The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Free Speech

Court Rejects Online Activist Eugene Gu's #TheyLied Libel Suit Over Abuse Allegations in The Verge


From New York trial judge Shlomo Hagler's opinion released today in Gu v. The Verge: (you can also read Gu's argument to the contrary, and the underlying article):

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):

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Race Discrimination

District Court Strikes Down Race Preference in USDA's and SBA's Contracting Schemes


From Judge Clifton Corker's opinion today in Ultima Servs. Corp. v. U.S. Dep't of Agric. (E.D. Tenn.) [UPDATE: link fixed]:

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."

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SDNY "Believe[s]" In Dictum That President An "Officer of the United States" for purposes of Federal Officer Removal Statute

"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."


In May, Seth Barrett Tillman and I discussed on Lawfare whether the President was an "Officer of the United States" for purposes of the federal officer removal statute. The New York District Attorney argued that Trump was not an "Officer of the United States." And Trump countered that he was an "Officer of the United States"–at least for purposes of the federal officer removal statute.

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.)

Climate Change

Judge Glock on "Climate Liberalism"

A review of Climate Liberalism: Perspectives on Liberty, Property & Pollution at Law & Liberty.


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.


Conservatives Should Not Be Surprised By Justice Kavanaugh's Voting Pattern With Chief Justice Roberts

Revisiting Seven-Sky v. Holder.


For a generation, legal conservatives chanted, "No more Souters." This mantra arose in the wake of the nomination of Justice David Souter, who turned out to be a consistent liberal vote. After NFIB v. Sebelius, the Obamacare case, conservatives adopted a new mantra: "No more Robertses." Never again would conservatives select a Justice who would rewrite a law in the name of judicial restraint. Yet, to replace Justice Kennedy, President Trump managed to select a Justice who has voted with Chief Justice Roberts nearly 95% of the time! Roberts and Kavanaugh are cut from the same cloth. And Kavanaugh consistently votes with Roberts, and the Court's three progressives, to form a majority. But this voting pattern should not come as a surprise. Like with Justice Gorsuch, Judge Kavanaugh's jurisprudence-under-pressure was on full display.

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.


"Busting the Durable Myth that US Self-Defense Law Uniquely Fails to Protect Human Life"


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.

Free Speech

Court Unseals and Depseudonymizes Student's Settled First Amendment Lawsuit Against University

An illustration that courts are often willing to reconsider stipulated sealing and pseudonymization decisions when members of the public or media object.


From Doe v. Amar, decided yesterday by Judge Sue Myerscough (C.D. Ill.), in response to my motion to unseal and depseudonymize; this is the case I blogged about in April:

[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:

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Supreme Court

Are Petitions for Certiorari Declining?

October Term 2022 saw a significant drop in the number of paid petitions for certiorari. Is it a trend?


There were only 1,252 paid petitions for certiorari filed with the Supreme Court in October Term 2022. This is well below the average number submitted during the prior five-year and ten-year periods (1,645.8 and 1593.8 respectively), as Michael Migiel-Schwartz notes in an interesting SCOTUSBlog post. Is this a trend?

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.


Venice, Trieste, Slovenia, and Croatia


My wife and I just came back from visiting our older son, who has been on a college work-study this Summer in Venice and Trieste, and then taking a trip to Slovenia (Ljubljana, Bled, Postojna Cave) and Croatia (Pula, Rovinj, Plitvice Lakes, Split, Dubrovnik). It was a delightful trip, even beyond just seeing our son. A few thoughts:

  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 FTC Doubles Down, Down, Down

Episode 468 of the Cyberlaw Podcast


This episode of the Cyberlaw Podcast kicks off with coverage of a stinging defeat for the FTC, which could not persuade the courts to suspend the Microsoft-Activision Blizzard acquisition. Mark MacCarthy says that the FTC's loss paves the way for a complete Microsoft victory, as other jurisdictions begin to trim their sails. We credit Brad Smith, Microsoft's President, whose policy smarts likely helped to construct this win.

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,

Download 468th Episode (mp3)

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More on Standing in the 303 Creative Case

A response to my critique of the Court's new standing jurisprudence.


"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.

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Conservatives Should Not Be Surprised By Justice Gorsuch's Opinion in Bostock

Revisting Kastl v. Maricopa County Community College District.


By virtually any measure, today's Supreme Court is the most conservative bench in modern history. Replacing Justice Antonin Scalia with Justice Neil Gorsuch, rather than Merrick Garland, or someone to his left, preserved the balance of the Court. Getting Justice Anthony Kennedy to retire, and replacing him with Justice Brett Kavanaugh, in many regards, moved the Court to the right. And replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett right before the tumultuous 2020 presidential election proved to be the coup de grâce. On paper at least, there is a 6-3 conservative majority for the first time in nearly a century. 

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.

Free Speech

Attempt to Block Comment About Critical Race Theory at State Bd. of Ed. Meeting Yields $89K Attorney Fee Award


From Regenold v. Ohio State Bd. of Ed., decided Friday by Judge James Graham (S.D. Ohio.):

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….

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Free Speech

First Amendment Claim of Professor Fired Over Article Claiming Race-Based Genetic IQ Differences …

can go forward, rules a federal judge, denying Cleveland State University's motion to dismiss.


From Judge Dan Aaron Polster's decision Friday in Pesta v. Cleveland State Univ. (N.D. Ohio):

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."

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Free Speech

No Pseudonymity for #TheyLied Plaintiff Suing for Libel and Invasion of Privacy Over Rape Accusations


From Judge Nina Wang yesterday in Doe v. Roe (D. Colo.); note that I filed an objection to plaintiff's motion for pseudonymity:

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.

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