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Civil Asset Forfeiture

Supreme Court Issues Flawed Ruling in Asset Forfeiture Case

But Justice Neil Gorsuch's concurring opinion suggests the Court may curb asset forfeiture in the future.

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(Reason)

Today, in Culley v. Marshall, the Supreme Court reached a dubious decision in an asset forfeiture property rights case, holding that the seizure of property through civil forfeiture requires a "timely hearing," it does not require "a separate preliminary hearing to determine whether the police may retain the car pending the forfeiture hearing." The justices split 6-3 along ideological lines. However, a concurring opinion by Justice Neil Gorsuch (joined by Justice Clarence Thomas) suggests there may be a majority in favor of a more fundamental challenge to the abusive asset forfeiture regimes that exist in many states.

Civil asset forfeiture enables the government to seize property that has allegedly been used in the commission of a crime, even if the owner has never been charged or convicted of anything. In many states, including Alabama (whose policies are at issue in Culley), law enforcement can then hold on to the property for many months before the owner is allowed to contest the seizure. Moreover, many states allow law enforcement to keep the proceeds from seized property, thereby creating an incentive to take as much as possible. Culley involves two Alabama cases where the owners of cars were subject to asset forfeitures as a result of the use of the vehicles by other people to conduct illegal drug transactions. The owners eventually managed to prevail in state court. But that process took many months. In the meantime, they were deprived of their vehicles, without any compensation.

Critics have long argued that such practices violate the Due Process Clauses of the Fifth and Fourteenth Amendments, which bar the government from  depriving "any person of life, liberty, or property, without due process of law." If the police can seize property and hold on to it for months on end without any meaningful process at all, that surely is not "due process of law."

In an opinion written by Justice Brett Kavanaugh, the Supreme Court nonetheless ruled that a separate "preliminary hearing" is not required in such cases, for two reasons. First, they contend the issue was resolved in two earlier Supreme Court precedents:

Ultimately, we need not reweigh the competing due process arguments advanced by the parties because this Court's decisions in United States v. $8,850, 461 U. S. 555 (1983), and United States v. Von Neumann, 474 U. S. 242 (1986), already resolved the issue. After a State seizes and seeks civil forfeiture of personal property, due process requires a timely forfeiture hearing but does not require a separate preliminary hearing….

The dispute in $8,850 arose when the Customs Service seized currency from an individual entering the United States, but then waited before filing for civil forfeiture of the currency…. The property owner argued that the delay violated due process….This Court concluded that a post-seizure delay "may become so prolonged that the dispossessed property owner has been deprived of a meaningful hearing at a meaningfultime." Id., at 562–563. The Court elaborated that timeliness in civil forfeiture cases must be assessed by "analog[izing] . . . to a defendant's right to a speedy trial" and considering four factors: the length of the delay, the reason for the delay, whether the property owner asserted his rights, and whether the delay was prejudicial. Id., at 564… Those factors are appropriate guides in the civil forfeiture context, the Court explained, because the factors ensure that "the flexible requirements of due process have been met…."

In Von Neumann, the Court addressed whether a timely forfeiture hearing, without more, provides the process that is due in civil forfeiture cases. See 474 U. S., at 249–251. The property owner there failed to declare the purchase of his new car upon driving it into the United States. See id.,at 245. A customs official determined that the car was subject to civil forfeiture and seized it. See ibid. The plaintiff filed a petition for remission of the forfeiture—in essence, a request under federal law that the Federal Government exercise its discretion to forgive the forfeiture. See id., at 245–246. The Government did not respond to that petition for 36 days. See id., at 246. The plaintiff sued, arguing that the Government's 36-day delay in answering the remission petition violated due process…. Justice Brennan's opinion for the Court broadly held that due process did not require a pre-forfeiture-hearing remission procedure in the first place….

This Court's decisions in $8,850 and Von Neumann resolve this case. As the Court stated in Von Neumann, a timely forfeiture hearing "satisfies any due process right"
with respect to a "car" that has been seized for civil forfeiture. 474 U. S., at 251; see also id., at 249. The Due Process Clause does not require a separate preliminary
hearing.

The second reason why the majority rejects the need for a pre-forfeiture hearing is the originalist argument that Founding-era evidence suggests it wasn't required:

Historical practice reinforces the holdings of $8,850 and Von Neumann that due process does not require preliminary hearings in civil forfeiture cases. Since the Founding era, statutes have authorized the Government to seize personal property and hold it pending a forfeiture hearing, without a separate preliminary hearing. For example, the first federal forfeiture law, the Collection Act of 1789, authorized the civil forfeiture of ships, goods, and merchandise involved in suspected violations of the customs laws…. The collector then filed a forfeiture action, which a court would "hear and determine . . . according to law." §36, id., at 47. While that action was pending, the seized property could remain in the custody of the collector." §25, id., at 43.…

The Collection Act did not require a separate preliminary hearing before the forfeiture hearing. Rather, the forfeiture "trial" supplied the opportunity for the property owner to challenge the collector's case.

In a forceful concurring opinion that reads more like a dissent, Justice Gorsuch outlines serious due process flaws in the current asset forfeiture regime, and in the process undermines the majorities arguments. Like Justice Sotomayor in her dissent for the three liberal justices, Gorsuch emphasizes the abusive practices of the modern asset forfeiture regime, and the fact that most of it is of relatively recent origin, arising from the growth of the War on Drugs.  This puts it in serious tension with text and original meaning:

To my mind, the due process questions surrounding these relatively new civil forfeiture practices are many. Start with the most fundamental one. The Fifth and Fourteenth
Amendments guarantee that no government in this country may take "life, liberty, or property, without due process of law." As originally understood, this promise usually meant that a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof. See, e.g., 1 W. Blackstone, Commentaries on the Laws of England 134– 135 (1765) (Blackstone); Vanhorne's Lessee v. Dorrance, 2 Dall. 304, 315 (CC Pa. 1795) (Patterson, J.); Wilkinson v. Leland, 2 Pet. 627, 657 (1829) (Story, J.). So how is it that, in civil forfeiture, the government may confiscate property first and provide process later?

The answer, if there is one, turns on history. If, as a rule, the Due Process Clauses require governments to conduct a trial before taking property, some exceptions are just asdeeply rooted. And for just that reason, these exceptions, too, may be consistent with the original meaning of the Fifth and Fourteenth Amendments.

Gorsuch goes on to note that the Founding-era and Supreme Court precedents cited by the majority may not be generally applicable, because they arose in " the discrete arenas of admiralty, customs, and revenue law." That's true of the Collections Act, and also of $8850 and Von Neumann, the two modern precedents emphasized by Kavanaugh. But, as Gorsuch points out, these areas are likely to be special cases, exceptions to the general rule that the government may only seize property after a trial:

The reasons for the law's traditionally permissive attitude toward civil forfeiture in those three contexts may merit exploration, too. From a brief look, it seems they were
sometimes justified for reasons particular to their fields. In the early Republic, for example, once a ship involved in violations of the Nation's piracy or customs laws slipped port for a foreign destination, American courts often could not exercise jurisdiction over it or its crew, let alone its owners…. In many instances, the law recognized that seizing the ship, subject to postdeprivation procedures, represented "the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party." Harmony v. United States, 2 How. 210, 233 (1844) (Story, J.); see also 3 Blackstone 262 (1768) (justifying civil forfeiture in customs cases as necessary "to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice"). But if history sanctions that line of thinking, it's hard not to wonder: How does any of that support the use of civil forfeiture in so many cases today, where the government can secure personal jurisdiction over the wrongdoer? And where seizing his property is not the only adequate means of addressing his offense?

How indeed?

Notice that Gorsuch's reasoning effectively disposes of both of the main arguments advanced by the majority: $8850 and Von Neumann are not dispositive precedents, because both were customs cases, which are a special, distinct situation. For the same reason, the Founding-era evidence cited by Kavanaugh is also inadequate. It too focuses on customs legislation.

More generally, if Gorsuch is right to conclude that "a government seeking to deprive an individual of her property could do so only after a trial before a jury in which it (not the individual) bore the burden of proof," then the Alabama laws at issue in this case are clearly unconstitutional! A procedure under which the government can seize and hold on to property for many months before providing any kind of hearing clearly doesn't meet that standard. Ditto for the way in which Alabama (like many other states) effectively shifts the burden of proof onto the property owner.

Thus, by their own reasoning, Gorsuch and Thomas should have dissented. Even if a "separate preliminary hearing" isn't required, the government still may not seize property without holding a trial first, and a procedure that, as Gorsuch puts it, allows "it take and keep private property without a warrant or any other form of prior process" is clearly unconstitutional, and violates the requirement of a "timely" hearing.

Justice Sotomayor's dissenting opinion offers additional constitutional criticisms of the Alabama asset forfeiture system, and others like it. Like Gorsuch, she also highlights the perverse incentives created by the current system (which allows law enforcement to profit from seizures), ways in which that system disproportionately burdens the poor and disadvantaged, including property owners who don't have the resources for a prolonged legal battle. Losing the use of your car for many months may be only a moderate burden for the relatively affluent. It's a much bigger one for a poor or working class person. She also points out additional flaws in the majority's use of precedent.

From the standpoint of civil libertarians and property rights advocates, there is a silver lining to today's otherwise terrible decision: at least five justices seem open to issuing a broader ruling curbing asset forfeiture. In his concurring opinion, Gorsuch comes close to inviting litigants to file a broad challenge arguing that most asset forfeitures require a prior jury trial:

Why does a Nation so jealous of its liberties tolerate expansive new civil forfeiture practices that have "led to egregious and well-chronicled abuses"? Leonard, 580 U. S., at 1180 (statement of THOMAS, J.). Perhaps it has something to do with the relative lack of power of those on whom the system preys. Perhaps government agencies' increasing dependence on forfeiture as a source of revenue is an important piece of the puzzle…. But maybe, too, part of the reason lies closer to home. In this Nation, the right to a jury trial before the government may take life, liberty, or property has always been the rule. Yes, some exceptions exist. But perhaps it is past time for this Court to examine more fully whether and to what degree contemporary civil forfeiture practices align with that rule and those exceptions.

If Justice Sotomayor's dissent is any indication, the three liberal justices also seem open to a broader attack on at least the more egregious current asset forfeiture practices, prevalent in many states.  Defense lawyers and public interest organizations should take note—and take up Gorsuch's thinly veiled invitation. Victory may yet be snatched from the jaws of today's defeat.

Traditionalizing Everything

I review Prof. Jack Balkin's new book

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At Law & Liberty this week, I review Yale Law Professor Jack Balkin's new book on tradition in law, Memory and Authority. Tradition is having a moment in constitutional law, and Prof. Balkin offers an interesting and, in some respects, persuasive analysis. For example, he correctly observes that lawyers use tradition selectively, highlighting aspects of the past that support their clients' positions and downplaying others. (No great surprise there; lawyers want to win cases). He points out that traditions are often  contested and that appeals to tradition depend on listeners' identification with the past and desire to honor it–which isn't always the case, especially in 21st century America.

Notwithstanding these problems, though, Balkin argues that progressives like him should embrace traditionalism in law and adapt it to their own agendas. Prof. Balkin already considers himself an originalist; it turns out he is a traditionalist, too. I'm basically sympathetic to tradition in law, though I recognize the problems, and it's always nice to have allies. But Prof. Balkin's definition of tradition is so broad that it's not clear he's really talking about tradition at all:

[T]here are limits to how elastic tradition can be, and Balkin's own understanding of collective "constitutional memory" is so expansive that at times it hardly seems like tradition at all. For example, he praises Obergefell v. Hodges, which held that the Constitution confers a right to same-sex marriage, for its correct use of tradition. True, there is no "history of specific legal guarantees for same-sex marriage in American law." But he argues that American tradition should be understood in a broader, more sensitive way, as a commitment to animating principles. The Obergefell Court correctly saw that the reasons why Americans historically have supported marriage generally obtained in the new context of same-sex marriage as well, and applied those reasons to reach a satisfactory present-day result. One can "alter or even reject existing practices," he writes, "while being faithful to the country's traditions of liberty."

Now, one can praise or criticize the Court's reasoning in Obergefell. But to paraphrase something Grant Gilmore said about Oliver Wendell Holmes in a different context, the magician who can traditionalize Obergefell can, the need arising, traditionalize anything. Tradition refers to concrete practices and accommodations that endure across time in a community, not abstractions like "liberty" or "equality" or "dignity" or "justice." And one cannot plausibly claim that same-sex marriage is an American tradition in that sense. One must choose which traditions to follow and which to discard; that is the essence of modernity. But one cannot decide a case according to an abstract, indeterminate principle and call oneself a traditionalist. One may as well say that one is doing something new—that one is deciding a case based on one's normative commitments and leave it at that.

Memory and Authority encourages lawyers who have sympathy for the role of tradition in law to own up to the fact that they inevitably must pick and choose among the traditions that make up our legal heritage and to account for the objections of their fellow Americans who do not have the positive feelings about the past that they do. In that, the book is very valuable. In terms of constructing a persuasive argument for the use of tradition in law, though, the book does not really deliver. Balkin's "usable past" turns out to be much more about what is "usable" than what is "past," such that tradition seems to mean whatever broad principle works to get you to your present goal. That may be good or bad, but tradition it's not.

Interested readers can find the whole review here.

Guns

Ninth Circuit Panel Concludes That Some Felons May Have Second Amendment Rights

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Today's U.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

It reasons, much historical analysis later, with the view that:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

And, the majority concludes, this defendant's particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.

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Do Judges "Have an Important Role to Play in Our Society" Beyond Judging?

A disagreement.

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I have written before here at the blog about why I disagree with judges boycotting particular law schools in an effort to influence law school culture. Over at David Lat's substack, Judge Lee Rudofsky, who is considering whether to join the Columbia clerk boycott, offers a perspective on the role of judge that is relevant to that discussion and that I think is worth addressing:

Regardless of whether I join or not, I generally (and mournfully) agree that Columbia University has become an incubator of antisemitism and anti-Americanism. And I do think that, at some point, judges must step up to the plate as leaders of the bar to help stop the spread of the virulent Jew hatred that is being normalized on college campuses and elsewhere across the country.

Judges have an important role to play in our society beyond the work we do in the courtroom or in chambers. We have a special responsibility to stand up for the rule of law and to stand against mob violence, especially where such violence echoes an age-old evil that once led to the murder of 6,000,000 Jews and millions of other innocents.

I respectfully disagree.  As I see it, judges as judges do not have an important role to play in our society beyond the work they do in the courtroom or in chambers. They shouldn't be stepping up to the plate, and they shouldn't be trying to help American society solve problems like anti-Semitism, in any kind of official capacity.

In the specific case of federal judges, people who are federal judges were given power because they fit a particular profile. They had the right age, the right education, and the right set of views that a President and a Senate were looking for to fill judicial positions. Being nominated and confirmed gives them a judicial power to decide cases. That is an extraordinarily important job, and we should all thank judges for their public service.

With that said, nothing in that process qualifies a judge for some broader role in society.  Judges are not overseers of our culture, or specialists in mob violence or how to address it. If, as individuals, judges want to take on a broader role in society, they are free to step down from the bench and pursue it. But I don't think they should take on that role as judges.

The problem, it seems to me, is that the "special responsibilities" Judge Rudofsky suggests judges have can be hard to distinguish from politics. I don't mean politics in the Republican versus Democrat sense (although it's presumably no coincidence that all of the judges who have publicly joined the boycott are Trump appointees). I mean politics in the broader sense of how our society resolves competing claims about justice and fairness. When those claims don't happen to involve a legal claim brought by a party in court, turning that question of politics into a question of law, I think judges acting in their official capacities should sit on the sidelines.

Of course, if judges want to weigh in on law reform questions, or write law review articles or other legal commentary, that's of course fine. They have the same right to do that as anyone else. But it seems to me the boycott framework crosses an important line: It uses judges' official government power to employ law clerks in an effort to influence the world of culture and politics. And I don't think that line should be crossed.

Free Speech

Court Orders Unsealing of Documents in Lottery Winner's Lawsuit

The lottery winner is suing an ex-girlfriend based on a non-disclosure agreement aimed at concealing his identity. (The motion to unseal, at this point, is aimed at just unsealing various sealed documents in the case, not at disclosing the parties' names.)

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From Judge John Woodcock's opinion today in Doe v. Smith (Sigmund D. Schutz and Alexandra A. Harriman of PretiFlaherty and I represent the media intervenors, and my student Timon Amirani worked on our motion):

An intervening local newspaper brings a motion to unseal the sealed court docket entries in a case in which the winner of a lottery has filed suit to enforce the provisions of a non-disclosure agreement against his former partner, the mother of their minor child….

On November 14, 2023, John Doe, acting under a pseudonym, filed a civil action in this Court against Sara Smith, another pseudonym, asserting that she breached a Non-Disclosure Agreement (NDA) and caused the Plaintiff damages. The Plaintiff also sought equitable relief, including an injunction against Ms. Smith. In the complaint, Mr. Doe alleges that he was the winner of the Maine State Lottery,  that Ms. Smith is the mother of his minor daughter,  and that Ms. Smith entered into a NDA to "promote the safety and security of John Doe, [herself], and their daughter" and to avoid "the irreparable harm of allowing the media or the public in general to discover, inter alia, John Doe's identity, physical location, and assets."

Mr. Doe filed several motions to seal documents filed in this case based on his view that the revelation of his name will cause him irreparable harm, and the Court has granted those motions. Since then, the Magistrate Judge has suggested that the "Plaintiff appears to be under the misimpression that this case will be conducted entirely under seal" and reminded the Plaintiff that if he wants a document sealed, he must comply with Local Rule 7A….

The court largely granted the motion to unseal (1) various motions to seal, (2) the motion to proceed pseudonymously, (3) the nondisclosure agreement, (4) a motion for sanctions, (5) the proposed amended complaint, and some related items (except for some discovery-related matters and some modest redactions of things such as the parties' names, their child's name, and other identifying information). An excerpt:

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Guns

No Second Amendment or Privacy Right Problem with California Laws Disclosing Firearms Purchaser Information to Certain Researchers

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From today's decision in Doe v. Bonta, written by Judge Mary Schroeder and joined by Judges Patrick Bumatay and Salvandor Mendoza:

California's DOJ maintains two databases relevant to this case. The first database relates to purchasers of firearms and applicants for CCWs. It is called the Automated Firearm System ["AFS"]. The second relates to purchasers of ammunition and is known as the Ammunition Purchase Records File ["APRF"]…. California has long permitted disclosure of information from these databases to a wide range of public officials, primarily for law enforcement purposes….

DOJ is statutorily required to include in the AFS the following personal information about gun purchasers and CCW holders: name, address, identification, place of birth, telephone number, occupation, sex, description, and legal aliases. The APRF contains similar information collected from ammunition vendors. Plaintiffs do not object to the existence of these databases or to dissemination of the information for law enforcement purposes….

The legislation at issue in this case, AB 173, became effective in September 2021. It amended the existing statutes to require DOJ to disclose data from these databases to researchers. The statute itself names as a recipient of the information the California Firearm Violence Research Center at University of California-Davis. The Center is a state institution the legislature created to do research on firearm violence, in order to inform policy and assist the legislature in enacting appropriate legislation. The statute also permits DOJ in its discretion to share information from these databases with other accredited, non-profit research institutions studying firearm violence. Currently, Stanford University houses the only institution so authorized.

Several gun owners sued, but the court rejected their arguments. First, as to the right of privacy:

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Abortion

Federal Court Rules Laws Restricting Interstate Travel for Abortion Violate the Right to Travel

The decision addresses an important issue left open by the Supreme Court's decision reversing Roe v. Wade.

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In this Nov. 30, 2005 file photo, an anti-abortion supporter stands next to a pro-choice demonstrator outside the U.S. Supreme Court in Washington. (AP Photo/Manuel Balce Ceneta) (NA)

 

As Eugene Volokh notes, yesterday, in Yellowhammer Fund v. Attorney General, a federal district court ruled against an Alabama law criminalizing assisting or facilitating the procurement of an out-of-state abortion by an Alabama resident. Eugene's post focuses mostly on the First Amendment part of the ruling. I will focus on the right to travel.

In  Dobbs v. Jackson Women's Health Organization the Supreme Court's decision overturning Roe v. Wade, the Court left open the issue of whether states could punish residents who seek abortions in other states. However, in a concurring opinion, Justice Brett Kavanaugh wrote that this is question is "not especially difficult," and that the answer is "no" because such laws violate "the constitutional right to interstate travel."

Federal District Judge Myron Thompson, author of yesterday's ruling clearly agrees. Here's an excerpt from his reasoning:

Considering the right to travel in the context of Article IV's Privileges and Immunities Clause confirms that the right includes both the right to move physically between the States and to do what is legal in the destination State. The Clause was meant to create a "general citizenship," 3 J. Story, Commentaries on the Constitution of the United States, 3:674-75, § 1800 (1833), and "place the citizens of each State upon the same footing with citizens of other States." Paul v. Virginia, 75 U.S. 168, 180 (1868)…. When individuals do travel into another State, the Clause ensures that they lose both "the peculiar privileges conferred by their [home State's] laws" as well as "the disabilities of alienage." Id. The Clause "insures to [citizens] in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness." Id. at 180-81. These goals are incompatible with a right to travel that would allow one's home State to inhibit a traveler's liberty to enjoy the opportunities lawfully available in another State….

Similarly, the Supreme Court has explained that the Privileges and Immunities Clause "plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation." Ward v. State, 79 U.S. 418, 430 (1870)…

The Attorney General's characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense. Travel is valuable precisely because it allows us to pursue opportunities available elsewhere. "If our bodies can move among states, but our freedom of action is tied to our place of origin, then the 'right to travel' becomes a hollow shell." Seth F. Kreimer, Lines in the Sand: The Importance of Borders in American Federalism, 150 U. Pa. L. Rev. 973, 1007 (2002). Indeed, the Attorney General's theory of the right to travel, which would allow each State to force its residents to carry its laws on their backs as they travel, "amount[s] to nothing more than the right to have the physical environment of the states of one's choosing pass before one's eyes." Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future—or Reveal the Structure of the Present?, 113 Harv. L. Rev. 110, 152 (1999). Such a constrained conception of the right to travel would erode the privileges of national citizenship and is inconsistent with the Constitution….

I agree and would add that the contrary view has drastic implications that go far beyond abortion. It would allow states to criminalize travel for virtually any purpose that is forbidden or restricted within their jurisdiction, but legal in another state. For example, some states ban marijuana, while others do not. But that doesn't give a state the power to punish citizens who travel to another state to use weed. The same goes for sports gambling, legal in 38 states, but still forbidden in 12. If a Californian (resident of one of the states that still ban the practice) decides to cross into Arizona to place a bet on his favorite team, California doesn't have the right to punish him for it.

Judge Thompson also effectively refutes the argument that the Alabama law is constitutional because it doesn't directly punish women who travel to get abortions, but only targets those who assist them in doing so (in this case a charity that helps poor women get abortions):

Supreme Court precedent demonstrates that, when a State creates barriers to travel itself, "the constitutional right of interstate travel is virtually unqualified," Haig v. Agee, 453 U.S. 280, 307 (1981), and even the slightest burdens on travel are generally not tolerated. For this reason, travel restrictions directed toward those who facilitate travel for others can offend the Constitution. Exemplifying both points is Crandall v. Nevada, which produced the Supreme Court's first majority opinion on the right to travel. 73 U.S. 35 (1867). At issue was a Nevada statute that imposed a one-dollar tax per passenger on common carriers leaving the State. The Court held that the tax was an unconstitutional burden on the passengers' right to travel, even though the tax was merely one dollar and even though it applied only when someone relied on a common carrier for transportation….

Likewise, in Edwards v. California, the Supreme Court struck down a California law that made it a crime to bring or assist in bringing into the State any indigent person who was not a California resident. 314 U.S. 160 (1941). Thus, the California law subjected only those who assisted others in travel to criminal liability. The Court nonetheless determined that the law violated indigent people's right to travel….

Denying—through criminal prosecution–assistance to the plaintiffs' clients, many of whom are financially vulnerable, is a greater burden on travel than the one-dollar tax per passenger in Crandall, and it is precisely what was held unconstitutional in Edwards. The Attorney General argues that Crandall and Edwards are distinguishable because the travel restrictions at issue in those cases operated categorically, regardless of the reasons for which people were traveling. Again, however, the right to travel includes the right to do what is lawful in another State while traveling, so restrictions that prohibit travel for specific out-of-state conduct are unconstitutional just as those that impede travel generally are. There is no end-run around the right to travel that would allow States to burden travel selectively and in a patchwork fashion based on whether they approve or disapprove of lawful conduct that their residents wish to engage in outside their borders.

I think Judge Thompson is right on this point, as well. And I would add this issue unique to the right to travel. In other contexts too, the Constitution bars laws punishing people who assist in or facilitate the exercise of a constitutional right, as well as the immediate rights-holders themselves. For example, the Free Speech Clause of the First Amendment surely bars laws that punish people who publish and distribute speech, as well as the actual speakers. In Griswold v. Connecticut, the Supreme Court struck down a Connecticut law that barred the sale and distribution of contraceptives, not merely their use.

In the aftermath of Dobbs, interstate travel to get abortions has been a major factor limiting the impact of laws severely restricting abortion enacted by many red states. It's a major reason why the number of abortions has actually risen slightly since Dobbs, instead of declining. It also helps explain why few people have "voted with their feet" to move to pro-choice states since Dobbs. Interstate travel to get an abortion is a less costly alternative form of foot voting for many women. "Mail order" abortions using drugs such as mifepristone are also a factor here.

That does not mean that severe abortion restrictions have no effect. Having to travel out of state is costlier and more time-consuming for many women than in-state options would be. And there are certainly some who simply cannot or will not undertake the necessary travel. But the interstate option has nonetheless greatly reduced the effects of Dobbs.

This ruling will almost certainly be appealed. But, ultimately, I expect Alabama will continue to lose. Judge Thompson's reasoning is strong. And Justice Kavanaugh's concurring opinion is a strong signal there is no majority on the Supreme Court for upholding these kinds of laws.

In a 2022 post, I outlined how state laws banning interstate travel to get an abortion might also be unconstitutional on two other grounds: the Dormant Commerce Clause and lack of state authority to regulate activity outside its borders. Judge Thompson does not address these issues, presumably because he didn't need to do so, given that he already decided to rule against Alabama on other grounds.

Free Speech

"MIT No Longer Requiring Diversity Statements from Prospective Faculty"

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The Hill (Lexi Lonas) reports:

[MIT] announced Monday it no longer will require diversity statements from prospective faculty.

The school said the decision was directed by President Sally Kornbluth "with the support of the Provost, Chancellor, Vice President for Equity and Inclusion, and all six academic deans."

"My goals are to tap into the full scope of human talent, to bring the very best to MIT, and to make sure they thrive once here," Kornbluth said in a statement.

"We can build an inclusive environment in many ways, but compelled statements impinge on freedom of expression, and they don't work."

Very glad to see that. For my views on the subject, see this post, which I'm also passing along below:

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"Indie Artist Washed Out's New Music Video Was Fully AI-Generated"

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From NBC News (Angela Yang):

Washed Out's latest song, "The Hardest Part," was released Thursday, complete with a four-minute music video following a couple's romance from high school through the rest of their adult lives together — speeding through scenes alluding to a wedding, child-rearing and eventual death.

The video's director, Paul Trillio, wrote in a statement shared by Washed Out's record label, Sub Pop, that he had wanted to film such an "infinite zoom" concept for a decade now but never attempted it because he believed it would be too ambitious.

"I was specifically interested in what makes Sora so unique. It offers something that couldn't quite be shot with a camera, nor could it be animated in 3D, it was something that could have only existed with this specific technology," Trillio wrote. "The surreal and hallucinatory aspects of AI allow you to explore and discover new ideas that you would have never dreamed of." …

Free Speech

High School Student Allegedly Suspended for Saying "Illegal Alien" in Class Discussion Sues

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You can read the just-filed Complaint in C.M. v. Davidson County Bd. of Ed.; here's my post on the incident from when it first hit the news.

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The New York Post (Yaron Steinbuch) reports:

A 16-year-old North Carolina high school student says he was suspended just for saying "illegal alien" while discussing word meaning in English class — possibly ruining his chances of landing a college sports scholarship.

Christian McGhee, a student at Central Davidson High School in Lexington, received a three-day suspension last week after he used the term in English class, the Carolina Journal reported.

His mother, Leah McGhee, said his teacher had given an assignment that used the word "alien," and Christian asked: "Like space aliens or illegal aliens without green cards?"

Another student reportedly took offense and threatened to fight Christian, so the teacher took the matter to the assistant principal, according to the Carolina Journal….

The Carolina Journal (Briana Kraemer) reports:

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Pluralism

Yascha Mounk and Eboo Patel on Pluralism

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An interesting Persuasion interview (text and audio). I expect I disagree with Patel on much, but I found his comments to be thoughtful and well expressed. One excerpt from the beginning:

What's happened is an interesting critique morphed into a paradigm which then shifted into a regime. Anti-racism is an interesting critique. Here's what you're not talking about: you're not talking about structural racism; you're not talking about oppressed peoples; you're not talking about oppressors, etc. So I think that's an interesting critique.

But when it becomes a paradigm, it seeks to explain all of the facts of the world. And now you're in trouble, because there's lots of things that anti-racism doesn't explain. It doesn't explain why 57% of the people in higher education are women and only 43% are men, right? That is not usefully explained by any kind of classic left-wing perspectives of patriarchy, structural racism, etc. It doesn't explain the opioid epidemic in West Virginia, Pennsylvania, rural Ohio, etc.

Once you lock yourself into an explanatory framework or a paradigm, well, now you're in the situation of kind of twisting the facts of the world to fit your worldview, which, by the way, I think is the cardinal sin of an intellectual.

But actually what's happened is in some places it became even worse than a paradigm; it became a regime. Now, all of a sudden, it has coercive force and the ability to punish: We are going to require you to write a DEI statement that agrees with our perspective for you to be considered a faculty member at this university. We are going to advertise our bias response team and we are going to encourage you to report what we think of as bias in order for us to kind of launch an investigation.

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Free Speech

Columbia, the Boycotting Judges, Neutrals, and Secondary Boycotts

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The boycott of Columbia graduates by a group of judges led me to the following thoughts (adapted from a post about the 2022 boycott of Yale Law graduates, which was begun by a judge who is also one of the signatories to the Columbia boycott).

[A.] Just to make clear at the outset, I agree that judges are entitled to choose whom to hire, and that they indeed often prefer some law schools or colleges over others for many reasons that are often only weakly correlated to the school's relative academic quality. (Columbia students may well have been the beneficiary of such preferences far more often than they have been handicapped by such preferences.)

Indeed, I think that judges are even entitled, if they so choose, to hire clerks based in part on the clerks' ideological views, though I do not see the proposal as calling for that. Clerkships are the unusual sort of job for which ideological compatibility as to legal matters (e.g., originalism vs. living constitutionalism, textualism vs. purposivism, the interpretation of various controversial constitutional and statutory provisions, and the like) should generally be seen as a legitimate hiring criterion, cf. Elrod v. Burns and Branti v. Finkel. To my knowledge, many judges, both liberals and conservatives, have considered ideological compatibility in hiring clerks, though many others, both liberals and conservatives, have generally not considered it.

[B.] But here's the heart of my disagreement, not as a matter of legal command but as a matter of what one might loosely call the ethics of American freedom and democracy: My view is that we shouldn't threaten innocent neutrals as a means of influencing the culpable.

Columbia students aren't the ones who set Columbia policy. They may disagree with that policy, or they may not know enough about the subject to have a view. Even if they go to Columbia knowing about Columbia policy (and about the boycott), they shouldn't be held responsible for what Columbia does, and they shouldn't be retaliated against as a means of trying to pressure Columbia to change. Such "secondary boycotts," as labor law refers to them in a somewhat different context, are both unfair to the "neutral[s]" that are being boycotted, and likely to "widen[] … strife." (I'm not claiming here that there's anything illegal about the proposed boycott of Columbia graduates, but only that some of the reasons labor law disapproves of secondary boycotts also carry over to this situation.)

[1.] Let me offer an analogy. As I understand it, BYU apparently forbids same-sex sexual or even romantic behavior by its students. (The precise rule changed recently, but it appears that it still forbids same-sex romantic relationships even if they do not include sexual conduct.) Let's say that some judges or law firms organized a boycott of all BYU graduates (law school or undergrad) on the theory that this may help pressure BYU to change its policy. Assume that such a boycott would be sincerely motivated by opposition to anti-gay policies generally—the boycotters would gladly add other universities if it were publicly known that they have similar policies—not to Mormons as a religious group.

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