Joel Fink operates a business called "Spam Private Eye" where he reviews his clients' "junk" emails and identifies ones that might violate California's anti-spam law [and can thus support lawsuits seeking statutory damages -EV]. In July 2023, the California Bureau of Security and Investigative Securities (the "Bureau") cited Fink for acting as an unlicensed private investigator.

The court concluded that the regulation was "a content- and viewpoint-neutral regulation of professional conduct" and thus "subject to rational basis review, requiring only a showing that the licensing requirements are rationally related to Fink's fitness to conduct his business." But, though "[t]hat is a low bar," "the private investigator licensure law fails to clear that low bar as applied to [Fink]":

Specifically, he has shown a gross mismatch between the highly burdensome requirements of the licensing regime, which require him to undertake 6,000 hours of largely unrelated training, and the State's marginal interest in regulating his review of his clients' "junk" emails, which are highly unlikely to be sensitive.

As a result, the court issued a preliminary injunction against the Bureau's applying the law to Fink, reasoning:

The district court in Cornwell v. Hamilton (S.D. Cal. 1999) addressed a similar as-applied constitutional challenge to a licensing scheme under California law, and the Court finds the reasoning in that case persuasive. The plaintiff in Cornwell was an African hair braider who asserted that she should be permitted to lock hair for compensation without fulfilling California's cosmetology licensing requirement. Becoming a licensed cosmetologist required undergoing a 1600-hour cosmetology curriculum and passing a licensing exam. In granting the plaintiff's motion for summary judgment on her Due Process and Equal Protection claims, the district court found that the plaintiff could not "reasonably be classified as a cosmetologist as it is defined and regulated presently," and "[e]ven if [she] were defined to be a cosmetologist, the licensing regimen would be irrational as applied to her because of her limited range of activities," which overlapped only minimally with the types of activities covered in the state's principal training curriculum and examination.

Here, Fink is likely to show that, as in Cornwell, the private investigator licensure law as applied to him would be irrational given the limited scope of his "investigative" activities. To become a licensed private investigator, Fink is required to have at least three years of experience in "investigation work," which is narrowly defined to include work as: (1) a sworn law enforcement officer; (2) military police; (3) an insurance adjuster; (4) a person employed by either a licensed private investigator; (5) a person employed by repossessors in limited capacities; (6) an arson investigator; (7) an investigator for a public defender; and (8) an investigative journalist. Fink would also have to pass an examination, which covers topics including: conducting interviews, asset searches, and surveillances; performing background checks and due diligence analyses; tracking individuals to locate missing or hard-to-find persons; evaluating incident scenes to gather factual evidence related to damage, loss, or injury; preparing for and providing litigation support; and participating in court proceedings.

The legislative history for the 2017 amendments to the licensure law indicates that the California Legislature imposed licensing requirements on private investigators because they "play a unique role in that their job is to delve into an individual's personal information, history, and behavior" and they "have a unique ability [to] interact with consumers' sensitive information." But on the record before the Court, there is no evidence that Fink handles sensitive client information or that he is providing services beyond reviewing his clients' junk emails. The entirety of Fink's "investigation" is reading his clients' self-identified spam emails, which by definition are unlikely to contain any sensitive information, and compiling and creating PDFs of the emails that might violate California's anti-spam law. Fink avers that he does not conduct surveillance, investigate crimes done or threatened against the United States, attempt to locate lost or stolen property, investigate the causes of fires or other property damage, carry a weapon, or operate under a pseudonym. Moreover, Fink is not involved in any of the subsequent litigation that his clients may choose to pursue with their own attorneys (who have a duty of candor toward the courts), other than receiving a percentage of any recovery on a contingency basis

Licensing regimes will often require knowledge of areas not part of a licensee's specific practice. However, Fink's situation presents an extraordinary case. He is in a particularly unusual position because of the minimal overlap between his limited "investigative" activities and the full scope of private investigative conduct contemplated by the Legislature. Fink's business of reviewing inherently non-sensitive spam emails does not appear to implicate the Legislature's concerns about privacy and deceptive practices motivating the oversight of more traditional private investigators, despite that Fink's conduct technically falls within the scope of the licensure law.

Requiring Fink to undertake 6,000 hours of training as, say, an arson investigator or investigative journalist is not rationally related to his capacity or fitness to read his clients' junk emails and identify the ones that may violate the anti-spam law. Accordingly, Fink is likely to succeed in showing that the private investigator licensure law as applied to him fails rational basis review….

Andrew Heller Ward and Dylan Moore of Institute for Justice, as well as Bretton Laudeman and Brendan P. Cullen of Sullivan & Cromwell LLP, represent plaintiff. Lawyers from the Institute for Justice also won Cornwell v. Hamilton (S.D. Cal. 1999), the case cited as a precedent here.

The post "Spam Private Eye" Can't Constitutionally Be Required to Get Real Private Eye License, appeared first on Reason.com.

Erikson was a tenured Associate Professor of Art for Defendant Xavier University for nearly a decade until his termination in October 2022. This case primarily revolves around the events leading up to Plaintiff's termination; a former student's [Witt's] allegation that Plaintiff had raped her and the investigative and administrative actions that Xavier took in response to her formal complaint.

Plaintiff began speaking with … Witt[] during the latter half of 2019. Although Witt had graduated from Xavier in 2013, she was not a Xavier employee and had no other relationship with Xavier. After communicating over several months and meeting on multiple social occasions, Witt suggested that she spend the night at Plaintiff's house on December 31, 2019. That night, Witt visited Plaintiff at his house and the two had sex. Plaintiff alleges that the sex was consensual.

A little over two years later, on February 5, 2022, Witt contacted Defendant Kelly Phelps—a professor at Xavier who chaired the Department of Art from 2012 through 2019. Witt told Phelps that she believed Plaintiff had raped her. Phelps "urged Witt to report the allegation but warned her that [Plaintiff] is 'white, and male, [and] got privilege on his side."

On February 24, 2022, Plaintiff was notified that Witt had filed a formal complaint with Xavier alleging that Plaintiff had violated Xavier's policy by raping her on December 31, 2019. Plaintiff "vehemently denied" the accusation. Additionally, Plaintiff informed Xavier that any investigation into Witt's formal complaint would breach the terms of Xavier's Harassment Code and Accountability Procedures ("HCAP") for several reasons: "(1) at the time of the incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitations for filing complaints."

Xavier held an HCAP hearing regarding the rape allegations on July 22, 2022 and July 25, 2022. During the hearing, "the panel embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." The panel allowed witnesses to make vague references to allegations of Plaintiff's conduct beyond the scope of Witt's complaint and permitted hearsay testimony by witnesses without personal knowledge. Moreover, the panel ignored testimony that Witt had consented to the sexual activity. The panel ultimately found Plaintiff responsible for raping Witt and recommended terminating him from Xavier. The panel attributed the rape to an "imbalance of power" between Plaintiff and Witt, which stemmed from the fact that Plaintiff is a male whose position in life and at the University seemingly granted him status and power. This power allowed Plaintiff to overwhelm Witt's ability to resist his actions. Xavier terminated Plaintiff in October 2022.

Plaintiff sued Witt for defamation and Xavier for sex discrimination under Title VII and Title IX, claiming that "Xavier's actions and/or omissions surrounding the investigation and hearing of Witt's false allegations of rape, including numerous procedural irregularities, were attributed to gender bias"; the court concluded that, if plaintiff's allegations were factually correct, they could indeed lead to legal liability for defendants. (As is usual with decisions on a motion to dismiss, the court did not decide whether the allegations were actually correct.) A few excerpts:

Plaintiff alleges that, during his hearing, the panel "embarked on a moral tirade against [Plaintiff] for, as a male, having sexual intercourse without using a condom." Xavier argues that this is insufficient to demonstrate gender bias because "[t]he failure to use a condom is not an inherently gender-based issue." But, Plaintiff has alleged that this "moral tirade" was made against him "as a male." This specific allegation, which must be accepted as true and construed in the light most favorable to Plaintiff, adds to the plausibility of Plaintiff's discrimination claim….

Plaintiff [also] alleges that the hearing panel attributed "the rape to an 'imbalance of power' between Witt and [Plaintiff] stemming from the fact that [Plaintiff] is a male whose position in life and at the University seemingly granted him status and power which allowed him to overwhelm Witt's ability to resist his actions." Xavier contends that such an imbalance of power is "not inherently gender-related" but was relevant to the panel's decision making. But, again, the Court must view this allegation in the light most favorable to Plaintiff. The Court accordingly finds that this specific allegation adds to the plausibility of Plaintiff's discrimination claim….

Plaintiff's allegations of clear procedural irregularities by Xavier further support a plausible inference of sex discrimination. Plaintiff alleges that Xavier's investigation breached the terms of the HCAP policy because "(1) at the time of the alleged incident, Witt was not a student or an employee, nor did she have any other relationship with Xavier; (2) the alleged incident did not occur on Xavier property or during an event associated with the University; (3) Witt was not a 'visitor' to Xavier at the time of the alleged incident; and (4) in any event, the alleged incident occurred outside the HCAP's two-year statute of limitation for filing complaints." Simply put, Plaintiff alleges that the investigation itself was outside the scope of HCAP and thus constituted a procedural irregularity….

The HCAP contains a two-year limitation for filing complaints but provides that "[t]he Affirmative Action Officer may grant a reasonable extension of any time period established in these guidelines, except where otherwise noted." The alleged rape occurred on December 31, 2019, and Plaintiff received notification of Witt's complaint on February 24, 2022. So, Xavier's extension beyond the statute of limitations was approximately two months. While the HCAP recognizes that complaints over the two-year mark may cause difficulty in investigating and adjudicating the claim, "reasonable extensions" are permitted under the procedures. This delay does not, by itself, constitute a clear procedural irregularity but remains relevant.

Turning to the HCAP's scope, the "HCAP applies when an employee … is accused of violating Xavier's harassment policies by a student, employee, contracted employee, or third party (i.e., visitor to campus)." Because the "visitor to campus" phrase is preceded by "i.e.," this suggests that the scope of third parties in this clause is limited to visitors to campus. See i.e., Merriam-Webster, https://www.merriam-webster.com/dictionary/i.e. (defining "i.e." as "that is"); cf. e.g., Merriam-Webster, https://www.merriam-webster.com/dictionary/e.g. (defining "e.g." as "for example"). Courts may look to a phrase following "i.e." as limiting the scope of the preceding term. Witt was not a current student or employee of Xavier, and the alleged rape did not occur on campus or at a university-sponsored event. The HCAP language accordingly supports Plaintiff's allegation—at least at this point of litigation—that the investigation into Witt's complaint was a clear procedural irregularity….

And, as to the defamation claim:

Truth is an absolute defense to defamation…. Witt argues that Plaintiff's defamation claim should be dismissed because Xavier's hearing panel found that Plaintiff was responsible for raping her. But, Witt does not cite any case law for the proposition that a university panel's finding is decisive in this context. Plaintiff alleges that he and Witt "engaged in consensual sex" and disputes Xavier's finding that he raped Witt. At this stage of the litigation, the Court must take the well-pleaded facts in Plaintiff's Complaint as true [and thus may not grant the motion to dismiss on the grounds that Witt's statements were true -EV]….

Witt next argues that Plaintiff's defamation claim should be dismissed because Witt's statements are covered by qualified privilege…. Qualified privilege applies when the publication is "fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned." In order for a publication to enjoy such qualified privilege, five elements must be satisfied: (1) the statement was made in good faith, (2) there was an interest to be upheld, (3) the statement was limited in its scope to this purpose, (4) a proper occasion, and (5) publication made in a proper manner to proper parties only. A plaintiff seeking to overcome qualified privilege must set forth facts to plausibly support that the statement was made with actual malice[,] … defined as "acting with knowledge that the statements are false or acting with reckless disregard as to their truth or falsity." …

Witt stated that she believed Plaintiff had raped her, and Plaintiff denies this by alleging that they had engaged in consensual sex. Witt would have had direct personal knowledge regarding whether her statement was true or not. So, accepting the allegations in the Complaint as true, Plaintiff has sufficiently pled that Witt made the statement with actual malice. Therefore, the Court cannot dismiss Plaintiff's defamation claim against Witt.

Marc D. Mezibov and Susan Lawrence Butler (Mezibov Butler) represent plaintiff.

The post #TheyLied Libel Lawsuit Over Ex-Student's Allegations of Rape Can Go Forward, appeared first on Reason.com.

Dr. Jeffrey Botkin, the Vice President for Research Integrity at the University of Utah during the time Plaintiff was a student, testified that it was his job to determine if enough evidence had been produced to open an investigation into potential research misconduct. Dr. Botkin testified that Defendant could not articulate a sufficient rationale for his concerns, that his concerns lacked specificity, and he did not provide specific evidence to support his allegations of research misconduct. Accordingly, Dr. Botkin concluded there was not sufficient evidence to initiate an investigation at that time.

Dr. Botkin testified that he communicated that information to Defendant. Defendant then testified that, following this determination by Dr. Botkin and Dr. Botkin's reminder to keep concerns confidential, he [presumably Defendant -EV] continued to express his concerns about research misconduct with committee members, people in his lab, and family members.

Defendant also testified that accusations of research misconduct are serious and highly damaging to a scientist's reputation. Other witnesses … Defendant testified he did not like Plaintiff, did not trust her, and did not want to work with her. Defendant testified that Plaintiff's comments regarding his lack of availability to her caused him to believe she falsified her data, but there has been testimony from several witnesses … that Defendant failed to follow up to verify the truthfulness of his accusations and failed to produce specific evidence of his accusations. Defendant testified that he never tried to verify if his accusations of research [presumably meaning "research misconduct" -EV] were false, despite his access to all the data stored on Plaintiff's laboratory computer within Defendant's laboratory.

Defendant further testified that, even after Dr. Botkin's instruction to keep concerns about research misconduct confidential, he continued to share his concerns with people beyond the Research Integrity Office and the thesis committee. Defendant testified that he shared his research misconduct accusations with his daughter Amanda while she was a student at Harvard University, Dr. Kevin Staley at Harvard University, and other members of his lab, who did not have a legitimate role in resolving the dispute….

Based upon this evidence, the Court finds that Plaintiff has presented sufficient evidence such that a reasonable jury could find that any applicable privileges have been abused by common law malice, actual malice, and/or excessive publication.

The court also concluded, for similar reasons, that defendant couldn't claim governmental immunity.

Ryan B. Hancey and Adam Lee Grundvig (Kesler & Rust) represent plaintiff.

The post $160K Libel Verdict for Ex-Student Based on Professor's Research Misconduct Allegations appeared first on Reason.com.

Round of 4

Round of 4 Match #1:  Team #17038 v. Team #16886

Round of 4 Match #2: Team #17485 v. Team #17050

Round of 8

Round of 8 Match #1: Team #17038 v. Team #16974

Round of 8 Match #2: Team #17067 v. Team #17050

Round of 8 Match #3: Team #16985 v. Team #16886

Round of 8 Match #4: Team #17485 v. Team #17350

The post Harlan Institute-Ashbrook Virtual Supreme Court Finalists appeared first on Reason.com.

[* * *]

This is a garden variety defamation lawsuit of the sort that is routinely litigated in the parties' own names. Many defamation litigants would prefer to avoid being linked with the accusations over which they are suing—just as many plaintiffs and even more defendants would prefer to avoid being linked with the allegations in many kinds of cases, allegations that may reflect badly on one or both parties. But our legal system has chosen to adopt a strong norm of public access to court records, including to the names of the parties, so that the public and the press can better supervise how the legal system operates. And this is not one of the rare cases in which an exception from this norm is warranted. The trial court thus did not abuse its discretion in ultimately deciding to deny pseudonymity. See Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 18, __ N.E.3d __ (2d Dist.) ("[A] trial court's ruling regarding a party's request to proceed pseudonymously will not be overturned absent an abuse of discretion.") (cleaned up)….

[I.] There is a strong presumption against pseudonymous litigation

"It is the rare exception for a litigant to be allowed to proceed anonymously." State ex rel. Cin. Enquirer v. Shanahan, 166 Ohio St.3d 382, 391 (2022). "Civ.R. 10(A) requires plaintiffs to provide their names and addresses in the captions of their complaints." Id. at ¶ 30. "The rule ensures that judicial proceedings will be conducted in public, and it supports the principle that 'the public have a right to know who is using their courts.' The public's right to know a litigant's identity derives from the United States and Ohio Constitutions and the common law." Id. at ¶¶ 30-31 (cleaned up) (quoting Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997)).

The right of access to parties' names is a facet of the broader right of access to court records more generally. "[I]dentifying the parties to the proceedings is an important dimension of publicness." Doe v. Blue Cross & Blue Shield, 112 F.3d at 872. The right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and "promotes the institutional integrity of the Judicial Branch," Company Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir.2014), and that includes the presumption against pseudonymity, id. at 273-74. Ohio law is consistent with federal law on this strong presumption against pseudonymity. See id. at ¶ 31 (citing federal appellate cases in explaining Ohio law).

In particular, the names of the parties are often key to investigating the case further—for instance, by helping reporters and researchers who are considering writing about the case (and who are thus "oversee[ing] and monitor[ing] the workings" of the court system in the case) answer questions such as:

• Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases, or a vexatious litigant?
• Is there evidence that the litigant is untrustworthy, perhaps in past cases or in past news reports?
• Do past cases brought by the same litigant reveal similar allegations made by the litigant, which past authorities have concluded were not corroborated?
• Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers?
• Was the incident that led to the lawsuit covered or investigated in some other context? For instance, if the plaintiff is suing for libel, wrongful firing, or wrongful expulsion based on accusations that the plaintiff had committed a crime, had the plaintiff been arrested for the crime? How did the police investigation or criminal prosecution turn out?
• Is there online discussion by possibly knowledgeable people about the underlying incident?
• Is there some reason to think the judge might be biased in favor of or against the litigant?

Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around. The parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified. See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1370-71 (2022).

Indeed, based on some public records searches using the addresses included in the trial court docket in this case, it appears to amicus that the parties had litigated against each other before in a matter that may be related to their family relationship. Indeed, this litigation appears to have yielded five Court of Appeals (Eleventh District) opinions, plus one U.S. District Court opinion, and nine short orders from the Ohio Supreme Court. Any coverage of how this case progresses could thus be enriched by the backstory that the previous litigation provides.

But in the absence of the parties' names in the record, such a link with past litigation is merely conjecture and potentially unreliable. Indeed, if the parties' names aren't in the public record, any reporter writing about this case likely cannot take advantage of the fair report privilege in drawing the likely link to the past litigation. The norm of open access is meant to allow the public and the press to comment on cases safely and based on fact, rather than at some risk and based on conjecture. More broadly, "the public (not just the [intervenors] in these cases) has a right to know who is using the court. Except in rare cases, the public has a right to learn that information from the court itself." Cin. Enquirer, 166 Ohio St. 3d at 392.

And defamation cases are fully governed by the presumption of public access to party names. See, e.g., Cin. Enquirer, 166 Ohio St. 3d at 389-90 (refusing to allow pseudonymity in a libel case); Doe v. Doe, 85 F.4th 206, 217 (4th Cir.2023) (likewise). Indeed, defamation cases especially implicate the First Amendment, because the defendants may argue that their speech is true and thus constitutionally protected. It is thus especially important that the public be able to monitor how courts deal with defamation litigation.

Naming the parties also helps promote accuracy of the judicial process. See Volokh, supra, 73 Hastings L.J. at 1384-92. A named witness "may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account." Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y.2015), aff'd, 672 F. App'x 48, 52 (2d Cir.2016); see also Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174 (E.D.N.Y. Oct. 14, 2020). "Public access creates a critical audience and hence encourages truthful exposition of facts, an essential function of a trial." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983) (so stating in opposition to sealing generally).

Likewise, "it is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of other witnesses.'" Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y.2006) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 596-97, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties.")); see also Rapp v. Fowler, 537 F. Supp. 3d 521, 531 & n.56 (S.D.N.Y.2021) (same); Doe v. Univ. of Vermont, No. 2:22-CV-144, 2022 WL 17811359 (D.Vt. Dec. 19, 2022) (same). If the parties are allowed to proceed pseudonymously, this opportunity for witness testimony may be lost.

[II.] The presumption against pseudonymity is not rebutted here

As with Doe v. Doe, 85 F.4th at 217, "[t]his case is no different than a garden variety defamation case, and it does not present the exceptional circumstances necessary for Appellant to proceed by pseudonym." In considering whether the presumption against pseudonymity is rebutted, courts consider "(1) whether the plaintiff seeking anonymity is suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiff to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiff to disclose an intention to violate the law, thereby risking criminal prosecution; … (4) whether the plaintiff is a child," Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 17, and "whether threats of retaliation have been made against the plaintiff and the potential prejudice to the opposing party," id. at ¶ 17 (cleaned up).

Factors 1 and 3 do not cut in favor of pseudonymity here, and appellants do not claim any threats of physical retaliation. Nor is "exceedingly intimate information" present here; to be sure, many people would prefer not to have their names linked with allegations of criminal behavior, especially when that might come to the attention of employers, but that is not itself a basis for pseudonymity in cases where the central factual dispute is about such allegations. Cf. A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 503 (App.Div.1995) ("Plaintiff's arguments … that he and his family might be isolated from society and that his employment would be in jeopardy are not only somewhat speculative, but any such ramifications are due to his actions and his election to institute litigation over a perceived wrong."). "[W]here the stated purpose is to avoid personal embarrassment or potential damage to future professional or economic well-being, federal courts have denied requests to proceed anonymously." Doe v. Doe, 282 Ill. App. 3d 1078, 1084 (1996). See also A.K. v. Ill. Dep't of Children & Family Servs., 2017 IL App (1st) 163255-U, ¶ 24 (refusing to allow pseudonymity in challenge to child abuse findings, because "the privacy concerns that plaintiffs raise exist in many cases in which a party is accused—perhaps wrongly—of some misconduct"). "[M]ost lawsuits will bring up matters that plaintiffs and defendants would prefer to keep private, including sometimes the identities of the parties. It is well-established, however, that only the 'exceptional circumstance' will allow a plaintiff to proceed under a pseudonym." Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 26.

Nor is this a lawsuit brought on behalf of a child, or involving exceptionally private allegations related to a child, such as allegations of sexual abuse. Rather, it is an ordinary lawsuit in which adults sue other adults for injury to themselves, though the injury stems from a statement about the children. The children's names may be redacted in such a situation. Cf. Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 36 (noting that specific factual details could be "protected … through the use of a protective order"). But such cases are routinely litigated with the adults' names disclosed, even where someone might be able to infer the child's name by knowing the adults. See, e.g., Johnson v. Brown, No. CV2012020942, 2012 WL 12542161 (C.P. Dec. 14, 2012) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's and defendant's child); Myers v. Steiner, 2011-Ohio-576, ¶ 1 (9th Dist.) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's child); Peoples v. Lang, 2009-Ohio-2693, ¶ 2 (5th Dist.) (likewise); Cox v. Cox, 2009-Ohio-1446, ¶ 2 (12th Dist.) (defamation lawsuit stemming from false allegations that plaintiff had sexually abused his stepsister when they were children).

Conclusion

For good reason, the Ohio civil litigation system is characterized by openness, including openness as to the names of parties. The plaintiff in this case is no more entitled to an exception from this rule than are the vast range of other litigants who routinely have to litigate under their own names, and who have to do so despite the personal and professional difficulties that such litigation may cause.

The post Brief Opposing Pseudonymity in Ohio Libel Case appeared first on Reason.com.

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For now, I'd like to highlight some actual judge shopping in Alabama. And none of this judge shopping occurred in single-judge divisions. You see, Alabama has very few Democratic-appointed district court judges. By my rough count, in the entire state, there is one active Obama nominee, and two senior appointees from Clinton and Carter. The Carter appointee, Judge Myron Thompson in Montgomery (Middle District of Alabama), is well known for ruling in favor of progressive litigants. Unsurprisingly, if you are a progressive litigant in Alabama, you will do everything in your power to get the case assigned to Judge Thompson.

Which brings us to the present case. In 2022, Alabama enacted the Vulnerable Child Compassion and Protection Act, which prohibits certain medical procedures for minors. As could be expected, the law was subject to immediate challenges by all the usual suspects.

Their strategy, which was revealed in a panel report, is striking. Here is the (rough) chronology.

1. 4/8/2022—Ladinsky complaint filed in NDAL by National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders, Southern Poverty Law Center, and Human Rights Campaign.
2. 4/11/2022—The NDAL case was randomly assigned to Judge Annemarie Axon (Trump appointee).
3. 4/11/2022—Walker complaint filed in MDAL by ACLU, Lambda Legal, and Transgender Law Center. The civil cover sheet marked the case as related to Corbitt v. Taylor. Corbitt was a challenge to an Alabama policy regarding the listing of gender on drivers' licenses. That case had been closed in January 2021. The only lingering issue was attorney's fees. Judge Thompson presided over Corbitt. The attorneys "marked Walker related to Corbitt because they wanted Walker assigned to Judge Thompson." The attorneys admitted that "they considered Judge Thompson a favorable draw because of his handling of Corbitt and that he ruled in favor of the plaintiffs who asserted transgender rights claims."
4. 4/12/2022 – Walker randomly assigned to Chief Judge Emily Marks (Trump appointee). Walker plaintiffs filed a motion to reassign to Judge Thompson. Counsel had also called Judge Thompson's chambers and spoke with the judge's law clerk to flag the pending motion for preliminary injunction. At that time, Walker had not been assigned to Judge Thompson. (The lawyer at first denied making such a call, but later admitted it; the panel found his testimony was "troubling.") The counsel never called Chief Judge Marks to flag the pending motion.
5. 4/13/2022—Chief Judge Marks entered an order to show cause why the case should not be transferred to the Northern District. The parties did not oppose the transfer.
6. 4/15/2022 – Walker reassigned to NDAL, and the case was randomly assigned to Judge Burke (a Trump appointee). That day, Judge Axon also transferred Ladinsky to Judge Burke. About two hours after Ladinsky was assigned to Judge Burke, the Walker and Ladinsky plaintiffs filed a notice of voluntary dismissal. This dismissal was made, "even though (as [counsel] admit) time was of the essence and their stated goal was to move quickly to enjoin what they viewed as an unconstitutional law, abruptly stopping their pursuit of emergency relief."
7. 4/16/2022—Counsel for Ladinksy plaintiffs tell the press that they plan to refile their case "immediately."
8. 4/18/2022—Judge Burke denied the TRO as moot because of voluntary dismissal, but noted the press reports that the Plaintiffs planned to refile. Judge Burke stated, "At the risk of stating the obvious, [p]laintiffs' course of conduct could give the appearance of judge shopping—'a particularly pernicious form of forum shopping'—a practice that has the propensity to create the appearance of impropriety in the judicial system."
9. 4/19/2022—A new group of plaintiffs, led by Eknes-Tucker, filed suit in the Middle District of Alabama signed by the same lawyers who filed Ladinsky. The lawyers found new plaintiffs, because were "concerned that they would be accused of judge shopping if they filed a new action with the same plaintiffs."  The case was randomly assigned not to Judge Thompson, but to Judge Huffaker (Trump appointee).
10. 4/20/2022—Judge Huffaker transferred the case to Judge Burke.

The panel concluded, "Behind the scenes, counsel took surreptitious steps calculated to steer Walker to Judge Thompson even before filing their motion to have Walker reassigned to him." And the lawyers "made plans and took steps in an attempt to manipulate the assignment of these cases." Ironically, the panel noted, Judge Burke ruled for the Eknes-Tucker plaintiffs in part. A Trump judge!

This sequence of events, which was well known in Alabama, proves how pernicious actual judge shopping is. And this practice has nothing to do with single-judge divisions. Skilled lawyers know how to direct cases to favorable forums. Here, they made some ill-advised statements to the press, and got caught. But in many other cases, they are not caught. I will wait to see breathless outrage on social media about this actual judge shopping. If ADF did something like this, they would be crucified.

How would the much-vaunted Judicial Conference have worked here? Who knows!? There were so many assignments and reassignments, coupled with suits filed in competing divisions, all based on random draws. These choices were deliberately made by the plaintiffs to gum up the system. Plus, the coversheet and "Related Case" gambit throws a wrench in any assignment wheel. Often, staff in the clerk's office have to decide whether to reassign a "related" case. This case involved "two cases [that were] filed in the same district and there [was] a question about whether they should be consolidated or otherwise transferred so that the same judge presides over them." Resolving this issue is "not so much a rule as a practice." It is complex, and requires some judging. It would not surprise me if judges in the trenches looked at the Judicial Conference's policy and recognized that it would be impossible to actually apply in the real world–especially in light of potential gamesmanship. After all, parties can trigger reassignment just by seeking statewide relief. Or, a case could be dismissed and re-filed, as the plaintiffs did here. Or the same complaint can be filed in multiple districts, with the hopes of getting the best draw.

The attorneys in the Alabama case work at leading law firms and civil rights organizations. They have every interest in avoiding random draws in red states. For these reasons, I suspect they would quietly oppose the judicial conference's policy.

The post Progressive Lawyers Engage In Actual Judge Shopping In Alabama appeared first on Reason.com.

On Tuesday, then Foundation backtracked and cancelled this year's award ceremony "after facing blistering criticism from her family and friends over this year's planned recipients," in the words of the NY Times.

A good move; if I'm going to chastise them for screwing up, I should applaud when they recognize their mistake and try to put things right.

The post The RBG Leadership Awards are Rescinded appeared first on Reason.com.

In support of his motion [for early termination of supervised release], Schwartz [Cohen's lawyer] cited and described three "examples" of decisions granting early termination of supervised release that were allegedly affirmed by the Second Circuit. See id. at 2-3 (citing United States v. Figueroa-Florez, 64 F.4th 223 (2d Cir. 2022); United States v. Ortiz (No. 21-3391), 2022 WL 4424741 (2d Cir. Oct. 11, 2022); and United States v. Amato, 2022 WL 1669877 (2d Cir. May 10, 2022)). There was only one problem: The cases do not exist. Although the Government failed to point that fact out in its opposition to Cohen's motion, E. Danya Perry—who entered a notice of appearance on Cohen's behalf following the Government's submission—disclosed in a reply that she had been "unable to verify" the citations in Schwartz's filing….

Schwartz (aided by his own counsel) and Cohen (aided by Perry)[,] … [w]ith one exception discussed below, … tell the same basic story. In early November 2023, Schwartz sent a draft of what would become the November 29, 2023 motion to Cohen. Cohen asked Perry (who had not yet entered an appearance in this case) to provide feedback on the draft, which she did. One comment, which Cohen passed along to Schwartz, was that the motion should cite a few cases granting early termination. Schwartz adopted what he understood to be Perry's suggestions and sent subsequent drafts back to Cohen.

On November 25, 2023, Cohen then sent three emails to Schwartz with the cases in question and summaries of the cases. Cohen had obtained the cases and summaries from Google Bard, which he "did not realize … was a generative text service that, like Chat-GPT, could show citations and descriptions that looked real but actually were not. Instead, [he had] understood it to be a super-charged search engine …." According to Cohen, he did not "have access to Westlaw or other standard resources for confirming the details of cases" and "trusted Mr. Schwartz and his team to vet [his] suggested additions before incorporating them" into what became the motion.

That trust proved unfounded.

Although Cohen's November 25, 2023 emails made no reference to Perry, Schwartz "believed" that the cases "had been found by Ms. Perry" given the earlier back and forth. "[B]ecause of Ms. Perry's reputation" as "a renowned and skilled trial lawyer," Schwartz "did not independently review the cases." He notes that he "never contemplated that the cases cited were 'non-existent,'" that their inclusion in his motion was an "honest" and "unfortunate mistake[],"and that he "had no intention to deceive the Court."

The first Schwartz learned of the problem was when the Court issued its  Order to Show Cause on December 12, 2023; he then spoke to Perry's colleague, who informed him that Cohen, not Perry, had been the source of the cases. Schwartz professes that he "would have researched" the cases had he "believed that Mr. Cohen" was their source. He acknowledges that he "bear[s] the responsibility for" the "submission" and that "the inaccuracies" in it were "completely unacceptable," and he "sincerely apologize[s] … for not checking [the] cases personally before submitting them."

As noted, Schwartz's and Cohen's recollections differ in one respect.Schwartz recalls that Cohen had, before sending him the cases on November 25, 2023, "communicated to [him] that cases would be provided by Ms. Perry," which was one reason he believed the cases came from Perry.Cohen denies that he said anything of the sort to Schwartz, although he does not dispute Schwartz's claim that Schwartz mistakenly believed in good faith that the cases had come from Perry.

In the Court's view, this discrepancy is ultimately inconsequential. At most, Cohen told Schwartz on some unspecified date that Perry would later provide "cases"; Schwartz does not suggest, and the record does not show, that Cohen identified Perry as the source of the problematic cases Cohen provided on November 25, 2023. Moreover, even if Cohen did not say anything to Schwartz to suggest that Perry would provide cases, Perry's comments on the initial draft that Cohen forwarded to Schwartz provided a good faith basis for Schwartz's belief that Perry was the source. All of that is to say, the Court credits Schwartz's testimony that he genuinely, but mistakenly, believed that the cases had come from Perry; that he did not independently review the cases based on that belief; that he would have researched the cases had he known that Cohen was the source; and that he did not intend to deceive the Court….

Judge Furman concluded that sanctions should only be imposed for knowing misbehavior, and not carelessness, and that there wasn't enough evidence here of such knowing misbehavior:

[T]he Court is compelled to conclude that sanctions may not be imposed on Schwartz. His citation to non-existent cases is embarrassing and certainly negligent, perhaps even grossly negligent. But the Court cannot find that it was done in bad faith. Given Perry's comments on the initial draft (as conveyed by Cohen), Schwartz understandably believed that the cases had come from her. As Schwartz himself concedes, it was plainly his responsibility to review the citations before putting them in a submission to the Court. But the Court credits his explanation for his failure to do so: that he had confidence in the accuracy of the cases given Perry's reputation and that he never contemplated that the cases were non-existent.

The Court also credits Schwartz's representations—that inclusion of the cases in his motion was an "honest" and "unfortunate mistake[]"; that he "had no intention to deceive the Court"; and that he would have withdrawn the citations immediately if given the opportunity—and does not doubt the genuineness of his apologies and acceptance of responsibility. Perry, in responding to Schwartz's submission, asserts that "even a quick read" of the citations "should have raised an eyebrow." That may be so, but, at most, it supports a finding of extreme carelessness, not intentional bad faith.  And it is noteworthy that the Government's lawyers—who presumably engaged in more than a "quick read" of Schwartz's motion and, thus, saw the citations at issue before filing their opposition—did not "notice[] something awry" themselves.

So too, there is no basis to impose sanctions on Cohen himself. The Court's Order to Show Cause was limited to Schwartz and did not alert Cohen to the possibility of sanctions. But even if the Court had put Cohen on notice, sanctions would not be warranted. Cohen is a party to this case and, as a disbarred attorney, is not an officer of the Court like Schwartz. He was entitled to rely on his counsel and to trust his counsel's professional judgment—as he did throughout this case.

Given the amount of press and attention that Google Bard and other generative artificial intelligence tools have received, it is surprising that Cohen believed it to be a "super-charged search engine" rather than a "generative text service." But the Court has no basis to question Cohen's representation that he believed the cases to be real. Indeed, it would have been downright irrational for him to provide fake cases for Schwartz to include in the motion knowing they were fake—given the probability that Schwartz would discover the problem himself and not include the cases in the motion (as he should have) or, failing that, that the issue would be discovered by the Government or Court, with potentially serious adverse consequences for Cohen himself.

In sum, as embarrassing as this unfortunate episode was for Schwartz, if not Cohen, the record does not support the imposition of sanctions in this case.

Note that sanctions sometimes do get imposed for merely careless behavior. My sense is here the judge was especially influenced by this detail:

All of that is to say, the Court credits Schwartz's testimony that he genuinely, but mistakenly, believed that the cases had come from Perry; that he did not independently review the cases based on that belief; that he would have researched the cases had he known that Cohen was the source; and that he did not intend to deceive the Court.

If in a future case a lawyer instead just relies directly on ChatGPT or Google Gemini, without cite-checking—as opposed to relying on information that he thought came from another, reputable lawyer—the result might well be different (as it was in Mata v. Avianca, the first hallucitation court case to hit the news).

The post No Sanctions in Michael Cohen Hallucinated Citations Matter appeared first on Reason.com.

Going forward, I'm not sure if Justice Barrett's concurrence will have the effect that she intended. Let's spin out two scenarios. First, where a district court judge in Austin rules against Texas. Second, where a district court judge in Amarillo rules against the federal government. In both scenarios, if Justice Barrett's approach is followed, the courts are less likely to enter administrative stays for any lengthy duration. And, the average Fifth Circuit panel would probably grant a stay in the case from Austin, and deny the stay in the case from Amarillo. What is the effect? More emergency applications arriving at the Supreme Court filed by the Department of Justice. Yes, in an attempt to tighten the screws on the shadow docket, Justice Barrett likely made the shadow docket even more active.

What will the result be? Ironically enough, Circuit Justice Alito will be forced to enter a never-ending series of administrative stays that are extended as needed to digest complicated cases, which is what happened in McCraw. The Justices will be in the same position as the Fifth Circuit judges who are struggling to handle the torrent of emergency litigation. The shadow docket giveth, and the shadow docket taketh away.

The post Justice Barrett's concurrence in <i>McCraw</i> will increase the number of emergency appeals on the Shadow Docket appeared first on Reason.com.

The discovery issues before the Court may present questions of first impression. Because the parties did not adequately address these matters, the Court requests additional briefing.

Specifically, the Court seeks supplemental briefing on who is the holder of the constitutional Speech or Debate privilege asserted by counsel for the House Permanent Selection Committee on Intelligence ("HPSCI"). Assuming that the privilege is held only by a Member of Congress, and not a legislative committee, does a Member waive the privilege when he initiates a civil lawsuit about matters protected by the privilege? Alternatively, if the filing of a lawsuit does not constitute a wholesale waiver of the matter at issue, may a Member selectively waive the privilege as to certain relevant matters but not others? …

On March 18, 2021, when Devin G. Nunes, the Plaintiff, was a Member of Congress, NBCU, through a telecast of The Rachel Maddow Show, published a single allegedly defamatory statement: "[Devin Nunes] has refused to hand [the Derkach package] over to the F.B.I." "The Derkach package" refers to a package sent by Andriy Derkach, reportedly a Russian agent who attempted to influence the 2020 U.S. presidential election. According to Nunes, he "did not accept a package from Derkach." Rather, Nunes claims that the "package came to the House Intelligence Committee," and he "immediately turned the package over to the F.B.I."

A central issue is whether Nunes gave the Derkach package to the FBI. During the deposition of Nunes's former Director of Communications, Jacob Langer, counsel for the HPSCI repeatedly objected to questions about this subject by asserting the Speech or Debate privilege.

At Langer's deposition, HPSCI counsel invoked the Speech or Debate Clause privilege in response to questions on: (1) the receipt, handling, and transfer of the Derkach package; (2) communications with HPSCI members about the package; and (3) a July 29, 2020 HPSCI business meeting. For his part, Nunes takes a different view; Nunes asserts that Langer could testify about whether the package was delivered to the FBI, an executive agency, but that the privilege would protect against testimony that is "purely about HPSCI or its internal operations."…

The Speech or Debate Clause provides that, "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." The Clause "provides Members of Congress with two distinct privileges." First, the Clause confers immunity on legislators and their aides "from liability for their actions within the 'legislative sphere.'" Second, the Clause protects legislators and their aides from answering questions or providing documents related to legislative acts. This dispute concerns the evidentiary privilege.

The purpose of the Speech or Debate Clause privilege is "to prevent intimidations of legislators by the Executive and accountability before a possibly hostile judiciary" and to "protect a legislator from the burden of defending himself." The Court has been unable to locate a case where a Member initiated a civil lawsuit against a private party and then asserted the Speech or Debate Clause to withhold discovery.

The privilege is "invocable only by the Senator or by the aide on the Senator's behalf." Thus, when "construing the privilege a Member and his aide are to be 'treated as one. Relatedly, a Member may assert only his own privilege; he may not assert the privilege of others.

The Speech or Debate Clause privilege is absolute. A Member, however, may waive the privilege. Waiver of the Speech or Debate Clause's immunity privilege "can be found only after explicit and unequivocal renunciation of the protection."

The parties' briefing focuses on the scope of the privilege asserted by counsel for the HPSCI. But no one addresses who holds the privilege and whether Nunes's has waived his privilege for the matters at issue by filing this lawsuit. Accordingly, the Court seeks supplemental briefing. The parties and HPSCI shall address:

• Who holds the privilege that applies to Langer's testimony? To the extent the privilege applies differently to other witnesses, the parties and HPSCI should discuss that.
• If the privilege is exclusively held by Nunes, did Nunes waive the privilege as to all matters at issue in this litigation by filing this lawsuit? If the lawsuit does not constitute a waiver, what issues of fundamental fairness and due process should the Court consider?
• To the extent that this lawsuit does not act as a wholesale waiver of all matters at issue, may Nunes selectively waive the privilege as to certain matters but not others, as he suggests?
• Any other issue that bears on the Court's consideration of this…

The post Interesting Speech or Debate Clause Issue in Devin Nunes' Libel Lawsuit Against NBC appeared first on Reason.com.

Justice Kavanaugh observed that "experienced government press people throughout the federal government . . .. regularly call up the media and berate them." Later, Justice Kavanuagh asked if "traditional, everyday communications would suddenly be deemed problematic"? Justice Kagan added that "like Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech." Whereas Kavanaugh referred to "government press people," Kagan spoke in the first person about her own calls to the press. Kagan explained that "this happens literally thousands of times a day in the federal government." And she offered what such a phone call would sound like:

"You just wrote about editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again."

I can imagine being on the receiving end of such a phone phone call from Kagan or Kavanaugh. Indeed, some years ago, I received just such a call. I tweeted about an opinion from a federal circuit judge. The next day, I received an email from the judge asking me to call chambers. I promptly did so. At that point, the circuit judge proceeded to berate me for what the judge perceived to be an inaccurate tweet about the opinion. I tried to explain tweets are very short messages, that can't always capture all the nuances of a complex opinion. My explanation did not suffice. I was told that I should know better, and should take care to accurately characterize the opinion. The phone call went on for some time.

This experience was the most extreme judicial berating I've received, but it is not isolated. Another time I attended a conference and bumped into a circuit judge. I had recently severely criticized a decision from the judge's court. I introduced myself, and the judge replied, with a look of scorn, "I know who you are." No further words were exchanged.

Sometimes, judges use intermediaries. In one instance, a judge complained to my former boss, Judge Boggs, about a blog post I wrote. Judge Boggs relayed the message to me, and I shrugged. Another judge complained to one of my co-authors about something I wrote; I shrugged. In other instances, I've received contact from a judge's former clerks who defended their boss against something I wrote. More shrugging.

I've had other run-ins with judges who gently criticized my writings, or at most, suggested that I got something wrong. Most of the time it is done with some humor and humility, but on occasion, I can tell I've peeved the judge. These experience reinforce a point I've made in recent posts: judges profoundly care what the public thinks about them, and when they feel treated unfairly, they speak out.

I don't think inferior judges are unique. Supreme Court Justices likewise berate the press. In recent memory, perhaps the most visible such incident was when Justice Scalia wrote a letter to the editor of the National Law Journal, calling an article by Tony Mauro "mauronic." And in the Dick Cheney duckhunt case, Justice Scalia charged that many press outlets did "not even have the facts right" and gave "largely inaccurate and uninformed opinions." Scalia, perhaps to his credit, was open with his criticism. Other Justices make these remarks in private.

I am reliably informed that the Justices will often call members of the Supreme Court press corps into chambers for a discussion about their reporting. Of course, the very people who are best equipped to talk about these beratings are unable to do so. But if I had to guess, while Justices Kagan and Kavanaugh were asking their questions during Murthy, the fourth estate in the press box was nodding along.

The post Do Judges Also "Berate" The Press? appeared first on Reason.com.

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Would you care to guess which judges were on the panels that granted those administrative stays? Certainly is must be a super-Trumpy panel with Judges Ho, Duncan, and Wilson, right? Not exactly.

Here are the panels that granted the temporary administrative stays that Justice Sotomayor complained about:

• United States v. Abbott, No. 23–50632 (85 days, from Sept. 7, 2023, to Dec. 1, 2023) (Stewart, Graves, Oldham).
• Petteway v. Galveston Cty., No. 23–40582 (41 days, from Oct. 18, 2023, to Nov. 28, 2023) (Jones, Higginson, Ho).
• Missouri v. Biden, No. 23–30445 (66 days, from July 14, 2023, to Sept. 18, 2023) (Stewart, Graves, Oldham).
• R. J. Reynolds v. FDA, No. 23–60037 (57 days, from Jan. 25, 2023, to Mar. 23, 2023) (King, Jones, Smith).
• Campaign Legal Ctr. v. Scott, No. 22–50692 (48 days, from Aug. 12, 2022, to Sept. 29, 2022)(Higginbotham, Stewart, Dennis).

Of these fives cases, Judge Stewart, a Clinton appointee, voted to grant a stay in three of them. Judge Graves, an Obama appointee, voted to grant a stay in two of them. Judge Oldham, a Trump appointee had two. Judge Jones, a Reagan appointee had two. And Judges Ho, and Smith each had one.

After these temporary administrative stays were issued, the cases were accelerated to the next available oral argument session. And in Petteway v. Galveston County, in particular, Judges Jones, Higginson, and Ho set the temporary administrative stay to expire after 15 days.

What lesson do we draw here? Judges of all stripes on the Fifth Circuit grant temporary administrative stays. I think they are doing their best to handle this torrent of emergency motions, many of which are filed by the United States and progressive groups. It is hard to make a decision in short order with limited briefing. Don't forget–by the time a case gets to SCOTUS, there has been a full vetting below. But the circuit judge on emergency duty has a very full plate. The temporary administrative stay helps to get through the rush.

Justice Barrett raised some fair questions on how administrative stays should be granted. But neither the SG nor Justice Sotomayor have put forward any evidence that these temporary stays are being used in some sort of evasive fashion to evade the usual stay-pending-appeal standard. There is also a related point. If the District Courts in Texas are doing such crazy stuff, then the Fifth Circuit should be rewarded for granting these stays! But that sort of argument defeats the narrative.

There is no smoke here. And there is no fire. No shadows either. Justice Kagan was prudent to write her own dissent, and not join Justice Sotomayor's dissent.

The post Who is responsible for the 5th Circuit's alleged "troubling habit of leaving 'administrative' stays in place for weeks if not months"? appeared first on Reason.com.

Two days later, on March 4, the Solicitor General sought an application to vacate the stay of the preliminary injunction. Circuit Justice Alito promptly administratively stayed the case until March 13. On March 12, the Court extended the administrative stay until Mach 18. And on March 18, the stay was "hereby extended pending further order of Justice Alito or of the Court." It was a stay on top of a stay on top of a stay on top of a stay. Stays all the way down.

Today, the Court denied the application to stay the Fifth Circuit's temporary administrative stay. In other words, the Supreme Court's stay was dissolved. As a result, the Fifth Circuit's temporary administrative stay will go into effect, and thus S.B. 4 can be enforced. As is often the case, there was no opinion of the Court. There was only a single sentence without any reasoning. However, there were separate writings.

Justice Barrett wrote a five-page concurrence, which was joined by Justice Kavanaugh. In many regards, Barrett's Las Americas v. McCraw concurrence is the sequel to Barrett's Doe v. Mills concurrence. In October 2021, Justice Barrett wrote her influential concurrence in John Does 1-3 v. Mills, which was joined by Justice Kavanaugh. This decision, in my view at least, heightened the standard required to obtain relief on the emergency docket. She wrote that the "likelihood of success on the merits" factor from Nken reflects "a discretionary judgment about whether the Court should grant review in the case." At the time, I wrote that Justice Barrett cut the fuse on the shadow docket, by making it harder to grant emergency relief. Over the past 2.5 years (yes it has been that long), Justice Barrett has consistently voted to grant emergency applications from the Biden administration and likeminded groups, often citing Doe v. Mills. More often than not, she lines up opposite of the Fifth Circuit.

Barrett's McCraw concurrence makes several primary points.

First, Barrett writes that if the Fifth Circuit had issued a stay pending appeal, the Supreme Court would have reviewed that decision with the four-factor test from Nken v. Holder. Here, Barrett cited her Doe v. Mills concurrence. But the Fifth Circuit panel did not actually issue a stay pending appeal. Rather, the panel only issued a temporary administrative stay until the case is argued before a merits panel. Barrett describes this posture as "very unusual." In dissent, Justice Kagan did not "think the Fifth Circuit's use of an administrative stay, rather than a stay pending appeal, should matter."

Second, Justice Barrett issues a deep dive into administrative stays, relying in large part on a recent article by Rachel Bayefsky in the Notre Dame Law Review. Barrett writes that administrative stays usually do not consider likelihood of success. Rather, quoting Bayefsky, administrative stays "freeze legal proceedings until the court can rule on a party's request for expedited relief." The administrative stay "buys the court time to deliberate" and decide whether the applicant is likely to succeed on the merits. Barrett cites a number of cases in which the Supreme Court issued a temporary administrative stay to "permit time for briefing and deliberation," including June Medical v. Gee, Murthy v. Missouri, Yeshiva University v. YU Pride, and McCraw itself. Barrett then cites a slew of circuit court decisions; some of which are cited in Bayefsky's article, but some are not. ACB did some original research.

Third, in a footnote, Justice Barrett observes that the Court has "not explained the source of a federal court's authority to enter an administrative stay." She cites Bayefsky for the proposition that this power comes from "a court's inherent authority to manage its docket, as well as to the All Writs Act, 28 U. S. C. §1651." I have not given this issue much thought, but I will.

Fourth, Justice Barrett opined on an issue that I've given a lot of thought over the years: what does it mean to maintain the status quo. Barrett observes that the status quo is a "tricky metric, because there is no settled way of defining 'the status quo.'" Is the status quo the "state of affairs prior to the challenged law or rule"? Or is the status quo "the state of affairs prior to judicial intervention"? Barrett explains that in this case the status quo "is not self-evident." There are several possibilities:

Is it the day before Texas enacted S. B. 4? The day before the lawsuit was filed? The day Texas's appeal and stay motion was docketed in the Fifth Circuit?

Howard Wasserman and I wrote about how the "status quo" was invoked in the same-sex marriage litigation:

Following Windsor, federal district courts in more than two dozen states enjoined enforcement of bans on same-sex marriage. Judges then had to decide whether to stay those injunctions pending review. An injunction alters the status quo. A stay of an injunction suspends that alteration,9 while refusing to grant a stay allows that altered status quo to take immediate, and perhaps irreparable, effect. Here, the altered status quo meant issuance of hundreds or thousands of marriage licenses.

And in particular, the status quo about the Utah case, was difficult:

Part of the problem with Judge Shelby's reasoning was a strange understanding of the status quo. On Friday morning, the status quo was what it had been for a century—Utah would not issue marriage licenses to same-sex couples. Judge Shelby's order, without a stay, immediately and perhaps irreparably altered the status quo. It now became the new normal that same-sex couples were allowed to marry, as the Clerk of Salt Lake County recognized. Thus, Judge Shelby reasoned, a stay would amount to an injunction preventing county clerks from issuing marriage licenses to same-sex couples. In other words, an alteration of the status quo. But this misunderstands the nature of injunctions and stays and their respective effects on the status quo. The stay would alter the status quo on Monday only because the court had already altered the status quo on Friday with its injunction. The point of a stay would be to suspend that alteration. Had Judge Shelby issued the stay on Friday, the practical status quo would have remained unchanged.

I think much more work needs to be done to consider the relationship between injunctions, stays of injunctions, and the status quo. I think judges sometimes use "status quo" without precision.

Fifth, Barrett points out that an administrative stay, while it may seem "value neutral," is actually applying a principle: minimizing harm. She describes the choice as a "first-blush judgment about the relative consequences of staying the lower court judgment versus allowing it go to into effect." Barrett speculates that the Fifth Circuit panel "apparently concluded that the consequences of erroneously enjoining the enforcement of S. B. 4 would be worse than those of erroneously lifting the injunction."

Sixth, Barrett acknowledges that some issuances of administrative stay are premised on the merits question–even when this analysis precedes the application of the Nken factors:

Because an administrative stay precedes a ruling on a stay pending appeal, the Nken factors are obviously on the court's radar, and unsurprisingly, they can influence the stopgap decision, even if they do not control it. Thus, for example, judges have cited the underlying merits as a reason to grant an administrative stay.

Barrett is not troubled by the fact that there is "no jurisprudence of administrative stays, much less a one-size-fits-all test that courts apply before entering one." Barrett prefers "play in the joints" for this "flexible, short-term tool." (This concept may have been excised from the Establishment Clause context, but still has some pull here.)

Seventh, Justice Barrett explains her decision to join the Court's order: the Court had never before reviewed the entry of an administrative stay. And Justice Barrett "would not get into this business." Why? Because administrative stays are necessarily the "short-lived prelude to the main event." She would not "invite emergency litigation" about administrative stays. That sort of message may seems helpful to Texas and other litigants in the Fifth Circuit. But wait.

Eighth, Justice Barrett points to the "real problem"–how long can Nken, and Doe v. Mills, be avoided. These sentences will be cited in every single opposition to a stay application:

An administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal. Once the court is equipped to rule, its obligation to apply the Nken factors is triggered—a point that some judges have pressed their Circuits to consider.

"Necessary to make an intelligent" decision. Get used to it. That's the standard–fittingly enough announced on an expedited basis from the emergency docket. Justice Barrett does not want to get into this business of making these decisions now. But if the lower courts take longer than she thinks appropriate "to make an intelligent decision," there would be a problem. Indeed, Barrett cites the SG who calls out the Fifth Circuit, in particular, which has "allowed administrative stays to linger for so long that they function like stays pending appeal." In dissent, Justice Sotomayor wrote that "The Fifth Circuit recently has developed a troubling habit of leaving 'administrative' stays in place for weeks if not months."

Ninth, Justice Barrett leaves open the possibility of getting into this business if "an administrative stay has effectively become a stay pending appeal." And she issues a not-too-subtle warning to the Fifth Circuit: "If a decision does not issue soon, the applicants may return to this Court." In other words, there are five votes to rule against the Fifth Circuit if they drag their feet. Justice Kagan's dissent faulted the Fifth Circuit for using an "unreasoned decision to impose [a stay] for more than a month, rather than answer[ing] the stay pending appeal issue before it."

In the end, Justice Barrett and Kavanaugh, once again express their displeasure with how the Fifth Circuit is exercising its power. There is a lot of deep thought in Barrett's concurrence that will affect how cases are litigated on the emergency docket. I'll make this point as often as I have to: progressives should be grateful that Trump picked who he picked. It could have been much, much worse for them.

The post The Sequel to <i>Doe v. Mills</i>: Justice Barrett Tightens The Screws On The Shadow Docket appeared first on Reason.com.

Yesterday's Murthy v. Missouri argument suggests that Justice Ketanji Brown Jackson may take a similar approach. Recall that the heart of the case is about two related but conceptually separate issues: (1) whether the government coerced platforms into restricting certain user speech; (2) whether, if the government merely substantially encouraged platforms to restrict such speech rather than coercing them, that would itself be subject to First Amendment scrutiny. Most of the Justices asked the lawyers about these two matters, and about related procedural questions.

But several of Justice Jackson's questions raised the possibility that the government may indeed be allowed even to coerce platforms into restricting speech—including speech that doesn't fall within the familiar First Amendment exceptions (such as for true threats or solicitation of crime). Some excerpts (emphases added):

[1.] I understood our First Amendment jurisprudence to require heightened scrutiny of government restrictions of speech but not necessarily a total prohibition when you're talking about a compelling interest of the government to ensure, for example, that the public has accurate information in the context of … a once-in-a-lifetime pandemic.

So … I'm just interested in the government sort of conceding that if there was coercion, then we automatically have a First Amendment violation….

[2.] [T]here may be circumstances in which the government could prohibit certain speech on the Internet or otherwise. I mean, … do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest in how the government has tailored its regulation?

[3.] [W]e have a test for a determination of whether or not the First Amendment is actually violated. So, in certain situations, you know, the government can actually require that speech be suppressed if there's a compelling interest, right? …

[4.] [P]art of the reason why you might be running into all of these difficulties with respect to the different factual circumstances is because you're not focusing on the fact that there are times in which the government can, depending on the circumstances, encourage, perhaps even coerce, because they have a compelling interest in doing so….

[Y]ou have to admit that there are certain circumstances in which the government can provide information, encourage the platforms to take it down, tell them to take it down.

I mean, … what about the hypo of someone posting classified information? They say it's my free speech right, I believe that I—you know, I got access to this information and I want to post it.

Are you suggesting that the government couldn't say to the platforms, we need to take that down? …

[5.] All right. So what do we—what do we do then in a situation in which—I mean, I suppose, in this case, we're asking—the government's point is we didn't coerce. And I appreciate, you know, the debate about that.

But you just seemed to suggest that as a blanket matter, the government doesn't have the ability to, you know, encourage or require this kind of censorship. And I don't know that that's the case….

[6.] So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.

I mean, … what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical [about someone posting a new teen challenge that involved teens jumping out of windows at increasing elevations], you know, kids, this is not safe, don't do it, is not going to get it done.

And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information.

So can you help me? Because I'm really—I'm really worried about that because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can't interact with the source of those problems….

[7.] [Y]ou want us to take the line … to be between compulsion and encouragement and what we're looking at is the government can't compel, maybe they can encourage. I'm wondering whether that's not really the line. The line is does the government, pursuant to the First Amendment, have a compelling interest in doing things that result in restricting the speech in this way? That test, I think, takes into account all of these different circumstances, that we don't really care as much about how much the government is compelling or maybe we do but in the context of tailoring and not as sort of a freestanding inquiry that's overlaid on all of this….

Now, as Justice Jackson notes, there's ample precedent for upholding even content-based speech restrictions (again, imposed by the government as sovereign, and not just as employer or subsidizer or the like) when the restrictions are "narrowly tailored" to a "compelling government interest." But the strength of modern First Amendment doctrine is that the Court has very rarely upheld restrictions on this basis. Consider, for instance, the violent video games case, where the Court struck down (over Justice Breyer's dissent) a narrow restriction on children's acquiring violent video games themselves (without parental participation).

Likewise, speech generally can't be restricted even if it generally persuades people to do harmful things, in the absence of some specific solicitation of crime against a particular target, or the counseling of imminent illegal conduct. And in the Pentagon Papers case (1971), the Court held (6-3) that the government generally can't block the publication even of "classified information."

It seems to me that Justice Jackson would take an approach that's more open to speech restrictions, in order to avoid "the First Amendment hamstringing the government in significant ways in the most important time periods." This would not just be limited to the government trying to persuade platforms or other intermediaries to block third parties' speech, but would include "restrictions of speech," "prohibit[ing] certain speech on the Internet or otherwise," "actually requir[ing] that speech be suppressed," "requir[ing] this kind of censorship," and using "coercion," "compulsion," and "pressur[e]."

Again, other Justices have taken that view. As to "the government … say[ing] to the [newspapers]" that they may not publish "classified information," Chief Justice Burger and Justices Harlan and Blackmun would have allowed the government to say just that in their Pentagon Papers dissent. But it struck me as noteworthy that Justice Jackson was joining this tradition.

The post Justice Jackson Seems to Be Charting a More Speech-Restriction-Tolerant Approach appeared first on Reason.com.

Here, though, I wanted to repeat one narrow observation that I had made some time ago. I'm not sure how far it goes, but it struck me as worth noting.

Consider this passage from the oral argument by the federal government lawyer:

I'm saying that when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly.

So, for example, you know, recently after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus. I'm not sure and I doubt that the government could mandate those sorts of changes in enforcement or policy, but public officials can call for those changes.

The government can encourage parents to monitor their children's cell phone usage or Internet companies to watch out for child pornography on their platforms even if the Fourth Amendment would prevent the government from doing that directly.

All of those are contexts where the government can persuade a private party to do something that the private party's lawfully entitled to do, and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop ….

A forceful position, I think; and yet note that, when it comes to many Fourth Amendment situations, the analysis may actually be quite different.

Say that you use your rights as a landlord, set forth in a lease, to visit and inspect a tenant's apartment; see evidence that he's committing a crime; and report it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (That may be true even if you have committed some tort or crime, see, e.g., United States v. Phillips (9th Cir. 2022); Burdeau v. McDowell (1921), but often your visit and your looking around may actually be entirely legal.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence from this "private search" can be used against the tenant.

But now say that the police ask you to do this. That inspection may become a search governed by the Fourth Amendment. "[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer's request," then the search will be subject to the constitutional constraints applicable to searches by the government. State v. Tucker (Or. 2000) (applying the Oregon Constitution's Fourth Amendment analogue) (police request to tow truck driver to search items in car being towed), followed by State v. Lien (Or. 2019) (police request to trash company to pick up a person's trash in a particular way that would facilitate its being searched); see also United States v. Gregory (E.D. Ky. 2020) (similar fact pattern to Lien). "Police officers may not avoid the requirements of the Fourth Amendment by inducing, coercing, promoting, or encouraging private parties to perform searches they would not otherwise perform." George v. Edholm (9th Cir. 2014) (police request to doctor to do a rectal search) (emphasis added); see also United States v. Ziegler (9th Cir. 2007) (police request to employer to search employee's work computer).

Likewise, "In the Fifth Amendment context, courts have held that the government might violate a defendant's rights by coercing or encouraging a private party to extract a confession from a criminal defendant." United States v. Folad (6th Cir. 2017) (emphasis added); see also United States v. Garlock (8th Cir. 1994). More broadly—and here we come to precedents that were indeed raised in the Murthy oral argument—the Supreme Court held in Blum v. Yaretsky (1982), a Due Process Clause case, that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." And in Norwood v. Harrison (1973), an Equal Protection Clause case, it viewed it as "axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."

To be sure, the inducement, and encouragement, and promotion in Norwood involved the provision of tangible benefits (there, textbooks given to racially segregated schools, alongside other schools) and not just verbal encouragement. By itself, the line in Norwood may thus not carry much weight. But the Fourth Amendment cases in which government-encouraged or government-requested private searches became subject to the Fourth Amendment did involve just verbal encouragement.

Again, I'm not sure what to make all this. Perhaps the government's trying to persuade private landlords to engage in searches should indeed be viewed as government action that potentially violates the Fourth Amendment, and the government's trying to persuade private platforms to restrict user speech should not be viewed as government action that potentially violates the First Amendment. But since the Fourth Amendment came up in the argument, I thought I'd note again this potential analogy.

The post The First Amendment, the Fourth Amendment, and Substantial Encouragement appeared first on Reason.com.

Among other things, as Justices Kavanaugh and Kagan suggested, the government likely ought to be free to, for instance, call up an editor to ask the editor not to run a story (or publish an op-ed) that the government thinks might interfere with some investigation, or be unfair, or simply be inaccurate, so long as this is understood as a request and not a coercive demand. I tentatively think that has to be right; and the challengers to the law didn't seem to have much of a response.

On the other hand, the discussion (including Justice Kagan's example of the government asking platforms to remove pro-terrorist speech, even when it's constitutionally protected) crystallized one thing that's troubling me and I expect some others.

Say the government thinks some speech is dangerous in various ways. It might be pro-terrorist, anti-Semitic (an example given by the government's lawyer in the argument), skeptical of vaccine reliability, anti-war, unpatriotic, sharply critical of the police, and so on. The government recognizes that it can't criminalize the speech. But, it says, at least it can deplatform it from the government's own property. It therefore blocks such speech from the mails. It blocks people from engaging in such speech from government-owned parks and sidewalks. It blocks them from engaging in such speech from forums that it has opened up for private speech, such as meeting rooms in public libraries, or student group events in public university classrooms. More generally, it tries to pervasively stop private citizens from expressing such speech on government property.

Clearly unconstitutional, the Court's doctrine has said. Even on the government's own property (and even setting aside "traditional public forums" such as parks and sidewalks), the government can't exclude speech based on viewpoint. To quote Justice Thurgood Marshall in an early government property case,

[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control.

And, as to viewpoint control, the Court has extended that even to property such as K-12 classrooms, when opened for public use after hours. Indeed, this recognition that the government may not suppress viewpoints it dislikes even on its own property (once it has opened it up for public access) has been seen as one of the signal achievements of the liberal wing of the Supreme Court.

Yet now much private speech has moved off government property and onto "the modern public square" of social media. The mails are less important than ever before, I think. Many people spend little time on public parks and sidewalks, where they can see the traditional streetcorner speaker.

So the federal government, constitutionally disabled from restricting viewpoints on this sort of property, is claiming the right to engage in a systemic campaign of encouraging private entities to suppress those viewpoints from being expressed on those entities' property. "Sure, we have tolerate offensive viewpoints on our property, which isn't that important for public debate any more," the government seems to be saying. "But it's fine for us to set up a system that uses all our persuasive power to get private property owners to ban those viewpoints from their property, which is much more important for public debate."

Now maybe this is defensible: Maybe there is a sharp First Amendment divide between government acting to block certain viewpoints from being discussed on its own property and government merely persuading private parties to block those same viewpoints from being discussed on their property. Or maybe this power to persuade private parties to block speech is actually a necessary feature of our system of public discourse: Maybe we can afford to protect evil and dangerous speech from government suppression only because we can expect private institutions to suppress it (including with the government's help). Or maybe there's just no administrable way of distinguishing proper attempts to persuade entities not to publish or display certain material from improper ones.

But this situation—government lacking power to restrict viewpoints on its own property but at the same time systematically working with the platforms to have those viewpoints restricted on their property—does give me pause. And it might be what led the Fifth Circuit Missouri v. Biden panel to condemn such encouragement, when done as part of a system; here is an example from a passage where the court found unconstitutional encouragement of restriction even having expressly found absence of coercion:

Ultimately, the CDC was entangled in the platforms' decision-making processes…. [T]he platforms' decisions were not made by independent standards, but instead were marred by modification from CDC officials. Thus, the resulting content moderation, "while not compelled by the state, was so significantly encouraged, both overtly and covertly" by CDC officials that those decisions "must in law be deemed to be that of the state."

In any event, I'm still not positive what the right approach ought to be. As I noted, it seems to me that a majority of the Justices was skeptical of any prohibition on the government noncoercively encouraging private parties to restrict speech. Perhaps that skepticism is warranted. But I just wanted to flag what strikes me as one structural argument cutting against that skepticism.

Note that I'm Counsel of Record in NRA v. Vullo, which the ACLU's David Cole argued right after Murthy. But though Murthy and Vullo share one issue—the coercion question—this post is solely limited to the "substantial encouragement" facet of Murthy, which is not present in Vullo.

The post <i>Murthy v. Missouri</i> and Government Urging Platforms to Restrict Speech appeared first on Reason.com.

From B.B. v. Capistrano Unified School Dist. (C.D. Cal.), decided last month but just posted on Westlaw:

When B.B. was in first grade, she made a drawing (the "Drawing") that included the phrase "Black Lives Mater [sic]" printed in black marker. Beneath that sentence, B.B. added "any life," in a lighter color marker. B.B. gave the Drawing to a classmate, M.C., who took it home. When M.C.'s mother saw the Drawing, she emailed the school, stating that she would not "tolerate any more messages given to [M.C.] at school because of her skin color" and that she "trust[ed]" the school would address the issue.

Later that day, the school's principal, Becerra, approached B.B. at recess. Becerra told B.B. that the Drawing was "inappropriate" and "racist," and that she was not allowed to draw anymore. {At the hearing, the parties disputed whether B.B. testified that Becerra told her the Drawing was racist. Although B.B.'s deposition is unclear, the Court must construe her testimony in the light most favorable to B.B.} He also instructed B.B. to apologize to M.C., which B.B. did twice.

When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks. The teachers did not tell B.B. the reason she could not play at recess, and there is no direct evidence that Becerra directed B.B.'s teachers to punish B.B. in this way….

Plaintiff [B.B.'s mother] argues that Becerra's response to the Drawing—compelling her to apologize to M.C., prohibiting her from drawing other pictures for her friends, and preventing B.B. from playing at recess for two weeks—violates her First Amendment right to free speech. However, this schoolyard dispute, like most, is not of constitutional proportions.

Although students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," their rights are "not automatically coextensive with the rights of adults in other settings." For school children, the First Amendment must be "applied in light of the special characteristics of the school environment." Because educators best understand those special characteristics, courts give "educators substantial deference as to what speech is appropriate." "[T]he determination of what manner of speech is inappropriate" at school "properly rests with the school board, rather than with the federal courts." …

"Under Tinker [v. Des Moines Indep. School Dist. (1969)], schools may restrict speech that 'might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities' or that collides 'with the rights of other students to be secure and let alone.'"

Much of the caselaw applying Tinker focuses on its "substantial disruption" prong. As a result, "[t]he precise scope of Tinker's 'interference with the rights of others' language is unclear." However, the cases reveal three principles that help identify when speech unduly infringes on the rights of other students such that it is not protected under the First Amendment.

First, where speech is directed at a "particularly vulnerable" student based on a "core identifying characteristic," such as race, sex, religion, or sexual orientation, educators have greater leeway to regulate it. Although speech that is "merely offensive to others" cannot be regulated, courts have recognized that denigrations based on protected characteristics do more than offend—they can inflict lasting psychological harm and interfere with the target student's opportunity to learn. These types of denigrations, moreover, have little countervailing benefit to the learning environment. Derogatory speech is therefore "not the conduct and speech that our educational system is required to tolerate, as schools attempt to educate students about 'habits and manners of civility' or the 'fundamental values necessary to the maintenance of a democratic political system.'" Thus, "[w]hatever the outer boundary of Tinker's interference inquiry," the case law "establish[es] that students have the right to be free" from speech that "denigrate[s] their race" while at school.

Second, the mere fact that speech touches upon a politically controversial topic is not sufficient to bring it under the First Amendment's protective umbrella. In Harper, for instance, the district court denied a preliminary injunction brought by a student who was told that he could not wear a homophobic shirt to school. The Ninth Circuit affirmed the district court despite the "political disagreement regarding homosexuality" that existed at the time. At the same time, however, school administrators must have a justification above the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint" before they may regulate student speech.

Third, and most pertinent for the present case, age is an important factor when deciding whether speech is protected. In Tinker, the Court held that a high school could not ban students from wearing black arm bands that signaled opposition to the Vietnam War. The Court emphasized that denying students this type of expression—which neither interfered with the school environment nor intruded on other students' rights—may coerce political orthodoxy and "strangle the free mind" of high school students. An elementary school, by contrast, is not a "marketplace of ideas." Thus, the downsides of regulating speech there is not as significant as it is in high schools, where students are approaching voting age and controversial speech could spark conducive conversation. As the Seventh Circuit has recognized, elementary schools "are more about learning to sit still and be polite, rather than robust debate." To fulfill that mission, elementary schools require significant latitude to discipline student speech. Indeed, "much—perhaps most—of the speech that is protected in high grades" may be regulated in elementary schools.

"The targeted student's age is also relevant to the analysis." Younger students may be more sensitive than older students, so their educational experience may be more affected when they receive messages based on a protected characteristic. Relatedly, first graders are impressionable. If other students join in on the insults, the disruption could metastasize, affecting the learning opportunities of even more students….

Giving great weight to the fact that the students involved were in first grade, the Court concludes that the Drawing is not protected by the First Amendment. B.B. gave the Drawing to M.C., a student of color. The Drawing included a phrase similar to "All Lives Matter," a sentence with an inclusive denotation but one that is widely perceived as racially insensitive and belittling when directed at people of color. Indeed, M.C.'s mother testified that those kinds of messages "hurt." Soon after discovering the Drawing in M.C.'s backpack, M.C.'s mother emailed the school, and stated that she believed her daughter received the Drawing because of her race. Based on this email and the content of the Drawing, Becerra concluded that the Drawing interfered with the right of M.C., a first grader, "to be let alone."

{The phrase "All Lives Matter" gained popularity in response to the growth of the Black Lives Matter movement ("BLM"), a social movement protesting violence against Black individuals and communities, with a focus on police brutality. "All Lives Matter" can be seen as an offensive response to BLM because that phrase obscures "the fact that [B]lack people have not yet been included in the idea of 'all lives.'"}

Undoubtedly, B.B.'s intentions were innocent. B.B. testified that she gifted the Drawing to M.C. to make her feel comfortable after her class learned about Martin Luther King Jr. But Tinker does not focus on the speaker's intentions. Rather, it examines the effects of speech on the learning environment and other students, giving deference to school officials' assessments about what speech is acceptable in an educational setting. Such deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder. Teachers are far better equipped than federal courts at identifying when speech crosses the line from harmless schoolyard banter to impermissible harassment. Here, Becerra concluded that the Drawing, although well-intentioned, fell on the latter side of that line.

A parent might second-guess Becerra's conclusion, but his decision to discipline B.B. belongs to him, not the federal courts. Elementary schoolteachers make thousands of disciplinary decisions on American playgrounds every day. Federal court review of all these decisions would unduly interfere with school administration and overwhelm the judiciary. Regardless of whether Becerra was right or wrong, the decision is his, and this schoolyard dispute—like most—does not warrant federal court intervention.

This seems to me unconstitutional, even in first grade. One can debate whether the First Amendment should apply to disciplinary decisions by K-12 schools (Justice Black, back in his day, argued it shouldn't, and so has Justice Thomas more recently); one can likewise debate whether it applies in the lowest grades. But the courts have not so held, and the premise of this particular court opinion seems to be that some first-grader speech, if approved of by a federal court, would indeed be protected. (The standards courts have set, which is that speech can be punished if it "materially disrupts classwork," sets a much higher bar that seems to be shown here.)

Rather, the court's view here seems to be that this viewpoint—simply because it "can be seen" as dissenting from what some see as the only proper response to racial problems—is stripped of First Amendment protection. The "Black Lives Matter" slogan is accepted as the one orthodoxy, and any perceived dissent from the view that black lives should be specially stressed in this context can be forbidden. Seems quite inconsistent with the Court's conclusion that "In our system, state-operated schools may not be enclaves of totalitarianism."

The post "Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade appeared first on Reason.com.

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On Monday, the Supreme Court held oral argument in Murthy v. Missouri, a case in which the states of Missouri and Louisiana,  and several private plaintiffs argue that the Biden Administration pressured social media firms into taking down posts they deemed to be "misinformation." Most of the justices emphasized that at at least some degree of coercion is required before courts can intervene to block the government's actions in such a case.

If government officials are merely resorting to persuasion, however vehement, that doesn't by itself violate the First Amendment. Indeed, such suasion is is normal behavior for public officials. As Justice Brett Kavanaugh put it, "my experience is[that] the United States, in all its manifestations, has regular communications with the media to talk about things they don't like or don't want to see or are complaining about factual inaccuracies." Kavanaugh was likely referring to his service as a White House official in the George W. Bush Administration.  Justice Elena Kagan, also a former White House official, made a similar point:

[L]ike Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech. You just wrote about editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.

Cynics might argue that Kavanaugh and Kagan are biased by their own experience in government service. But this distinction between suasion and coercion is inherent in the text of the First Amendment. The Free Speech Clause doesn't restrict any and all government efforts to constrain speech. Rather it, bars government actions "abridging the freedom of speech" (emphasis added). If the state—or anyone—persuades a private entity to cut back on speech voluntarily, the freedom of speech has not been abridged, even if the total amount of speech may be reduced.

Louisiana Solicitor General Benjamin Aguinaga, arguing for the plaintiff states, suggested things are different in the case of social media firms, because here the government is urging them to cut back on the speech of "third parties" (users of their websites) rather than their own. But that's no different than if a government official I criticize on this blog contacts Reason and urges them to stop allowing me to post on its site because (they claim) my critiques of government policy are inaccurate and unfair. As long as there is no coercion, neither my freedom of speech nor Reason's would have been violated if Reason decides to bar me from the site. I only have a right to post here in so far as Reason lets me, and barring me (should they choose to do so) would be an exercise of their freedom speech.

This still leaves the question of whether various federal agencies did in fact coerce social media sites into barring speakers from their sites. As I wrote in a post about the Fifth Circuit decision the Court is reviewing here, I think the answer is likely "yes." But I admit there can be some difficult factual issues in cases like this. Clever officials my rely on veiled threats rather than open ones. Context is critical in assessing such situations.

Importantly, the Fifth Circuit found that officials did in fact threaten to punish social media firms that refused their demands:

[T]he officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms' best interests to comply. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."

That sure seems like coercion to me! Importantly, the people making these statements were officials whose superiors had the power to carry out at least some of these veiled threats. The evidentiary and interpretive issues here are—as noted in my previous post—similar to those that sometimes arise when organized crime organizations, like the Mafia, engage in extortion or protection rackets:

It's noteworthy that the record analyzed by the [Fifth Circuit] doesn't seem to include any examples of direct, unequivocal threats, such "If you don't take down X, I will inflict punishment Y." But as the court recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because "that's one of the easy, low-bar things you can do to make people like me and the Don happy," the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material.

If it is indeed true that government officials "threatened…. to retaliate against inaction," then the Supreme Court should uphold the Fifth Circuit injunction against the defendant agencies, at least in so far as that injunction bars coercive pressure. As discussed in my previous post, I am far less convinced that the Fifth Circuit acted appropriately in also enjoining "significant encouragement" defined as "a governmental actor exercis[ing] active, meaningful control over the private party's decision." If the private party gave the governmental actor such control voluntarily, that may be bad media ethics, but it is not a violation of freedom of speech.

For those keeping score, my position here is exactly the same as in the Texas and Florida social media law cases argued before the Supreme Court last month. There, social media firms urged the Court to strike down state laws requiring them to host speech the firms object to. These laws clearly qualify as government coercion, and should be struck down. On the other hand, if Texas and Florida officials had merely sought to persuade Facebook and Twitter to host various types of right-wing speech voluntarily, there would be no violation of the First Amendment there either.

In sum, the First Amendment bars government from coercing social media firms to either post speech the firms object to (as Texas and Florida seek to do) or take down speech the firms would like to allow (as various federal agencies apparently did). On the other hand, both federal and state officials have every right to urge firms to put up or take down posts voluntarily.

Much of Monday's oral argument was devoted to questions of whether the plaintiffs had standing. My impression is that the justices could potentially go either way on that question, though I myself think at least some of the plaintiffs do have standing (because their speech on social media got restricted in response to coercive pressure brought to bear by government agencies). If the Court rules the private plaintiffs lack standing, it may be tough sledding for the state governments, as the Supreme Court has not been very friendly to creative state standing claims in recent years. I will leave the details of these standing issues to other commentators.

If the Court reaches the merits, I hope they make clear that coercion is the appropriate standard, but also that veiled, but credible threats of retaliation by government officials qualify as such coercion.

UPDATE: In the original version of this post, I accidentally attributed a statement by Justice Elena Kagan to Justice Ketanji Brown Jackson. I apologize for the mistake, which has now been corrected.

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This post will first summarize the amicus brief, and then provide the procedural background, which is detailed in the Bianchi plaintiffs' cert. petition.

The facts about the banned rifles

As detailed in the amicus brief, the semiautomatic rifles banned by the Maryland General Assembly fire only one shot each time the trigger is pressed. This is the same rate of fire as the most common semiautomatic handguns, such as those made by Glock, Smith & Wesson, or Ruger.

The claim by gun prohibition advocates that such guns fire 300 to 500 times per minute has no basis in fact, and is contrary to common sense. It would take a superhuman trigger finger pull a trigger at the rate of 5 to 8 times per second, let alone do so for a full minute.

Nor are the banned rifles, including those based on the AR-15 platform, more powerful than nonbanned rifles. To the contrary, their standard ammunition is .223 inch or 5.56mm bullets that are small compared to most other rifle ammunition. Accordingly, their kinetic energy is lower.

Because the banned rifles are more powerful than handguns, but less powerful than most other rifles, the relatively low wounding power of this ammunition has been confirmed by decades of study by the US Army's Ballistic Research Laboratory.

Moreover, as documented in police training manuals, the banned rifles are the safest for defensive use within buildings, because their ammunition is especially unlikely to penetrate a wall.

The deadliest firearms in mass shootings are handguns. Researchers led by Dr. Babak Sarani, founder and chief of the Center for Trauma and Critical Care at George Washington University Hospital, examined the relationship between the type of firearm used, wounding characteristics, and probability of death in mass shootings. Babak Sarani, et al., Wounding Patterns Based on Firearm Type in Civilian Public Mass Shootings in the United States, 228 J. Amer. College Surgeons 228 (Mar. 2019). They studied firearm types and autopsy reports for 232 victims from 23 mass shootings, including high-casualty shootings with "assault weapons" at Orlando and Las Vegas.

Surprisingly, the researchers found that mass shootings with handguns are more lethal than those with rifles because handguns result in more wounds per victim and more injuries to vital organs. Id. at 228-29, 232-33. "All of us were shocked," Dr. Sarani said. "We came to the table with our bias that an assault weapon would be worse." Carolyn Crist, Handguns More Lethal Than Rifles in Mass Shootings, Reuters (Dec. 31, 2018).

Law enforcement perspectives

Because the banned rifles are relatively low-powered, their recoil is lower, and hence they are more accurate. Additionally, the rifles are replete with features (outlawed by Maryland) that enhance accuracy.

For example, a telescoping stock can adjust for a precise fit to the user's size. The customizable forward grip provides stability. Surrounding the barrel are rails (sometimes called the handguard or forend) that make it easy to add optics, such as scopes, red dots, and/or flashlights – all for greater accuracy.

So it is no wonder that these semiautomatic rifles are very commonly chosen by law enforcement officers to carry in their patrol cars. Law enforcement officers choose their patrol rifles for only one purpose: lawful defense of self and others. It is preposterous for a legislature to claim (falsely) that these rifles are "weapons of war," are useless for self-defense, and are made only for mass killing. This is a libel against law-abiding law enforcement officers.

Prudently, American citizens have always looked to law enforcement for guidance in choosing defensive firearms, because law enforcement firearms are selected with care. Officers choose their duty arms for one purpose: lawful defense of self and others.

The most important reason why citizens often do and should copy law enforcement officers' firearms selections is to ensure that citizens will have reliable firearms for defense. Officers' arms are well-suited for defense against violent criminals; and they are appropriate for use in civil society.

Law enforcement officers are not soldiers wielding weapons of war, and their interactions with citizens are not governed by rules of engagement for the battlefield. The challenged statute implicitly denigrates peace officers by treating them like an occupying army. Such negative attitudes make the public less willing to cooperate with law enforcement and damage community relations.

Procedural background

In 2013, the Maryland General Assembly enacted a sweeping ban on many semiautomatic rifles, particularly targeting those that are most useful for lawful defense of self and others. The ban was promptly challenged in Kolbe v. Hogan, a case which went through the complete discovery process.

At the time, the Fourth Circuit Court of Appeals, like most but not all other Circuits, evaluated Second Amendment cases under a "Two-Part Test," which was similar to the three tiers of scrutiny that had been used for free speech and equal protection cases. The district court applied a weak form of intermediate scrutiny and upheld the ban. Kolbe v. O'Malley, 42 F. Supp. 3d 768 (D. Md. 2014). Then, a three-judge panel of the Fourth Circuit held that—because the statute banned many common arms—strict scrutiny was the proper standard. Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016)

Before the remanded case could be decided the the District Court, the Fourth Circuit took the case en banc, and the majority ruled hat the banned arms are not even covered by the Second Amendment. By the en banc majority's theory, lightly premised on a tendentious reading of the Supreme Court's District of Columbia v. Heller, arms that are mainly suitable for military use are not part of the Second Amendment. Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017).

The majority rationale was out of touch with current facts, since no military in the world uses semiautomatic-only rifles. The U.S. military and others choose service rifles that are capable of automatic fire. More fundamentally, the Kolbe majority rationale would deny Second Amendment protection to the very arms with which Americans won their War of Independence—namely the personally-owned muskets and rifles that American Patriots brought to service, because those were the arms that the States and the colonies had specified by statute were the best arms for the militia.

When plaintiffs petitioned for certiorari, Randy Barnett, Ilya Shapiro, Joseph Greenlee, and I wrote an amicus brief on behalf of the National Sheriffs' Association and other organizations. Certiorari was denied in 2017. At the time, the Supreme Court was refusing to take almost any case involving the Second Amendment. (The only notable exception was Caetono v. Massachusetts, a 2016 challenge to the now-defunct Massachusetts ban on electric stun guns.)

A new case, challenging only the gun ban (and not other 2013 items, such as a magazine ban) was filed in 2020. The District Court quickly dismissed the case based on Kolbe, and a Fourth Circuit panel tersely affirmed. Plaintiffs petitioned for certiorari.

A few days after the Supreme Court decided New York State Rifle & Pistol Association v. Bruen, the Court granted, vacated, and remanded three cases for reconsideration in light of Bruen. One of them was the Maryland firearms ban case, now known as Bianchi v. Frosh. 142 S. Ct. 2898, 2899 (Mem.) (2022). (The other two cases were magazine bans from the Third and Ninth Circuits.)

The June 2022 remand led to oral argument before a three-judge Fourth Circuit panel in December 2022. The panel took over a year to write an opinion. Then, while the draft opinion was presumably being circulated among the Circuit's other judges, the Fourth Circuit sua sponte took the case away from the panel, and in January 2024 took the case en banc. The iron rule of Fourth Circuit jurisprudence has always been that no decision in support of a Second Amendment plaintiff can survive the process of appellate review. See Kopel, Data Indicate Second Amendment Underenforcement, 68 Duke Law Journal Online 79 (2018) (also noting same problem in Second and Ninth Circuits).

The Bianchi plaintiffs, represented by David Thompson of the D.C. constitutional litigation boutique Cooper & Kirk, petitioned for certiorari before judgement. They argued that the Fourth Circuit's dilatory procedures are an obvious attempt to evade Supreme Court precedent, which clearly dictates a ruling against the Maryland ban.

Perhaps as result of the cert. petition, the Fourth Circuit has scheduled a prompt en banc oral argument, on March 20.

Shortly after the Bianchi petition for certiorari before final judgement was filed, similar petitions were filed for several cases involving an especially draconian gun ban enacted in Illinois in 2023. The results in the district courts on preliminary injunction motions had been mixed, and the Seventh Circuit considered them all together. In Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023), a three-judge panel led by Judge Easterbrook relied on Kolbe, and held that the banning of a vast number of common firearms had nothing to do with the Second Amendment. In his view, the Second Amendment does not apply to arms "reserved to the military."

Judge Easterbrook's opinion would have been doctrinally solid if he had been interpreting the Mexican Constitution's right to arms, which states:

Article 10. The inhabitants of the United Mexican States have a right to arms in their homes, for security and legitimate defense, with the exception of arms prohibited by federal law and those reserved for the exclusive use of the Army, Navy, Air Force, and National Guard. Federal law will determine the cases, conditions, requirements, and places in which the carrying of arms will be authorized to the inhabitants.

See Kopel, Mexico's Gun Control Laws: A Model for the United States? 18 Texas Review of Law & Politics 27 (2013). But even if the U.S. constitutional right to arms had copied Mexico's, Judge Easterbrook still would have been wrong on the facts, because the arms banned in Illinois are not used by the U.S. military. And despite what Judge Easterbrook claimed, the banned firearms do not function like machine guns.

The post Law Enforcement Trainers File Scotus Amicus Brief against Maryland Rifle Ban appeared first on Reason.com.

In the presentation, I distinguish between Westerners who like and admire Putin's regime from those I call "anti-anti-Putinists," a term inspired by Cold War-era anti-anti-communists. I also explain why Cold War-era Western sympathizers with the Soviet Union were overwhelmingly on the political left, while Putin's Western supporters are mostly on the political right. Whereas the USSR's appeal was tied to that of egalitarian socialism and communism Putin's Russia promotes nationalism and social conservatism. Finally, I discuss the relative strengths and weaknesses of Putin's regime in the international war of ideas, and what can be done to counter it. Some of the points made relate to issues addressed in my recent National Affairs article, "The Case Against Nationalism" (coauthored with Alex Nowrasteh).

Here's the video:

The post Video of Marshall University Online Talk on "Putin's Western Supporters" appeared first on Reason.com.

After a week-long trial, a North Carolina jury found that Novant Health, Inc. terminated David Duvall because of his race, sex, or both, in violation of Title VII of the Civil Rights Act of 1964. In addition to the finding of liability, the jury awarded Duvall $10 million in punitive damages [reduced to the statutory maximum of $300,000].

The court summarized the facts, as usual in this situation, in light most favorable to the verdict:

Duvall, a white man, began working for Novant Health in 2013, when Executive Vice President and Chief Consumer Officer Jesse Cureton, a black man, hired him as Senior Vice President of Marketing and Communications. Based in North Carolina, Duvall reported directly to Cureton and held the same position throughout his employment with Novant Health. Evidence presented at trial demonstrated that Duvall performed exceptionally in his role, receiving strong performance reviews and gaining national recognition for himself and the marketing program he developed for Novant Health.

Despite all that, Cureton fired Duvall in July 2018, a decision that came as a shock to both Duvall and his colleagues. Moreover, Novant Health—a multibillion-dollar company with tens of thousands of employees and an extensive human resources department—had no record of any documented criticism of Duvall's performance or reasons for his termination.

Immediately after firing Duvall, Novant Health elevated two of Duvall's deputies, a white woman and a black woman, to take over his duties. It then later hired another black woman to permanently replace Duvall.

Believing Novant Health fired him merely to achieve racial and gender diversity—or more specifically, to hit certain diversity "targets"—within its leadership, Duvall sued his former employer under Title VII and North Carolina state law in federal district court….

The court concluded there was sufficient evidence to support the jury verdict:

To begin, Duvall presented evidence about the context surrounding his termination. The jury heard that Duvall was fired in the middle of a widescale D&I initiative at Novant Health, which sought to "embed diversity and inclusion throughout" the company, and to ensure that its overall workforce, including its leadership, "reflect[ed] the communities [it] serve[d]." There was evidence presented that Novant Health endeavored to accomplish this goal by, among other things, benchmarking its then-current D&I levels and developing and employing D&I metrics; committing to "adding additional dimensions of diversity to the executive and senior leadership teams" and incorporating "a system wide decision making process that includes a diversity and inclusion lens"; and evaluating the success of its efforts and identifying and closing any remaining diversity gaps.

The jury also heard about the demographic data from 2015 and 2017 that Novant Health collected. From a factual standpoint, the data revealed a decline in female leaders and an overrepresentation of male and white leadership in comparison to the total workforce. It also showed an increase in white male representation "with each level of management," compared to a decrease in "African-American representation … at each level [of management] with the exception of the executive team." By 2019, however, Novant Health saw a dramatic increase in female leaders just from the year prior (the period in which Duvall was fired). It also reflected a decrease of white workers and leaders and an increase in black workers and leaders over the life of the D&I Plan. Additionally, after remaining gaps in the Hispanic and Asian workforce were identified, Novant Health adopted a long-term financial incentive plan that tied executive bonuses to closing those gaps by achieving a specific percentage of each group.

Against that backdrop, we consider the evidence specific to Duvall and his termination.

As noted above, there was substantial evidence at trial that Duvall performed superbly in his role at Novant Health…. But despite this evidence of his exceptional performance, the jury heard that Duvall was abruptly fired, having been told only that Novant Health was "going in a different direction." … Finally, the jury heard Cureton offer shifting, conflicting, and unsubstantiated explanations for Duvall's termination. [Details omitted, but can be seen in the full opinion. -EV] …

{To be clear, employers may, if they so choose, utilize D&I-type programs. What they cannot do is take adverse employment actions against employees based on their race or gender to implement such a program. And as recounted above, the evidence presented at trial in this case was more than sufficient for a reasonable jury to conclude that is precisely what Novant Health did to Duvall.}

But the court set aside the award of punitive damages, because such damages were available "only in limited circumstances:"

Title VII authorizes punitive damages only when a plaintiff makes two showings. First, the plaintiff must show that the employer engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact). Second, the plaintiff must show that the employer engaged in the discriminatory practice with malice or with reckless indifference to the federally protected rights of an aggrieved individual. That is, an employer must at least discriminate in the face of a perceived risk that its actions will violate federal law.

And, the court held, plaintiff introduced no "affirmative evidence" that the employer actually "perceived [the] risk" that its actions were illegal: Duvall "offered no evidence as to the training or qualification that Novant Health offered to or required of Cureton, or a comparable executive, to establish the requisite knowledge of federal anti-discrimination law. Duvall even cross-examined Cureton yet never elicited from him testimony establishing his personal knowledge of federal anti-discrimination law, let alone that he perceived a risk that his decision to fire Duvall would violate it." And the "inference that Cureton had the requisite knowledge given his career as a corporate executive" was insufficient.

The post Employers May Not "Take Adverse Employment Actions … Based on [Employees'] Race or Gender to Implement" "Diversity and Inclusion" Programs appeared first on Reason.com.

Plaintiffs Aaron Kirk, who is black, and Amy Kirk, who is white, are a married couple who reside in a predominantly white neighborhood in Duluth, Minnesota. The Kirks allege that, beginning in 2007 and continuing for many years thereafter, they were subjected to a campaign of racist harassment from two of their neighbors (who lived with each other). Specifically, the neighbors repeatedly made false and unfounded complaints about the Kirks to the Duluth Police Department, subjecting the Kirks (and sometimes their children) to over 100 interactions with the police. On every occasion, the responding officers found the complaints to be unfounded.

The neighbors' complaints ran the gamut from frivolous to serious, including complaints that the Kirks' daughter was drawing on the sidewalk with chalk; that the Kirks' dog (a small Schnauzer) was aggressive and made too much noise; that the Kirks were running a methamphetamine lab; that Aaron Kirk was abusing his child; that Aaron Kirk was "slamming doors" and making noise inside his own home; and that Aaron Kirk was planning to steal roofing materials that the neighbors' contractor had left outdoors. On one occasion, one of the neighbors called Aaron Kirk "nigger" and threatened to call the Ku Klux Klan. The same neighbor twice told police that she was going to shoot the Kirks' dog.

According to the complaint, the "most recent[ ]" incident—an incident that did not involve the neighbors—occurred in July 2020. Aaron Kirk was driving on a Duluth street when defendant Dustin Turcotte cut him off. Kirk sounded his horn, and Turcotte responded by, among other things, repeatedly calling Kirk "nigger," following Kirk first to a restaurant and then to a bank, blocking Kirk's car in the restaurant parking lot, and repeatedly threatening to beat Kirk with brass knuckles.

Turcotte fled after a squad car arrived while the two were outside the bank. Kirk reported Turcotte's conduct to the responding officer, Sara Schutte, who then walked away from Kirk and began speaking to a third-party witness. Kirk left the scene, but officers later showed up at his home and arrested him for fleeing a police officer. While transporting Kirk to jail, Schutte remarked to Kirk: "I could have let you go, but you were being an asshole so I'm taking you to jail." Schutte eventually cited Kirk for disorderly conduct, obstructing the legal process, and reckless driving. Kirk remained in jail for four days; all charges were eventually dropped.

Lawsuits against the government for failing to protect people from private misconduct are very hard to win, and indeed the failure-to-protect claims were thrown out here, because plaintiffs didn't plausibly allege that the city was affirmatively involved in the neighbors' misconduct; some of the claims were also outside the statute of limitations. But plaintiffs' discriminatory prosecution claim was allowed to go forward:

[T]he Kirks allege that Schutte violated the Equal Protection Clause by discriminating against Aaron Kirk following the road-rage incident with Turcotte. Defendants argue that this claim fails because the Kirks have failed to identify a similarly situated comparator of a different race. See Mitchell v. Kirchmeier (8th Cir. 2022) ("To prove that the officers who allegedly shot him violated the Equal Protection Clause, Mitchell would need to show that they treated people who were not Native Americans but were otherwise similarly situated to him more favorably than him.").

The Court disagrees. Kirk was ostensibly arrested for fleeing a police officer. But Turcotte himself, who is white, also left the scene. As defendants point out, the complaint does not expressly allege that Turcotte was not arrested, but that is a reasonable inference from the allegations in the complaint. Defendants' motion to dismiss this claim is therefore denied….

The post Racially Discriminatory Enforcement Lawsuit Against Duluth Police Officer Can Go Forward appeared first on Reason.com.

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For decades, people on both sides of the aisle have raised valid complaints about forum shopping in patent and bankruptcy cases. There is not just judge shopping; there is actual judge selling, in which judges invite litigants to file in their courts. This is a real problem that may not garner headlines, but affects far more cases than those brought by the Texas Attorney General. And unlike with constitutional or administrative law challenges, which are reviewed de novo, and can be stayed by higher courts quickly, patent and bankruptcy cases are reviewed with a very deferential standard, and tend to stand.

But the Judicial Conference did not adopt a policy to address this issue on which there is bipartisan consensus. Instead, they adopted a policy with the express intent to clamp down on a practice used on only side of the aisle. These judges were surely aware of the impact of their policy. But they proceeded anyway.

And I've learned this policy was viewed as utterly uncontroversial. The Judicial Conference has two lists–the consent list and the discussion list. Items on the former list are adopted by acclamation without any debate. Items on the latter list are discussed before the vote. The policy on randomized assignments was placed on the consent list. Could it really be that every member of the Judicial Conference thought this issue was so uncontroversial that it didn't even warrant a discussion?

It gets worse. Was the policy adopted at the meeting mandatory or optional? On Tuesday, Judge Sutton told reporters that the policy was mandatory, and would "supersede local standing orders." But by Friday, a memorandum was released suggesting the policy was only optional. What happened? There are two possibilities.

First, the policy, as voted on, was optional, but Judge Sutton completely messed up. Second, the policy as voted on was mandatory, but after the blowback from me and others, they changed course, and the mandate became optional.

The first possibility would cast Judge Sutton in a bad light, but maybe it is unfair to make him the scapegoat. The second possibility, however, would cast the entire Judicial Conference in a bad light. Rather than standing strong behind their policy adopted by acclamation, they cut and ran when negative press came in. I will take some credit here, because, as usual, I shifted the Overton window to set the terms for debate. If everyone fell in line with what my friend Sam Bray wrote, the policy may never have been changed. You're welcome.

In many regards, this episode illustrates much that is wrong with the judiciary. People who become judges care deeply and profoundly what others think about them. Indeed, this approach to careerism is the only way to navigate oneself through the political process to a lifetime appointment. I've written this before, but I'll say it again: anyone who actually wants to be a lifetime judge should be immediately disqualified from holding the position. The problem, of course, is that someone has to hold these positions, and it will be difficult to slot in people who don't actually want the job. At times I favor term limits for the sole purpose of sussing out those who seek this lifetime power.

Will there be any oversight from Congress on this matter? While the courts are generally immune from inquiries about their decisions, their work as an administrative body stands in a very different light. At a minimum, I would be interested to see what sort of research was done on how often nationwide or statewide relief resulted from a single-judge division. Surely such a report was circulated to the judiciary in advance of this non-momentous vote. Or did the committee just vote based on claims from Schumer or Vladeck? I would also be interested to see whether the policy approved on March 12 was mandatory or optional, and whether a change was made in response to public pressure. If the Judicial Conference will operate as a body that responds to political pressure, it should be treated as such.

The post The Priorities of the Judicial Conference of the United States appeared first on Reason.com.

Whatever the merits of such briefs in theory, some have raised questions about their value in practice. In a 2012 Journal of Legal Analysis article, Professor Richard Fallon suggested that too many  professor "compromise their integrity" by joining amicus briefs "too promiscuously." In 2001, Professor Ward Farnsworth reached a similar conclusion, and suggested that law professors "should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." (My co-bloggers Orin Kerr and Ilya Somin also weighed in on some of these questions in 2010.)

As the number of amicus briefs has increased, I suspect the influence such briefs have on the courts has declined—and I suspect this is particularly true for those briefs filed by interest groups (which often file briefs for fundraising or promotional purposes) and large groups of academics. While a brief submitted by a few well-known experts in their field of expertise may well matter, I doubt many judges are impressed by relatively generic submissions filed on behalf of dozens of academics–and with good reason.

In some fields, it is rather common for professors to sign on to just about any academic brief that argues for their preferred outcome, without regard for what arguments are actually made or whether those arguments align with the academic signatories' scholarly views. In some cases professors will sign on even when they know little about the subject matter–such as, say, what a given state's law has to say about a complex matter–and when they have engaged in no independent study of the issue. In still other cases, academics may solicit signatories for briefs sight unseen–and some apparently sign under such conditions. (Indeed, I saw one such solicitation just within the past month.)

If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise. And insofar as some (many?) academics do not adhere to such a principle, it should not surprise us if this lessens the value of such briefs overall, as judges learn to cast aside what are little more than well-formatted policy statements.

In my own case, I have never been willing to sign on to amicus briefs that did not address matters within my expertise and that would satisfy the Farnsworth standard, but I have become even more reluctant to sign such briefs over time. These days, as a general rule, I will not sign a brief unless I helped to write it or had some role in shaping the arguments, unless by serendipity a brief aligns with my previously well-considered views (which may happen if, say, the brief author drew from my published work). It is not that I do not have opinions about how I would like many cases to be decided. It is rather that there is no reason a court should care what I think about a case unless I can say, without hesitation, that I have studied the matter to a degree the judges have not. Is this approach too stingy? Perhaps, but I am inclined to think it is the right one.

From Professor Fallon's 2012 article:

With respect to questions of professional identity, many of today's law professors want to be valued as scholars on a par with professors on faculties of arts and sciences who devote their careers to the sometimes lonely search for truth or honest insight. Yet many also aspire to achieve an immediate influence on public events in ways that few members of faculties of arts and sciences could dream of. In seeking to realize the latter ambition, we law professors may face temptations to tailor our arguments to our audiences, to overstate the strength of the support for our conclusions, and to omit to say what would reduce our impact.

The vocation of a law professor is not exclusively that of a scholar. We can, and should, play multiple roles. In doing so, however, we should remember that when we attempt to influence public matters, we almost inevitably seek to trade on the credibility that we—and our predecessors and colleagues—have earned in the roles of scholar and teacher. Those roles create obligations of responsibility, trustworthiness, and confrontation. If emerging norms in the signing of scholars' briefs betray expectations of scholarly responsibility, trustworthiness, and confrontation that we have sought to promote, or seek to capitalize upon, then we should hold ourselves to higher standards

The post The Ethics of Law Professor Amicus Briefs Revisited appeared first on Reason.com.

Seriously?!  Yes, I am afraid so.

The award has been given annually since 2019 by the Dwight D. Opperman Foundation, and was established to "recognize an extraordinary woman who has exercised a positive and notable influence on society and served as an exemplary role model in both principles and practice." Previous winners were Barbra Streisand, Diane Von Furstenburg, and Queen Elizabeth II.

The Foundation—set up after the death of Mr. Opperman, who was the CEO of West Publishing Company and a Trustee of NYU Law School for many years, as well as a personal friend of the Justice—issued a press release announcing the award that breaks new ground in tone-deafness.  E.g.,

"Justice Ginsburg became an icon by bravely pursuing her own path and prevailing against the odds," said Brendan V. Sullivan, Jr., chair of the RBG Award. "The honorees reflect the integrity and achievement that defined Justice Ginsburg's career and legend." [How, exactly?]

"Regardless of Elon Musk's stratospheric accomplishments, in receiving the first RBG Award for Entrepreneurship, Musk's focus is clear and unwavering: 'Free speech is the foundation of democracy,' Musk said."

"Rupert Murdoch, the most iconic living legend in media, will be bestowed with the Media Mogul RBG Award. Murdoch said: 'This recognition not only reflects my journey in the media and publishing industry but also represents the relentless defense of civil liberties and a commitment to civil discourse that Justice Ginsburg embodied'"

You could come up with a less appropriate list of honorees—but not easily. It is truly unbelievable. Not that the Foundation might want to bestow awards on incredibly rich white guys; as the saying goes, "I was born on a Tuesday, but it wasn't last Tuesday," and I understand how this game works. But that nobody stopped and said "Um, maybe this won't look so great"? Or "Maybe we should go for the only-one-incredibly-rich-white-guy-a-year strategy"?

I know both of RBG's children—record producer James and law professor Jane—and I was wondering how they would react to the news.  Their reaction came over the weekend in a public announcement: "An affront to the memory of our mother" and "an insult to her name and legacy," and a demand that her name be removed from the award.  Sounds right to me.

The post And the RBG Leadership Award Goes To . . . appeared first on Reason.com.

At the Econlib site, political philosophy graduate student and UnPopulist editor Akiva Malamet has two insightful new pieces on the economics and politics of Star Trek.

The first is "Star Trek: Just Short of Utopia." Here's an excerpt:

Star Trek is often seen as utopian science fiction, but a close look shows that the world of the Federation is not as peaceful and inclusive as it first appears. Following Gene Roddenberry's dream of a future society lacking prejudice and focused on inclusion, social and legal equality, and egalitarian post-scarcity economics, Trek is well-known for its strong moral compass and its progressive, even leftist values.

It is a world I appreciate and admire, as a die-hard Trekkie who holds many similar commitments. And yet the United Federation of Planets doesn't truly resolve deep differences and divergent interests among different beings. Rather, it obscures them with cultural uniformity, propounding a quasi secular humanist, even anti-religious philosophy, coupled with a near-complete transcendence of material constraints. This allows the Federation to sidestep the kind of conflicts that real differences, both in beliefs and in material endowments, create. By contrast, the staunchly economic perspective of the Ferengi makes them better able  to cope with hard tradeoffs and ensure genuine respect for diversity, despite their many ethical and social deficiencies. Yet the discussion cannot end there; in the final analysis, we need a synthesis that incorporates the moral ideals of the Federation together with the Ferengi's pragmatism to find a balance of the wisdom embodied in the Star Trek universe.

The second is entitled "Star Trek: Markets on the Edge," and takes a closer look at economic issues in the Trek universe:

In the Federation, most goods and services are produced via replication. The need for production and trade via the division of labour is greatly diminished (though there is demand for luxury artisanal, non-replicated goods….). Thus, the Federation seems to have overcome much of the knowledge problem around satisfying dynamic, subjective preferences and efficiently allocating scarce resources with competing uses. It is an economy of abundance beyond even the dreams of most economists or sci-fi writers. This is coupled with egalitarian values and the self-important assurance that the Federation is populated by virtual saints only interested in self-actualization and universal brotherhood.

By contrast however, outside (and sometimes within!) the Federation's utopian core of planets, people often fight over insufficient replicators, scarce machinery, food, medicine, and other resources. Supply ships are vital for bringing scarce items to distant worlds, and for transporting goods that can't be replicated, such as dilithium and rare medicines….

Notably, while replicators can recreate almost anything, it appears that replicators themselves cannot be easily reproduced. Trek never tells us if creating replicators is costly. Yet it is apparent that replicators cannot be provided easily for all. Contrary to Jean-Luc Picard's assertion that "…the acquisition of wealth is no longer the driving force in our lives" the Federation has not overcome self-interest, greed, or other constraints of human nature. It has simply changed the transaction costs of conflict by exploiting technology that severely reduces scarcity. When scarcity returns, so does conflict over resources.

Job allocation adds further support to the view that the Federation relies on advanced technology more than it does a sci-fi version of the New Soviet Man or Rawlsian ideal theory. It is unclear how the Federation incentivizes people to take on jobs that are less desirable or whose social importance is less well-understood….

As they say, read the whole thing!

I made similar points about Star Trek's treatment of political and economic issues in a 2016 article for Learn Liberty. Like Malamet, I praised the franchise for its commitment to ethnic tolerance and diversity, but also expressed reservations about the Federation's seeming intolerance for ideological diversity:

Star Trek creator Gene Roddenberry stressed the virtues of tolerance and cooperation across racial, ethnic, and national lines. In the original 1960s series, the bridge crew of the Enterprise includes an Asian, a Russian (included at the height of the Cold War), and a black African, at a time when such diversity in casting was unusual. The inclusion of a black female bridge officer was considered such an important breakthrough for racial equality that Martin Luther King persuaded Nichelle Nichols, the actress who played Lt. Uhura, to stay on the show when she was thinking of quitting.

Star Trek also featured the first interracial kiss on an American network TV show, and—in the 1990s—one of the first lesbian kisses.

The Federation… seems to successfully incorporate a wide range of cultures and lifestyles, and offers a combination of material abundance and toleration….

The uncritical acceptance of socialism may be a manifestation of the Federation's more general troubling ideological homogeneity. Especially among the human characters, there seems to be remarkably little disagreement over ideological and religious issues. With one important exception (discussed below), few human characters oppose the official Federation ideology, and those few are generally portrayed as fools, villains, or both.

The Federation is a collection of racially and ethnically diverse people who all think alike, at least when it comes to the big issues. The series' creators likely intended this as an indication of humanity's future convergence toward the "truth." But it is also subject to a more sinister interpretation: just as socialism tends to stifle independent economic initiative, it also undermines independent thought….

Even more than Malamet, I was troubled by Star Trek's largely uncritical embrace of socialism, and relative neglect of the value of economic incentives:

[A]t least from a libertarian perspective, the otherwise appealing ideological vision of Star Trek is compromised by its commitment to socialism.

The Federation isn't just socialist in the hyperbolic sense in which some conservatives like to denounce anyone to the left of them as socialist. It's socialist in the literal sense that the government has near-total control over the economy and the means of production.

Especially by the period portrayed in The Next Generation, the government seems to control all major economic enterprises, and there do not seem to be any significant private businesses controlled by humans in Federation territory. Star Fleet characters, such as Captain Picard, boast that the Federation has no currency and that humans are no longer motivated by material gain and do not engage in capitalist economic transactions…..

The problem here is not just that Star Trek embraces socialism: it's that it does so without giving any serious consideration to the issue. For example, real-world socialist states have almost always resulted in poverty and massive political oppression, piling up body counts in the tens of millions.

But Star Trek gives no hint that this might be a danger, or any explanation of how the Federation avoided it. Unlike on many other issues, where the producers of the series recognize that there are multiple legitimate perspectives on a political issue, they seem almost totally oblivious to the downsides of socialism.

Elsewhere in our respective pieces, Malamet and I both explain why the existence of replicators and other incredibly advanced tech doesn't vitiate the problems associated with socialism. He and I may be the only two commentators to call attention to the importance of the fact that there is no way to replicate a replicator, and therefore these devices turn out to be important scarce goods in the Star Trek universe.

We also both highlight ways in which Deep Space 9—my favorite among the many Star Trek series—takes a more critical view of the Federation than previous movies and series' did, including both its ideological and religious homogeneity, and some aspects of its political economy.

Since I published my piece in 2016, there have been several new Star Trek series, most notably Discovery, Picard, and Strange New Worlds. Malamet largely ignores these new series. But all three take a more critical perspective on the Federation than earlier franchise products have. Discovery and Picard both have severe flaws, sometimes to the point of becoming sprawling, incoherent messes. But Strange New Worlds is much better. It takes a highly critical perspective on on several aspects of Federation ideology and society, most notably its hostility to genetic engineering. I hope to have more to say about it in the future.

Skeptical readers may wonder why we should even care about the politics and economics of a fictional universe. The most obvious answer is because it's fun! I give some additional reasons in this 2011 article, emphasizing that science fiction and other aspects of popular culture can influence the broader political discourse.

The post The Economics and Politics of Star Trek appeared first on Reason.com.

Happy St. Patrick's Day to all who celebrate!

It is, I hope, an appropriate time, to re-up two posts on the Irish-American politics and history:

1. "The Declining Political Significance of Irish-American Identity," Mar. 17, 2023

This post describes how and why the political salience of Irish-American identity has declined enormously over the last century, and what can be learned from that experience. An excerpt:

Today is St. Patrick's Day. And tonight, Irish-Americans across the country will be gathering to toast their control of the highest political office in the land. After all, Joe Biden is only the second Irish Catholic president of the United States. For their part, millions of WASPs are seething about the loss of their political hegemony to the Irish. St. Patrick's Day celebrations are a painful reminder of their humiliation. Police forces in major cities are on alert for possible ethnic riots.

OK, actually nothing like that is happening! In reality, very few Americans care that Biden is an Irish Catholic. Even fewer fear that he is somehow promoting Irish interests at the expense of WASPs….. Political conflict between Irish-Americans and WASPs has almost completely disappeared….

It wasn't always so. In the 19th and early twentieth centuries, political antagonism between Irish and WASPs was ubiquitous, sometimes rising to the level of anti-Irish rioting by nativists. There was also substantial discrimination and social prejudice against the Irish….

How did this change come about? The story is long and complicated… But one crucial factor was that most Americans came to realize that the differences between Irish-Americans and other groups were far less significant than previously thought, and also that these ethnic and religious divergences should be downgraded in the name of universal liberal principles.

2."Are Hispanics Following the Path of the Irish?"Jan. 1, 2024

This post comments on Noah Smith's insightful piece arguing that Hispanics are following the same path of assimilation as Irish-Americans did in earlier generations. I think Smith is largely right, but offer two major caveats.  Here is an excerpt:

Hispanics are by far the largest American immigrant group of the last several decades, and also the focus of the most extensive nativist concerns. Immigration restrictionists contend that Hispanic immigrants increase crime, undermine American political institutions, and cannot or will not assimilate. In a recent post, prominent economic policy commentator Noah Smith compiles evidence that these complaints are largely misplaced, and that Hispanics are in fact following a trajectory similar to that of Irish-Americans in the late-nineteenth and early-twentieth centuries….

Today's fears of supposedly violent and unassimilable Hispanics are remarkably similar to the nineteenth century stereotype of brutish, un-American Irishmen…

In [his]… article, Smith compiles evidence that the concerns about Hispanics are largely false: they are in fact rapidly assimilating, quickly increasing their wealth and income, and have significantly lower crime rates than native-born Americans (a point that applies even to undocumented immigrants). Most of this evidence is well-known to students of immigration policy. But Smith does a valuable service in compiling it in one relatively short and easily accessible piece….

I would, however, note a few relevant caveats to Smith's thesis. First, it is not entirely true that Irish and Hispanic immigrants "were mostly working-class folks who came for mainly economic reasons." In reality, many Hispanic immigrants were and are refugees from oppressive socialist regimes in Cuba, Nicaragua, and (most recently) Venezuela. Some others have fled repression at the hands of right-wing dictatorships….

A second caveat is that Hispanic migrants are a much more diverse lot than the Irish were. They come from a variety of different nations and ethnic groups. This makes generalizations about them more difficult….

Finally, while Irish immigrants arrived in an era when there were few restrictions on European immigration, many Hispanic migrants are undocumented. Today, there are an estimated 7 million or more undocumented Hispanic immigrants in the US, which accounts for some one-third of all foreign-born Hispanics, and over 70% of the total undocumented immigrant population.

For obvious reasons, lack of legal status reduces migrants' incomes and educational opportunities, and impedes assimilation. The existence of this anchor makes Hispanics' progress look even more impressive than it would be otherwise. But, unless immigration policy changes, it is likely to continue to slow down the assimilation process highlighted by Smith.

The post Two Posts on Irish-American Politics and History, and its Lessons for Today appeared first on Reason.com.

We have had something of a test of this debate since 10/7. Hamas is a terrorist theocracy with explicitly genocidal goals. It carried out a taste of those goals on 10/7, and its leaders promised to repeat those atrocities again and again until the "Zionists" were driven from Israel.

So whatever one thinks of Israeli policy, or Israel's eventual response to 10/7, one would think, based on my interlocutors' position, that critics of Israeli policy would nevertheless agree on one thing: Hamas must be deposed, one way or another. There is no plausible two-state solution with Hamas in power; the harsh critics are almost all self-styled progressives, and there is nothing progressive about Hamas's policies toward freedom of religion, LGBTQ rights, women, militarism, antisemitism, and so on, nor its constant theft of humanitarian aid. Hamas's rule in Gaza is essentially every Progressive's worst nightmare.

Yet, ever since at least 10/10, when it became clear that Israel's reaction to Hamas's atrocities was not going to be to capitulate, the harsh critics have been all but unanimous in calling for Israel to essentially surrender ("immediate ceasefire") with Hamas still in power, and have almost to a person not called on Hamas to surrender and abdicate. (And self-styled human rights organizations have felt free to make up human rights law, including contradicting their own past public positions in other conflicts.)

I have to admit that I underestimated the mendacity of these people. As much as I knew that they hated Israel much more than they were concerned with the well-being of Palestinians, I didn't imagine that they would be willing to run interference for, if not outright support, Hamas, certainly not after Hamas put its brutality and genocidal intentions on display for all the world to see. I would have expected something more like "immediate ceasefire, but the world has to work on replacing Hamas with something else."

Of course, there are those who take the latter position, or the Biden position, which is to support Israel but be critical of specific wartime policies and the lack of a long-term plan. But the remarkable thing is that I have yet to see even this position among the harder left: "I wish Hamas would surrender and release the hostages, because that would be good for all sides, but since I don't think it's possible to get Hamas to surrender, I think Israel needs to desist for humanitarian reasons."

Indeed, if you ask prominent folks on X, people who are complaining the loudest about civilian suffering in Gaza, "would you prefer the war go on, or that Hamas release the hostages and surrender," basically no one is willing to say publicly that he or she would prefer Hamas to surrender. Israel losing is more important than ending civilian suffering in Gaza, than any sort of peaceful resolution of the conflict (which obviously requires an end to Hamas rule), than innocent hostages being released, or anything else. If you are a progressive and you find yourself carrying water for a truly reactionary, genocidal organization like Hamas, maybe it's time to do some soul-searching.

The post I've Won an Argument about Israel I Wish I Hadn't appeared first on Reason.com.

The post Today in Supreme Court History: March 17, 1777 appeared first on Reason.com.

The policy is only guidance, and is not binding. The policy does not single out single-judge divisions, but randomly assigns cases throughout the district. The policy does nothing at all to address bankruptcy or patent forum-shopping. The policy does not apply to all injunctive relief–only certain types of state or nationwide relief. Critically, cases that have "implications beyond the parties before the court" would be reassigned. There will have to be litigation about what that standard entails. Moreover, this standard is triggered whenever a new complaint or motion is filed. I can imagine some gamesmanship, as plaintiffs who get a bad draw can seek the requested relief as a guaranteed way to get the case reassigned–even after the initial judge may have invested time and effort into the case.

In short, the policy does nothing to directly reduce the number of nationwide and statewide injunctions. Instead, as Judge Sutton explained, the policy is, at best, an "an elegant solution" to reduce nationwide injunctions. What is that "elegant solution"? The policy deprives certain litigants of the venue of their choice, and reassigns it to a venue not-of-their-choosing, where the desired expansive relief is less likely. Will this policy even work?

It is important to unpack four different scenarios: (1) conservative litigants seeking nationwide relief in red states; (2) liberal litigants seeking nationwide relief in blue states; (3) conservative litigants seeking statewide relief in blue states; (4) liberal litigants seeking statewide relief in red states. Here is the upshot of the policy: it will be harder to obtain the desired relief in scenarios #1, #3, and #4, but the odds of obtaining the desired relief in scenario #2 will be virtually unchanged.

Scenario #1:  Conservative litigants seeking nationwide relief in red states

This scenario gets the most national attention: Texas or Mississippi or Louisiana seeks a nationwide injunction or vacatur of a federal policy in a district court within the Fifth Circuit. Indeed, other red states can get in on the action. After all, Missouri v. Biden is being litigated in Louisiana, even though Missouri is in the Eighth Circuit.. And it is no surprise where these suits are filed: never in Houston, Dallas, Austin, New Orleans, or Jackson. Always in the outposts. And this is no surprise. Historically, divisions with one or two judges are filled with an eye towards strategic litigation. By contrast, Republican appointees in large cities can include more traditional types–the law firm partner, the former state court judge, someone who served as a federal prosecutor, and so on. These judges will have the right judicial temperament, and be reliably conservative, but may be less likely to embrace novel legal theories that arise in strategic litigation cases. Conversely, those willing to relocate to the far-flung corners of the state are likely to be younger, less entrenched in polite society, and more comfortable with cutting-edge legal jurisprudence. This is not a secret. Everyone knows how this process works.

If this policy were adopted in the Northern District of Texas, the Southern District of Texas, and the Western District of Texas, the dynamics would be scrambled–at least in the short term. Instead of a virtual lock to draw a judge who was nominated in large part because of their likely views of strategic litigation, the case will more likely than not be assigned to an urban center. And that urban center will have a mix of Democratic-appointees and more-traditional-Republican appointees.

Let's walk through the numbers. The Northern District of Texas has twelve district judge positions (one of which is vacant), and a handful of senior status judges who draw a reduced caseload. (Here, and elsewhere, I will exclude senior status judges from the reassignment wheel to make the numbers easier.) Of the eleven active district court judges, seven are in Dallas, two are in Fort Worth, one is in Amarillo, and one is Lubbock. If nationwide or statewide relief is sought anywhere in the Northern District of Texas, the most likely reassigned division will be Dallas. At present, of those seven Dallas judges, one is a Clinton appointee, and the other six are appointed by Republican Presidents. And right down the interstate in Fort Worth are two Republican appointees.

The Southern District of Texas has nineteen district court positions (two of which are vacant), and a bunch of senior judges who draw a reduced caseload. Seven are in Houston, two are in Brownsville, two are in Corpus Christi, one is in Galveston, three are in Laredo, and two are in McAllen. If nationwide or statewide relief is sought anywhere in the Southern District of Texas, the most likely reassigned division will be Houston. By my count, Houston has four left-leaning judges and three right-leaning judges.

The Western District of Texas has thirteen district court positions (four of which are vacant), and several senior judges who draw a reduced caseload. There are four in San Antonio, one in Austin, one in Del Rio, one in Midland Pecos, and one in Waco. If nationwide or statewide relief is sought anywhere in the Western District, the most likely reassigned division will be San Antonio. San Antonio has about three left-leaning judges and one right-leaning judge.

On balance, this policy would make it harder for conservative litigants in Texas to obtain nationwide relief. As things are presently constituted, filing in the Northern District of Texas is likely the safest venue. Indeed, to stick it to critics, the Texas AG could simply file in Dallas and spin the wheel of fortune.

I haven't run the numbers yet on Louisiana and Mississippi, but I suspect there would be a similar dynamic, with most cases being filtered to urban areas, where the judges–on balance–lean center-left.

Scenario #2:  Liberal litigants seeking nationwide relief in blue states

Now, let's return to everyone's favorite district, the Northern District of California. There are three divisions: San Francisco, Oakland, and San Jose. Granted, Bay Area traffic is dreadful, but is easy enough to travel between these posts–even by public transit. Compare that to the 9 hour drive from El Paso to Waco, which are both in the Western District of Texas. 

There are fourteen judges in NDCA, with one vacancy. There are zero active judges who are Republican appointees. (A senior status Bush appointee, Judge Jeffrey White, recently said that Israel may be engaging in genocide.) If the California Attorney General seeks nationwide relief, there is a 100% chance the California Attorney General will draw a Democratic appointee, with a friendly appeal to the Ninth Circuit.

You will find similar lopsided numbers in the Eastern District of New York, the District of Oregon, the Western District of Washington, the District of Maryland, the District of Hawaii, and other favorable divisions. Any Republican appointees in those states were given blue slips by Democratic Senators. And don't forget about the D.C. Circuit, which if you exclude the stalwart senior status judges, is one of the most lopsided circuit courts in recent memory. 

You get the picture. I think an underlying presumption of this policy is that those who seek nationwide or statewide relief are doing so for improper reasons. But nothing will change with the ability of California, Hawaii, Oregon, Washington, Maryland, New York, and other states to obtain nationwide relief.

Scenario #3:  Conservative litigants seeking statewide relief in blue states

The new policy would apply not only to parties seeking nationwide relief, but also to parties seeking statewide relief. Any time a state statute is challenged as being unconstitutional, or preempted by federal law, the case will be reassigned. (I suppose a party can only seek summary judgment, but virtually all of these cases are litigated as pre-enforcement challenges, coupled with a TRO or PI.) 

These cases do not gain nearly as much notoriety, but conservative public interest groups do exist in blue states, and they use friendly forums to challenge progressive policies. For example, in New York, the Southern and Eastern Districts are lost causes for conservatives. (The companion case to Roman Catholic Diocese v. Cuomo started off with a defeat before a W. Bush appointee.)  Rather, most of the strategic litigation occurs in the Northern District of New York. Until fairly recently, a suit filed in Syracuse had a roughly 50% chance of drawing a senior judge appointed by one of the Bushes. (I was counsel on a challenge in Syracuse to Governor Cuomo's order shutting down a religious school in Brooklyn.) And at present, there is only one judge in Binghamton–a senior Reagan appointee. Much of the post-Bruen Second Amendment litigation has been filed in these forums. By contrast, all of the other judges in the Northern District were appointed by Clinton, Obama or Biden. But under the Judicial Conference's policy, a suit filed anywhere in NDNY is likely to be transferred to Albany, and a Democratic appointee.

I haven't run the numbers in other districts, but I know that in most blue states, there are small pockets of courts where the odds are better-than-average of drawing a Republican appointee. These pockets would be eliminated. And, on balance, conservative litigants will have more difficulty challenging liberal states policies in blue states. But in red states, the shoe will be on the other foot.

Scenario #4:  Liberal litigants seeking statewide relief in red states

This fourth scenario gets the least attention of all, as Democratic appointees who enjoin Republican policies are considered heroes in polite company. Progressive groups know all-too-well where to sue in red states. Often what looks like a neutral decision–filing in the state capital–is a very strategic choice. Consider the Tallahassee division of the Northern District of Florida. This has long been a bastion of progressive jurisprudence. In my book on the Affordable Care Act litigation, I explained that the Florida Attorney General filed suit in Pensacola, rather than Tallahassee, to avoid now-senior Judge Robert Hinkle. 

Today, filing in Tallahassee gives you (roughly) 3-1 odds of a Democratic appointee. And wouldn't you know it, Chief Judge Mark Walker seems to draw just about every case that challenges a new Florida law. (This former Judge Boggs clerk has real doubts about how "random" reassignment will work in reality.) Judge Walker issues an injunction everytime Ron DeSantis sneezes. Progressive groups know this, and file in Tallahassee. For a time, Walker had 100% of the cases in Gainesville, while Hinkle had 100% of the cases in Panama City. If the Judicial Conference's policy was adopted, any suit in Tallahassee seeking statewide relief could be reassigned to Pensacola which leans solid-right.

A similar dynamic would be at play in the Middle District of Florida. Orlando may have once been the happiest place on earth, but the federal court there is a no-go zone for DeSantis-signed legislation. But under the Judicial Conference's policy, those cases may be reassigned to the more-friendly Tampa division.

Likewise, progressives litigants (including the Biden administration) routinely sue the Texas government in Austin because the options are an Obama appointee, two now-left-leaning senior Republican appointees, and a Reagan appointee from Hawaii who consistently rules against Texas. They're batting a thousand. To paraphrase Justice Barrett in Lindke v. Freed, the distinction "turns on substance, not labels." But if the policy were adopted, cases can be reassigned to San Antonio and the hinterlands of west Texas, which has a higher share of Republican appointees. On balance, if the Western District of Texas adopts this policy, it would be better for conservatives and worse for liberals.

The NAACP and other civil rights organizations have their favored spots to file suit in Mississippi, Louisiana, Alabama, and other southern states. Those preferences too may be adjusted. This policy will likely scramble the preferences of the progressives groups in red states–I would not be surprised if they quietly oppose this policy. Or, they find different ways to characterize statewide relief to avoid being dinged by the clerk. Everyone likes forum shopping except when the other side does it.

The Consequences of the Policy

So far I've described the impact of this policy as the courts are presently constituted. But nothing is ever fixed. Every action has an equal and opposite reaction. This policy, if enacted widely, will alter the dynamics of judicial nominations in ways that Chief Justice Roberts and his colleagues may not have anticipated.

A future Republican President and Republican Senate will compensate for this policy by adjusting the types of judges appointed to urban centers. Whereas in the past, smaller courts were designated as likely destinations for strategic litigation, if the policy is adopted, every judge is a potential destination. It is no longer a safe bet to put a well-admired 50-year old law firm partner or former state-court judge on the federal bench in urban centers. Too risky with the random reassignments. As much as the Judicial Conference may detest Matt Kacsmaryk, the likely consequence of this policy is to ensure that more Matt Kacsmaryks are appointed to the federal judiciary across all divisions. Mission accomplished! 

The second likely consequence is to affect how blue slips operate. During the Biden Administration, Republican Senators have worked with Democratic Presidents to fill open district court seats as part of packages on circuit court nominees. District Court judges are sometimes considered fungible, because conservative litigants can choose where to file, and avoid compromise Biden nominees. Indeed, blue slips are often contingent on appointing a judge to a particular division. I think the Judicial Conference's policy undermines that conciliatory approach. Every district court blue slip that is returned is another possible venue for a reassigned strategic litigation case in a red state to be dismissed. In some regards, a district court judge is more significant than a circuit judge, as the former can slow-walk a case and keep it from appellate review. Or worse, transfer the case outside the Circuit, where it is virtually impossible to bring back. (See recent attempts to send SpaceX's case from Texas to California.) The likely consequence of this policy is that seats will go unfilled, and judicial vacancies will become longer. Along similar lines, I think Democratic Senators would not play ball on district court nominees with Republican presidents, to ensure their strategic litigation is unaffected. Ultimately, I think judicial vacancies will increase in states. 

I'll close this already-too-long post by repeating my initial reaction: the Judicial Conference has waded into a political minefield. In an attempt to appear apolitical, the judges have injected themselves into a political brawl. I highly doubt Judge Sutton realized that his remarks to the press would trigger a floor speech by Senator McConnell. If I had to guess, Sutton thought this was an opportunity to educate reporters about the dangers of nationwide injunctions, and he may have gone beyond the talking points of the new policy. One reporter told me it was Sutton's first day on the job! I don't know if the policy that was released on Friday was modified after the Sutton kerfuffle, or whether Sutton went off script. Justices sometimes do this during oral handdowns of opinions. In any event, I doubt the Judicial Conference will revisit the policy. I've learned the policy was accepted by acclamation without any discussion or dissent, including by the Chief Judge of the Fifth Circuit. Who would move to reconsider the policy? 

What happens next?

At this point, the ball is in each district court's court. This guidance is just that–guidance. They can choose to continue their present practices, and not adopt the policy. If they choose that course, they will be criticized by all the regular suspects on social media. Thankfully, life tenure insulates judges from such noise. But if they adopt the policy, the consequences I described above may make the situation far worse than it is now, without doing anything to reduce nationwide injunctions. I am not convinced that nationwide injunctions and forum shopping are significant problems. Appellate review exists to remedy those, as attested to by Judge Kacsmaryk's win-loss record at the Supreme Court. (Though the Court recently declined to stay his ruling about the Texas A&M drag show.) But this policy creates far more negative consequences than are justified to address this minimal problem.

There are also several pragmatic reasons why courts should reject this policy. First, it creates significant administrative work with substantial burdens on court staff: every complaint that is filed, and every motion for injunctive relief, will trigger a new review process. Cases will be reassigned–perhaps after a judge has already invested time and energy in a case. Second, there are risks of gamesmanship. Plaintiffs who do not like the judge they draw can simply amend the complaint, as a matter of right, and seek reassignment. This policy may reduce judge-shopping at the outset, but it will guarantee judge-shopping after the case is filed.

Third, not every judge will want to handle high-profile strategic litigation cases. These are complex cases that bring significant press attention–even death threats. Not every federal judge wants to deal with that nonsense. Whether you like it or not, Judge Kacsmaryk has more experience with difficult APA cases than just about any judge outside D.D.C. Fourth, some judges who are not receptive to conservative litigants will be hesitant about losing progressive litigants. Again, progressive groups will lose their forum of choice to challenge red-state litigation.

Fifth, adhering to this policy would alter how judges are selected, and likely yield fewer blue slips and more vacancies. Sixth, the entire genesis of this policy is to respond to political criticism from Senators Schumer and Whitehouse and some law professors on Twitter. The courts may not be willing to be viewed as tools to respond to political pressure. The safest course for these judges is to simply say: let Congress, who established the districts and divisions, decide how cases are assigned.

The post A Numbers Game: Who Would The Judicial Conference's New Policy Help And Who Would It Hurt? appeared first on Reason.com.

In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post's erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.

Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.

Additionally, many Americans were repelled by the wholehearted support that numerous progressives had shown for the new federal wartime Leviathan and their desire to make it a permanent fixture. Post cites a letter from William Allen White as an illustration of the "innocent confidence of progressives."

I think the big thing to do now is quietly organize a hundred or so fellows who are dependable and who may take such steps as are necessary after the war to serve all the economic and social campaigns that the war brings to us. I think price fixing should be permanent, but not done by Wall Street. I think the government should tighten its control either into ownership or operation of the railroads. I think that labor arbitration should be a permanent thing, and that we should federalize education through universal training, making it a part of the system of education.

To many Americans in the post-war era, this attitude would not have appeared "innocent." Instead, it likely appeared as if enthusiastic supporters of a federal government exerting control over the economy, including regulating wages and prices nationwide, had revealed progressives' true intentions. Contrary to their pre-war claims of seeking significant reform within the existing system, it seemed they actually sought radical, even revolutionary, changes to the American economy and government system.

In the portion of the book I was tasked with reviewing and commenting on, Post overlooks the additional influence of events in Europe on this dynamic. The fact that European nations had become entangled in a brutal war without a clear purpose seemed to affirm America's superiority to Europe. Both in the past and today, many progressives looked to Europe as a model for their more interventionist and nationalist government policies. The emergence of the USSR, Communist revolutions in Germany and Hungary, and the sympathy expressed for Communism and anarchism in the US, especially among immigrants, heightened the apprehension of foreign ideas, including progressive concepts associated with Continental thinkers.

The theme of a "return to normalcy" provides a crucial perspective on the Taft Court era, especially considering President Harding's successful 1920 campaign on that very platform. Harding's victory reflected widespread dissatisfaction with the war and its impact on what we now call civil and economic liberties. Notably, it was Harding who appointed the Justices who steered the court in a more libertarian direction during the 1920s.

The inclination toward a "return to normalcy," seeking a shift back to pre-War levels of government regulation, is a key factor in understanding the overall approach of the pre-Depression Taft Court. This desire is particularly evident in the Court's skepticism toward novel or contentious applications of government regulatory power.

The apprehension of government overreach, intensified by the government's actions during the war, contributed to the Court's effort to systematize its jurisprudence on the liberty of contract. Previously perceived as somewhat arbitrary and inconsistent, the Court aimed to provide clarity. In the case of Adkins v. Children's Hospital (1923), Justice George Sutherland outlined acceptable infringements on liberty of contract beyond traditional police power concerns. These included regulations related to rates and charges for businesses with a public interest, contracts for public work, payment of wages, and hours of labor for health and safety reasons. Sutherland emphasized that, aside from these exceptions, "freedom of contract is the general rule, and restraint the exception," justifiable only in exceptional circumstances.

Looking more broadly, instances of perceived government overreach during World War I shed light on why the Supreme Court was willing to resurrect and broaden doctrines limiting government power that appeared to have been overshadowed by the progressive movement. Traditionalist conservative Justices advocating natural rights notions had no representation on the Taft Court after 1911. Law review commentary in the 1920s that advocated limits on government authority was philosophically incoherence.

As extensively detailed by Barry Cushman, the Taft Court Justices typically labeled as "conservative" a held a spectrum of generally moderate but progressive political views before joining the Court. Barry Cushman, The Secret Lives of the Four Horsemen, 83 Va. L. Rev. 559, 559-60 (1997); see also Logan E. Sawyer III, Creating Hammer v. Dagenhart, 21 Wm. & Mary Bill Rts. J. 67, 88 (2012). Despite this, and likely in part in response to the significant expansion of government authority during the war, these Justices aimed to uphold traditional limitations on government power while largely accommodating the growth of progressive regulation. Conversely, their counterparts, including Justice Louis Brandeis, were more radical Progressives reluctant to concede that the Constitution imposed significant and judicially enforceable constraints on the scope of government authority.

This analysis is at least consistent with Post's return to normalcy theme. His framework, however, is less useful in explaining the outcome of specific cases. As Post acknowledges, the Court continued to uphold some rather novel and intrusive exercises of the police power, while invalidating other exercises of government regulatory authority, some of which seemed rather anodyne.

Post's analysis improves significantly upon the once-robust literature that sought to explain the Court's rulings by reference to the Justices' alleged, but never documented, devotion to Social Darwinism.

Nevertheless, Post still clings to some mythology inherited from Progressive-era critics of Lochner. Quoting an article by Felix Frankfurter from 1916, and also citing Ernst Freund, Post states that Progressives had repudiated Lochner v. New York (1905) because "[t]he majority opinion was based upon 'a common understanding' as to the effect of work in bakeshops upon … those engaged in it. 'Common understanding' has ceased to be the reliance in matters calling for essentially scientific determination." Post believes that the Court's return to normalcy included a return to this "common understanding" vision of what constitutes appropriate regulatory action, and what is an undue and thus unconstitutional interference with normal ordinary economic activity.

The problem is that this is an incorrect, or at least incomplete, understanding of Lochner. Justice Peckham's opinion in Lochner indeed suggested that the Court should uphold the hours legislation at issue in that case if to the "common understanding" baking was an unhealthful occupation in need of special regulation. But the Court also would have upheld the law if scientific evidence before the Court had suggested that regulating bakers' hours served a legitimate health purpose.

The problem, however, was that the only party that provided any evidence about the health of bakery workers was Lochner, and that evidence showed that baking was not unhealthful relative to other common professions. Peckham alluded to this evidence without directly citing to it when he wrote, "In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others."

In one of the more remarkable interpretive miscues in Supreme Court history, critics nevertheless almost immediately accused Peckham of engaging in formalism and ignoring what they saw as the obvious fact that baking was unhealthful. See, e.g., Roscoe Pound, Common Law and Legislation, 21 Harv. L. Rev. 383 (1908). For generations, historians and law professors even accused Peckham of making up the statistics he alluded to. If they had bothered to look at the briefs in the case, they would have seen exactly where he got them.

Conversely, Justice Harlan's dissent is often presented as an example of how a judicious judge, even one supporting liberty of contract in principle, should have assessed the facts. Harlan cited several studies indicating the unhealthfulness of baking. The problem, however, is that none of these studies were part of the record, lower court opinions, or briefs. Harlan's references did not even come from his own research, but from a pamphlet published by the bakers' union.

Considering how the Supreme Court functioned, it's uncertain whether Peckham reviewed Harlan's dissent before delivering his opinion. Notably, Peckham did not make any direct reference to the dissent in his own opinion. On a related note, historian Nicholas Mosvick has compellingly argued that Justice McKenna, who frequently cast the deciding vote in labor regulation cases, paid particular attention to whether there was empirical evidence backing a specific labor law. Nicholas Mosvick, Rehabilitating Lochner: A Study in the limitations of a Constitutional Revolution, 18 Tex. Rev. L. & Pol. 151, 162-64 (2013). Peckham's reference to scientific evidence played a crucial role in inspiring Louis Brandeis to submit his famous brief on the detrimental effects of long hours on women's health in Muller v. Oregon (1908).

Returning to Lochner, aside from Justices Peckham and Brewer, the relevant Justices typically showed significant deference to purported health regulations, including maximum hours laws. Besides the scientific evidence presented by Lochner, two additional factors likely influenced the Lochner majority. First, although the state asserted that the law in question was a health law, it was placed in the state labor code, not the health code, and a union representative was part of the panel responsible for enforcing the law. Second, the hours law in question was notably strict, lacking provisions for overtime, and violations carried criminal penalties instead of civil ones. For  example, a baker offering triple pay to employees for an extra hour of work to complete an important holiday order could face imprisonment. These factors, combined with the studies presented by Lochner, probably persuaded the swing Justices to align with the majority. In short, it's incorrect to suggest that Lochner ignored facts and evidence about the underlying law in favor of a singular reliance on common knowledge.

With that said, let's delve into Post's discussion of two major liberty-of-contract cases: Jay Burns Baking v. Bryan (1924) and Adkins v. Children's Hospital (1923). While Post discusses additional police power cases, including in a chapter on "businesses affected with a public interest," I will concentrate on these two cases for brevity's sake.

Jay Burns Baking involved a Nebraska law aimed to prevent consumer fraud by mandating loaves be baked in half-pound increments, with a strict one-ounce tolerance for over- or under-weight bread. Initially, I suspected that this law had special-interest origins. I speculated that modern factory bakeries favored these laws, finding compliance easier, while mom-and-pop bakeries opposed them. Despite my suspicion, after investigating with a research assistant through a search of baking industry journals, we found no supporting evidence. Our conclusion was that bakers' support or opposition to such laws had no clear correlation to any discernible factor.

According to Post, the Court, in rendering its decision, was aware that since the war, bakers had easily adhered to tolerances even stricter than those imposed by Nebraska. This information was detailed in Brandeis's extensive dissent discussing wartime regulations. Nevertheless, a 7-2 majority invalidated the law, deeming it an undue interference with occupational liberty, partly because compliance was seen as burdensome. Post suggests that the Court overlooked existing evidence because the majority deemed it unreasonable for the state, based on common knowledge, to interfere in this manner.

I disagree with Post that the majority should have considered Brandeis's analysis definitive. As Post acknowledges, Nebraska presented only a "perfunctory" defense of its law. Brandeis's analysis of wartime regulations was based on information almost entirely outside the record. As with Harlan's dissent in Lochner, it's far from clear that the Supreme Court should consider evidence that is not in the record. Among other things, Justices going off on their own evidentiary expeditions without an opportunity for the parties to weigh in has obvious potential for abuse.

Post concludes that the controversy over whether unwrapped bread could meet the law's weight requirement wasn't central to the legal dispute. In my understanding, the evidence from the parties suggested two ways for bakers to comply: wrapping loaves in wax paper or using lower-quality flour and leaving the bread unwrapped. Contrary to Post's treatment of this issue as inconsequential, wrapping bread negatively affects the crust texture. Essentially, Nebraska gave bakers the choice of baking lower-quality bread or selling only wrapped loaves. Brandeis's dissent doesn't counter this point.

Justice Butler's majority opinion highlighted the strong demand for unwrapped bread and affirmed bakers' right to provide it. This reasoning alone justified invalidating the law. Butler also argued that the one-ounce tolerance the law provided, intended to prevent deceptive practices, was too strict. He suggested it was unreasonable to assume consumers would mistake a significantly smaller loaf for a one-pound loaf.  Brandeis did not present contrary evidence.

Professor Barry Cushman has previously disputed Post's interpretation of Jay Burns Baking, which Post expressed in an earlier law review article. Barry Cushman, Some Varieties and Vicissitudes of Lochnerism, 85 B.U. L. Rev. 881 (2005). Post acknowledges Cushman's argument, but rejects it.  Most pertinent, Cushman points out that Justice Butler himself wrote a later unanimous opinion upholding a bread-weight law that provided for greater (3 ounce) tolerances. This shows, Cushman argues, that the Jay Burns Baking decision was based on the specific flaws the Justices saw in Nebraska's law, not some inchoate yearning for normalcy or reliance on common knowledge.

I side with Cushman, and would add one more point. Jay Burns Baking was a 7-2 ruling, with only Brandeis and Holmes dissenting. Brandeis and Holmes, of course, thought that the police power in the economic realm was virtually unlimited. So despite Brandeis's extensive dissent, it's more likely the dissenters, rather than the majority, who were relying on strong ideological presuppositions, in this case favoring judicial deference to regulation, rather than focusing on the facts of the case.

Adkins v. Children's Hospital, meanwhile, was a much closer 5-3 ruling, with Justice Brandeis recused (and who surely would have been a fourth vote to uphold the law). In Adkins, Justice George Sutherland wrote the opinion invalidating a DC minimum wage law that applied to only to women as a violation of the right to liberty of contract.

Post adopts the traditional progressive perspective on women-only minimum wage laws. He emphasizes the rationale that women, being in a weaker bargaining position than men, required protection from receiving inadequate wages. However, this view overlooks the complex political and economic dynamics surrounding such laws.

While some advocates of women-only minimum wage laws aimed to improve employment standards for women, others had less noble intentions. Supporters included male-only trade unions seeking to limit competition from women, opponents of immigration who believed married immigrant women were being forced to work by their husbands, paternalists focused on preserving women's health (especially reproductive health), moralists concerned about the potential moral risks of low-wage, long-hour jobs leading women into immorality and prostitution, "family wage" advocates hoping to shield men from what they considered as "destructive" competition from women workers, "maternalists" aiming to promote and preserve women's maternal roles in the family, and eugenicists who believed that working women weakened the race.

Post overlooks the less savory motivations for sex-specific minimum wage laws. He also only briefly discusses feminist opposition to these laws, notably by Alice Paul of the National Women's Party, in a few endnotes. This context, however, significantly influenced Adkins's outcome. Many women's rights advocates, including Alice Paul, opposed gender-specific minimum wage laws but supported laws applicable to all workers.

Justice Sutherland, was not a strict opponent of government regulation, see, e.g., Euclid v. Ambler Realty (1926), but in his pre-Court career, he had been a political ally of Alice Paul and a strong advocate for women's rights. He led the push for the Nineteenth Amendment in the Senate and helped draft the proposed Equal Rights Amendment. Paul resisted attempts to secure additional support for the amendment by adding a provision exempting sex-specific protective labor laws.

These facts help account not just for Sutherland's joining (and writing) the majority in Adkins, but also for his rejecting minimum wage supporters' claim that women workers needed special minimum wage laws because they were vulnerable to exploitation by employers in ways men were not--that, unlike men, women were unable to enter a fair bargain for wages. Sutherland proclaimed,

But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case has continued 'with diminishing intensity.' In view of the great--not to say revolutionary--changes which have taken place since that utterance, in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.

One can certainly dispute, as the dissenters did—Holmes: "it will take more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account"—whether women's attainment of civic equality meant that they should no longer be treated as presumptively necessitous in the economic marketplace. Nevertheless, I believe that any discussion of Sutherland's opinion in Adkins should emphasize his feminist background. See David E. Bernstein, Revisiting Justice George Sutherland, the Nineteenth Amendment, and Equal Rights for Women, 20 G'town J. L. Pub. Pol'y 143 (2022).

Beyond that, Sutherland was troubled by two aspects of the law. First, the law put the burden of supporting a worker on the employer rather than on the public, even if the employee was not worth the mandated wage. This is not a very strong argument, especially because the law did not require employers to retain any employees whose work was not worth the relevant wage.

Post emphasizes this part of Sutherland's opinion, suggesting that the redistributive aspect of Adkins was the key to the Court's hostility to the law. He associates this hostility with the Court's purported opposition to class legislation—opposition that I believe has been grossly exaggerated, at least with regard to liberty-of-contract cases brought under the Due Process clauses. See David E. Bernstein, Class Legislation, Fundamental Rights, and the Origin of Lochner and Liberty of Contract, 26 Geo. Mason L. Rev. 1024 (2019).

I suspect, meanwhile, that a second aspect of the law was the key factor in, if not Sutherland's opinion, at least his ability to get a five-vote majority, and in particular, to get Justice McKenna's swing vote. As previously noted, Post sees the law's basic purpose as ensuring that women workers earned enough to live on. Yet, the wages set by DC's minimum wage law varied dramatically among enumerated job categories:

These orders fix the sum to be paid to a woman employed in a place where food is served or in a mercantile establishment, at $16.50 per week; in a printing establishment, at $15.50 per week; and in a laundry, at $15 per week, with a provision reducing this to $9 in the case of a beginner. If a woman employed to serve food requires a minimum of $16.50 per week.

The government could not explain why women's cost of living varied depending on which industry they worked in. As Sutherland wrote, "it is hard to understand how the same woman working in a printing establishment or in a laundry is to get on with an income lessened by from $1 to $7.50 per week." While Post gives short shrift to this argument, it does, in fact, undermine the government's claim that the basis for the law was to ensure that women earn a living wage. Rather, it seems more likely that the law as implemented tried to ensure that women could not undercut, or compete, with male workers, to whom the law did not apply. It's unlikely coincidental that the lowest wage set was for laundry workers, a field dominated by women.

Another objection raised by Sutherland to the law was that the power of the government to create a minimum wage also implies the power to create a maximum wage. Generations of historians have been dismissive of this objection, suggesting that it was a dystopian fantasy on his part. These historians ignore that the US government ultimately did later fix wages several times, beginning with the National Industrial Recovery Act. In at least two instances, during World War II and via President Nixon's wage controls, such wage-fixing reduced workers' wages below market level.

Before I conclude, I should mention one significant quibble I have with Post's editorial choices. There is a great deal of interesting side discussions in the endnotes. My own preference is for endnotes to be primarily just endnotes, with little to no additional text. If material is important enough to be included, it's important enough to be in the main body of the book, not hidden in endnotes. And in this case, it would be a particular shame if readers neglected the notes, as they are rich with important details. At the least, I wish the editors of the Holmes Devise had chosen to use footnotes instead of endnotes, so one would not have to constantly consult materials many pages away from the text to get the full story.

To sum up, I agree with Post that a backlash against perceived out-of-control government during World War I was a significant factor in the Supreme Court's own backlash against what had seemed, by 1917, to be a retreat from any meaningful review of most purported police power regulations. I disagree, however, with the implication that the Taft Court Justices who were in the majority in cases like Jay Burns Baking and Adkins were inclined to ignore the government's case for the laws in question in favor of a Lochner-like reliance on common knowledge amounting, perhaps, to unexamined prejudices. As I have noted, the Lochner opinion itself paid due attention to relevant empirical evidence. And I think a fair reading of Jay Burns Baking, Adkins, and other cases suggests that the Court was sensitive to the specific relevant context, language, and practical effects of each law.

The post Social and Economic Legislation and the Taft Court in the 1920s appeared first on Reason.com.

The New York Times and Atlantic writer Jerusalem Demsas both recently published articles on how the YIMBY ("Yes in my backyard") movement has cut across ideological and partisan lines in an era where such divisions have engulfed most other policy issues. The Times headline calls it "The Surprising Left-Right Alliance That Wants More Apartments in Suburbs":

For years, the Yimbytown conference was an ideologically safe space where liberal young professionals could talk to other liberal young professionals about the particular problems of cities with a lot of liberal young professionals: not enough bike lanes and transit, too many restrictive zoning laws….

But the vibes and crowd were surprisingly different at this year's meeting, which was held at the University of Texas at Austin in February. In addition to vegan lunches and name tags with preferred pronouns, the conference included — even celebrated — a group that had until recently been unwelcome: red-state Republicans.

The first day featured a speech on changing zoning laws by Greg Gianforte, the Republican governor of Montana, who last year signed a housing package that YIMBYs now refer to as "the Montana Miracle…."

Day 2 kicked off with a panel on solutions to Texas's rising housing costs. One of the speakers was a Republican legislator in Texas who, in addition to being an advocate for loosening land-use regulations, has pushed for a near-total ban on abortions.

Anyone who missed these discussions might have instead gone to the panel on bipartisanship where Republican housing reformers from Arizona and Montana talked with a Democratic state senator from Vermont. Or noticed the list of sponsors that, in addition to foundations like Open Philanthropy and Arnold Ventures, included conservative and libertarian organizations like the Mercatus Center, the American Enterprise Institute and the Pacific Legal Foundation.

Demsas makes similar points:

Over the past four years, as the affordability crisis has worsened, the YIMBYs have gained ground. In conservative Montana, an anti-California message spurred lawmakers into passing pro-development bills; in Washington State, ambitious proposals were passed in the name of affordability and racial equity. But members face pressure on both sides to abandon ship. How long can they hold on?

One reason the YIMBY movement has remained bipartisan is that it's decentralized. But the gang gets together periodically for a national conference amusingly called "YIMBYtown"—the rare place where you might find socialists, centrist economists, and Trump-supporting elected officials all in the same room, working toward the same goal.

I have been writing about cross-ideological agreement on this issue for years. Housing deregulation is a cause that unites a wide range of economists and land-use experts across the political spectrum. Thus, I—a libertarian property rights scholar—end up in the same boat with liberals like Richard Kahlenberg and Paul Krugman, and conservatives at the National Review.

Prominent political advocates of zoning reform include Virginia Republican Governor Glenn Youngkin and Colorado Democratic Governor Jared Polis. Gov. Polis captured the broad appeal of housing deregulation well, when he said recently that "[i]t's a solution to housing costs that embraces our individual property rights….  The fact that it's meeting a real need that people from the left to right, the center, no matter where they are politically, want to do something about high housing costs is really what makes it even more salient."

In a forthcoming Texas Law Review article, Josh Braver and I explain why the constitutional case against exclusionary zoning can also cut across ideological lines. I'm a libertarian originalist; Braver is a progressive living constitutionalist. But we both agree that exclusionary zoning violates the Takings Clause of the Fifth Amendment.

Of course,  the opposing side in this debate—the NIMBY ("Not in My Backyard") forces—also cuts across ideological lines. It includes left-wingers suspicious of capitalism and development, and right-wingers—including Donald Trump—who play on fears that deregulation will lead more poor people and minorities to move to white suburban neighborhoods. There are also many NIMBYs who believe—contrary to basic economics—that allowing developers build more housing will actually drive up costs rather than increase them. Others who fear that it will reduce property values and change the "character" of their neighborhoods. For some progressive homeowners in the latter camp, narrow self-interest trumps ideology. In reality, many existing homeowners have much to gain from housing deregulation, especially if they have children. But many either don't know that, are highly risk-averse, or both.

If I had to speculate on what really unites YIMBYs across the political spectrum, and divides them from their opponents, I would suggest that one big factor is that YIMBYs generally understand Economics 101 and apply it to housing issues. They know that increasing supply by allowing more construction reduces costs, and thereby also increases the availability of homes—especially to the poor and disadvantaged. NIMBYs, by contrast, tend to ignore or deny this.

More generally, YIMBYs are less likely than NIMBYs to see the economy as a zero-sum game where some people can only gain at the expense of others. Thus, they recognize that letting developers build more housing and letting more people "move to opportunity" benefits not only the developers and migrants themselves, but also the rest of society, which has much to gain from the resulting boost to productivity and innovation. Zero-sum thinking is at the root of many political divides, and likely plays a significant role here, as well.

I don't claim zero-sum thinking and economic ignorance are the only factors at work. As I've emphasized before, you can be a highly knowledgeable, logically consistent NIMBY if you are highly risk-averse and elevate preservation of the current "character" of your neighborhood over such concerns as protecting property rights, creating opportunity for the poor, and increasing growth and innovation. But NIMBYism would be a far less powerful political force if it were limited to people who think that way.

You can also reach NIMBY conclusions if you endorse complex "market failure" theories, which essentially hold that Econ 101 doesn't apply to housing. But then you would need to confront overwhelming evidence indicating that areas with little or no zoning (most notably Houston) have far more affordable housing, even in periods when demand goes up, because many people want to move there.

For the moment, YIMBYism remains a valuable cross-ideological coalition, one that has managed to score some important successes, despite also suffering some setbacks. Whether it can continue to defy the forces of polarization remains to be seen.

The post Cross-Ideological YIMBY Coalition Defies Increasing Polarization—So Far appeared first on Reason.com.

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There are lots of Fourth Amendment issues in the movie.  But the key scene, at the warehouse, could be an exam question.

Recall the facts.

Axel Foley (Eddie Murphy's character) is a Detroit cop on vacation who is trying to investigate his friend's murder. He is trying to get the police in Beverly Hills to investigate, but they refuse.  The Beverly Hills police chief instead orders Foley out of town, instructing Beverly Hills officer Billy Rosewood (played by Judge Reinhold) to drive Foley to the outskirts of town.

On the drive, however, Foley persuades Rosewood to ignore his orders and to bring Foley and his old friend Jenny Summers to a warehouse where Foley expects to find drugs being trafficked by Victor Maitland, the art dealer turned drug trafficker.  Summers has the key to the warehouse because she happens to work for Maitland at his art gallery, although of course she had no idea of his illegal drug activities.

Rosewood parks the car outside the warehouse. Rosewood wants to go inside the warehouse, too, but Foley tells Rosewood to stay in the car.  If Rosewood enters, Foley says, it will be an illegal search because they don't have probable cause.  I'll come get you if I find evidence, Foley tells him.  Foley wants Summers to give him the key so he can search by himself, but Summers refuses and insists on going with him.

Foley and Summers enter the warehouse with Summers' key, and they find a several wood crates that have the gallery's name on them.  According to Foley, they are crates from overseas that bypassed customs.  Foley uses a crowbar to open the crates, and they find cocaine inside.  "Go get Rosewood," Foley tells Summers.

But wait! Maitland and his evil crew are on to them.  They capture Foley and Summers in the warehouse. They take Summers away, and Maitland orders his men to kill Foley.

Meanwhile, Rosewood is watching from outside.  He has seen Maitland and his crew arrive at the warehouse.  He then sees Maitland leave minutes later, and he has Summers, who seems to be forced into Maitland's car before they drive off.  Rosewood is sufficiently worried about Foley that he breaks into the warehouse himself.  After entering, Rosewood saves Foley.

Assume Maitland somehow survives the later shooting at his estate, and that the government seeks to put on the following evidence at trial against Maitland:

(a) Foley's testimony about what happened in the warehouse,

(b) Rosewood's testimony about what he saw in the warehouse;

(c) Summers' testimony about what she saw in the warehouse; and

(d) the cocaine discovered in the warehouse.

Among the issues you might want to consider:

First, was Foley a state actor for 4th Amendment purposes when he entered the warehouse?  He was an officer outside his jurisdiction who had been told by both the Detroit and Beverly Hills police departments not to investigate.  He did so anyway for personal reasons, to bust the man who killed his friend.  Was Foley a private actor or a state actor?  Fourth Amendment state action generally requires the knowledge or acquiescence of the government.  But who is the government here: The police chiefs? Rosewood? Foley himself?

Second, was Summers a state actor for Fourth Amendment purposes?  Note that she is not just going along; she insisted on participating together with Foley and is working together with Foley.

Third, did Summers have common authority to consent to enter the warehouse?  If so, does her common authority extend to opening the crates that Foley used a crowbar to open, in which the cocaine was found?  If there was not common authority, was there apparent authority?

Fourth, did Rosewood have exigent circumstances to enter the warehouse? Seeing Summers get taken away sure seems bad, but was that the result of a police-created exigency caused by their possibly unlawful entry?  Or is this more of a Brigham City v. Stuart situation to save Foley's life?

Fifth, assuming the entry into the warehouse was unlawful and the cocaine has to be suppressed, does the scope of the exclusionary rule also go so far as to forbid testimony about what Maitland and his men said and did to Foley and Summers upon stopping them inside the warehouse?  Or does the criminal conduct by Maitland and his men break the causal chain and permit the testimony?

Extra Credit: Are any of your answers different if you apply Fourth Amendment law as it existed in 1984, when Beverly Hills Cop was released?

The post <i>Beverly Hills Cop</i> is a Fourth Amendment Movie appeared first on Reason.com.

The memo to the judiciary has now become available, but that does not address the problems with the roll out nor does the language in the memo address a host of practical concerns about how such a policy should or would work if implemented.  The rollout was extremely problematic—no one actually knew what the policy was (including judges outside those on the Judicial Conference), how the Judicial Conference proposed it would be implemented, to what extent it went into immediate effect, whether the Judicial Conference claimed authority to force all judicial districts to adopt the policy, and if so, under what authority the Judicial Conference was acting.    Everyone—whatever their view on the ultimate merits of the policy—ought to be disturbed by how the very branch of government trusted with safeguarding the rule of law and the public's right of access to the courts went about this process, sowing confusion among the bar, litigants, judges, the media, other branches of government, and the broader public.  And as for the policy and guidance itself—as the saying goes, the devil is the details, and implementing this policy could create far greater problems than those it purports to solve (to extent single judge division even pose any problems).

As announced on the federal judiciary's website, the public was informed "[t]he policy addresses all civil actions that seek to bar or mandate state or federal actions 'whether by declaratory judgment and/or any form of injunctive relief.'  In such cases, judges would be assigned through a district-wide random selection process."  https://www.uscourts.gov/news/2024/03/12/conference-acts-promote-random-case-assignment (emphasis added).  This is an incredibly broad ambit that would sweep vast amounts of civil litigation into the random assignment category and swept far more broadly than the representation to the press by Judge Sutton that the policy just applied cases in involving nationwide injunctions. https://www.politico.com/news/2024/03/12/federal-courts-move-against-judge-shopping-00146594 ("Sutton called the new policy 'an elegant solution' to a problem he said was fueled by an increasing number of nationwide injunctions — orders in which a single federal judge blocks a policy across the country.").  The policy memo to the judiciary however now indicates that the policy applies to "civil actions seeking to bar or mandate statewide enforcement of state law" or "nationwide enforcement of federal law."  If this was always the policy to be announced, then why did the judiciary website not state this in the press release?  Given the still broad wording of this revised phrasing it remains unclear what actions would trigger this policy.  For example, if an individual litigant is seeking a declaration that certain agency practices are unconstitutional in proceedings they are involved in, which would have an effect of finding say that an agency's ALJs are unlawfully appointed or insulated from presidential control (such as in Jarkesy v. SEC), would this action trigger the policy?  Or would it not qualify if the litigant doesn't expressly seek a nationwide injunction even if a finding in the plaintiff's favor might carry that effect practically?  After all, the guidance memo says the policy applies "when the remedy sought has implications beyond the parties before the court and the local community," but this could be said of most litigation bringing constitutional claims even if the relief is narrowly targeted to the plaintiff.

Nor does the memo clear up the confusion on whether, when, and how this policy goes into effect and starts impacting cases. Media reported based on Judge Sutton's representations that "[t]he policy is effective immediately," setting off much confusion within the legal community about the Judicial Conference's authority and the policy's sweep due to the lack of the text of the actual policy being publicly released.  https://www.courthousenews.com/judicial-body-acts-to-curb-judge-shopping/; see also https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2O6UQMC000000?bna_news_filter=us-law-week#jcite ("Judge Jeffrey Sutton . . . said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse."); ("Sutton didn't rule out the rule applying to past or ongoing matters").  It is hard to square Judge Sutton's statements to the media that this was in effect and overrode current local orders with the guidance memo which now merely states that "district courts should apply district wide assignments" to cases seeking this relief and stating that the guidance should not be viewed as "impairing a court's authority and guidance" to divide the business of the court under Section 137 at its discretion.  Either Judge Sutton got out over his skis or the Judicial Conference walked backed its purported authority to require this policy be implemented nationwide in light of blowback from multiple quarters—either way the rollout was far from a paragon of transparency and clarity.

But Judge Sutton's representation still result in important questions unaddressed by the memo—if a particular judicial district does adopt this policy, could it be potentially retroactive and result in the re-assignment of currently-pending cases?  Will district courts publicly announce whether or not they are adopting this policy or making other changes public in light of the Judicial Conferences memo?  As of now, the bar, litigants, and the public only know that there is a policy that could affect ongoing and current cases (in addition to any future cases), but if it is up to the judicial districts to independently decide whether to align with the policy recommendation, there is no insight as to whether, when, or how it could impact currently pending cases.  But assuming any district court feels that it should adopt the Judicial Conference's policy regardless of whether they must, the questions of how practically this all works are legion and the memo does little to address them.

For example, who is going to making the determination about which complaints trigger random assignment under this new policy?  Will administrative staff in the clerk's office—who mostly don't have legal training or degrees—be charged with evaluating a complaint and discerning what relief is sought and whether it triggers random assignment?  Will it be a rotating cast of district court judges within a District charged with making an initial evaluation of all civil complaints and sorting them into a "random assignment across all divisions" category or just random assignment within the division in which the case was filed, thus creating a new significant administrative burden on district court judges and their law clerks?  To the extent the Judicial Conference guidance purports to address this problem it only states that the JS-44 Civil Cover Sheet should state "the remedy sought has implication beyond the parties before the court or that the case seeks to bar or mandate statewide or nationwide enforcement of a state of federal law."  But again who is making this determination—which is incredibly subjective if some non-legally trained clerk office staff (or even judicial chambers) is making a determination that "the remedy sough has implication beyond the parties before the court."  Far from increasing public confidence, this could result in much mischief as to how a case is categorized and give rise to certain like cases not being treated alike depending on who was making the subjective calls that day.  Some cases would be clear cut, but others would not.  This also potentially opens the door to improper ex parte lobbying of clerk's office staff without an Article III judge to referee how a case ought to be categorized.

Moreover, if complaints now need to be reviewed and evaluated to make these decisions on categorization for assignment, how quickly would the judges or clerk's office be able to make this determination, especially in cases seeking relief on an emergency basis?  And then in trying to avoid circumvention of the policy, the guidance suggests if a motion or amended complaint is filed adding such relief parties are now supposed to "prominently display such information in the case caption."  This seems rife with potential traps for the unwary—especially if counsel in its duty of candor to the court is having to make subjective calls about whether "the remedy sought has implication beyond the parties before the court" and could open up collateral litigation over whether such a representation should have been made.  As for the suggestion that an amended complaint triggers transfer back to the clerk's office for reassignment if the original complaint did not seek relief triggering the policy if filed within 30 days or before significant steps are taken, this would only create delay in cases being litigated on an emergency basis or lead to wasted party and court resources depending on a judge's subjective views of what qualifies as "significant steps," and has the potential to result in arbitrary application of this policy in practice.

Nor does the memo and guidance address what happens once one of these cases is assigned to a judge and what would it mean for where the case is actually heard.  Does random assignment mean if assigned to a judge in a different division than where originally filed that the judge would travel to the division in which the case was originally filed, requiring judges to "ride circuit" within their districts?  Or would the litigants and their counsel have to bear the cost of paying for travel and hotels in a different division increasing already high litigation costs for litigants seeking to challenge government action (which is already a significant barrier for ordinary citizens and entities impacted by government regulation struggling for financial resources to hire competent counsel to challenge the government action)?  If the vision is for the judges to "ride circuit" so to speak, would certain judges, such as ones on senior status or with health issues or other reasons to limit travel, be able to opt out of the "random assignment pool" narrowing the judges in the pool and undermining the goals of random assignment?  Or would the result be a second-class group of litigants who only can access the courts via zoom because the judge they are assigned to doesn't want to travel or it would strain the litigant's pocketbooks to travel to them? And if you have a case that seeks damages in addition to declaratory and injunctive relief, giving rise to a jury right should the case progress to trial, how would this impact where any potential jury pool would be drawn from—where the judge normally sits or the division where the suit was originally filed?

These are not small considerations—especially in a state like Texas where both Waco and El Paso are in the Western District of Texas but which are located a 9.25 hour drive apart.  Even trying to make a 3 p.m. hearing in the other division would require leaving before 5 a.m. if driving or require a flight and hotel costs the night before to ensure with our occasional nightmare of air travel they do not miss a hearing and incur a judge's displeasure.  There is a reason the federal statute setting up judicial districts and then also specific divisions and seats for those courts in Texas is so intricate, 28 U.S.C. § 124, and to transfer a case from one division to another within the district requires a showing that an intradistrict transfer is "clearly more convenient" pursuant to 28 U.S.C. § 1404(a).  See In re Radmax, Ltd., 720 F.3d 285, 289 (5th Cir. 2013) (although less deference to a Plaintiff's choice of forum when the transfer sought is intra-district, transfer still must satisfy the Section 1404(a) factors to show good cause for the transfer).  The statutory creation of divisions within district courts, like those in Texas, are aimed at addressing these practical considerations and ensuring access locally to the courts—those concerns don't go away just because a case seeks a remedy with impact beyond the parties.  The policy guidance in the memo completely ignores these practical questions and issues like funding for increased travel by district judges and law clerks as a result.

Putting aside the administrative aspects of who will sort which civil complaints implicate this policy and what this policy means for where a case will actually be heard, questions also remain as to exactly which cases would be swept into the new policy—after all, does an as-applied challenge that only seeks targeted individual relief fall in this policy because the remedy could be of importance beyond the parties?  And would this policy actually just increase the administrative burdens on the courts because instead of one suit seeking nationwide relief being filed, you just have 25 different parties filing suit seeking the same as-applied injunctive and declaratory relief in a single judge division?  Or would the courts (or clerk's office staff) say those as-applied challenges qualify under the policy and would trigger district wide assignment?

Finally, there remain questions of how the random assignment will work.  Is it only cases that are filed in single-judge divisions that trigger this policy?  If so, how would such an application not be arbitrary—why should it not apply to all cases filed in the district if district-wide random assignment is the gold standard.  If a judge based in Dallas can hear a case filed in Lubbock, Amarillo, or Wichita Falls under this policy, why shouldn't a judge based in Lubbock, Wichita Falls, or Amarillo be able to hear a case filed in Dallas under this policy?  But again, in state like Texas, with large swaths of geographic territory this raises all sorts of practical questions—are the Dallas, Houston, or Austin judges actually going to be regularly traveling to the outlying division (and vice versa) and if so, does this detract from the speedy disposition of other cases filed and being adjudicated within their own division?

On a practical note, practitioners think deeply about where to file their cases—often accounting not only for favorable caselaw, but also cost and speed considerations that arise from litigating in certain courts—and our judicial system, for better or worse, gives considerable deference to a plaintiffs' choice of forum so long as there is jurisdiction and the statutory venue requirements are satisfied.  Congress made choices to expand the venue requirements as recently as the 1990 amendments to 28 U.S.C. § 1931, allowing greater leeway in the choice of venue.  However, to file within a particular district and division, the plaintiffs will still have needed to show they satisfy the jurisdictional and statutory venue requirements—which in challenging a government action generally require either residence in that division or showing the government action burdens you in that district and division.  In a state with one judicial district and one division or a district that consists of only one division, this new policy may be of little practical consequence.  But in states like Texas, if adopted, it would be of enormous practical consequence in the form of increased potential litigation costs if the cases are transferred to a different division or, if this policy does not require intradistrict transfer but instead results in judges "riding circuit," potential increased docket congestion if judges are supposed to be traveling and are taking time away from cases filed in their normal duty stations.  See https://www.reuters.com/legal/government/conservative-us-judges-criticize-new-rule-curbing-judge-shopping-2024-03-13/ (Chief Judge Moses stating "assigning patent disputes district-wide has at times meant judges in her large district need to drive hours to preside over a case, taking away time from other matters on their dockets.").  That this policy pulls in cases by plaintiffs who truly reside in those in divisions seeking nationwide relief, gives little weight to burdens already faced by many plaintiffs in litigating against the government and the purpose why judicial divisions, in addition to districts, are statutorily established by Congress.

The questions identified above all give rise to concerns that this policy opens up new avenues for gamesmanship and subjective categorization of cases.  Now that the text of the guidance memo and policy is known, there are still far more questions than answers about how this would work should a judicial district choose to adopt the policy (and district courts should pause before considering doing so to examine whether this actually creates more problems and burdens than the one the Judicial Conference purports to solve).  But whatever one's views on the merits of any proposed reform or the practicalities of implementation, the rollout and the failure to immediately publicly release the text of the policy hindered clarity regarding the administration of justice and undermined confidence in our judicial system's impartiality and transparency.  After all, why do so many of Judge Sutton's statements to the press not match the guidance memo and policy that was distributed to the judiciary?  That does nothing to aid the public perception of the legitimacy and transparency of the courts.  The Judicial Conference—made up of the judges charged with protecting the rule of law and transparency in court proceedings—ought to have known better.  The bar, academics, other branches of government, and the public should be asking hard questions of the Third Branch about this process and why the court's own website and judicial spokesperson seem at odds with some of the information that was distributed to the judiciary regarding this new policy.

I will have much more to say about this case in due time.

The post A Comment On The Judicial Conference's Policy From A Fifth Circuit Practitioner appeared first on Reason.com.

First, why on earth could this memo not have been issued contemporaneously with the press release? This may be one of the most-botched governmental rollouts since HealthCare.gov. The Executive Committee should carefully re-assess their procedures here.

Second, the policy sweeps quite broadly, far beyond the national injunctions, but is prefaced by "should."

District courts should apply district-wide assignment to:

a. civil actions seeking to bar or mandate statewide enforcement of a state law, including a rule, regulation, policy, or order of the executive branch or a state agency, whether by declaratory judgment and/or any form of injunctive relief; and

b. civil actions seeking to bar or mandate nationwide enforcement of a federal law, including a rule, regulation, policy, or order of the executive branch or a federal agency, whether by declaratory judgment and/or any form of injunctive relief.

This policy does not apply solely to single-judge divisions, but applies to all courts.

Third, the policy is wildly underinclusive–it does nothing to address judge shopping in patent cases, which was the impetus of this policy. Third, the document says that the guidance "applies to" patent cases, but only where some sort of injunctive relief against the government if sought. Do most or many patent cases involve such relief? What about bankruptcy cases? "Case assignment in the bankruptcy context remains under study."

Fourth, the policy is pretty clear this is guidance. It uses the word "should."

These policies and the accompanying guidance inform the district courts' statutory authority and discretion to divide the business of the court pursuant to 28 U.S.C. § 137. They should not be viewed as impairing a court's authority or discretion. Instead, they set out various ways for courts to align their case assignment practices with the longstanding Judicial Conference policy of random case assignment. Simply put, these policies should serve the purpose of securing a "just, speedy, and inexpensive determination of every action and proceeding." Fed. R. Civ. P. 1.

As I explained last night, 28 U.S.C. § 137(a) gives the District Courts this power. The Committee does not even cite the Judicial Conference's power under 28 U.S.C. § 331, which is positive.

Fifth, let me return to the botched rollout. Several press outlets said that this policy was mandatory and already in effect. Courthouse News reported that based on Judge Sutton's representations that "[t]he policy is effective immediately but it is unclear when courts would begin implementing these procedures or how that process would work." And Bloomberg Law reported, "Judge Jeffrey Sutton, chair of the Judicial Conference's executive committee, said at a press briefing that the policy overrides any local orders that currently allow for one judge to hear all cases filed at their courthouse." Bloomberg added, "Sutton didn't rule out the rule applying to past or ongoing matters." I have been a fan of Judge Sutton for many years, but this private press briefing was not his finest moment. Even if the policy was approved by many judges whom I respect, Sutton's remarks were woefully misunderstood by reporters. Some of that blame can be placed on the press, perhaps, but much belongs to the messenger.

Sixth, the policy puts forward a balancing test to determine how a case should be assigned:

The policy is applicable in instances when the remedy sought has implications beyond the parties before the court and the local community, and the importance of having a case heard by a judge with ties to the local community is not a compelling factor.

Did Justice Breyer write this? Are we really going to have untrained legal staff in the clerk's office deciding what are "implications beyond the parties before the court and the local community" and whether "ties to the local community" is a "compelling factor"? These are difficult merits questions on which people can reasonably disagree. Are law clerks or individual judges going to have to be burdened with making these determinations at the complaint stage? Will this issue be litigated: does the complaint now explain why a case should not be reassigned? Would the defendant be able to file a reply explaining why the case should be reassigned? Can Amici participate? Can a reassignment order be appealed? Mandamused? And, oh by the way, this policy is triggered if an amended complaint or motion is filed. This policy has now added untold layers on untold cases that seek any injunctive relief against state governments.

I regret that many of the judges who approved this policy have gone along with groupthink. They read about a problem, they don't like nationwide injunctions, they think certain judges in Texas whose initials are M and K make the judiciary look bad, so they cobbled together what looks like a facially neutral policy that will cause far more harm than good. You may think that my response is harsh. Wait till you see what real lawyers think–both on the right and the left. The burdens on the practice of law are substantial. No one will like this policy. I would not be surprised if most district courts read this guidance, and put it in the circular file.

[This post is under development, and has been updated.]

The post The Text Of The Policy Approved By The Judicial Conference appeared first on Reason.com.

The "open fields" doctrine permits gov't officials to roam private land without consent, a warrant, or probable cause as long as they don't enter the "curtilage" around a home. The Fourth Amendment does not apply. So just how much land is unprotected? Over at Regulation, IJ's own Josh Windham and Dave Warren have crunched some numbers and come to some startling conclusions. Click here to learn more.

But wait, there's more! The very same open fields "doctrine" turns 100 years old this May. Please join us in Arlington, Va. to confer, commemorate, and kvetch with an all-star lineup of scholars, including Laura Donohue, Maureen Brady, Morgan Cloud, Daniel Epps, Luke Milligan, and James Stern. Click here for details! And be sure to click here for a lovingly crafted podcast episode on the history of the doctrine.

• Boston U students sue for breach of contract for having to go remote in Spring 2020. They lose in district court, and, after they appeal, the legislature passes a law retroactively barring COVID-19 suits like theirs against higher ed institutions. Students: Hey, no fair, due process violation! First Circuit: Today's lesson is about rational basis. Class (and case) dismissed.
• Teenager is convicted of murder in a 1992 shooting in the Bronx. Two eyewitnesses testify and identify him. But almost 20 years later one of them recants! And two alibi witnesses, who did not testify, come forward! Defendant asks for habeas relief, claiming actual innocence and witness tampering. District court: Wow, this sounds pretty bad! That is, bad enough to address the merits but not so bad that you get habeas relief. Second Circuit: We'll assume you can make a freestanding innocence claim, but not give it to you.
• SEC goes after former investment advisor for submitting $290k in false expense reports—including for personal vacations, flights to the Super Bowl, and shopping—that were ultimately paid by the funds he managed. Second Circuit (over a dissent): But he only intended to rip off his employer; it was his employer who ripped off the funds. So he's off the hook (on these charges, at least)
• The Fifth Amendment allows gov'ts to use eminent domain to take property only "for public use." If a town takes your property because it doesn't like you or what you're planning to build, but it says as a pretext that it'll leave the land as an empty field for a "passive park," is that bad-faith purpose still a "public use"? Second Circuit: Sure; who are we to second-guess the sagacity of town officials? Dissent: The "Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause," and for good reason—the town here admitted that the majority's view would allow it to "seize the homes of disfavored minorities" in order "to drive them out," "as long as the Town said it would build parks." By blessing that, we've now created a split with several other circuits and state high courts. (This is an IJ case.)
• Defense attorney: So we've got a deal? You'll recommend a sentence of just one year over the mandatory minimum? Delaware prosecutor: Absolutely. . . . Your Honor, this "gangsta," this "puppet master" who "may as well have" pulled the trigger in a botched robbery that left two dead deserves only 22 years, and not the maximum sentence of life in prison. Defense attorney: No objections, your Honor. Court: Life in prison it is. Third Circuit: The gov't has to honor its plea deals, and it may have fallen short here, but the prosecutor didn't tell the judge anything she didn't already know. Harmless error.
• Allegation: Witness to barfight tells Meadville, Penn. officer that the attacker had braided hair and resembles an individual (the plaintiff) in Facebook photos who had a different hairstyle. The officer tells a judge that the witness "identified" the plaintiff as the attacker, omitting the discrepancy about hairstyles. The plaintiff is arrested. (All charges are dropped.) False arrest? Malicious prosecution? Third Circuit: If true, the officer "exaggerated and hid facts to manufacture probable cause." No qualified immunity.
• Defense attorney: So we've got a deal? We agree on a total offense level of 14? Federal prosecutor: Absolutely. . . . Actually, your Honor, let's make that 18. Does that breach the agreement? In that case we take no position on whether it should be four higher than 14. Defense attorney: Objection, your Honor! Third Circuit: The gov't has to honor its plea deals, and it really fouled this one up. Remanded for resentencing before a new judge.
• There are few things more fragile than trust, except perhaps for the ego of a gov't lawyer subject to even the mildest sanction for misleading a judge. In related news, the Third Circuit holds that a federal judge did not abuse his discretion when—after concluding that the Philadelphia District Attorney's office misled the court about the depth of its investigation regarding a death-row inmate whose habeas petition the office conceded—he ordered DA Larry Krasner to apologize to the family of the murder victims and be more forthcoming in the future.
• Relatedly, no habeas for the death-row inmate mentioned above, who was convicted in 1985 for torturing and killing two people and leaving their infant daughter to freeze to death (miraculously, she survived). Per the Third Circuit, he suffered no prejudice from his counsel's failure to offer his prison records as mitigation evidence at sentencing because, among other things, that would have opened the door to evidence of his repeated escape attempts.
• HHS's Title X program provides hundreds of millions of dollars to clinics to distribute contraceptives and other family planning services. Grantees must "encourage family participation." But Texas law gives parents a right to consent before their children obtain contraceptives. Does Title X preempt Texas law? Fifth Circuit: Sure does not. If Congress intended to nullify state requirements that parents consent to their teenagers' getting the pill, it should've done so more explicitly.
• It takes a lot for a lawyer's closing statement to be so bonkers that the court of appeals will reverse the judgment entered in their client's favor. And these lawyers win the prize, says the Fifth Circuit, after cataloguing how "they employed nearly every type of improper argument identified by our court, including highly improper and personal attacks against opposing counsel, remarks about [the plaintiff's] wealth, a discussion of matters not in the record, insinuations that [the plaintiff] had lower moral standards because he was from Michigan, and suggestions of [the plaintiff's] bad motives through counsels' opinion." This tight 14-pager is worth a read in full. (And the oral argument, for those whose interest is piqued, is worth a listen too, with both sides' appellate lawyers acquitting themselves with distinction.)
• Ohio law makes it a crime to display your filled-in ballots, and gov't officials have repeatedly issued public statements emphasizing the illegality of posting "ballot selfies." Plaintiff: I have taken ballot selfies in the past and refrained from posting them because doing so is a crime, and I would like to post ballot selfies in the future but am chilled from doing so. Because it's literally a crime. Ohio officials: This woman obviously has no standing. District court: Yeah, definitely no standing. Sixth Circuit: "Defendants in this case have not only failed to disavow enforcement, they have also publicly doubled down on the ballot prohibitions." Sure sounds like a case or controversy to us.
• University of Oregon employee blocks Portland State University professor on one of Oregon's (then-called) Twitter accounts in response to professor's quote tweet. Professor sought to learn what policies governed his blocking and, when unsuccessful, sued for a First Amendment violation. Ninth Circuit (unpublished and over a dissent): The professor has raised serious questions on the merits of some of his claims, and the University's post-case-filing unblocking is not enough to limit the professor's sought relief.
• Denver man has armed standoff with police in his mother's home, and police throw teargas cannisters into the house causing a fire. Mother sues under state law, but police invoke a Colorado immunity that shields officials unless their actions were "willful and wanton." District court: That's a fact question for the jury. Tenth Circuit (unpublished): "Willful and wanton" requires showing that the police knew the teargas would cause a fire, not just that it might cause a fire. Mother can't show that, so immunity granted. Concurrence: Also, this Colorado immunity is a legal issue that should have been decided by the judge, not a jury.
• Wherein the Tenth Circuit gives some side-eye to a Colorado prison's "troubling" DEI programming—warning that "race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment"—but holds that in this particular case it wasn't so bad as to violate Title VII.
• Atlanta firefighters respond to a housefire and find the remains of a married couple; they may have been strangled and the fire was intentional. The couple's son is arrested and spends a year in jail. Yikes! The investigating officer neglected to tell the judge that the son has a video-supported alibi. (All charges are dropped.) District court: The officer didn't know or have reason to know about the exonerating evidence. Qualified immunity. Eleventh Circuit: Reversed.

New case! Illinois holds more than $5 billion in unclaimed property—uncashed checks, forgotten accounts, and misplaced savings. And David Knott helps people go about recovering their property before it is escheated—that is, surrendered to the state. (Fun fact: "escheat" is the etymological origin of the word "cheat.") But state officials now say David must obtain a private detective license, which means learning about firearms handling, crime scene investigation, and electronic surveillance, and then apprenticing with a licensed private detective for three years. None of which has anything to do with the work he actually does, searching publicly available databases and helping people with paperwork. "It just doesn't make sense," said David. "My clients are happy, my business is providing a useful service, and now after years of helping people and companies reclaim their rightful property, Illinois wants me to get a totally irrelevant license. It's counter to the primary goal of the program." It's also unconstitutional. Click here to learn more.

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

One technical but interesting note is the way that the Court ends its opinion in Lindke:

To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

One thing that the Court commonly does when it announces a new test that might or might not be consistent with the lower court's opinion is to (1) vacate and (2) remand for proceedings consistent with the Supreme Court's opinion. This might well result in the original judgment being reinstated, but the judgment is vacated first, and then the lower court figures out what to do. But notice that the Court does not quite do that here—here it vacates the lower court's judgment only "to the extent that [the Court's] test differs from the one applied by the Sixth Circuit."

So what has been vacated? Is this a partial vacatur? That is, is the Court saying that the lower court's judgment is only partly vacated? It makes sense to partially vacate an opinion, but I am not sure how the Court could only partly vacate a judgment. The Sixth Circuit's judgment was the affirmance of a district court's grant of summary judgment to the defendant. If the Court envisions a partly-vacated-partly-affirmed-affirmance it might thrust us into the puzzle about exactly what a "judgment unit" is, as discussed here by Richard Re.

Or is this an ambiguous or conditional vacatur? That is, I take it the Supreme Court might be saying that it isn't sure whether the lower court's judgment needs to be vacated, because it isn't sure exactly what the Sixth Circuit's test is. (Or perhaps different justices who joined the unanimous majority read the Sixth Circuit's test differently, even as they all agree what the test should be.)

On this view when the Sixth Circuit gets the case back, they first need to make a threshhold judgment about whether their own judgment has been vacated, and then if the judgment has been vacated the panel needs to redo the analysis under the new test. I understand how this works, but it does have the funny feature of effectively delegating to the lower court the task of deciding what the mandate of the higher court has been. As a practical matter that may be perfectly straightforward, but as a formal matter it seems odd and not something I'd seen before. And in future cases ambiguous or conditional vacaturs could be much more interesting and even mischief-making.

Again, as a practical matter I'm sure this will work out straightforwardly on remand, but I wonder whether we will see more "To the extent that X, we vacate/reverse" decretal language in the future.

The post Ambiguous Vacatur in Lindke v. Freed appeared first on Reason.com.

At the beginning of his sophomore year in high school, [Student] created a video of himself "spelling … out a racist slur." The video surfaced on social media during [Student]'s senior year in high school, and the video continues to circulate on social media.

[Critic], a concerned citizen, saw the video and began commenting about it and [Student] on her publicly accessible social media page. [Critic] "ke[pt] posting and reposting negative things against [Student,] … and … calling him out by his name as well." And [Critic] and other citizens appeared at the local school board meeting to "try[ ] to get some type of disciplinary" action imposed. [Student]'s father ("Father") contacted [Critic] and asked her to remove the video from her social media feed so that Father could "take care of [disciplining his son] in-house." [Critic] complied with Father's request but "then [the video] came back numerous times [and] other people started sharing it."

On May 3, 2023, [Student] filed a petition for a protection order against [Critic], alleging that [Critic] had used social media to stalk [Student], slander him, and disseminate false information…. [Student] testified that in making the video, he made a "dumb, stupid mistake" three years ago that had been circulating on social media for the "past seven [ ] months[,] and [Critic] has been slandering my name." Father told the trial court that the "only thing [Father and [Student]'s mother] have asked for from day one [is to] let us take care of our son, … but again, … [Critic] seems to keep … posting and reposting negative things against him."

[Critic] testified that she never contacted [Student] or his family, and that she "[d]idn't know where they lived, didn't know anything." [Critic] further testified that she did not "have any interest in targeting [Student on social media]," but that she believed it important to continue to comment on the matter. She told the court that in her future social media posts, she would "probably" "comment on" [Student] and any other individuals who had been involved with the video incident.

After hearing the testimony, the trial court denied [Student]'s petition for a protection order, ruling that "there's not grounds" to grant it. The court then sua sponte imposed what it termed a "mutual restraining order" on both parties, prohibiting them from—among other activities—communicating, harassing, or threatening each other directly or indirectly, including on social media. Specifically, the trial court instructed the parties as follows:

THE COURT: Alright, so here's what I am going to do. I am going to order both of you to not to [sic] communicate, not to harass, not to threaten each other in anyway [sic] shape or form, individually, directly, or through third … parties or any form of social media. And I'm not granting the Protective Order, that's denied cuz [sic] there's not grounds for a Protective Order. But I am granting a mutual restraining order so the two … of you leave each other alone. And if there's things that need to be addressed ah, as far as involvement and the school corporation or contacting law enforcement or amongst your friends that's perfectly fine. But, obviously there's been months of back and forth on social media where negative things were said on both sides and it's both of you just need to be adults and there's no reason for it. So do you understand ma'am? …

The appellate court concluded that the trial court lacked the authority under Indiana law to just issue the order on its own, without the parties' requesting it. The appellate court also concluded that the trial court's order didn't comply with the "specific requirements apply for every restraining order granted without notice," including "defining the injury, stating why it is irreparable, … stating why the order was granted without notice," and having the order last no more than a brief time before a full hearing. Because the appellate court reversed the order on those procedural grounds, it didn't need to decide whether the order violated the First Amendment.

Stevie J. Pactor and Kenneth J. Falk of the ACLU of Indiana represented Critic.

The post Judge Orders Person to Stop Campaign of Criticizing Teenager Who Had Posted a Racial Slur When a Sophomore appeared first on Reason.com.

Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them.

For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan—and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke's speech.

When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media….

The Court began with the familiar principle that the First Amendment applies only to government action, not private individuals' action. There's little controversy that social media pages run by government entities (e.g., by city councils, school boards, executive agencies, and the like) involve government action. But individual officials are both individuals and officials, so the question is which hat the person is wearing while running a social media page. Here is how the Court analyzed this:

[S]tate or local official[s] who routinely interact[] with the public … may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But … [while they] can act on behalf of the State, they are also private citizens with their own constitutional rights. By excluding from liability "acts of officers in the ambit of their personal pursuits," the state-action requirement "protects a robust sphere of individual liberty" for those who serve as public officials or employees.

The dispute between Lindke and Freed illustrates this dynamic. Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." This right includes the ability to speak about "information related to or learned through public employment," so long as the speech is not "itself ordinarily within the scope of [the] employee's duties." Where the right exists, "editorial control over speech and speakers on [the public employee's] properties or platforms" is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke's First Amendment rights—instead, he exercised his own….

For the reasons we explain below, a public official's social-media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State's behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first….

The first prong of this test is grounded in the bedrock requirement that "the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State." An act is not attributable to a State unless it is traceable to the State's power or authority…. [When the challenged conduct "entail[s] functions and obligations in no way dependent on state authority," state action does not exist….

[Lindke] insists that Freed's social-media activity constitutes state action because Freed's Facebook page looks and functions like an outlet for city updates and citizen concerns. But Freed's conduct is not attributable to the State unless he was "possessed of state authority" to post city updates and register citizen concerns. If the State did not entrust Freed with these responsibilities, it cannot "fairly be blamed" for the way he discharged them. Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage.

Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed's bailiwick. For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed's state authority—because he had none. For state action to exist, the State must be "responsible for the specific conduct of which the plaintiff complains." There must be a tie between the official's authority and "the gravamen of the plaintiff 's complaint." …

Section 1983 lists the potential sources [of official authority]: "statute, ordinance, regulation, custom, or usage." Statutes, ordinances, and regulations refer to written law through which a State can authorize an official to speak on its behalf. "Custom" and "usage" encompass "persistent practices of state officials" that are "so permanent and well settled" that they carry "the force of law."

So a city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements. He would also have that authority even in the absence of written law if, for instance, prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager's power to do so has become "permanent and well settled." And if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.

Determining the scope of an official's power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage. In some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially. For example, state law might grant a high-ranking official like the director of the state department of transportation broad responsibility for the state highway system that, in context, includes authority to make official announcements on that subject.

At the same time, courts must not rely on "'excessively broad job descriptions'" to conclude that a government employee is authorized to speak for the State. The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.

In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action….

For social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it. State officials have a choice about the capacity in which they choose to speak. "[G]enerally, a public employee" purports to speak on behalf of the State while speaking "in his official capacity or" when he uses his speech to fulfill "his responsibilities pursuant to state law." If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.

Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board president.

The context of Freed's speech is hazier than that of the hypothetical school board president. Had Freed's account carried a label (e.g., "this is the personal page of James R. Freed") or a disclaimer (e.g., "the views expressed are strictly my own"), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal. Markers like these give speech the benefit of clear context: Just as we can safely presume that speech at a backyard barbeque is personal, we can safely presume that speech on a "personal" page is personal (absent significant evidence indicating that a post is official). Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision (e.g., a "City of Port Huron" Facebook page) or is passed down to whomever occupies a particular office (e.g., an "@PHuronCityMgr" Instagram account). Freed's page, however, was not designated either "personal" or "official," raising the prospect that it was "mixed use"—a place where he made some posts in his personal capacity and others in his capacity as city manager.

{An official cannot insulate government business from scrutiny by conducting it on a personal page. The Solicitor General offers the particularly clear example of an official who designates space on his nominally personal page as the official channel for receiving comments on a proposed regulation. Because the power to conduct notice-and-comment rulemaking belongs exclusively to the State, its exercise is necessarily governmental. Similarly, a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page. By contrast, a post that is compatible with either a "personal capacity" or "official capacity" designation is "personal" if it appears on a personal page.}

Categorizing posts that appear on an ambiguous page like Freed's is a fact-specific undertaking in which the post's content and function are the most important considerations. In some circumstances, the post's content and function might make the plaintiff 's argument a slam dunk. Take a mayor who makes the following announcement exclusively on his Facebook page: "Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules." The post's express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city's webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech "relate[d] to his public employment" or "concern[ing] information learned during that employment."

Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.

One last point: The nature of the technology matters to the state-action analysis. Freed performed two actions to which Lindke objected: He deleted Lindke's comments and blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Lindke's comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook's blocking tool highlights the cost of a "mixed use" social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability….

The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

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The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. The chief judge of the district court shall be responsible for the observance of such rules and orders, and shall divide the business and assign the cases so far as such rules and orders do not otherwise prescribe. If the district judges in any district are unable to agree upon the adoption of rules or orders for that purpose the judicial council of the circuit shall make the necessary orders.

The letter from Senators McConnell, Cornyn, and Tillis cited the same statute. They wrote: "The assignment of cases within district courts is governed by federal statute."

The Washington Post brings similar news:

In a statement, Chief Judge Randy Crane of the Southern District of Texas said the policy violates the federal statute 28 USC 137, which "leaves the assignment of cases to the chief judges of each court."

"Suggestions of the Judicial Council can't override that law," Crane said.

Russell Wheeler, a judicial expert at the Brookings Institution, also questioned whether the conference has the authority to mandate that the courts amend their case assignment practices. Wheeler said circuit councils, which oversee the circuit courts, have the power to issue orders — not the Judicial Conference.

"I don't know where the conference gets that authority," Wheeler said.

Crane and Wheeler are right. There is no such authority.

One defender of the policy pointed me to 28 U.S.C. § 331, which establishes the statutory authority of the Judicial Conference of the United States. This is a long statute, that lacks any clear organizational structure. Indeed, there are no section divisions. I think the most likely source of authority appears in the fourth paragraph. This paragraph is a bit of a hodgepodge.

The first two sentences refer to studying judicial practice and making recommendations:

The Conference shall make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment of judges to or from circuits or districts where necessary. It shall also submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.

The remainder of the paragraph (except the last sentence) refers to the disciplinary process which appears in Title 28, Chapter 16.

The Conference is authorized to exercise the authority provided in chapter 16 of this title as the Conference, or through a standing committee. If the Conference elects to establish a standing committee, it shall be appointed by the Chief Justice and all petitions for review shall be reviewed by that committee. The Conference or the standing committee may hold hearings, take sworn testimony, issue subpoenas and subpoenas duces tecum, and make necessary and appropriate orders in the exercise of its authority. Subpoenas and subpoenas duces tecum shall be issued by the clerk of the Supreme Court or by the clerk of any court of appeals, at the direction of the Chief Justice or his designee and under the seal of the court, and shall be served in the manner provided in rule 45(c) of the Federal Rules of Civil Procedure for subpoenas and subpoenas duces tecum issued on behalf of the United States or an officer or any agency thereof. The Conference may also prescribe and modify rules for the exercise of the authority provided in chapter 16 of this title.

The final sentence in the paragraph provides:

All judicial officers and employees of the United States shall promptly carry into effect all orders of the Judicial Conference or the standing committee established pursuant to this section.

Does this sentence settle the matter? No.

First of all, judicial officers only have to "carry into effect" lawful orders. An "order" that conflicts with a federal statute is not an order at all; it a nullity. To use the General/Specific canon, Section 331 may provide a general grant of power, whereas Section 137(a) is an uber-specific delegation of power to courts to determine how cases are assigned. If there is any conflict, Section 137(a) would control.

Second, the statute references "pursuant to this section." The Judicial Conference only has the power to issue orders pursuant to the sources of authority in Section 331. You can read the entire section if you'd like. You will not see a word about directing courts how to assign cases. Any power over case assignment must be implied.

Third, perhaps the members of this august body would assert something like Chevron deference, and claim that the delegation of authority is at best ambiguous, and their reading of the statute is reasonable. Dare I respond with elephants in mouseholes? Or the fact that delegations of federal power should not be construed too broadly in the absence of evidence that Congress so clearly intended to vest this power? Do we need hypotheticals about babysitters and theme parks?

Fourth, other provisions of the Section 331 reflect that the Judicial Conference can propose "changes" and "additions" to rules in federal courts, but those recommendations would be made to the Supreme Court for adoption. There is no reference to a unilateral mandate.

Fifth, Congress gave the Judicial Power the power to "modify or abrogate any such rule" that are "prescribed under" 28 U.S.C § 2071. But the assignment of cases does not rely on the general grant in Section 2071, but instead invokes an express delegation of power in Section 137. That Congress gave the Conference some powers to "abrogate" some rules under Section 2071, but withheld that power to "abrogate" other rules, is significant.

Sixth, I apologize, but I will make an officer argument. I really can't help it. We will never be done with "officer stuff." Section 331 is directed at "judicial officers of the United States." But Section 137 refers to "the rules and orders of the court." The rules adopted by a District Court may be voted on by individual members, but they are rules of a court–an institution. If Congress wants to give the power to override court rules, it should say so clearly. Even within the judiciary, there are both horizontal and vertical separation of powers. The higher-ups can only meddle with the lower-downs when there is authority to do so.

Seventh, Section 331 provides no mechanism by which an order can be enforced.By contrast, 28 U.S.C. 332(d)(2) expressly gives the Judicial Council of each circuit the power to initiate a contempt proceeding "in the case of failure to comply with an order." I'm not sure what happens if a District Court rejects the Judicial Conference's guidance. Mandamus?

I could go on, but that's enough for now.

Let's be clear. The Judicial Conference, its press release, and private press conference, gave the media the impression this was a self-executing policy that all court would have to follow. That is not accurate. I've lost count of the number of reporters I've talked to over the past few days who came away from that press conference feeling misled–and these are not conservative media outlets.

Any argument that the district courts are required to follow the Judicial Conference relies on a really, really weak reading of statutes–one that these judges would never accept in a judicial decision. And even if it was a close call whether there was a conflict between an administrative body's authority and a federal statute, the presumption should go towards narrowly construing the administrative body's rulemaking powers to avoid a conflict with the supreme law of the land. A recent decision by the Second Circuit Judicial Council, which was advised by the Executive Committee of the Judicial Conference, recognized this principle.

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