith in the legal system at one of its worst hours. His actions convinced Marshall, Motley and others that it was possible to persuade white judges to enforce the rights of Black people; imagine the disgrace to the system if every white judge had refused to uphold the Civil Rights Act of 1875, or if every white judge had rallied around the separate-but-equal doctrine.

It seems to me that the injury to public discourse in failing to recognize those who broke the mold or stood apart — or in seeming too eager to discredit them — is precisely that it forecloses the possibility of exemplary behavior. If John Marshall Harlan was a prisoner of his times, so are we prisoners of ours. And that serves to extinguish hope for a better world.

The post Debating the Legacy of Justice John Marshall Harlan appeared first on Reason.com.

The U.S. Court of Appeals for the Fourth Circuit appears not to have gotten the message. Despite the fact that Congress had stripped the Fourth Circuit of any jurisdiction over cases challenging the pipeline's permits, last week the court issued two orders staying additional construction and approvals from the U.S. Forest Service and Fish & Wildlife Service.

On Friday, Mountain Valley Pipeline filed an emergency application with Chief Justice Roberts asking the Supreme Court to vacate the stays. The brief, filed by former Solicitor General Donald Verelli, explains why the Fourth Circuit's actions lacked any legal basis.

The argument that apparently convinced the Fourth Circuit to enter its stays is that Congress lacks the constitutional authority to intervene and effectively end the legal challenges to the pipeline's construction. As this academic amicus brief puts it, Congress may not "direct the result in pending litigation without amending substantive law." The problem is that Congress has substantively amended the law—declaring these permits valid, rather than telling the Fourth Circuit to so conclude—and deprived the Fourth Circuit of jurisdiction to consider the question (vesting such jurisdiction in the D.C. CIrcuit instead).

It is worth remembering that the only reason environmentalist groups have been able to challenge the Mountain Valley Pipeline in the first place is because Congress decided to impose permitting and other requirements for projects like this and further provided for judicial review of the relevant agency determinations to ensure that Congress's standards had been met. What Congress giveth, Congress may also take away. Congress was not required to allow environmentalists or anyone else to challenge whether a Forest Service or Fish & Wildlife Service decision was arbitrary and capricious or otherwise not in accordance with law. Indeed, Congress did not even need to require that projects like the Mountain Valley Pipeline obtain federal permits at all. Thus Congress is certainly free to declare that the standards Congress set forth for projects like this have been met in this particular case—and that is what it did.

Not only is the Fourth Circuit wrong to think there is a basis for continuing to hold up the Mountain Valley Pipeline, it lacks the jurisdiction to consider the question. It is well established that Congress retains the power to shift or strip federal jurisdiction, even from pending cases, and even if that disadvantages one party to the litigation. (See, e.g., Ex parte McArdle in which the Supreme Court upheld legislation stripping the federal courts of hearing particular habeas claims, even though that doomed McArdle's habeas petition.) Such a move may seem like dirty pool, but it is well within Congress's power to do.

The legal merits of this dispute seem rather clear. The only question is whether the Supreme Court will consider the Fourth Circuit's actions to be sufficiently egregious to justify a "shadow docket" order vacating the stays or providing other extraordinary relief.

The post Will SCOTUS Be the Mountain Valley Pipeline's MVP? appeared first on Reason.com.

{This case involves a constitutional challenge to a newly-enacted law regulating third-party voter registration organizations. Plaintiff Doe seeks to proceed anonymously to avoid retaliation or harassment considering their immigration status and due to the "elevated political climate" concerning immigration more broadly.}

Ordinarily, parties referred to in a complaint must be identified by their real names. The Federal Rules of Civil Procedure specifically provide that "[t]he title of the complaint must name all the parties." Similarly, courts have long recognized that "[l]awsuits are public events" and that the public has a "legitimate interest in knowing all of the facts involved [in a case], including the identities of the parties." …

The Eleventh Circuit has made clear that pseudonyms may only be used in "exceptional" cases, and that there is "a strong presumption in favor of parties' proceeding in their own names." That presumption can only be overcome where the party seeking to proceed pseudonymously shows that they have "a substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" In determining whether Plaintiff Doe has such a right, this Court considers the following three factors: (1) whether they are "seeking anonymity challenging government activity," (2) whether they will be "required to disclose information of the utmost intimacy", and (3) whether they will be "compelled to admit their intention to engage in illegal conduct and thus risk criminal prosecution."

As to the first factor, [that] Plaintiff Doe is challenging government activity … only has a neutral effect. Cf. Frank , 951 F.2d at 324 ("[T]he fact that Doe is suing the Postal Service does not weigh in favor of granting Doe's request for anonymity."); cf. also Roe v. Aware Women Ctr. for Choice, Inc., 253 F.3d 678, at 686 (11th Cir. 2001) ("[N]o published opinion that we are aware of has ever permitted a plaintiff to proceed anonymously merely because the complaint challenged government activity.").

As to the second factor, the Eleventh Circuit has explained that "the 'information of utmost intimacy' standard applies to cases involving issues such as abortion … and prayer and personal religious beliefs." One would think that the standard covers more, but apparently it does not. Indeed, courts have denied the use of pseudonyms in cases involving matters that many would consider extremely private [citing cases involving abortion, alleged sexual assault victims, plaintiffs who were disclosing their alcoholism, attempted suicide by a police officer, abortion, and other matters].

Here, Plaintiff Doe identifies their immigration status as information raising a privacy concern sufficient to warrant permission to proceed under a pseudonym. But this Court is not persuaded that Plaintiff Doe's temporary protected status raises the same privacy concerns as the information at issue in cases where pseudonyms have been allowed. Cf. SMU, 599 F.2d at 712–13 (collecting cases and listing "birth control, abortion, homosexuality, [and] the welfare rights of illegitimate children or abandoned families" as examples of "matters of a sensitive and highly personal nature" (footnotes omitted)). Accordingly, this factor also is of little help to Plaintiff Doe.

Finally, the third factor does not help Plaintiff Doe either. That is, there is no information in the record suggesting that A. Doe has engaged in criminal activity or that they intend to do so. Nor have they alleged that such information may become part of this case in the future. Accordingly, none of the three factors weigh in favor of using a pseudonym.

Of course, none of these three factors take into account Plaintiff Doe's concerns about the potential harassment and threats they face. To be clear, this Court does not intend to diminish those concerns. This Court recognizes that it has "discretion" and "should carefully review all the circumstances of a given case" before deciding "whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns."

Even so, the precedent binding this Court seems to counsel against granting the requested relief…. "The threat of hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." …. This Court finds that mere allegations of threats and harassment is insufficient to outweigh the customary and constitutionally embedded presumption of openness in judicial proceedings. This is especially true where the targets of such threats and harassment are not minors and where the subject at issue does not involve matters of utmost intimacy.

The post No Pseudonymity for Non-Citizen Challenging Law Limiting Non-Citizens' Participation in Voter Registration appeared first on Reason.com.

The Internet is abuzz with discussion about allegations by Sarah Brady, a University of Hawai'i law student, that her ex-boyfriend and celebrity Jonah Hill emotionally abused her and dressed up the abuse in therapy language. According to screenshots of text messages she posted publicly, he designated it "boundaries" that she should not post swimsuit pictures of herself on social media, model, surf with men, or interact with female friends of whom he didn't approve, among other things.

We discuss the difference between boundaries and coercive control, the ways in which boundary speak doesn't absolve the speaker of problematic values injected into requests (or demands), and the general current trends in distorting psychological language to serve one's purposes. We also delve into what happens when a partner's mental health or other life circumstances make it difficult for them to give what the other person might actually deserve under optimal conditions. Tune in and join the discourse!

The post "Strangers on the Internet" Podcast Episode 36: Therapy Speak as Relationship Abuse appeared first on Reason.com.

Look past the string of headline-grabbing conservative victories concerning abortion, affirmative action, the religion clauses, the Second Amendment, and so on. Rather, count up the 5-4 cases on the merits docket that swing left, the rejection of applications on the emergency docket brought by conservative litigants, and the denials of certiorari petitions that could have moved the law to the right. These three-dozen cases are all progressive victories snatched from the jaws of conservative defeat. On balance, progressives should be grateful for President Trump's not-so-conservative SCOTUS picks.

The Merits Docket

Let's start with the Supreme Court's merits docket. Justice Gorsuch has cast the deciding vote in five 5-4 cases that swung to the ideological left. First, Sessions v. Dimaya held that a federal immigration law was unconstitutionally vague. Second, Washington Department of Licensing v. Cougar Den exempted members of an Indian tribe from a tax on fuel importers. In both of these two cases, Justice Kennedy voted with the Court's conservatives in dissent. The third case, Herrera v. Wyoming, protected the right of an Indian Tribe to hunt on "unoccupied"  property. Fourth, United States v. Davis held that a criminal penalty for using a firearm during a "crime of violence" was unconstitutionally vague. The fifth case was the most significant. Justice Gorsuch wrote the majority opinion in McGirt v. Oklahoma, which held that large portions of Oklahoma, including the city of Tulsa, remain "Indian country." As a result, the state of Oklahoma could not prosecute crimes committed by members of the Creek nation. In each of these five cases, President Trump's nominee to replace Justice Scalia voted opposite the Court's four conservatives.

After Justice Kavanaugh replaced Justice Kennedy, it should have become harder for the Court's four progressives to cobble together a majority for 5-4 cases–in theory at least. In May 2019, Justice Kavanaugh wrote the majority opinion in Apple v. Pepper, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The case held that iPhone owners could sue Apple for alleged antitrust violations. 

In September 2020, Justice Ginsburg passed away. By the end of October, Justice Barrett was confirmed to fill the vacancy. Now, with only three progressives on the Court (Breyer, Sotomayor, and Kagan) two conservative Justices would have to swing left to form a five-member majority. Yet, the progressives would prevail in five more 5-4 decisions. In each case, Chief Justice Roberts and Justice Kavanugh joined the three progressives. First, Biden v. Texas approved the Biden administration's immigration policy. Second, Biden v. Missouri held that the federal government could mandate vaccines for health care workers. Third, Nance v. Ward ruled in favor of a death row inmate. Fourth, Torres v. Madrid allowed a plaintiff to sue police officers who shot her. Fifth, Torres v. Department of Public Safety ruled that Texas could be sued for damages.

In June 2022, Justice Breyer retired, and was replaced by Justice Ketaji Brown Jackson. This past term, Chief Justice Roberts and Justice Kavanaugh continued to join the Court's three progressives in two prominent 5-4 cases. Allen v. Milligan held that Alabama violated the Voting Rights Act by not creating a second "majority-minority" district. And Cruz v. Arizona permitted a prisoner to challenge his conviction in federal court.

Finally, even when Justice Kavanaugh votes with the Court's conservatives, he still pivots left. Justice Kavanaugh wrote influential concurring opinions in the landmark abortion and Second Amendment cases. These concurrences narrowed the majority opinion by resolving difficult questions that were not yet in front of the Court.

By my count, since Justice Gorsuch's appointment, a Trump appointee has cast the decisive fifth vote in a 5-4 case that swung to the left a dozen times. To date, Justice Barrett has not cast the deciding vote in a 5-4 liberal case. But this tally only considers the Supreme Court's merits docket. The Supreme Court's emergency docket provides an even larger set of data points.

Emergency Docket

On the so-called "shadow" docket, five votes are needed to grant relief. Generally, these applications for emergency relief are decided by unsigned per curiam opinions. On occasion, one or more Justices will dissent from the denial or grant of relief. Since November 2020, Justices Thomas, Alito, and Gorsuch have consistently ruled together on emergency applications. Had Justices Kavanaugh and Barrett joined the conservative troika in each case, (3+2=5) full relief would have been granted.  

In January 2021, the Harvest Rock Church and South Bay United Pentecostal Church challenged California's restrictions on in-person gatherings and singing during worship. The Court, by a 6-3 vote, ruled that the prohibition on indoor worship violated the Free Exercise Clause of the First Amendment. Justices Thomas, Alito, and Gorsuch went further, and declared unconstitutional the singing ban. Justices Barrett and Kavanaugh, however, left the singing ban in place. (This concurrence was Justice Barrett's first writing on the bench.) This 3-2 split on the emergency docket would repeat itself again and again.

In four cases, Justices Kavanaugh and Barrett declined to cast the deciding votes that would have blocked the enforcement of vaccine mandates: Dunn v. Austin, We The Patriots USA v. Hochul, Does 1-3 v. Mills, and Dr. A. v. Hochul. Eventually, Justices Kavanaugh and Barrett also likely declined to grant certiorari in Dr. A v. Hochul. (I say likely here, and elsewhere, because the Justices did not expressly state their positions, but we can reasonably infer how they voted.) Justices Thomas, Alito, and Gorsch would have heard the case. Meanwhile, in Austin v. U.S. Navy Seals 1-26, Justice Kavanaugh and likely Justice Barrett allowed the Navy to deny religious exemptions for the vaccine mandate. 

This 3-2 split would fracture other cases on the emergency docket. The plaintiffs in Coalition for TJ v. Fairfax County School Board asked the Supreme Court to block an affirmative action policy at an elite public high school. Justices Thomas, Alito, and Gorsuch would have granted the application. Justices Kavanaugh and Barrett were silent. In Moore v. Harper, the republican North Carolina legislature asked the Supreme Court to block the state supreme court's finding of a partisan gerrymander. Justices Thomas, Alito, and Gorsuch would have granted the stay. Justice Kavanaugh and likely Justice Barrett declined to grant relief. (In June 2023, Justices Kavanaugh and Barrett would cast the fifth and sixth vote against the North Carolina legislature on the merits docket). In Alabama Association of Realtors v. HHS, the Court declined to block the federal eviction moratorium. Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application. Justice Kavanaugh concurred to explain why he would leave the policy in place, at least temporarily. (After the Biden administration called Kavanaugh's bluff, and continued the policy, the Court halted the moratorium by a 6-3 vote.) In NetChoice v. Paxton, Justices Kavanaugh and Barrett voted to block the enforcement of a Texas law that restricted social media sites. Justices Thomas, Alito, and Gorsuch would have allowed the regulations to go into effect.

Since Justice Barrett's confirmation, I count thirteen cases in which she and Justice Kavanaugh could have joined Justices Thomas, Alito, and Gorsuch on the emergency docket. But the duo chose not to. By contrast, Justices Barrett and Kavanaugh likely joined the Court's progressives in Lombardo v. St. Louis. That unsigned opinion gave another appeal to the family of a prisoner who died in police custody. Justices Thomas, Alito, and Gorsuch would have allowed the case to end. Ultimately, the lower court ruled against Lombardo's family again, and the Supreme Court denied certiorari over Justices Sotomayor and Jackson's dissent. 

Prior to Justice Barrett's confirmation in October 2023, Justice Kavanuagh was often the odd man out on the emergency docket. I count at least five cases from before the presidential election, which challenged COVID-related voting procedures: Berger v. North Carolina State Board of Elections, Wise v. Circosta, Moore v. Circosta, Andino v. Middleton, and Republican National Committee v. Common Cause Rhode Island. In each case, Justices Thomas, Alito, and Gorsuch would have granted full relief. Justice Kavanaugh did not.

Cert Denials

On the Supreme Court, four votes are required to grant certiorari. In rare cases, one or more Justices will dissent from the denial of certiorari. When there are three such dissents, we can reasonably infer that one more Justice was unwilling to give a "courtesy" fourth vote. Like with the emergency docket, there have been a string of high-profile cases where Justices Thomas, Alito, and Gorsuch dissented from the denial of certiorari. One more vote from a Trump appointee would have granted the petition. By my count, Justices Kavanaugh or Barrett could have been the fourth vote for certiorari in five important cases, but they chose not to.

In 2018, the Supreme Court denied appeals from Kansas and Louisiana, which excluded Planned Parenthood from Medicaid funding. Justice Kavanaugh, who could have provided the pivotal fourth vote, was silent in these cases. Arlene's Flowers v. Washington involved a florist who declined to make floral arrangements for a same-sex wedding. After nearly seven years of litigation, the Supreme Court denied review. Justices Thomas, Alito, and Gorsuch would have granted the petition. Justices Kavanaugh and Barrett were silent. Boardman v. Inslee involved a challenge to a Washington law that granted employee information to unions. The Court denied review, but Justices Thomas, Alito and Gorsuch would have granted certiorari. Justices Kavanaugh and Barrett allowed the case to conclude. Shoop v. Cunningham presented a challenge to a two-decade old murder conviction. Justices Thomas, Alito, and Gorsuch would have granted review, and summarily reversed the lower court judgment that ruled for the prisoner. Justices Kavanaugh and Barrett said nothing. 

In Dignity Health v. Minton, California required a Catholic hospital to perform a hysterectomy on a transgender patient. The Court denied review, over the dissents of Justices Thomas, Alito, and Gorsuch. Alas, without the votes of Justices Kavanaugh or Barret, the Catholic hospital would be forced to perform the procedure. In a related case, Roman Catholic Diocese of Albany v. Emami, New York mandated that religious employers must fund abortions through their employee health plans. Justices Thomas, Alito, and Gorsuch would have granted certiorari immediately. But Justices Kavanaugh and Barrett kicked the can down the road, and let the New York courts consider the case in light of a recent Free Exercise Clause decision, Fulton v. City of Philadelphia. 

The following year, the New York appellate division ruled that Fulton did not change the relevant standard, so the Diocese lost again. And why did Fulton not change the relevant standard? Because in Fulton, Justices Barrett and Kavanaugh declined to overrule Employment Division v. Smith, a decision that required courts to deferentially review laws that burden religion. Even when Justices Barrett and Kavanaugh joined a conservative majority opinion, they tempered its reach. 

Meanwhile, Justices Thomas, Alito, and Gorsuch would have overruled Smith in Fulton. The relationship between Fulton and Catholic Diocese of Albany illustrates with clarity the gap between Justices Kavanaugh and Barrett on the one hand, and Justices Thomas, Alito, and Gorsuch on the other.

***

Critics of the Court should be at least somewhat grateful. Had President Trump nominated three Justices in the mold of Justices Alito and Thomas, none of the nearly three-dozen cases I mentioned above would have gone to the left, none of the moderating concurrences would have been written, and many of the emergency applications would have been granted. I'm not saying that the progressive glass is half-full–but they're lucky it's not empty. On the other hand, conservatives should be thrilled, but their cup does not exactly runneth over. 

The post Progressives Should Be Grateful For President Trump's Not-So-Conservative SCOTUS Picks appeared first on Reason.com.

A few days ago, an important new statistical study found corroboration for my hypothesis in New York City. Professor Dae-Young Kim's article "Did De-Policing Contribute to the 2020 Homicide Spikes?" answers the question posed in the title in the affirmative.

Professor Kim's article examines NYC homicide data from 2017 through 2020. It divides homicides into six different categories: gun, non-gun, domestic, non-domestic, gang, and non-gang. It assesses the connection between homicide rates in those categories and a significant reduction  in NYPD police stops of pedestrians. In NYC, stops fell from 13,453 in 2019 to 8,375 in 2020–a 30% decrease in proactive policing.

Professor Kim's article found that the reduction in stops led to an increase in three homicide categories:

… the interaction term of police stops and the pandemic presents the extent to which the 2020 homicide surges were attributable to reduced proactive law enforcement. Specifically, gun, non-domestic, and gang homicides significantly increased as police stops decreased in the pandemic and post-Floyd era. In addition, the supplementary correlation analyses present a significant correlation of police stops to gun (r=−.406, p =.008), non-domestic (r=-.321, p=.041), and gang (r=−.364, p=.019) homicides, respectively, in the pandemic and post-Floyd era. In contrast, the significant correlations disappear in the pre-intervention era.

While the full article is behind a paywell, one can gain a quick sense of the strength of Professor Kim's analysis by looking at graphs depicting NYC police stops, total homicides, and the six homicide categories described above:

In the first of the eight charts above, the reader can see the dramatic reduction in police stops by NYPD following the George Floyd protests. In the remaining charts, the simultaneous significant increase in homicides in the gun, non-domestic, and gang categories (but non in non-gun, domestic, and non-gang categories) is visually evident.

The explanation Professor Kim gives for this pattern tracks the one that I gave in my paper on the "Minneapolis Effect"–specifically, that police stops are targetted at gun crimes and related gang activity, and thus a reduction in stops will produce the greatest increase in homicides in these specific categories. As Professor Kim puts it:

Pedestrian stops are used to stop and frisk anyone, but mostly known gang members, on the street they suspect might engage in criminal activity or carry concealed weapons. Given the goal of pedestrian stops, the effects of de-policing should be more pronounced on gun, non-domestic, and gang homicides that usually occur in public settings. The current findings echo Piza and Connealy's (2022) study in that the lack of policing caused crime increases, ultimately compromising public safety and endangering communities.

In an earlier paper on the 2016 Chicago homicide spikes, Professor Fowles and I saw a similar pattern in the Chicago data.

Professor Kim's findings support the conclusions that I reached in my paper on the "Minneapolis Effect" about the compelling need to increase proactive policing. Here is the conclusion from my earlier article:

The quantitative data and qualitative evidence strongly suggest that a "Minneapolis Effect" has struck—that is, in the wake of antipolice protests following George Floyd's death in Minneapolis, police officers are being redeployed from antigun efforts and are retreating from proactive law enforcement tactics. This reduction in law enforcement efforts targeted at firearm crimes has led, perhaps predictably, to an increase in firearm crimes.

This article attempts to quantify the size of the Minneapolis Effect, estimating that about 710 more homicides and 2,800 more shootings occurred because of reduced policing in June and July alone. And the victims of these crimes are disproportionately Black and Brown, often living in disadvantaged and low-income neighborhoods.

While these estimates are stated in the cold precision of an economic calculation, it must be remembered that behind these grim numbers lies a tremendous toll in human suffering—lives lost, futures destroyed, and families left grieving. Understanding the nation's recent—and ongoing—homicide spikes requires urgent attention. And even more urgently, the nation needs to consider all possible responses to this tragedy, including responses that involve increased and proactive law enforcement efforts directed at combating gun violence.

The post New Statistical Evidence Supports the "Minneapolis Effect" as an Explanation for Increases in Homicides appeared first on Reason.com.

In the July 31 issue of National Review, in an article titled "The Restrained Roberts Court," I explain why some common criticisms of the current Supreme Court are simply untrue. In particular, I explain that the Roberts Court overturns precedent and holds legislative enactments unconstitutional significantly less often than did the Warren, Burger, or Rehnquist Courts. In other words, the Roberts Court is meaningfully less "activist" than its post-WWII predecessors, at least as measured by conventional metrics.

From the article:

Commentators and reporters generally accept that the current Court is more likely to overturn precedent and invalidate laws than we have come to expect. Yet this widely shared perception is wrong. Based on available metrics, the current Court is less likely than its predecessors to overturn precedents or invalidate legislative enactments. If such actions are the hallmark of judicial imperialism, the Roberts Court is not particularly imperialist. . . .

the Roberts Court is the least likely of any court since World War II to overturn precedent. The Warren, Burger, and Rehnquist Courts all overturned Supreme Court precedents at a higher rate than the Roberts Court, and it is not particularly close. Compared with its predecessors, the Court under Chief Justice Roberts has largely maintained the status quo.

This is not anything new. Folks have been charging that the Supreme Court under Chief Justice Roberts has been abandoning precedent for years. As I have shown in prior posts going back years, the data did not support such charges then, and it does not support such charges now.

While it may well be the case that the current Court, over time, may begin overturning precedents at a higher rate than its post-WWII predecessors, we have not seen that yet (and that is true whether one treats the Roberts Court as a single court, or if we divide it into a "First" and "Second" Roberts Court with the change occurring either when Justice Kavanaugh replaced Justice Kennedy or Justice Barrett replaced Justice Ginsburg.)

As in my prior analyses, I based my claims looking at three data sets, two compiled by the Library of Congress (precedents overturned per term and decisions overturning precedent per term) and one from the Supreme Court database (precedents altered per term). All three data sets produce similar results.

The number of precedents overturned per term may be lower in the Roberts Court, but are the precedents overturned more longstanding or significant? It does not appear they are any older or more longstanding. The average age of precedents overturned by the Roberts Court (38 years old) is older than that of the Warren Court (22 years old), but comparable to that of the Burger (35) and Rehnquist (39) Courts.

What about significance? From the article:

It is fair to note that not all cases — nor all precedents — are created equal, and some observers have considered the precedents that the Roberts Court has overturned to be especially important. But there is no neutral measure of a precedent's importance. Most people likely think the Dobbs decision to overturn Roe v. Wade was more important than the overturning of Nevada v. Hall's holding on state sovereign immunity in Franchise Tax Board of California v. Hyatt. But was Dobbs more significant than the Court's 2002 decision in Atkins v. Virginia to overrule Penry v. Lynaugh and declare the execution of an intellectually disabled person to be a violation of the Eighth Amendment? And if so, by how much? And what about decisions that overturned precedents concerning the rights of criminal defendants to confront their accusers, or the authority of states to tax out-of-state businesses, or the application of the 14th Amendment's liberty and equality guarantees to homosexual conduct and gay marriage?

The article shows how there is a similar story to be told when it comes to Court decisions declaring legislative enactments to be unconstitutional. The Roberts Court is doing that less than its post-WWII predecessors as well.

Note that these trends coincide with the Court hearing fewer cases, and this is largely due to the justices' collective decision to hear fewer cases. Hearing fewer cases means there are fewer opportunities to overturn precedent, declare statutes unconstitutional, or otherwise shift the law. The cases which produce such outcomes may be a larger share of the Court's overall decisions, and such cases may have a more consistent ideological valence than before, but as a quantitative matter, the Court is still doing less.

One claim about the Roberts Court that I think has greater merit is that it has is more skeptical of the executive branch than its predecessors have been. I think this is a fair claim, and is the result of a longer term trend. Across the board the Court has become less deferential to the executive branch over time. This is true in the context of administrative law (going from, say, SEC v. Chenery II to West Virginia v. EPA) but in areas like national security as well (going from Ex parte Quirin to Boumediene v. Bush).

What is most different about the Roberts Court is not that it is more likely to overturn precedent or declare statutes to be unconstitutional. What is different is that it is a more consistently conservative court than its predecessors. The Burger Court had a supermajority of justices appointed by Republican presidents, but was not particularly conservative. While the Rehnquist Court was thought by some to be fairly conservative, it issued plenty of decisions overturning precedents or declaring statutes to be unconstitutional that most would consider to be "liberal" decisions. Lawrence v. Texas and Roper v. Simmons are good examples.

During the first twelve years of the Roberts Court, the Court tended to be conservative, but not consistently, and certainly not consistently in cases in which precedents were reconsidered or statutes held unlawful. Justice Kennedy was the median justice during this period and the Court's decisions to overturn precedents and reject statutes largely tracked his particular jurisprudential vision, and this often meant decisions overturning precedents or rejecting statutes while moving the law in a "liberal" direction. Obergefell v. Hodges and Kennedy v. Louisiana are good examples.

When Justice Kennedy was on the Court, he was the median justice on a Court that was otherwise 4-4. This meant that his preferences often controlled. Chief Justice Roberts and Justice Kavanaugh may be the median justices on the current court, but both of them are more consistently conservative in their rulings than was Justice Kennedy. Further, for the Court to overturn precedent or reject a statute on "liberal" grounds, the concurrence of more than one conservative justice is required. So we may get an occasional decision in which, say, Justice Gorsuch and Justice Barrett join the three progressive justices to overturn a conservative precedent, but such cases are likely to be rare.

This change in the court affects what cases the Court agrees to hear as well. It takes four justice to grant certiorari, so the three progressive justices lack the ability to force the Court to hear a case that concerns them (and they may not want to force the consideration of such cases either, as they may not like the outcome). This only reinforces the likelihood that when the Court decides to reconsider a prior precedent, it is more likely to reconsider a precedent about which the conservative justices are skeptical, and any resulting decision will likely move the law in what most would consider to be a conservative direction.

My National Review article concludes:

The reality is that some precedents should be overturned and some federal or state laws should be declared unconstitutional. It is also the case that the nation is divided over when such steps are warranted. I approve some of the Roberts Court's decisions in each of those categories and disapprove of others — but, in each case, my evaluation is based on my sense of the merits of the case and the Court's arguments. Accusations that the Court is vaporizing precedent and trampling democratic enactments — suggesting that it is not merely making bad decisions but doing so in an illegitimate way — are part of a broader effort to delegitimize it.

For many decades and with some regularity, the Court has overturned precedents and struck down legislative enactments. But so long as most such decisions moved the law in a progressive direction, legal elites mostly bit their tongues. What is different about the Roberts Court is not that it is keener to change the law but that, when it does so, it is more likely to shift doctrine in a conservative direction. If that makes the Court "not normal," as President Biden recently charged, and if that is supposed to be a problem, then the Court's critics should make their case openly and honestly.

The post Notes on "The Restrained Roberts Court" appeared first on Reason.com.

The post Today in Supreme Court History: July 17, 1862 appeared first on Reason.com.

From the abstract:

Academic freedom enjoys an uncertain status in American constitutional law under the First Amendment. It is particularly unclear how the First Amendment applies when it comes to professorial speech in the classroom. This lack of clarity has grave implications in the current political environment. There is now an unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms, and the constitutionality of such measures will soon need to be resolved.

This Article sets out a new argument for protecting from legislative interference how faculty at state universities teach their courses. Building on existing First Amendment jurisprudence regarding academic freedom and government employee speech, the article lays out the constitutional infirmities with anti-Critical Race Theory proposals and clarifies the scope of an individual constitutional liberty in the context of professorial speech.

From the conclusion:

The Supreme Court has invited confusion by noting but not fleshing out an academic-freedom exception to ordinary government-employee speech doctrine.  It is possible to flesh out that exception in a way that coheres with the Court's various doctrinal commitments, but it will require reaffirming that professorial speech is "a special concern of the First Amendment."  When state government officials attempt to restrict what ideas can be taught in the classrooms of public universities, they do real damage not only to the intellectual life of those universities but also to the public discourse of the country.  The First Amendment is grounded in the fundamental commitment to the view that ideas should be freely discussed and that they cannot be rejected or embraced as a result of government diktat.  In the mid-twentieth century, the government sought to prevent the spread on college campuses of what it regarded as dangerous ideas by dismissing any professor who might adhere to them, discuss them, or teach them.  The Court rejected the stifling hand of censorship then.  The tools of censorship being wielded by the government today are different, but the ultimate goal is the same.  Government officials do not want professors at state universities to discuss ideas with which those government officials, and perhaps even popular democratic majorities, disagree.  The First Amendment bars them from having their way.

The argument developed in the article has relevance for legislation like Florida's Stop WOKE Act, the constitutionality of which is now before the 11th Circuit.

You can find the article here.

The post My New Article on Legislative Restrictions on Classroom Speech appeared first on Reason.com.

How good it is that Zworykin left
And invented television there
If he had not left the country,
He, like all the rest, would have gone to Golgotha….

How good it is that Nabokov left
Not sharing with anyone the secrets of parting
How lucky that was! And on how many prophets
Their native land showed no mercy! …

Not a happy sentiment, but, hey, Russia's is not a happy history. In any event, a few weeks ago I came across Robert Rozhdestvenskiy's "The Talented Were Leaving My Country," written about the emigration of the 1970s. Here are the opening stanzas, which I found to be the most affecting; as usual, apologies for the flawed translation:

The talented were leaving my country,
Taking with them their dignity.
Some having sampled the Gulag gruel
And some a week before it.

Those who left weren't some sort of heroes—
How to tell who's a hero and who's not?
Simply people who couldn't think as instructed
Even if those were the very best of instructions ….

The post Poems of Emigration: "Simply People Who Couldn't Think as Instructed" appeared first on Reason.com.

The post Today in Supreme Court History: July 16, 2019 appeared first on Reason.com.

Between June 14 and June 20, 2023, plaintiff, proceeding pro se and under the name "Anonymous," filed four actions … alleging that defendants the City of New York, LaGuardia Community College, and various individual employees of the College violated her constitutional rights. Along with the complaints, plaintiff filed requests that each action be placed under seal and that she be allowed to proceed anonymously ….

Plaintiff's four complaints all contain allegations that she was discriminated against in violation of federal and state law during her time as a student at LaGuardia Community College…. Plaintiff's first complaint alleges that, in June 2022, a College employee identified only as Jane Doe, in an attempt to discriminate against plaintiff on the basis of her race, falsely accused plaintiff of making a threat against a professor, eventually leading to plaintiff being barred from campus…. Plaintiff's second complaint centers around an incident in June 2022 when, in the aftermath of Jane Doe's accusation against plaintiff, plaintiff was allegedly accosted by multiple College security officers, threatened with arrest, and falsely imprisoned…. Plaintiff's third complaint alleges that a College professor subjected her to differential treatment based on her race and created a hostile learning environment, then falsely accused plaintiff of threatening her, ultimately leading to plaintiff being denied a diploma…. Plaintiff's fourth complaint alleges that the College discriminated against her and defrauded her in various ways, including by misrepresenting its services, fraudulently decreasing her GPA, depriving her of an opportunity to attend or speak at her commencement ceremony, and improperly placing financial and disciplinary holds on her student record….

[A.] Plaintiff's Sealing Requests Are Denied

{"The public and the press have a 'qualified First Amendment right to … access certain judicial documents.'" Although judicial documents "may be kept under seal if … 'higher values' … so demand," such restrictions require "specific, on-the-record findings" that "sealing is necessary to preserve higher values," and any "sealing order [must be] narrowly tailored to achieve that aim." Interests found to satisfy Lugosch's "higher values" requirement include "the attorney-client privilege," "national security," the "protection of the privacy of innocent third parties," and the "confidentiality of sensitive patient information."}

Plaintiff argues that sealing these actions is required because she is being "slandered and libeled" and "[m]aking [her] information public would magnify the effects of [defendants'] wrongdoing" rather than right those wrongs. She adds that, because the "case[s] deal[ ] with [her] private academic record and [her] private student personal file," records which are "not disclosed anywhere else," those records should not be made available to the public. Finally, she contends that proceeding only under a pseudonym would be insufficient to mitigate these concerns because she is a minority at the College and her identity could be discovered by process of elimination.

These arguments do not warrant filing these cases entirely under seal. Plaintiff's concerns that publicity surrounding these actions may further harm her reputation do not implicate the sort of "higher values" needed to overcome the presumption of public access to judicial documents. And even assuming that certain aspects of plaintiff's academic record may ultimately warrant sealing, such a request is premature at this time, as plaintiff's complaint contains no such sensitive information. Moreover, sealing these actions in their entirety would not be "narrowly tailored to serve [any] interest" that plaintiff has in her academic records. Should such records ever enter this case, plaintiff may move to seal them at that time….

[B.] Plaintiff's Motions to Proceed Anonymously Are Denied …

{Federal Rule of Civil Procedure 10(a) requires a complaint to "name all the parties." The Second Circuit has recognized that, while it is sometimes appropriate for a litigant to proceed under a pseudonym, Rule 10(a)'s requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." "[P]seudonyms are the exception and not the rule," and a party seeking to "receive the protections of anonymity … must make a case rebutting" the "presumption of disclosure."}

Plaintiff argues that anonymity is warranted here because publicity about this case "will prevent future educational and employment opportunities," and "will put [her] in danger for further harassment and retaliation," suggesting that she may be "killed or injured" if her name is publicized. Plaintiff also contends that prejudice to defendants will be minimal because defendants' lawyers "know who [she is]."

Under the factors set out in Sealed Plaintiff, these concerns do not suffice to overcome Rule 10(a)'s "presumption of disclosure." … Plaintiff's claims that the College and its employees discriminated against her based on her race, threatened her, and defrauded her, do not involve "highly sensitive" matters within the meaning of the first Sealed Plaintiff factor…. "A plaintiff's use of a pseudonym is not justified by the mere fact that a case involves allegations of discrimination; such a result would require a plaintiff's anonymity in every one of the countless discrimination cases before this Court." … And as to factors two and three, plaintiff's assertions that she will suffer further academic, professional, reputational, or even physical retaliation if made to proceed under her own name are "vague and far-fetched" and altogether too "speculative in nature" to carry plaintiff's burden. Nor are these cases in which the public interest in disclosure is "atypically weak" because "of the purely legal nature of the issues presented." Finally, … "the public's interest in identifying the parties to a proceeding is significant," and plaintiff has made no argument that the general rule does not apply here….

Correct, I think, for reasons I generally discussing in my The Law of Pseudonymous Litigation.

The post No Pseudonymity or Sealing in College Student's Race Discrimination Lawsuit appeared first on Reason.com.

The post Today in Supreme Court History: July 15, 1819 appeared first on Reason.com.

The post 11th Circuit Will Review En Banc Whether Second Amendment Protects 18-to-20-Year-Olds appeared first on Reason.com.

In 2021, the Fort Bend, Tex. sheriff excluded independent journalist Justin Pulliam from a press conference, claiming Pulliam was not "media." A few months later, deputies arrested Pulliam while he was filming their activities, claiming he was "interfering"—part of a pattern of retaliation against Pulliam for his journalism. But good news! A federal district court recently ruled that claims against the sheriff, his deputies, and the county can proceed. Click here to learn more.

• Following the murder of George Floyd, the mayor of D.C. instituted a strict nighttime curfew for three days to combat rioting, vandalism, and theft. Plaintiffs: We were arrested for violating the curfew, but all we were doing was peacefully protesting outside the White House. A First Amendment violation? D.C. Circuit: No. The curfew was content-neutral, and nothing would have stopped the plaintiffs from doing their protesting in the daylight hours.
• In 2018, Congress enacted the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which made it a felony to operate a website "with the intent to promote or facilitate the prostitution of another person" and denied those website operators the immunity from civil liability they would typically enjoy under Section 230. Sex-worker advocates sue, alleging that statutory terms like "facilitate" and "promote" are unconstitutionally overbroad and vague. D.C. Circuit: We think they mean "aid and abet" a criminal violation, which is clear and narrow enough to be constitutional.
• It's not often that three-judge panels yield four opinions, but so it is in this case out of the D.C. Circuit, in which the court, per curiam, holds that police did not violate the Fourth Amendment when they handcuffed and patted down a man after observing him receive a small backpack from another man in a high-crime area, ultimately discovering a firearm. Two judges write separately to concur in the judgment, while the third dissents.
• Allegation: After victim identifies the apartment where she was raped and tells Worcester, Mass. police one of the perpetrators had a gun, the police get a warrant for the apartment, without taking any steps to find out whether the perpetrators actually live there. Bursting in without knocking, a SWAT team finds only a scared, pregnant teenager whose water promptly breaks. First Circuit: The guys who might have been there might have had a gun. Qualified immunity.
• One sugar company tries to acquire another sugar company that would allow it to control 75 percent of sales in the southeast U.S. The feds claim that it's not a sweet deal. District court: No Clayton Act violation. Sugar is kinda easy to move around. Third Circuit: Yeah, seems okay to us.
• Union County, N.J. police officer conducts "Arther Method" of a polygraph test on a suspect. The method, which relies heavily on subjective observations like how sexily a lady is dressed, is not well regarded in the polygraph world. The suspect is convicted, then exonerated, and then sues the cop for fabricating evidence and the county for failing to train and supervise the cop. Third Circuit: The claim against the cop can go to trial, and the claim against the county could survive even if the cop avoids liability.
• The Bolivarian Republic of Venezuela seizes several gold mines and doesn't pay any compensation. Owner goes to an international arbitral panel and wins a handy $1.2 bil award. It's then able to attach assets of Venezuela-linked oil companies in the U.S. because they're controlled by Venezuela's national oil company, an alter ego of the country itself. Other creditors try the same tactic. But wait! In 2019 the U.S. government recognizes the opposition leader as the legitimate president. Although he has no effective power back home, he reorganizes the U.S.-based oil interests. Still an alter ego? Third Circuit: Yes. "[R]ulers come and go . . . but sovereignty survives."
• Student accepts internship at ExxonMobil, believing (erroneously) that he had the permanent authorization to work in the United States that ExxonMobil required for the job. When ExxonMobil realized that he lacked the required work status, it revoked the job offer. The would-be intern sues for discrimination. Fourth Circuit: Just because a policy will only bar aliens without permanent work status does not mean it is intentionally discriminatory. ExxonMobil is just following the law, not picking and choosing its employees on a discriminatory basis.
• Man wins multi-million-dollar arbitration award against his former attorney and son-in-law. (The "former" evidently applies to both relationships.) Son-in-law declares bankruptcy and seeks to discharge the award. Father-in-law: But the award has issue-preclusive effect and the arbitrator found all the elements of an exception to discharge. Son-in-law: But the award specifically includes a "disclaimer" saying that it's not a formal finding of fact and law. Fifth Circuit: The arbitrator made his findings in a 53-page, single-spaced opinion, following a 10.5-day hearing involving more than 300 exhibits and testimony from 16 witnesses. The guy's decision has preclusive effect.
• Texas law requires that municipal contracts include a clause that the contractor will not boycott Israel. Palestinian contractor objects to Houston including that clause and sues both the city and the state attorney general. Attorney general: I don't have any power to enforce this law, why am I here? Fifth Circuit: Just so, there's no standing to sue the AG and he should be dismissed.
• Federal statute says unlawful aliens "shall not be eligible" for a postsecondary education benefit on the basis of in-state residency unless out-of-state U.S. nationals are eligible. A provision of Texas law makes resident unlawful aliens eligible for in-state university tuition, and another provision charges higher tuition to out-of-staters. Out-of-state students at the University of North Texas say they should therefore get the in-state rate. Fifth Circuit: Maybe Texas is violating that federal law by giving in-state aliens lower tuition, but that doesn't entitle out-of-staters to the lower rate.
• Circuit Court Clerk for Anderson County, Tenn. informs intern that the dress code is "tighter and shorter" because "that's what daddy likes." (This, as it turns out, is among his least gross communications with her.) The county does nothing in response to complaints and the intern sues. Sixth Circuit (unpublished): And the county would have been on the hook, had the trial court not screwed up the jury instructions. Remanded for a new trial.
• Coca-Cola chemist's job is to test the can coatings as they switch from BPA to BPA-free; she's laid off, steals the BPA-free formulas on her last night. She goes on to another chemical company and proceeds to steal its information, too. Meanwhile, she forms a company in China with the world's "most advanced" BPA-free technology. Yikes! She's caught, convicted of stealing trade secrets, and sentenced to 14 years. Sixth Circuit: Conviction affirmed, but resentencing is in order. The court can't reject the chemist's profit estimates as "puffery" and then rely on them to calculate her time behind bars.
• Tennessee enacted a law prohibiting healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to minors. The district court preliminarily enjoined the law's ban of hormones and puberty blockers (leaving the surgery ban intact). But the Sixth Circuit stays the injunction pending appeal, letting all of the law go into effect before it resolves the (now-expedited) appeal, given its view that the law is likely constitutional. Partial dissent: The law seems unconstitutional, but I agree that the injunction should only apply to the plaintiffs and not statewide. (Ed. note: major circuit split alert.)
• Joseph Story (1838): "[F]rom my earliest reading, I have considered it laid up among the very elements of the common law, that, wherever there is a wrong, there is a remedy to redress it; and that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages." Supreme Court (2021): That Story fella seems like he knows what's up. And by the way, our forefathers could absolutely sue for nominal damages for a breach of contract—even "absent evidence of other damages." Seventh Circuit (July 11, 2023): Actually, "a breach of contract alone—without any actual harm—is purely an injury in law, not an injury in fact," so no one gets to sue about it in federal court. And by the way, we agree with Will Baude that it's hard to see how people ever have standing to sue for nominal damages. Prof. Baude (July 12, 2023): Wait, what … ? (paraphrased).
• Practitioners of Falun Gong sue Cisco Systems, alleging that the company facilitated human-rights abuses by the Chinese Communist Party and Chinese government officials. Ninth Circuit: And their claims under the Alien Tort Statute may proceed. Dissent: We don't need to be hearing cases about human rights violations committed in China against Chinese nationals by the Chinese government.
• Though officers who detain non-suspect witnesses are on a pretty short leash, it was not unreasonable for these Sacramento, Calif. deputies to briefly detain the parents of a kid who reportedly threatened to shoot up his school, says the Ninth Circuit. But no qualified immunity for smashing the father's head against a car and twisting his neck beyond its natural range of motion after he pulled out a cell phone to record the interaction.
• Tenth Circuit: Officers, you can't knee a cooperating prisoner in the face for no reason and get qualified immunity just because no other officer has ever been sued for that.
• Utah game wardens: So, sure, our open-air off-road patrol vehicle had a big sign warning us to buckle up. And, yeah, we totally buckled ourselves in before we drove off. But we weren't on notice that the Constitution required us to buckle our (handcuffed, belly chained, and, as it turns out, wrongfully accused) prisoner before we crashed that patrol vehicle into a fence post. Tenth Circuit: Sounds right. Qualified immunity it is!
• Point of historical interest: In Stromberg v. California (1931), SCOTUS struck down a California law that prohibited raising a red flag in public as a violation of free speech—the first time the Court expressly invalidated a state law for violating a Bill of Rights right. Anyway, per the Eleventh Circuit, none of that helps this fellow who was tricked by ATF agents into attempting to rob drug dealers who did not exist.
• Alabama man was to be executed for 1996 rape and murder, but, says the Eleventh Circuit, perhaps the sentence is too severe: Defense counsel failed to use court-awarded funds to investigate and present evidence of the sexual abuse, among other things, he suffered during childhood. Grant of habeas affirmed. Dissent: Indeed, it was completely unacceptable for the defense to spend less than 15 hours prepping for the sentencing phase of the trial. But it probably wouldn't have mattered to the outcome; the mitigating evidence isn't actually all that mitigating.
• This en banc ruling from the Eleventh Circuit is nominally about federal preemption of state law claims regarding inadequate warnings on the herbicide Roundup. But the real action is in the dissent, which argues that Monsanto—which won below—abused the court's process by paying the plaintiff $100k to appeal the district court's ruling, presumably in the hopes of creating a circuit split and increasing the likelihood of Supreme Court review.
• Ford advertised its Shelby GT350 Mustang as "an all-day track car that's also street legal," which was true as long as you didn't plan to spend your day at the track driving fast. Two of the trim packages lacked essential features to prevent engine overheating, causing the cars to enter a low-powered "limp mode" after about ten minutes of track time. Owners of these gelded mustangs respond with a class action. Eleventh Circuit: Some of their claims can go forward. Dissent: [Endless puns.]
• And in en banc news, the Fourth Circuit will not reconsider its decision that a former Winchester, Va. convenience store owner who had her inventory of cigarettes seized and then returned spoiled and worthless years later (after criminal charges against her were dismissed with prejudice) has no remedy under the Civil Asset Forfeiture Reform Act of 2000 and the Federal Tort Claims Act. (IJ filed a deeply compelling en banc petition urging reconsideration.)
• Nor will the Ninth Circuit reconsider its opinion that a class action against Google for tracking children's online activities without parental consent can proceed. The federal statute that gives the FTC the authority to regulate such tracking does not preempt alternative state law remedies that are not inconsistent with the statute.

In March 2021, the FBI seized Linda Martin's life savings from her safe-deposit box in Los Angeles and for over two years refused to say what law they think she violated. But good news! Soon after Linda and IJ filed a nationwide class action, the FBI hurriedly returned her $40,200. But Linda and IJ will keep up the fight against the FBI's "anemic" forfeiture notices, which don't give the specific factual and legal reasons why the FBI is trying to forfeit the property, making it impossible for owners to respond meaningfully and effectively. Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

Author Requirements:
Snapshot (details below):
Rough Draft and Research Roundtable
June 2024
Paper published on SSRN
September 2024
Panel Discussion
Fall 2024
Paper Published or Placement Secured
April 2025
Op-Ed, Webinar(s), etc.
September 2024-April 2025
1. Research Roundtable, Antonin Scalia School of Law, Arlington, VA (June 2024, Date TBD)
The Initiative will host a research roundtable for rough drafts of papers, which will bring together scholars and experts to provide feedback on drafts prior to completion. Authors will receive expert feedback to improve their final product. The Liberty & Law Center shall pay for reasonable travel costs to attend the roundtable.
2. Publication of Working Draft on SSRN (September 2024)
Authors are expected to revise their paper based on feedback from the Research Roundtable and have a working draft suitable for publication on SSRN by September 1, 2024. Papers will also be housed on the Initiative's and Center's website.
3. Voices for Liberty Panel (Fall 2024, Date TBD)
Authors will be expected to present their papers at a public panel to be held in the Washington, D.C. region. The Liberty & Law Center shall pay for reasonable travel costs to attend the panel.
4. Paper Published or Placement Secured in an Academic Journal (April 2025)
Authors are responsible for completing papers by September 2024 and publishing or securing placement in a law review or academic journal by April 2025. The Liberty & Law Center may arrange to have the papers published in a symposium issue of a law journal.
5. Op-Ed, Webinars, and Other Media (Sept. 2024-Apr. 2025)
Authors will produce at least one op-ed summarizing their work and be prepared to discuss their work in public forums.
​
Application Process and Selection Criteria:
Priority deadline of August 15th 2023, 5:00 ET for full consideration, with review on a rolling basis through September 8th.
To submit a paper proposal for Voices for Liberty, please email your application to VFLI@gmu.edu as a single Word doc or PDF. All proposals are treated confidentially. Application must include all of the following:
• First and last name, position title, email, organization, and a brief bio.
• A summary of the issue to be addressed, the proposed methodology, and the feasibility of a completed draft by June 2024 and final submission by September 2024.
• Citizenship status (confirmation of current U.S. citizenship or current visa status). Please note that there is a difference in the honorarium payment process and travel processing for authors without U.S. citizenship; this will vary based on the individual's visa status.
• Notice that applicant has checked with their university or employer before applying to ensure they are cleared to participate in the full program and that their university or employer understands the program's requirements.
Please note, accepted applicants will be required to sign an agreement confirming they understand the program requirements and payment details.
The Liberty & Law Center will offer an honorarium to paper authors during the writing process and once papers are placed for publication. Precise amount will depend on selection and final funding, at a minimum of $5,000.
Successful paper proposals will address any issue(s) described above (or those adjacent); stem from the author's expertise; relay a rigorous, knowledgeable, and manageable approach suitable for a law review or academic journal article; and follow the stated submission process.
Questions? Email vfli@gmu.edu.

The post Call for Papers: Free Speech and Civil and Social Progress appeared first on Reason.com.

That said, I signed the one below (as did co-Conspirator Randy Barnett, among other luminaries), and you can add your signature here if you are so inclined. (Note, this letter is a project of David Bernstein of the Jewish Institute for Liberal Values. This is not me, though we cause at least as much confusion as the two Ilyas. Making matters worse, we both published books last year, and our mutual editor at Post Hill press is … another David Bernstein.)

An Open Letter from Jewish Scholars about Today's Intellectual Environment
*THIS LETTER IS FOR JEWISH SCHOLARS AND FRIENDS IN THE ACADEMIC WORLD

Dear Friends,

We, the undersigned Jewish scholars and academics, are concerned about the current ideological environment in the US and elsewhere and the increasingly censorious culture in many institutions of higher learning. Although we are acutely aware of the illiberalism and threats to academic freedom emanating from the political right, and in no way downplay these dangers, in this letter we focus our attention on, and express our deep concern about, a dangerously intolerant ideology on the political left that has taken hold in academia.

We firmly believe that the purpose of education is to teach students how to think, not what to think. A liberal education, by definition, should present students with different approaches to important questions so they can appreciate the complexity of issues and at the same time attempt to formulate their own opinions. Too often, however, universities and campus communities have veered away from their core missions and have propagated—among both faculty and students—a set of moral and intellectual attitudes that restrict critical inquiry, viewpoint diversity, and intellectual openness. We regard such inquiry and openness as bedrocks of any liberal, democratic society. As taught in the Ethics of Our Fathers, "Who is wise? He who learns from every person, as it is said: 'From all who taught me have I gained understanding.'"

Moreover, the suppression of unpopular opinions impinges on society's ability to address problems. What happens in academia rarely stays in academia. Shutting down scholarly inquiry ultimately limits the range of popular discussion on social issues, including sensitive topics such as race and gender identity, and makes it difficult, if not impossible, for intellectual and political leaders to formulate sound policy, promote advances in science, and resolve social tensions. Good scholarship, which cannot thrive if it is blinkered by ideological demands, bureaucratic restrictions, and groupthink, can and must inform the public conversation.

The ascendency of an ideology that reduces people to "oppressed" and "oppressors" and categorizes individuals into monolithic group identities poses a particular threat to the Jewish people. In this stark, neo-Manichean worldview, Jews are frequently grouped with the privileged, and Israel is dogmatically singled out as an oppressor-state–a shallow dichotomy that foments new variants of antisemitism and reinforces old ones.

As scholars, we stand for the principles of free inquiry in our educational institutions. As Jewish scholars, we remind the Jewish community and others of the dangers of any ideology that diminishes the free exchange of ideas. Instead, we encourage leaders and educators to stand up for our deeply held liberal principles and our own tradition of "argument for the sake of heaven."

The post A Worthy Open Letter Defending Liberalism in the Academy from its Opponents on the Left appeared first on Reason.com.

The post Today in Supreme Court History: July 14, 1913 appeared first on Reason.com.

Earlier today, a group of 83 prominent conservative (and a few libertarian) academics, intellectuals, and public policy experts issued the "Freedom Conservatism" Statement of Principles. One of the signers, John Hood, has written an article where he summarizes the group's principles, as follows:

We believe in free enterprise, free trade, free speech, strong families, balanced budgets, and the rule of law. We champion equal protection and equal opportunity. We think Washington has too much power and our states, communities, private associations, and household have too little. We believe Americans are safest and freest in a peaceful world that is led by a United States committed to pursuing its just interests.

With the caveat that it's far from entirely clear what counts as a "just interest" of the United States, this sounds great to me! I also agree with much of Stephanie Slade's Reason article about the "Freecon" statement, particularly where she notes its superiority over the rival "National Conservatism" statement of principles, issued last year. Compared to most of what is produced by the so-called New Right, the Freecon statement is a much-needed breath of fresh air.

I largely agree with all but one or two of the Freecon principles, and partly endorse even the latter. I'm also a longtime admirer of the writings of many of the signers.

But I still have some questions and reservations. I completely understand that any group statement will involve some compromise, and that no such statement can include much detail, without becoming too long and unwieldy. Still there are issues the signatories may need to rethink or at least consider in more detail as they move forward.

In what follows, the Freecon principles are in block quotes, and my comments in regular text:

1. Liberty. Among Americans' most fundamental rights is the right to be free from the restrictions of arbitrary force: a right that, in turn, derives from the inseparability of free will from what it means to be human. Liberty is indivisible, and political freedom cannot long exist without economic freedom.

I agree completely! But I wonder how far the signers are prepared to go with this idea. If "liberty is indivisible," does that mean they reject paternalistic restrictions on freedom supported by many social conservatives, such as the War on Drugs and laws banning pornography and prostitution? Are they on board with the "My body, my choice," principle, and all its implications? For some of the more libertarian signers, I think the answers to these questions are "yes." For others, I'm not so sure.

2. The pursuit of happiness. Most individuals are happiest in loving families, and within stable and prosperous communities in which parents are free to engage in meaningful work, and to raise and educate their children according to their values.

I completely agree with this one, as well! Though the caveat of "most" is significant. I assume the signers rightly acknowledge that some people are happiest remaining single. But, here too, I wonder how far the signers are willing to go. Does their conception of "loving families" include those built on same-sex marriage? Should parents be free to "raise educate their children according to their values" if those values are left-wing or allow for things like gender reassignment? Once, again, I am confident the answers to these questions are "yes" for the more libertarian-leaning signers, but not sure about some others.

3. The foundation of prosperity. The free enterprise system is the foundation of prosperity. Americans can only prosper in an economy in which they can afford the basics of everyday life: food, shelter, health care, and energy. A corrosive combination of government intervention and private cronyism is making these basics unaffordable to many Americans. We commit to reducing the cost of living through competitive markets, greater individual choice, and free trade with free people, while upholding the rule of law, freedom of contract, and freedom of association.

It's hard to find a bone to pick with this one! My only possible reservation is about the meaning of "free trade with free people." Taken literally, it may mean a rejection of free trade with the billions of people who live under oppressive dictatorships of one kind or another. I suspect the signers actually mean we might need some narrowly targeted trade restrictions to prevent, e.g., the sale of weapons technology to authoritarian adversaries like China and Russia. But the meaning of this point may require some clarification.

4. Full faith and credit. The skyrocketing federal debt—which now exceeds the annual economic output of the United States—is an existential threat to the future prosperity, liberty, and happiness of Americans. We commit to building a constructive reform agenda that can restore America's fiscal sustainability, ensuring that future generations inherit a more prosperous and secure nation than the one we now inhabit.

I would not have used the term "full faith and credit" (which has a technical legal meaning that may confuse readers) to denote this idea. "Fiscal sanity" might be better. But otherwise, I completely agree. I wish, however, the authors would have made clear the need to cut entitlement spending, as part any "reform agenda" for getting federal spending under control. This is a problem both major political parties, "national conservatives," and most left-liberals seem determined to ignore.

5. A nation of laws, not men. Equality under the law is a foundational principle of American liberty. Unfortunately, today this principle is under attack from those who believe that the rule of law does not apply to them. One manifestation of this problem is the explosion of unaccountable and unelected regulators who routinely exceed their statutory authority and abridge Americans' constitutional rights. The President should only nominate policymakers and judges who are committed to upholding these rights.

I agree with much of this, but have a reservation. The rule of law has been undermined because we have too many laws. But I'm not convinced that "unaccountable and unelected regulators" are a bigger menace than the elected politicians and voters who empower them. Many of the biggest power grabs and rights violations of recent years have been originated by the occupants of the White House, rather than by regulators and bureaucrats acting on their own initiative. Indeed, there are few bureaucrats and regulators that the president and Congress could not hold accountable if they wanted to. The problem is not so much rogue regulators as an excessive concentration of power in the federal government.

In the many instances where the executive branch wields powers not given to the federal government, I am not sure that greater accountability to the elected president is necessarily a good thing. It could lead to an even more dangerous concentration of power in the hands of one person.

6. Americans by choice. Immigration is a principal driver of American prosperity and achievement. America is exceptional because anyone—from any corner of the earth—can seek to live in America and become an American. Nearly all American citizens descend from someone who came here from somewhere else, and we must treat all citizens equally under the law. To this end, the United States, as a sovereign nation, has the right to secure its borders and design a rational immigration policy—built on the rule of law—that advances the interests and values of American citizens.

This is the one I have the most reservations about. The statement rightly praises immigration's crucial role in promoting American "prosperity and achievement" and in American exceptionalism, more generally. But it then seems to suggest (the text is not entirely clear on that point) that the US has a "sovereign" power to restrict immigration as it wishes, even equating this to "secur[ing] its borders." The latter, perhaps unintentionally, perpetuates the pernicious conflation of immigration restriction with security against attack. Noticeable by its absence is any recognition that immigration restrictions violate the "liberty" and "the right to be free from the restrictions of arbitrary force" that is at the heart of the statement's Principle 1. And, yet, immigration restrictions do in fact severely infringe the freedom of both would-be immigrants and current American citizens. Indeed, they likely do so more than any other US government policy—even if we consider only the liberty of native-born Americans.

Admittedly, Principle 6 is vague enough to be susceptible of more pro-immigration interpretations. For example, perhaps advancing "the interests and values of American citizens" requires abolition of all or most immigration restrictions (I certainly think it does!). But if that's what the authors mean, it would help to be more clear about it.

7. Out of many, one. The best way to unify a large and diverse nation like the United States is to transfer as many public policy choices as possible to families and communities. Much of the discord in America today comes from the fact that too many decisions are made for us by centralized authorities. The Constitution of the United States is the best arrangement yet devised for granting government the just authority to fulfill its proper role, while restraining it from the concentration and abuse of power.

I agree almost completely. My one major caveat is that state and local governments should not be allowed to enact policies that severely restrict mobility, such as exclusionary zoning. Also, this—like Principle 1—needs to be applied to immigration, including by divesting the federal government of its sweeping authority to impose immigration restrictions. At the very least, state governments should be empowered to admit additional immigrants on their own.

8. America's promissory note. Martin Luther King, Jr. described the Constitution and the Declaration of Independence as containing "magnificent words…a promissory note to which every American was to fall heir." Prior to 1964, however, slavery and segregation were enforced by state governments and, in many cases, by the federal government. Many who descend from victims of this system now face economic and personal hurdles that are the direct result of this legacy. We commit to expanding opportunity for those who face challenges due to past government restrictions on individual and economic freedom. We adamantly oppose racial discrimination in all its forms, either against or for any person or group of people.

I agree. I hope the signers are prepared to support all the policy changes needed to make government color-blind, including some that may discomfit many on the political right.

9. The shining city on a hill. American foreign policy must be judged by one criterion above all: its service to the just interests of the United States. Americans are safest and freest in a peaceful world, led by the United States, in which other nations uphold individual liberty and the sovereignty of their neighbors.

It's hard to disagree with any of this. But that's in large part because it's hard to tell what this principle actually means. Much depends on what exactly counts as "the just interests of the United States." Interpreted narrowly, it might mean indifference to all but drect security threats (narrowly defined), or narrow American material self-interest. But the second sentence suggests America has an interest in promoting a world where "other nations uphold individual liberty and the sovereignty of their neighbors." If so, that might justify things like humanitarian intervention, backing Ukraine in its resistance to Russian aggression, and much else.

Also, what if upholding "individual liberty" conflicts with upholding "sovereignty," as it often does in many situations where sovereigns perpetrate human rights violations? Is outside intervention to protect liberty justified in such cases, or must we respect to sovereignty of oppressive regimes?

I am somewhat more hawkish than many of my fellow libertarians, and believe we should back Ukraine and other relatively liberal states against authoritarian adversaries. But it's hard for me to tell what kind of foreign and security policy the Freecons are advocating here. Perhaps this vague language is an attempt to finesse internal disagreements. The issue is a crucial one that has led to major internal divisions among conservatives—and libertarians, as well.

10. Freedom of conscience. Essential to a free society is the freedom to say and think what one believes to be true. Under the First and Fourteenth Amendments to the Constitution, federal and state governments have a legal obligation to uphold and protect these freedoms. Private institutions have a moral obligation to do the same.

Agreed. My one caveat is I'm not sure what is meant here by the "moral obligation" of private institutions to uphold and protect freedom of speech and conscience. If it means merely that they have an obligation to abjure lobbying for censorship by the state, I agree. But I differ if it means all private organizations have  duty to promote free speech internally, similar to the government's obligations under the Constitution. For example, a conservative organization can legitimately hire only conservatives, publish only conservative views in its publications, and the like. The same goes for, e.g., a church that only wishes to promote speech compatible with its theology.

Much more can be said about many of these issues! But this post is already long, so I will leave off. Despite my caveats and reservations, there is much to praise in the Freecon statement. I hope and expect they will elaborate their ideas more fully in the future.

NOTE: I am not a signer of the Freecon statement. Ilya Shapiro of the Manhattan Institute is. He and I sometimes get confused with each other, but we are not the same person.

The post Two Cheers for the "Freedom Conservatism" Statement of Principles appeared first on Reason.com.

Delaware plagiarized California's 1989 findings that it was imperative to ban any gun that is not a "sports or recreational firearm." The state ignored the Delaware Bill of Rights guarantee of the right to bear arms "for the defense of self, family, home and State," and disregarded Heller's admonition that self-defense is "the central component of the right itself."

Delaware copied a definition from Connecticut that criminalizes a rifle depending on where one's fingers are placed when firing, and Maryland's long list of banned rifles, such as the Colt AR-15. Curiously, that list excludes AR-15 HBAR (heavy barrel) rifles, unless made by Bushmaster – any semiauto rifle made by that firm is banned.

The U.S. district court for the district of Delaware's denied a motion by challengers for a preliminary injunction on the basis that they are not likely to prevail on the merits. The case is Delaware State Sportsmen's Ass'n v. Del. Dep't of Safety & Homeland Security. Appeal briefs are now being filed, which includes an amicus curie brief on behalf of the Delaware Association of Second Amendment Lawyers by yours truly and co-counsel Dan Peterson. Here are some of our arguments.

Heller held that arms that are in common use for lawful purposes – those chosen by the American people – are protected by the Second Amendment. That rule should resolve any gun ban without further ado. Bruen's methodology, which evaluates restrictions by reference to the text of the Second Amendment and historical analogues, applies to regulations such as about where guns may be carried, not to outright bans on possession, where the common-use test applies.

The district court agreed that rifles like the AR-15 are in common use, which should have have conclusively supported a preliminary injunction. Instead, the court reverted to means-ends scrutiny, which Bruen flatly rejected. The court found such rifles to be "exceptionally dangerous," which it substituted for the Supreme Court's test of "dangerous and unusual."  But it did not  explain why the banned features make the rifles so dangerous. It claimed that "pistol grips and barrel shrouds" supposedly "increase their lethality," but offered no clue why.

Consider the verboten feature of a semiautomatic rifle with a grip that allows a finger (in addition to the trigger finger) to be below the action "when firing."  Are we to believe that a rifle is more lethal if one's fingers are in this position rather than in some other position "when firing"? The very idea that one's finger placement removes an arm from Second Amendment protection trivializes the constitutional right.

The suggestion that pistol grips are associated with "lethality" is belied by the fact that identical pistol grips are found on single-shot rifles (which hold only one round), bolt-action rifles (which require manual reloading for each round), and even on air guns used in Olympic competition.

The court claimed that "an assault rifle bullet travels at multiple times the velocity of a handgun bullet," but there is no such thing as "an assault rifle bullet."    Bullets such as the .223 caliber may be fired in any rifle of that caliber, regardless of the rifle's features.  The relatively low-powered .223 is not even allowed for deer hunting in Delaware and a number of other states.

The court identified "rate of fire" as another dangerous characteristic. But a semiautomatic rifle with, e.g., a pistol grip, fires no faster than a semiautomatic rifle without one, and Delaware does not ban semiautomatic rifles without the outlawed features.

The district court placed great weight on what it considered to be historical analogues to justify the ban.  But the claimed analogues turn out to be the restrictions in a minority of antebellum states on the concealed carry of pistols, Bowie knives, clubs, and the like.  These laws were upheld because open carry was allowed, so they cannot be precedents for a ban on mere possession of an arm today.

When these early laws went too far, such as Georgia's 1837 ban on carrying a pistol openly or concealed, they were invalidated.  The Georgia Supreme Court, in Nunn v. State, declared that prohibition violative of the Second Amendment,   Heller approvingly cited Nunn when it commented, "Few laws in the history of our Nation have come close to the severe restriction of the District's handgun ban. And some of those few have been struck down."

There is a historical twin, though, to Delaware's ban on mere possession:  the ban on possession of arms by slaves and free persons of color in the antebellum South. That ban was defended on grounds that African Americans were not citizens and had no right to keep and bear arms. Delaware's ban is exactly what the Second and Fourteenth Amendments were understood to prohibit.

Delaware punished with whipping "any negro or mulatto slave" who would "carry any gun, pistol, sword, dirk, or other unusual or dangerous weapon," and forbade "free negroes and free mulattoes to have, own, keep, or possess any gun, pistol, pistol, sword or any warlike instruments," except that a discretionary permit could be issued to possess a gun or fowling piece.   Delaware's Court of General Sessions justified the ban applicable to free blacks on the "police power."

Similar slave codes were enacted and upheld in other states.  Georgia's Supreme Court held: "Free persons of color have never been recognized here as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office."  The Virginia Supreme Court conceded that the restrictions on the right of free blacks to bear arms were "inconsistent with the letter and spirit of the Constitution, both of this State and of the United States."  And North Carolina's Supreme Court upheld a similar gun ban because "the free people of color cannot be considered as citizens."

After slavery was abolished, the black codes replaced the slave codes. Mississippi prohibited a freedman from having a firearm, Bowie knife, or other weapon without a license.  That was the first state law noted by the Supreme Court in McDonald v. Chicago as typical of what the Fourteenth Amendment was meant to prohibit.

So the slave codes provided the only close analogue to Delaware's current ban on possession of "assault weapons," and it violates the Second and Fourteenth Amendments.

Finally, as I have previously posted, if analogues are to be consulted, the relevant time is around 1791 when the Second Amendment was adopted, not 1868 when the Fourteenth Amendment was ratified. Everytown for Gun Safety (sic) has been filing cookie-cutter amicus briefs in various Second Amendment cases arguing for 1868, and then finds alleged analogues through the late 19th and early 20th centuries – which Bruen said is too late.

Cases from the courts of appeals that suggest 1868 is the correct year are based on a single error in the Seventh Circuit's Ezell case, which was later corrected.  Every time the Supreme Court has consulted history to determine the original meaning of a provision of the Bill of Rights, it has always looked principally to the Founding in 1791, never primarily to 1868.  For the definitive analysis on this issue, see Mark Smith's "Attention Originalists: The Second Amendment Was Adopted in 1791, not 1868."

Changing the goal post for the meaning of Bill of Rights guarantees to 1868 would require a radical upset of the established meaning of every provision from the First through the Eighth Amendments.  That just isn't going to happen. It shouldn't happen only for Second Amendment rights, either, because as the Supreme Court has made clear the right to keep and bear arms is not a "second-class right."

The post Second Amendment Roundup: Delaware's Gun Ban Heats Up appeared first on Reason.com.

So how does withdrawal of consent work now? There are two key questions.

First, if a computer owner grants consent to search, an image is made, and then consent is withdrawn, does the withdrawal of consent extend to the image?  That is, does the owner's control include control of the copy on the government's machine?  Or does the government necessarily control the image?

Second, if an owner retains rights in the image, is there a different result if the owner signed a consent form stating that, once the government made the copy, the owner relinquished rights in the copy?  That is, can rights retained in the image that might generally exist with a general consent be relinquished if there is specific and explicit disavowal of rights as to the image?

There have been a few district court rulings that touched very briefly on the first of these questions. Long-time readers may remember I blogged about two of those cases; you can read my 2009 post from our volokh.com days here and my 2015 post from the Washington Post era here.

All of this is a wind-up to say that, last week, the Maryland Supreme Court ruled on both questions in considerable detail in an important new case, State v. McDonnell.  McDonnell is the first case to address both of the issues, and it did so in detail.  Given the detail of McDonnell's reasoning, and how sparse the caselaw has been,  I think McDonnell is worth a close look.

The basic facts are simple. McDonnell signed and initialed a consent form that said the following:

I have been informed of my right to refuse to consent to such a search. I hereby authorize the undersigned Special Agent, another Special Agent or other person designated by USACIDC, to conduct at any time a complete search of: . . . all digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation.

I understand that any contraband or evidence found on these devices may be used against me in a court of law.

I relinquish any constitutional right to privacy in these electronic devices and any information stored on them. I authorize USACIDC to make and keep a copy of any information stored on these devices.

I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy.

I give this written permission voluntarily. I have not been threatened, placed under duress, or promised anything in exchange for my consent. I have read this form or it has been read to me and I understand it. . . .

I understand that I may withdraw my consent at any time.

Based on McDonnell's consent, investigators seized McDonnell's devices and imaged his computer a few days later.   And a few days after that, McDonnell's lawyers sent a message to the government withdrawing consent.  Relying on the language in the consent form, agents then searched the image anyway.  McDonnell later moved to suppress the evidence found on the image, arguing that it was the fruit of an unlawful search and seizure because he had previously withdrawn his consent.

In the new case, the Maryland Supreme Court unanimously agreed with McDonnell.  First, McDonnell's withdrawal of consent blocked the government's ability to rely on consent to search the image as well as the original.  And second, the potentially contrary language in the consent form did not alter that holding.

Here's the court's reasoning as to the first holding, that a person generally retains rights to withdraw consent as to images, at least until the images are searched:

After careful examination of relevant authority, we hold that Mr. McDonnell had a reasonable expectation of privacy in the digital data stored on his laptop, and, as such, in the data stored on USACIDC's copy of his laptop's hard drive. Mr. McDonnell's reasonable expectation of privacy was not eliminated by the making of a copy of his hard drive because the data was not searched or exposed prior to his revocation of consent. Central to this holding is our conclusion that Mr. McDonnell's privacy interest is in the data on his hard drive, not just the particular computer or apparatus on which the data is stored (his original or USACIDC's copy). To accept the State's stance—i.e., that Mr. McDonnell irrevocably lost all privacy interest in the data on his hard drive when he allowed USACIDC to copy it—would be to permit a limitless search through vast quantities and a varied array of personal data that the Supreme Court of the United States has characterized as consisting of more information than would be found in an exhaustive search of a person's home. See Riley, 573 U.S. at 396, 134 S.Ct. 2473. Absent a warrant supported by probable cause or an exception to the warrant requirement, the Fourth Amendment does not permit such an unfettered governmental intrusion of a person's "private sphere[.]" Carpenter, 138 S. Ct. at 2213, 2221 (citation omitted).

Like the Supreme Court of Illinois, we focus on the data as the significant factor here, not the fact that USACIDC lawfully made a replica of Mr. McDonnell's hard drive. See McCavitt, 185 N.E.3d at 1206. We agree that Mr. McDonnell has a privacy interest in the data itself. "The evidentiary value of data resides in the data itself, not in the medium on which it is stored." Id. This conclusion flows logically from our explanation in Richardson that the defendant's abandonment of his cell phone made its seizure lawful, but did not permit the government, without a particularized warrant, to search the data stored on it. See Richardson, 481 Md. at 435-36, 282 A.3d at 105. So, too, here: Mr. McDonnell's consent made the creation and retention of the copy of his hard drive lawful, but after withdrawal of his consent, USACIDC needed additional authority to search the data on the copy. For the duration of Mr. McDonnell's consent, USACIDC had the authority to examine the data; once the consent was withdrawn, the authority to examine went with it. Likewise, Riley, 573 U.S. at 386, 134 S.Ct. 2473, dictates that law enforcement's justification for a search of the data stored on an electronic device must be assessed independently from the justification for seizure of the device. Therefore, copying the same data to a different device that law enforcement officers have legal authority to possess makes no difference in the Fourth Amendment analysis.FN12

[FN12: The logistics of digital storage also support this conclusion because data saved on a computer is automatically copied multiple times in the course of using a computer. See Kerr, Searches and Seizures, supra, 119 Harv. L. Rev. at 562. In addition, digital information is often deliberately or automatically copied to remote servers to be stored "in the cloud." Riley, 573 U.S. at 397 ("Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference." (Citation omitted)). Yet, the owners of such data, regardless of where it is copied and stored, have a reasonable expectation of privacy in the information.]

Because making a copy of a hard drive is usually the first step in performing a forensic analysis, if making a copy itself divested a person of a reasonable expectation of privacy in the data, people would lose all expectation of privacy in the entirety of the data on any device the moment the government made a copy of the device's hard drive. That would permit precisely the kind of unlimited rummaging through a person's private domain that the Fourth Amendment was designed to prohibit. See Riley, 573 U.S. at 386, 134 S.Ct. 2473. The legitimate subjective and objective reasonable expectation of privacy that people have in their electronically stored data should not be so easily defeated. Focusing on the data in question rather than on the possession of an apparatus containing a copy of the data "recognizes that the key to fourth-amendment reasonableness is the access to data, regardless of whether the data is copied, transferred, or otherwise manipulated." McCavitt, 185 N.E.3d at 1206 (citing Kerr, Searches and Seizures, supra, 119 Harv. L. Rev. at 564).

Obviously, in this case, if any data had been revealed prior to the revocation of Mr. McDonnell's consent, that data would have lost any reasonable expectation of privacy that was previously attached to it. That is because, as to that data, Mr. McDonnell's privacy interest would have been eliminated. And lawfully so, because USACIDC had the authority, while Mr. McDonnell's consent was in effect, to search and examine his data. In such a scenario, the cat could not be put back into the bag.

As to data that was not exposed before the withdrawal of consent, however, Mr. McDonnell retained an expectation of privacy. By way of analogy, if Mr. McDonnell had stood on a street corner and offered passersby the opportunity to read his diary, but no one took him up on it, his reasonable expectation of privacy would not be lost. The threat of an invasion of privacy is not an invasion at all. See Karo, 468 U.S. at 712, 104 S.Ct. 3296. In this way, the creation of the copy was akin to the placement of the tracking device in Karo, id., because with the making of the copy, USACIDC created only the "potential for an invasion of privacy" rather than an actual invasion of the subjective and objective expectation of privacy in Mr. McDonnell's data. It would be objectively reasonable to believe that data could be exposed to law enforcement through an owner's consent to copy a laptop's hard drive and could lose its private nature if examined—but, absent an enforceable waiver to the contrary, if law enforcement had not already become privy to the data, upon withdrawal of consent to access the data, the data remains private, i.e., the owner retains a reasonable expectation of privacy in the data by withdrawal of consent.

I agree with all of this (as I blogged back in 2015), and I greatly appreciate the Court's reliance on my work.  So far, so good, at least from my perspective.

But that brings us to what I think is the harder issue: What about the language in the consent form?  The government has every incentive to include in consent forms that they have exclusive control over copies they make. It's easy for government lawyers to draft that language, and it's unlikely to discourage a computer owner from consenting.  So does that language control?  Or are there general principles of consent law that direct the answer, about which a consent form cannot alter the general principle?

The Maryland Supreme Court concluded that this particular consent form was not clear enough on the issue to direct a different result.  And in a footnote,  Footnote 14, it left open whether clearer and more obvious language could resolve  differently or whether the language was irrelevant.  From the opinion:

The terms of the consent form guide our assessment of the reasonableness of the search. Per the terms of the consent form, Mr. McDonnell authorized a Special Agent or other person designated by USACIDC to conduct a complete search of all "digital media including cell[ ]phones, thum[b ]drive[s], hard disk drives, laptops & any other media relevant to this investigation." (Capitalization omitted). According to the language of the form, among other things, Mr. McDonnell relinquished his constitutional right to privacy in his electronic devices and all of the information stored on them, and "authorize[d] USACIDC to make and keep a copy of any information stored on [his] devices." The form stated that Mr. McDonnell understood that any copy made by USACIDC would be the property of USACIDC and that he would have no privacy or possessory interest in the copy. Critically, a sentence at the bottom of the form stated without qualification: "I understand that I may withdraw my consent at any time."

Using the reasonableness approach discussed by the Supreme Court of the United States in Riley and Carpenter, and used by this Court in Varriale for that matter, we conclude that it was not reasonable for USACIDC to examine the data on the copy of Mr. McDonnell's hard drive after he withdrew his consent and that the examination was a search. It would have been objectively reasonable for Mr. McDonnell, or anyone else, to believe that the final sentence of the form advising of the ability to withdraw consent at any time applied to all of the language in the form, i.e., that the withdrawal of consent applied to all of the matters agreed or consented to earlier in the form. See Riley, 573 U.S. at 386, 134 S.Ct. 2473 (determining that it would be unreasonable to apply the search incident to arrest exception to permit a warrantless search of a cell phone because the rationale for the exception's application to physical objects did not extend to the digital contents of a cell phone); Carpenter, 138 S. Ct. at 2217-20 (determining that it would be unreasonable to apply the third-party doctrine to permit a warrantless search of 127 days' worth of cell site location records because society does not expect law enforcement to secretly track an individual's every movement without a warrant); Varriale, 444 Md. at 418-19, 119 A.3d at 835 (determining that it was reasonable for the State to retain and compare a defendant's DNA sample to samples from cold cases under the totality of the circumstances of the consent to the taking of the sample). In this case, it would not be reasonable, under the totality of the circumstances, to interpret the consent form to mean that the withdrawal of consent applied only to certain language on the form and not to the entire document.

The State focuses on language on the form stating "I understand that any copy made by USACIDC will become the property of USACIDC and that I will have no privacy or possessory interest in the copy." The State refers to this language as a disclaimer and argues that the language could not be rendered ineffective by Mr. McDonnell's withdrawal of consent. We disagree. No language in the form states or even suggests that the acknowledgement of having no privacy or possessory interest in any copy made by USACIDC is irrevocable and not subject to withdrawal of consent at any time as provided by the language at the bottom of the consent form. The language setting forth the alleged disclaimer is contained in the fifth paragraph of the seven-paragraph form and is in no way distinguished from the other language of the form. It is included in the same paragraph in which Mr. McDonnell relinquished his right to privacy in his laptop itself, and, as the State agrees, the withdrawal of consent precluded further examination of the laptop. The paragraph is stylistically identical to every other paragraph in the document. In no way does the purported disclaimer stand out. Neither its express terms nor its appearance would suggest to a reasonable person that the last sentence of the fifth paragraph of a seven-paragraph document should be treated differently than the other language of the form with respect to the withdrawal of consent, as the State contends.

The language in the consent form did not convey that Mr. McDonnell relinquished for all time a privacy and possessory interest in the data on his laptop. Instead, the language sought to establish that Mr. McDonnell had no privacy or possessory interest in the copy of his data made by USACIDC based on the copy being property of USACIDC. But that cannot be. The copying of the data, without the data being examined, did not vitiate Mr. McDonnell's privacy interest in the data itself. As explained, a person has an independent privacy interest in the data on a laptop or hard drive, no matter where the data may be stored. See McCavitt, 185 N.E.3d at 1206. Due to the personal content and far-reaching consequences of allowing access to such data, the data on a laptop, like the digital information on a cell phone, warrants its own discrete privacy interest. See Riley, 573 U.S. at 386, 134 S.Ct. 2473; Richardson, 481 Md. at 434, 452, 282 A.3d at 104, 115. Under the terms of the consent form, Mr. McDonnell never agreed to permanently relinquish a privacy interest in his data, and, as discussed above, the consent form, on its face, provided an unqualified right to withdraw consent at any time. This necessarily included the right to withdraw consent to a search of the data.FN14

[FN14: On brief and at oral argument, counsel for Mr. McDonnell asserted that even if the disclaimer had been written to accomplish what the State claimed it did, Mr. McDonnell retained a constitutional right to withdraw consent. This contention has significant rational force, as a person has a constitutional right to not consent in the first instance, and, as Mr. McDonnell points out, at least one court in another jurisdiction has so held. See United States v. McWeeney, 454 F.3d 1030, 1035 (9th Cir. 2006) (concluding defendants "had a constitutional right to modify or withdraw their general consent at any[ ]time"). Nothing in this opinion should be construed to mean that clauses in consent forms purporting to irrevocably waive the right to consent are enforceable. However, because the language in the consent form did not purport to irrevocably waive Mr. McDonnell's privacy or possessory interest in his data, we need not address the issue to resolve this case. See Robinson v. State, 404 Md. 208, 217, 946 A.2d 456, 461 (2008) ("[I]t is this Court's established policy to decide a constitutional issue only when necessary." (Citations omitted)).]

The State argues that Mr. "McDonnell's reading would treat the disclaimer as meaningless[,]" but the State's treatment of the consent form's language regarding the copy would render a different portion of the document meaningless: Mr. McDonnell's right to withdraw consent "at any time." Mr. McDonnell's agreement that USACIDC could search his hard drive at any time was limited by his right to withdraw consent at any time. Based on the language of the consent form, it would not be reasonable to believe that, by consenting to the government's searching the laptop and making of a copy of its hard drive, a person could not withdraw consent before the search occurred and prevent the government from examining anything that had not yet been searched.

When Mr. McDonnell revoked his consent to the search of the laptop, he retained a reasonable expectation of privacy in any data that had not been exposed. Because USACIDC did not search or examine any of his data prior to the withdrawal of consent, Mr. McDonnell continued to retain a privacy interest in the entirety of his data on his laptop's hard drive and the copy thereof. Lacking Mr. McDonnell's consent, USACIDC needed another justification for the examination of the data on the copy of the hard drive, such as a warrant. But because USACIDC did not obtain a warrant or have any other justification for the search, the search of the data on the copy of the hard drive was unlawful and the evidence obtained as a result of the search should have been suppressed.

Government action in consent searches is restrained in two ways: by limits placed on the scope of consent, see Varriale, 444 Md. at 412, 119 A.3d at 831, and withdrawal of the consent, see Williams, 898 F.3d at 330. Here, Mr. McDonnell provided his consent for USACIDC to seize, search, and copy his hard drive, limited by the scope of the investigation. Anything uncovered in the course of that consent would have been lawfully in USACIDC's possession. But once he withdrew his consent, a right he always had and which the consent form that he signed confirmed, USACIDC's authority to search ended. USACIDC could keep the copy, as Mr. McDonnell had consented to its creation; he could not un-ring that bell.

However, because USACIDC had not examined the data on the copy of the hard drive in any way while Mr. McDonnell's consent was in effect, it could not claim the right to search his data under the authority of his consent after his consent was withdrawn. This case involves the undifferentiated copying of the entirety of a hard drive before the examination of any data on it, which distinguishes it from those in which recipients consensually share with government actors emails or text messages, or law enforcement gains access through other means to items with readily visible content. See United States v. Barber, 184 F. Supp. 3d 1013, 1016 (D. Kan. 2016); State v. Carle, 266 Or.App. 102, 337 P.3d 904, 910 (2014).  [FN16: For similar reasons, the State's argument that different iterations of data can have different reasonable expectations of privacy does not hold up when no data was examined or revealed before or during the copying of the laptop's hard drive, unlike the viewing of a physical copy of a digital photo. Because different facts could support the loss of a reasonable expectation of privacy in data on a hard drive, there may, of course, be other circumstances under which a forensic copy of a hard drive may not maintain the same Fourth Amendment protections as an original.] In this case, the copying process exposed none of the data on the laptop's hard drive and the process did not differentiate between data that might have implicated child pornography and data that did not. Prior to his withdrawal of consent, USACIDC had not yet intruded upon Mr. McDonnell's privacy interest in the data on the copy of the hard drive; that bell was never rung, and upon the withdrawal of his consent, Mr. McDonnell retained a reasonable expectation of privacy in the data.

McDonnell concludes by explaining that, even if this meant that there was one rule for paper copies and another rule for digital copies, that was okay under Riley and Carpenter:

[E]ven if, for argument's sake, we were to apply the reasoning of cases like Ponder and its progeny, and the information in a thousand-page paper document was not entirely examined by the government prior to or in the course of photocopying the pages, such a copy would not begin to approximate a copy of a hard drive, which allows "[t]he sum of an individual's private life [to] be reconstructed[.]" Riley, 573 U.S. at 394, 134 S.Ct. 2473. A copy of a paper document does not give access to the "many distinct types of information" found in a copy of a hard drive, which can reveal much more than any isolated record. Id.

A copy of a hard drive, the search of which "would typically expose to the government far more than the most exhaustive search of a house[,]" has as much in common with a photocopy of paper documents as "a flight to the moon" has in common with "a ride on horseback[.]" Riley, 573 U.S. at 393, 396, 134 S.Ct. 2473 (emphasis in original). [FN19: FN19: As such, we decline to adopt the reasoning of courts in other jurisdictions that a forensic copy of a hard drive is akin to a photocopy of a paper document that, if made while consent was effective, can still be examined after consent is withdrawn. See, e.g., Lutcza, 76 M.J. at 702; Campbell, 76 M.J. at 658; Megahed, 2009 WL 722481, at *3; Thomas, 2014 U.S. Dist. LEXIS 33443, at *20.]

With respect to digital information or data on a hard drive, and perhaps even photocopies for that matter, withdrawal of consent after copying but before analysis is like interruption of a consented-to search of a home by withdrawal of consent—police would have to promptly leave the home and seek a warrant, or other authorization, in order to further search.  The copying of Mr. McDonnell's hard drive was a precursor to a search, or perhaps a step in preparation, but it was not the search. An inexact comparison could be made to police securing a house, with the owner's consent, as precursor to a consent search. If the person were to withdraw consent after the securing but before the search, the search of the house would not occur and the owner would have lost a reasonable expectation of privacy only to the extent of what the officers may have observed before the consent was withdrawn. The advancement of technology that allows the digital equivalent of making a copy of a person's home and all its contents, see Riley, 573 U.S. at 396, 134 S.Ct. 2473, should not permit invasion of a privacy interest that otherwise would be prohibited, see Kyllo, 533 U.S. at 34, 121 S.Ct. 2038.

Fascinating!  Let me reprint Footnote 14, which leaves open whether clear language could dictate a different result:

On brief and at oral argument, counsel for Mr. McDonnell asserted that even if the disclaimer had been written to accomplish what the State claimed it did, Mr. McDonnell retained a constitutional right to withdraw consent. This contention has significant rational force, as a person has a constitutional right to not consent in the first instance, and, as Mr. McDonnell points out, at least one court in another jurisdiction has so held. See United States v. McWeeney, 454 F.3d 1030, 1035 (9th Cir. 2006) (concluding defendants "had a constitutional right to modify or withdraw their general consent at any[ ]time"). Nothing in this opinion should be construed to mean that clauses in consent forms purporting to irrevocably waive the right to consent are enforceable. However, because the language in the consent form did not purport to irrevocably waive Mr. McDonnell's privacy or possessory interest in his data, we need not address the issue to resolve this case. See Robinson v. State, 404 Md. 208, 217, 946 A.2d 456, 461 (2008) ("[I]t is this Court's established policy to decide a constitutional issue only when necessary." (Citations omitted)).

That will have to be litigated another day, but it nicely sets up the next case for when the government uses super-clear language as to rights on the image.  As always, stay tuned.

The post Withdrawal of Consent to Search Computers Also Blocks Searches of Digital Copies, Court Holds appeared first on Reason.com.

This year, the Chief Justice of the league was Brady Kelly. Players receive ten points for each correct prediction of a Justice's vote. We recorded 56 merits cases (DIGs do not count). A perfect score would have been 5,600 points. Brady scored 4,650 points. Bill Corteal, who was the champion last year, was the runner-up with 4,250 points.

Brady lives in the District of Columbia and works in analytics consulting, but not in politics, government, or law. In fact he has no legal training or background whatsoever. Brady tells me that he enjoys problem-solving, whatever the context.

Brady's first exposure to Supreme Court cases was reading ones with a direct impact on his life—especially United States v. Windsor (2013). From there he developed an interest in appellate law and the Supreme Court. Brady first begin to predict case outcomes after hearing about FantasySCOTUS in 2015. But, he explains, after predicting a few cases, life got in the way, and he took a pause. The October 2022 term was his first time reading more than a handful of the cases in a given year, and he really enjoyed the process and the competition.

I asked Brady how he goes about predicting cases. He said the first thing he always does is read the decision below. And if he still doesn't fully understand the issues, he reads the petitioner and respondent briefs too. From there, he really tries to focus on what he personally thinks the right interpretation of the law is, focusing squarely on the text and on precedent. Brady admitted that he is certainly not qualified to have an opinion on these questions, but finds it most helpful to start there rather than as an outside observer just predicting what other people will think. Brady acknowledged that he does not always expect his interpretation to be the majority opinion, just that he finds it a helpful framework to start with. Only then does he try to predict which justices he'll end up agreeing vs. disagreeing with. Once he has formed a tentative opinion, he'll listen to the oral arguments and change predicted votes around as needed.

I asked Brady what case gave him the most difficulty. He responded, Health and Hospital Corporation of Marion County v. Talevski. He felt pretty confident in predicting a 7-2 majority that FNHRA could theoretically be enforced through section 1983, but there were still multiple layers of questions after that point. Brady missed this case, when other top players got it right. Brady explained that he missed the implicit-preclusion path question. Brady told me that having so many separate questions, each of which could change the case's outcome, was stressful.

Another challenging case for Brady was Jones v Hendrix. On that one, his predictions were right. But Brady said  it was very difficult—as a certified non-lawyer—to try to understand federal Habeas Corpus law. He is still not sure he understands it. (Join the club).

Brady really enjoys listening to the oral arguments on Oyez, especially when someone just hits it out of the park. He told me he personally thought the best two examples this term were Solicitor General Prelogar in Groff v. DeJoy and Colleen Roh Sinzdak in Amgen v. Sanofi.

Brady also has a favorite writer: Justice Kagan, with Justice Barrett in second place, even though he might not agree with Barrett as often as he agrees with Kagan. If the two of them are on the same side (e.g. the dissent in Mallory, the dissent in Bittner, or the concurrence-in-judgment in Abitron Austria), he is guaranteed to end up agreeing with them.

Congratulations Brady, and to all the participants in the competition. We will launch next term's competition on the first Monday in October.

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But it turns out that this combines facts about two separate people with similar names: (1) Jeffery Battle, who is indeed apparently a veteran, businessman, and adjunct professor, and (2) Jeffrey Leon Battle, who was convicted of trying to join the Taliban shortly after 9/11. The two have nothing in common other than their similar names. The Aerospace Professor did not plead guilty to seditious conspiracy.

And this Bing output doesn't just list the facts about each of the Battles separately, the way that search engine results have long listed separate pages separately. Rather, it expressly connects the two, with the "However, Battle was sentenced …" transition, which conveys the message that all the facts are about one person. And to my knowledge, this connection was entirely made up out of whole cloth by Bing's summarization feature (which is apparently based on ChatGPT); I know of no other site that actually makes any such connection (which I stress again is an entirely factually unfounded connection).

Battle is now suing Microsoft for libel over this, in Battle v. Microsoft (D. Md.) (filed Friday). He's representing himself, and the Complaint is flawed in various ways. But, if the case is properly framed, he may well have a serious argument. That is especially so if he can substantiate his allegations that he had informed Microsoft of the problem and it didn't promptly fix it.

In particular, I doubt Microsoft would have 47 U.S.C. § 230 immunity. As I discuss in more detail in my Large Libel Models? Liability for AI Output draft, § 230 states that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" (emphasis added). "[I]nformation content provider" is defined to cover "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service" (emphasis added). But this lawsuit aims to treat Bing as a publisher or speaker of information provided by itself.

After all, the allegedly libelous material here isn't simply what's borrowed from other sites (the accurate material about Jeffery Battle and the accurate material about Jeffrey Leon Battle). Rather, it's the combination of the material on the two Battles, in one paragraph, linked with "However, Battle …." Courts have held that § 230 doesn't immunize defendants who "materially contribut[e] to [the] alleged unlawfulness" of online content. And the allegation here is that Bing did materially contribute to the libelous nature of the content.

By way of analogy, note that human web site operators are protected by § 230 when they manually quote material provided by other online content providers (see Batzel v. Smith (9th Cir. 2003)). If I just quote something from a web site about Joe Schmoe the professor, I'm generally protected by § 230; likewise if I quote something from a web site about Joe Schmoe the criminal. But if I combine the two, in a way that falsely conveys that the two are the same person, I don't think I'd be immune from liability, since the libel would stem from what I added myself (the juxtaposition of the two items, together with words that make them falsely seem like they're about the same Schmoe). Likewise when the combination is done by Bing (or done by Bing's business partners at OpenAI and then published by Bing, though it's an interesting question whether the ultimate liability would be on Bing, on OpenAI, or on both).

To be sure, there are still many other elements that would have to be shown for Battle to prevail: For instance, Battle would likely have to show at least negligence on Bing's part, and perhaps even knowledge or recklessness as to the falsehood. A key question in this case would be whether his having informed Bing of the error would suffice, if his allegations about having informed Bing are correct. I discuss those issues and many others in considerable detail in Large Libel Models? Liability for AI Output, which I plan on updating before it's published (soon) to also mention this case as an illustration.

But in any event, I wanted to pass this along, since this is to my knowledge only the second lawsuit over libel-by-AI, after Walters v. OpenAI. I will also update this with any response I receive from Microsoft, to whom I sent a media query about the case.

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Of course, there are many variations of IRAC, and invariably, many students stop using it rigidly at some point during the second year. But the basic process–applying a rule to particular facts is a cornerstone of legal education.

That background brings me to the NextGen bar exam. I have written about this new formulation of the multistate bar exam, which will launch in some states in 2026. Justice Jay Mitchell of the Alabama Supreme Court already expressed a concern that the National Conference of Bar Examiners (NCBE) is placing DEI concerns over competence. (Critics contend that the bar exam is racist, and should be eliminated). I have another concern, which may be related–the NCBE seems to be making the exam substantially easier.

The NCBE released a batch of questions to demonstrate how the NextGen exam will function. The multiple choice questions reflect a new approach. Rather than forcing students to memorize particular rules, and then apply them, the new questions only ask students to spot the issue. The thinking is that practicing attorneys do not actually have to memorize particular rules, or even know how to apply them. So long as they can recognize what doctrine is implicated, a quick query on WestLaw, Lexis, and (lord help us) ChatGPT can locate the particular rule, and then the lawyer can figure out how to apply that rule to the facts (or just ask ChatGPT to do it). In short, bar examinees will not have to know the rule, apply the rule, or conclude the case. They only have to spot the issue. Only I, not RAC.

Consider this Criminal Procedure question:

You are a criminal defense lawyer representing a client who has been charged with fentanyl possession. The police found the fentanyl in the guest bedroom of the client's uncle's house when responding to a noise complaint at the house. Before entering the house, the officers knocked on the door. When the uncle answered the door, the officers asked if they could look inside the house, and the uncle agreed. The client did not live in the house and was not there at the time of the search. The client had stayed in the guest bedroom of the house two nights prior to the search. The uncle told the officers that the client was the last person to have slept in that room.

You are considering filing a motion to suppress the fentanyl under the Fourth Amendment.

Which of the following legal topics are the most important for you to research to determine the likelihood of success on a motion to suppress? Select two.

A. Consent search.
B. Exigent circumstances.
C. Hot pursuit.
D. Probable cause.
E.Reasonable suspicion.
F. Standing.

The correct answer here is A (Consent Search) and F (Standing). Those are the legal topics that are "most important" to research. First, would the Uncle have authority to consent to the search? Second, would the criminal defendant have standing to challenge the Uncle's consent? Now the examinee does not actually have to answer whether the motion to suppress would be granted. Who cares if the Uncle could consent to the search? It doesn't matter if the defendant has standing. The test taker doesn't even have to know the relevant rules for consent searches and standing. All she has to do is spot the issue. I suppose the NCBE thinks that a first-year lawyer can simply enter "consent search" and "standing" into ChatGPT, knowing nothing more, and download the answer. I am not confident anyone can figure out these doctrines on the fly.

Let's try a Property question.

You are representing a client in a dispute with a neighbor. The client owns a single-family home with several acres of surrounding land. Recently, the client noticed that his neighbor had built a fence that extends onto the client's land. The client is unsure when the fence was built because that part of the client's land is obscured by large trees. When the client contacted the neighbor about the fence, the neighbor claimed that she did not know the location of the property line. The client has shown you a recent survey of the property that confirms the encroachment and has asked you whether he has a claim against the neighbor.

Which of the following legal topics are the most important for you to research before advising the client? Select two.

A. Adverse possession.
B. Conversion.
C. Implied easement.
D. License.
E. Negligence.
F. Trespass.

The answers here are, once again, A (Adverse Possession) and F (Trespass). The question presented is whether the neighbor's fence encroaches (trespasses) on the client's property, and if there is an encroachment, has the neighbor acquired the right to do so through adverse possession. This question is complicated, because trees obscure the boundary (affecting the open and notorious prong), and the neighbor may not have even known if he was obtaining land through adverse possession (in the lingo, did he have the right claim of right?). I could see a student struggling with applying the rules to this question. But on the bar, an applicant only needs to spot the relevant doctrine, and pray they can figure stuff out when in practice.

I worry that these questions are far too simple. If the states end up adopting the NextGen exam, they should increase the cut score (the relevant percentage needed to pass the exam). Finally, I worry how this exam will trickle down to law school pedagogy. Will professors shift their coverage to no longer require memorizing and applying the rules–only spotting issues? It's true that all lawyers have sophisticated tools at their disposal to research different topics. This new format seems to be a surrender to this technology–don't require students to do what they don't have to. I, for one, do not plan to change how I teach for this exam. And state supreme court justices should take a very long pause before adopting this new exam.

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In my last post about legacy preferences in higher education, I argued for their abolition, but expressed skepticism about claims that they are illegal under current civil rights laws. I still think they are likely legal under current precedent. But it's worth noting that scholars and legal commentators such as Indiana University law professor Gerard Magliocca and my Cato Institute colleague Thomas Berry have put forward strong arguments that legacy preferences at public institutions are banned by the Fourteenth Amendment. They key idea is that state-created hereditary privileges are at least presumptively forbidden.

I have previously mentioned Prof. Carlton Larson's 2006 article arguing that legacy preferences violate the Constitution's prohibition on titles of nobility.

I am not fully convinced these arguments are right. But if they are,  the principle has potentially radical implications for other policies, particularly the hereditary aristocracy of citizenship, under which the rights to live and work in the United States are largely reserved for children  of US citizens and those who had the good fortune to be born on US soil.

Here's Berry:

Legacy preferences at public universities violate the 14th Amendment for a simple reason: They discriminate between applicants on the basis of an "accident of birth," namely the identity and alumni status of the applicant's parents. The history of the 14th Amendment shows that it was understood to put an end to this type of state discrimination based on parentage at the time of its adoption….

Representative John Bingham was the primary drafter of Section 1 of the amendment, which guarantees both "the equal protection of the laws" and respect for the "privileges or immunities" of citizens. Bingham had previously praised the Constitution's ban on any "Title of Nobility" as signaling that "all are equal under the Constitution" and that "no distinctions should be tolerated, except those which merit originates." Bingham also noted that the Fifth Amendment furthered this republican value by guaranteeing "Due Process" of the law to all persons, with "no distinction either on account of complexion or birth." One of Bingham's core motivations for drafting the 14th Amendment was to extend these principles to state governments and ensure that state laws would "be no respecter of persons."

Senator Charles Sumner, another key proponent of the 14th Amendment, had cited the Constitution's guarantee of a "Republican Form of Government" as support for a Senate resolution banning any "Oligarchy, Aristocracy, Caste, or Monopoly." Sumner had also condemned discrimination against foreigners, because it was based on "the accident of birth."

Berry cites additional original-meaning evidence, as well. And there is much more in this 2009 law journal article by Steve Shadowen, Sozi Tulante, and Shara Alpern, on which Berry in part relies.

Magliocca's Prawfsblawg post focuses on the Supreme Court's 1947 decision in Kotch v. Board of River Port Pilot Commissioners, which narrowly upheld a Louisiana law that had the effect of restricting some types of pilot licenses to relatives of current pilots. But the Court suggested other state-granted hereditary privileges might well be unconstitutional:

Louisiana required that ships entering New Orleans port and the Mississippi have a local licensed pilot to avoid shallow water and underwater obstacles. (This is a longstanding rule for maritime commerce.) State law provided neutral criteria for getting a pilot license that included an apprenticeship, but in practice pilots would almost always take only their relatives as pilot apprentices. Some wannabe pilots who could not get a license challenged this practice on equal protection grounds.

The Supreme Court (in 1947) rejected this claim by a 5-4 vote. Justice Black wrote for the Court and leaned heavily on the idea that pilot regulation was a traditional state function and that pilotage was "a unique institution and must be judged as such." Basically, he said that a pilot needed local knowledge and that this need for personalized knowledge was (or could be) rationally related to picking mainly relatives of existing pilots. The Court went out of its way, though, to say that this deference might not apply to other professions or business that used family ties to make selections.

Justice Rutledge dissented and said: "The result of the decision therefore is to approve as constitutional state regulation which makes admission to the ranks of pilots turn finally on consanguinity. Blood is, in effect, made the crux of selection. That, in my opinion, is forbidden by the Fourteenth Amendment's guaranty against denial of the equal protection of the laws. The door is thereby closed to all not having blood relationship to presently licensed pilots." He added: "The discrimination here is not shown to be consciously racial in character. But I am unable to differentiate in effects one founded on blood relationship."

If any of these arguments is valid, it obviously can't be limited to legacy preferences, but must also apply to other state-created hereditary privileges. By far the most significant of these is what I have called the hereditary aristocracy of citizenship. Under this longstanding legal regime—which most of us take for granted—only those lucky enough to have a US-citizen parent or be born on American soil have a presumptive right to live and work in the United States. For almost everyone else, that right is only available if the federal government chooses to grant it. And, for the vast majority of would-be immigrants, there is little or no chance of ever getting it (especially those who lack close family ties to current US citizens).

Of course a small percentage of would-be immigrants attain citizenship or permanent resident status through pathways made available at the discretion of the federal government. But that no more eliminates the hereditary privilege of citizenship than traditional hereditary aristocracy was eliminated by virtue of the fact that kings would occasionally elevate a commoner to the nobility. The same point applies to arguments that immigration restrictions aren't really based on heredity, because people can sometimes overcome them meeting occupational requirements and the like. So long as similar requirements aren't imposed on the native-born, hereditary privilege is still very much present. Moreover, such work visas are extremely difficult or impossible to get, even for most who meet the relevant qualifications.

The aristocracy of citizenship is a form of hereditary privilege with far more dire consequences than being disadvantaged in admissions to selective universities. Many of those excluded by the hereditary privilege of citizenship are thereby consigned to a lifetime of oppression and poverty in their countries of origin. And they end up in this situation largely because of "accident of birth," as Charles Sumner put it in a speech quoted in Berry's article. There are also severe consequences for current US citizens, who are denied the economic and social benefits of interacting with migrants.

If the Constitution categorically—or even presumptively—bans state-imposed hereditary privileges, than the privileges associated with citizenship cannot be excluded. Indeed, they are a vastly more egregious case than legacy preferences at state universities.

One possible response to this argument is that birthright citizenship is itself required by the Constitution, in Section 1 of the Fourteenth Amendment, which grants citizenship to all persons "born … in the United States and subject to the jurisdiction thereof." This provision was, of course, enacted in response to the notorious passages in the 1857 Dred Scott ruling, which held that blacks could not be citizens of the United States.

But, while the Citizenship Clause requires the government to grant citizenship to people born in the United States, it does not require denying it to would-be immigrants.  Still less does it require denying the latter the right to live and work in the United States. These rights could potentially be decoupled from citizenship and presumptively granted to anyone willing to come and exercise them, subject to nondiscriminatory constraints (e.g.—restrictions on espionage, terrorism, and the like). Access to citizenship could also be liberalized in a variety of ways.

Moreover, current law goes beyond birthright citizenship (granting citizenship to all born on US soil) by also granting citizenship to all children of US citizens, regardless of place of birth. But even if the grant was limited to those born on US soil, it still makes vital rights dependent on an arbitrary "accident of birth," one in most cases only attainable by being born to a US citizen.

Another possible justification for treating citizenship rules differently from other hereditary privileges is that the relevant text of the Fourteenth Amendment applies only to state governments, while citizenship and immigration law is largely federal. However, the Supreme Court has long held that the Equal Protection Clause's nondiscrimination requirements apply to the federal government, as well –  a principle established in the Court's famous 1954 ruling in Bolling v. Sharpe, which struck down racial segregation in public schools in the District of Columbia, despite the fact that DC is a federal territory, not a state. While Bolling has been criticized by some originalists, few are willing to advocate its reversal and thereby give the federal government a blank check to engage in racial and ethnic discrimination.

If, as Carlton Larson argues, the constitutional case against legacy preferences rests on the Titles of Nobility Clause rather than the 14th Amendment, then it indisputably applies to the federal government—and thus to immigration and citizenship law. Larson suggests, in his article, that there are special justifications for granting citizenship to children of US citizens born abroad because it "would be absurd to suggest that the United States could not grant citizenship to this narrow category without also granting it to every other inhabitant of the globe." But it's far from absurd to suggest that people not lucky enough to be born in the US or children of US citizens, should not be presumptively barred from living and working here, if they wish. Similarly, it's not absurd to suggest that they be allowed a path to citizenship that isn't virtually unattainable for the vast majority of those who might want it. There is a major difference between automatically granting citizenship to vast numbers of foreign-born people who, in most cases, don't even want it (which would indeed be absurd), and eliminating heredity-based bans on living and working in the United States for those who very much do want it.

It could also be argued that the ban on hereditary privilege only applies to people who are already members of the society, which immigrants (by assumption) are not. But nothing in the text of the Titles of Nobility Clause or the relevant provisions of the Fourteenth Amendment (most obviously, the Equal Protection Clause, which protects all "persons") is limited to current members of society or to current US citizens. It's also not clear why "membership" can justly be restricted based on heredity, while other legal rights cannot.

If the ban on hereditary privilege is merely presumptive (subject to something like the "strict scrutiny" applied to racial and ethnic discrimination), rather than absolute, then perhaps some immigration restrictions could be preserved in situations where they are the only way to prevent great harm. I discuss possible scenarios of this type (and various strategies for addressing them) in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

But even if some heredity-based migration restrictions could pass strict scrutiny in extreme situations, the vast majority likely cannot. At the very least, the federal government would have to meet a heavy burden of proof to justify them.

The hereditary aristocracy of citizenship isn't going to be eliminated anytime soon. But if we truly believe state-mandated hereditary privilege is unconstitutional and unjust, we cannot give a pass to what is by far the most significant example of such privilege in modern America. I summarized some of what can be done to mitigate its impact here. Broadly speaking, we should pursue a combination of expanding access to citizenship and reducing the the extent to which citizen status determines where people are allowed live and work.

If nothing else, when we consider the issue of state-created hereditary privilege in our society, we should stop turning a blind eye to what is by far the biggest example of it.

UPDATE: For those interested, elsewhere I have addressed the related, but distinct issue of whether governments may restrict immigration because nations are analogous to private houses or clubs. I cover this in greater detail in Chapter 5 of my book Free to Move.

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