Oral arguments in abortion pill case: Yesterday, the Supreme Court heard oral arguments in the abortion pill case it's currently considering, involving access to mifepristone, which is used in medical abortions up until 10 weeks gestation.
"The justices are examining rule changes in 2016 and 2021 that, among other things, made the drug available by mail and from a medical provider other than a doctor," reports The Washington Post.
The majority of justices seemed skeptical "that the plaintiffs, who do not prescribe abortion pills or regularly treat abortion patients, even had standing to bring the challenge," per The New York Times. It seems the plaintiffs may have failed to make their case that they suffer concrete harm from mifepristone being widely available, though Erin Hawley—a lawyer with the Alliance Defending Freedom, and wife of Sen. Josh Hawley (R–Mo.), who was arguing before the court—made the case that, if women suffer from complications after taking mifepristone, pro-life doctors may be forced to choose between helping such patients and violating their deeply-held convictions.
But, "under federal law, no doctors can be forced against their consciences to perform or assist in an abortion, correct?" asked Justice Brett Kavanaugh.
Elizabeth B. Prelogar, the solicitor general arguing on the government's behalf, said Hawley and co. did not "come within 100 miles of the kinds of circumstances this court has previously identified" as grounds for standing and disputed plaintiffs' arguments about the safety of the abortion pill. The remedy the plaintiffs seek—nationwide restrictions on mifepristone access—also seems unlikely to fly.
"This case seems like a prime example of turning what could be a small lawsuit into a nationwide legislative assembly on an F.D.A. rule or any other federal government action," said Justice Neil Gorsuch yesterday.
Alabama referendum on IVF decision: In February, Alabama's state supreme court ruled, quite controversially, that frozen embryos deserve the same types of legal protections granted to children.
Yesterday, a woman named Marilyn Lands flipped a state House seat from red to blue after campaigning in opposition to the in vitro fertilization (IVF) decision and to restrictions on abortion (including sharing her own story of getting an abortion several decades ago, after doctors determined her baby would not live long outside the womb).
Republicans will, of course, still hold a majority in the statehouse, but it's an interesting outcome that provides more fodder for the hypothesis that abortion restrictions—and, in Alabama's case, IVF restrictions as well—are unpopular among most voters.
For pro-lifers like myself who favor restrictions on the procedure (contra most libertarians), this is disheartening, but a political reality with which we must contend.
Scenes from New York: Today, the Eric Adams administration started giving out prepaid debit cards to illegal immigrants who have entered the city. The program, which is slated to cost $53 million, aims to provide migrants the ability to secure their own food and necessities—via bodega or grocery store—to address the problem of wasted food in migrant shelters (which I covered in this section several months ago).
According to the city's Housing Preservation & Development office, "a family of four would be given $15,000 a year" under this program. "This cost-saving measure will replace the city's current system of providing non-perishable food boxes to migrant families staying in hotels, much of which is often discarded," said an Adams spokesperson. They claim up to $600,000 per month could be saved with the new program.
But this is an extraordinary amount of spending—underwritten by New York City taxpayers—doled out to an uncapped number of people who have not paid (and possibly will not pay) into the system. What happens when people respond to incentives and the number of illegal immigrants seeking government-provided money and shelter absolutely balloons?
It's increasingly hard to escape the conclusion that the continued push for minimum wage increases despite their predictably bad consequences is a triumph of in-group signaling over a concern for the material welfare of the poor https://t.co/nRQYqQpScn
— Chris Freiman (@cafreiman) March 26, 2024
Worship attendance rates @Gallup pic.twitter.com/uzI0nrVZhA
— @markdtooley (@markdtooley) March 26, 2024
The post Supreme Court Unpersuaded appeared first on Reason.com.
]]>Solicitor General Elizabeth Prelogar began today's oral argument in FDA v. AHM with standing, emphasizing the plaintiffs' argument for Article III standing is based upon an attenuated chain of causation that fails to satisfy the requirements of Article III standing. This was a good start. In turning to the consequences of allowing this suit to go forward, I think it was an error to focus exclusively on the consequences for reproductive choice and women seeking to terminate pregnancies. Allowing standing in this case poses the risk of opening the door to suits against all manner of FDA decisions, such as decisions to approve vaccines (among other things). Courts have generally rejected standing in such suits. Is that really something the Court wants to change?
Asking the first question (as has become traditional), Justice Thomas wants to know, if not these plaintiffs, who could sue to challenge the FDA's approval (a question that Justice Alito picks up later). This is a good question, but there is no constitutional requirement that Article III standing must exist for someone. Put another way, there can be cases in which no one has Article III standing to challenge the federal government's failure to regulate someone else, particularly where (as here) Congress has not created a cause of action or purported to authorize such suits. Under Lujan, the standing inquiry can be eased when Congress has created a procedural right or authorized suit, but it has never done so here. As Justice Thomas notes in response, the plaintiffs may have a stronger argument relying upon some of the Court's associational standing cases (such as Havens Realty, for instance), but I doubt the Court really wants to rely upon that outlier decision. (Indeed, some of us thought the Court was poised to cut back on Havens Realty in Acheson Hotel.)
Pressed on this point by Justice Alito, SG Prelogar effectively acknowledges that there may not be any specific individual who can sue the FDA for revising ts regulation of mifepristone. The theory the plaintiffs have pressed, she notes, does not come within miles of the requirements of Article III standing as the Court has articulated them in prior cases. Whether there is some other theory out there that might work is not a question the government has to answer.
Asked to distinguish Havens Realty by Justice Barrett, SG Prelogar notes that in Havens Realty there was direct harm to the organization, due to its contractual obligations and the like. In other words, Havens Realty was a far narrower decision than some lower courts have assumed (which is something we saw in the emoluments clause litigation). Prelogar is correct on this point. Havens Realty is not the open door for associations that some circuit courts have turned it into.
While most of the early questioning of SG Prelogar focuses on standing, Justice Alito turns to the merits. Prelogar effectively responds to AHM's claim that FDA failed to adequately consider the potential combination of regulatory changes it made. Then Justice Alito raises the Comstock Act: Should the FDA have considered the statute? No, Prelogar answers, because the Comstock Act is not in the FDA's lane. This is precisely correct. The FDA does not enforce Comstock (and Comstock was clearly unenforceable prior to the Dobbs decision). Put another way, the Department of Justice could enforce the Comstock Act in a future administration, but the FDA was not obligated to focus upon it. Moreover, the FDA relied upon an Office of Legal Counsel memorandum on the enforceability of the Comstock Act.
Justice Kagan asks SG Prelogar whether it is still true that this case marks the first time in which a federal court has second-guessed the FDA's decision to approve a product. It is. No doubt this is largely due to standing. [Note, however, some medical groups did successfully sue the FDA for failing to regulate vaping products more aggressively, which led to some of the FDA's current problems in that area.] The question here is not whether the FDA ever makes mistakes–it certainly does!–but whether these plaintiffs have standing to bring this case.
Justices Barrett, Kagan, and Kavanaugh all raise the issue of whether a doctor's conscience objection is sufficient for standing in a case like this. SG Prelogar maintains that federal law protects the legitimate conscience objections of doctors who object to performing abortions or providing abortion-inducing medications. Moreover, the FDA's loosening of the regulation of mifepristone does not implicate such conscience claims (nor does the remedy that the plaintiffs seek–regulating mifepristone more stringently–does not align with the injury claimed).
Justice Jackson asks an interesting question about whether the Court's resolution of the pending Corner Post could affect this sort of litigation. The Fifth Circuit had found that AHM's claims against the initial 2000 approval of mifepristone was too late. Might an aggressive ruling in Corner Post make such claims viable in the future? Prelogar concedes it might, but notes that the federal government might have other arguments against allowing such stale claims to proceed.
Jessica Ellsworth, Danco's lawyer is now up, and the questioning here focuses a bit more on the merits than standing. Right off the bat, she is challenged on the Comstock Act by Justice Thomas. There are interesting questions here about whether Danco is potentially liable for violating the Comstock Act by distributing mifepristone, but that is not an issue in this case.
Justice Jackson asks Ellsworth about the problems of judges reviewing expert agencies. While it's fair to note that the district court bollixed some of the technical issues below, this is not a helpful line of questioning. There is no reason the FDA should be exempt from traditional arbitrary and capricious review. and such review (done properly) does not require courts to second-guess the scientific judgments of expert agencies. Rather, it calls upon courts to make sure that agencies have engaged in reasoned decision-making.
Justice Thomas begins the questioning of AHM's attorney, Erin Hawley, about standing, focusing on whether AHM's claimed associational harm is anything more than having to spend money to challenge a government decision it does not like. Hawley's answer adopts the broad conception of Havens Realty embraced by many lower courts, and does not appear to satisfy Justice Thomas. Hawley's argument, Thomas suggests, would make standing "easy to manufacture."
Asked about conscience objections, Hawley contests whether existing conscience protections are sufficient for objecting doctors, but is not able to identify anything in any of the declarations demonstrating that doctors have been unable to raise conscience objections where called for. She does note, however, that the federal government may not have been entirely consistent in how it has applied such protections under statutes such as EMTALA. Justice Gorsuch jumps in to underline the point that insofar as conscience harms are alleged, the appropriate remedy would be to provide direct conscience protections, not to restrict the sale or marketing of a pharmaceutical nationwide. (Cue Gorsuch's oft-repeated concerns about the "rash of universal injunctions"—concerns that Hawley does not seem to want to address directly.) Hawley's argument here is, in effect, that the emergency nature of ER work makes raising conscience objections impracticable, and therefore the only relief that can remedy the harm is to limit the use of mifepristone nationwide.
Justice Kagan returns to standing, honing in on the probabilistic nature of AHM's standing claims (an issue I discussed here). Hawley attempts to parry by noting that FDA has acknowledged the possibility of adverse events or needs for doctors in emergency rooms to help ensure patient safety, but as Kagan notes, this does not solve the problem. While AHM has identified specific plaintiffs, none of their declarations show the sort of imminent injury traceable to the FDA's decision to loosen the regulation of mifepristone. Note that even if such claims could be shown, it would be difficult to show that such harms are traceable to the FDA's modification of the regulation of mifepristone, as opposed to mifepristone being available. Other justices pick up on this line of questioning, focusing on what is (and is not) in the declarations.
Justice Alito helps Hawley out by pointing out that the Court has, at times, been a bit lax in enforcing its standing (as in the census case). Hawley responds by leaning heavily into some of the probabilistic claims. She overstates what the record shows (e.g. by suggesting the findings of particular small-gauge studies show what the nationwide effects of changing the regulation of mifepristone will be). I wonder whether any of the justices caught this (or will call her on it).
Justice Kagan presses Hawley on whether any of the harms alleged can be traced to the 2016 and 2021 revisions. Hawley's response is that the revisions increased the likelihood of harm. As I discussed in this morning's post, this is precisely the sort of claim that Clapper and Summers rejected, as it is not clear how the alleged actual or imminent harms claimed by AHM can be traced to the increased quantum of risk allegedly caused by the FDA's loosening of the rules governing mifepristone.
The SG's rebuttal is quite strong and (in my view) strikes a better balance on the various arguments and issues (given the audience that is this Court) than did the tail end of her intro. It really hits standing hard, and emphasizes the systemic effects on FDA regulation more than the reproductive rights angle. This is the sign of a good advocate: Making the arguments that will appeal to the justices, not those that appeal to the administration's political constituencies.
Overall, it seems the justices are quite skeptical of standing here (as they should be). While some might be concerned that the Court is not consistent in its approach to standing (as Justice Alito was in California v. Texas) it seems like there are likely to be five votes to dismiss this case on standing grounds–as it should.
Note that if this case is dismissed on standing, a future presidential administration would still be able to reconsider the existing regulation of mifepristone or enforce the Comstock Act. Moreover, dismissing this case on standing grounds would do little to buttress the (weak) arguments some are making that federal approval of mifepristone preempts state laws restricting or prohibiting mifepristone's use within their borders. It is also possible that standing to pursue this sort of lawsuit could be facilitated by the enactment of a citizen suit provision authorizing suits against the FDA for improperly approving or revising the regulation of prescription drugs.
Put another way, if this case is resolved on standing grounds, it will be an important standing decision, but it will resolve very little about the broader issue of abortion and the use or availability of mifepristone.
* * *
For those interested, here are my prior blog posts about this case and the issues it raises:
The post Mifepristone in the Supreme Court—Comments on Oral Argument (Updated) appeared first on Reason.com.
]]>Extradition decisions: Yesterday, Britain's High Court ruled that WikiLeaks publisher Julian Assange—who stands accused of violating the Espionage Act due to his 2010 decision to publish classified documents leaked by whistleblower Chelsea Manning that revealed disturbing U.S. military actions—cannot be extradited to the United States until greater assurances are provided about how he will be treated in custody and at trial, including receiving First Amendment protections.
The court gave U.S. authorities three weeks to provide assurances that Assange "is permitted to rely on the First Amendment to the United States Constitution…that he is not prejudiced at trial (including sentence) by reason of his nationality, that he is afforded the same First Amendment protections as a United States citizen and that the death penalty is not imposed."
This decision had been anxiously awaited by Assange-watchers, given that he is very close to the end of the road, in terms of appeals, within the British court system.
The U.S. has until May 20 to provide these assurances to the British High Court; if they are not satisfactory, he will receive a full appeal hearing in the U.K. Concurrently, Assange's legal team is seeking an appeal with the European Court of Human Rights, which could possibly delay extradition further.
In other words, his fate remains uncertain, but this move by the British court is a decidedly good one. For more on Assange's case, watch this episode of my show, Just Asking Questions, in which Zach Weissmueller and I interviewed Julian's wife, Stella (who also happens to be an attorney who has worked on his case).
Abortion pill legality being considered: Today, the Supreme Court will hear arguments in a case involving the legality of mifepristone, one of the drugs used to induce abortions. The decision will most likely be announced in June, later in the term, and will have significant implications for whether the pill can be prescribed by mail or telemedicine.
"At issue is whether the [Food and Drug Administration (FDA)] acted appropriately in expanding access to the drug in 2016 and again in 2021," reports The New York Times. "The court is also expected to consider whether the plaintiffs, a group of anti-abortion doctors and organizations, can show that they will suffer concrete harm if the pill remains widely available. Lawyers call this requirement standing."
The Biden administration says, via brief, that the group of doctors has brought the lawsuit "based on speculative and attenuated injuries."
Here's a timeline of mifepristone approval, access, and lawsuits, spanning all the way back to 2000. More on how the FDA has determined mifepristone's risk/safety here.
"Two-thirds (66%) of US adults say they oppose banning the use of mifepristone, or medication abortion, nationwide, and 62% oppose making it a crime for healthcare providers to mail abortion pills to patients in states where abortion is banned," per a CNN writeup relying on KFF polling data from earlier this month. All of that is to say: abortion restrictions, particularly early-term procedures (which seemingly strike many people as less grotesque, more anodyne) have not proven to be a winning political issue for Republicans, so if the Supreme Court does move to restrict mifepristone, the political ripple effects may be major.
Scenes from New York: Another subway system crime, this one involving a man being shoved onto the tracks by a stranger, struck and killed by the oncoming train, during rush hour in East Harlem. (We discussed the rise in this particular category of crime on the JAQ episode with criminal justice professor/former Baltimore cop Peter Moskos.)
The opening scene in Netflix's #3BodyProblem is a brilliant, terrifying depiction of China's Cultural Revolution. Watch it now.
The entire series is worth watching, but this scene, moved from the middle of the original novel to the start of the English translation, provides a… pic.twitter.com/BpEjPY58Vm
— Nick Gillespie (@nickgillespie) March 25, 2024
The post Greater Protections for Assange appeared first on Reason.com.
]]>The biggest challenge for AHM, the group challenging the FDA, is demonstrating that federal courts have jurisdiction to hear its claims. AHM would like the FDA to regulate mifepristone more stringently, or prohibit its use altogether. In effect, AHM is arguing that the FDA needs to regulate someone else (in this case, mifepristone manufacturers and prescribers) more stringently than it has done. As always in standing cases, asking the courts to force the government to treat a third party differently can be a heavy lift.
AHM's standing claim is based on the argument that AHM's members are injured when women who take mifepristone face complications and seek assistance in emergency rooms. Having to observe and treat such complications causes a cognizable injury, AHM argues, because providing treatment in such cases makes doctors feel complicit in abortion, violates their conscience, and may even expose them to liability.
Assuming that actions by third parties (in this case, the FDA) that force individuals to do their jobs (in this case, anti-abortion ER doctors treating patients) constitutes a cognizable injury for Article III purposes, AHM faces the larger problem of being unable to identify specific doctors who will face specific instances. Rather, they are claiming that the risk of these things has increased because mifepristone is available. The problem here is that AHM is alleging precisely the sort of speculative injuries the Court held were insufficient in Clapper v. Amnesty International. Thus allowing this case to go forward would, in effect, allow groups of doctors to challenge any agency decision that could conceivably result in an increase in injuries among an identifiable group of people. AHM tries to address this problem by citing the comment in Clapper footnote 5 that standing can sometimes be shown "based on a 'substantial risk' that the harm will occur," yet manages to conveniently truncate the quote every time it this argument is made. What footnote 5 actually says is that: "In some instances, we have found standing based on a 'substantial risk' that the harm will occur, which may prompt plaintiffs to reasonably incur costs to mitigate or avoid that harm." That latter requirement—costly anticipatory actions to prevent harm—is not met here.
In effect, AHM is making the sort of probabilistic injury claim that the Supreme Court routinely rejects (as in Clapper and Summers). As I explained in this post critiquing the Fifth Circuit's acceptance of this argument:
[The court] tries to argue that an injury to one of the plaintiffs is certain because there are so many women that have taken mifepristone, and complications are so common, that it is inconceivable that some of AHM's members will not be called upon to provide emergency room care. This stacks the deck though in the way it presents the numbers, however. For instance, it notes that five million women have taken the drug since 2000. Based on the FDA's acknowledgement that in two-to-seven percent of cases will involve potential complications from the drug not fully working, this means there have been between 100,000 to 350,000 cases in which women have needed additional treatment. But note that these numbers are for a twenty-plus-year period. On an annual basis, this represents 5,000 to 17,000 cases. Even making the demonstrably false assumption that all of these cases require a visit to one of the thousands of emergency rooms in the United States, it is far from a "statistical certainty" that one of the plaintiff doctors will handle one of these cases, as these cases represent a tiny fraction of the over 130 million emergency department visits each year.
Were that not enough, AHM's standing hurdle is even greater because, as the case reaches the Supreme Court, AHM's claims have been narrowed. As initially filed, AHM sought to argue that the FDA wrongly approved mifepristone in the first place. Accordingly, AHM argued that it faced a reasonable likelihood of harm from the availability of mifepristone on the market. In making this argument, it could use all instances of mifepristone complications nationwide to help make its case. Yet AHM cannot make such arguments any more.
In the proceedings below, the U.S. Court of Appeals for the Fifth Circuit (correctly) held that AHM's challenges to the the FDA's initial approval of mifepristone were made too late, so all that is at issue is the FDA's slight loosening of the rules governing mifepristone's administration in 2016 and 2021. This means in order to demonstrate standing AHM needs to demonstrate injury to one of its members based upon the additional complications caused by these regulatory changes. Complications that would or could have happened prior to the 2016 and 2021 revisions are not enough. From my prior post:
It is well established that standing is not dispensed in gross. As the Supreme Court has repeatedly reaffirmed, a plaintiff "must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." Standing to challenge one agency action does not necessarily establish standing to challenge another. More specifically, even if the plaintiffs can establish that they will suffer an actual or imminent injury from one FDA action (such as the 2000 approval of mifepristone) that does not mean that they will suffer an actual or imminent injury from another FDA action (such as the 2016 or later revisions to the rules governing mifepristone).
All of this should be fatal to AHM's claims for Article III standing. Whatever one thinks of mifepristone or the FDA's conduct regulating this product over the past 25 years, AHM has not demonstrated that it gets to invoke the jurisdiction of Article III courts to challenge the FDA's decision.
* * *
I will have more to say after the oral argument. In the meantime, here are my prior blog posts about this case and the issues it raises:
The post Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively? appeared first on Reason.com.
]]>Here was the question presented portion of the petition filed on behalf of the Murphy Company:
The Antiquities Act of 1906 authorizes the President, "in [his] discretion," to declare that "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" found on federal land are "national monuments" and to "reserve parcels of land as a part of the national monuments" so long as those parcels are "confined to the smallest area compatible with the proper care and management of the objects to be protected." 54 U.S.C. 320301. Three decades after that Act's passage, in the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act), Congress reserved certain federal lands in Oregon for "permanent forest production," mandating that "the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield" timber production. 43 U.S.C. 2601. In 2017, President Obama invoked the Antiquities Act to add O&C Act timberlands to an existing Oregon national monument established to protect biological diversity, see Proclamation 9564, 82 Fed. Reg. 6,145 (Jan. 12, 2017)—despite the fact that lands that are part of that monument may not be used in "provision of a sustained yield of timber," Proclamation 7318, 65 Fed. Reg. 37,249, 37,250 (June 9, 2000).
The question presented is whether the Antiquities Act authorizes the President to declare federal lands part of a national monument where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with national-monument status.
Although the case received a decent amount of interest from amici (five in support of certiorari, and one joining the federal government in opposition), it appears that four justices were not interested in hearing the case.
Justice Kavanaugh expressed an interest in the case, however. Today's orders list noted that both Justice Kavanaugh and Justice Gorsuch (the one justice to have served in a western state) would have voted to grant certiorari. As I have noted several times before, Justice Kavanaugh quite regularly notes his willingness to grant certiorari when his colleagues are not so convinced.
While the Court showed no interest in examining the Antiquities Act today, I suspect they may wish to consider the scope of executive branch authority under this statute eventually, particularly since recent administrations have been reasonably aggressive invoking it.
The post Supreme Court Shows Little Interest in Investigating Executive Power under the Antiquities Act appeared first on Reason.com.
]]>After the U.S. Supreme Court upheld the right to bear arms in 2022, several states simultaneously made it easier to obtain carry permits and much harder to use them. Once they could no longer require a "special need" before allowing residents to carry guns in public for self-defense, politicians in those states worried that residents would start exercising that right. Deeming that outcome intolerable, legislators banned guns from long lists of "sensitive" locations, making it highly impractical for people to legally carry guns outside their homes even after obtaining the requisite license.
In contrast with "may issue" states like New York, New Jersey, Maryland, California, and Hawaii, where licensing officials had wide discretion to deny carry permits prior to the Supreme Court's ruling in New York State Rifle & Pistol Association v. Bruen, Colorado already was a "shall issue" state, meaning residents could obtain permits as long as they met specific, objective criteria. Colorado legislators nevertheless are taking a page from New York et al. by proposing broad restrictions on where permit holders may carry guns.
Senate Bill 24-131, introduced last month, would ban guns from "sensitive places" such as parks, playgrounds, recreation facilities, zoos, museums, libraries, "public gathering[s]," medical facilities, banks, stadiums, amusement parks, bars, pot shops, college campuses, and houses of worship (without "express permission"). Violating these restrictions would be a misdemeanor punishable by a maximum $250 fine, rising to $1,000 for subsequent offenses. While the bill is still in the early stages of consideration, Colorado Newsline notes that "Democrats hold a majority in both chambers" of the state legislature and "can easily pass their legislative priorities."
State Sen. Sonya Jaquez Lewis (D–Longmont), who introduced the bill in her chamber along with Sen. Chris Kolker (D–Centennial), says it is "just common sense," because "we really need to have a designation of where it's OK to have a firearm and where it's not." Kolker likewise invokes "common sense," saying, "I am sponsoring this bill because my constituents are tired of thoughts and prayers in response to gun violence."
Since Democrats frequently criticize Republicans who oppose stricter gun control for offering nothing but "thoughts and prayers" after mass shootings, the implication is that S.B. 24-131 would help prevent such crimes. But that expectation is highly implausible, since mass murderers are unlikely to be deterred by laws that notionally create gun-free zones. School shootings, for example, happen in settings where firearms already are prohibited under state and federal law.
"Five out of six mass shooters choose 'gun-free zones,' and the bill creates many more of them," David B. Kopel, a gun policy expert at Colorado's Independence Institute, notes in written testimony against S.B. 24-131. That estimate is based on a 2018 Washington Post analysis of mass public shootings from 2009 through 2016, which found that 86 percent happened in gun-free zones. "The bill creates many safe zones where criminals can attack without risk of armed citizens being able to fight back," Kopel says.
What about "gun violence" more generally? "Even the leading anti-gun expert witness nationally states that the 2003 Concealed Carry Act [which created the state's current licensing system] reduced violent crime in Colorado by 1.2%," Kopel says. He is referring to a 2017 study in which Stanford law professor John J. Donohue and two co-authors reported that the "effect" of Colorado's right-to-carry law on the "violent crime rate" 10 years after it was enacted was "−1.2%."
S.B. 24-131 specifically targets permit holders, since anyone who carries a concealed handgun in public is already breaking the law unless he is licensed to do so. Kopel notes that Coloradans with carry permits "are far more law-abiding than the general population." He says they are "39 times less likely to be arrested than someone without a carry permit." That calculation is based on the number of permits revoked because of arrests in 2020. Kopel adds that "data from other states are similar," indicating that "persons with a license to carry are very highly law-abiding compared to persons without permits."
In contrast with the dubious public safety benefits of S.B. 24-131, its impact on the right to armed self-defense in public affirmed by Bruen would be substantial. Notably, the bill applies to "adjacent parking areas" as well as the "sensitive" locations themselves. It makes an exception for "firearms stored in locked containers in vehicles." But on its face, that seems to mean a carry permit holder who visits, say, a bar, a museum, or a government office would already be violating the law when he pulls into the parking lot unless he had previously locked up his gun, which he would have to do in a location that is not deemed "sensitive."
Kopel describes the bill as "ridiculously overbroad." For example, he says, "it bans licensed carry from the entire parking lot of a shopping mall" if the mall contains a single "tavern" or "one small branch bank." He also notes that "a woman who goes jogging or walking in parks in early mornings would be prevented from defending herself." More generally, he says, the bill "guarantees that violent attackers will be safe from the danger of being shot by armed citizens, as long as the attackers choose to attack in the locations specified in the bill."
A similar California law, currently on hold thanks to a preliminary injunction that the U.S. Court of Appeals for the 9th Circuit allowed to take effect in January, likewise classifies banks as a "sensitive" location. The plaintiffs in that case, Carralero v. Bonta, noted that the state "provided no evidence of a single bank robbery or other crime at a bank committed by a CCW permit holder." According to the state's reply brief, that is irrelevant, because "the Supreme Court has never suggested that sensitive places restrictions must be limited to those locations where there have been crimes committed by a concealed carry license holder."
Given that "there is no instance of a licensed handgun carrier committing a crime at a bank" in "the entire history of the United States," Kopel wonders, "what is the logic" of "imposing a prohibition, over-riding the decisions of many banks? What is the logic of prohibiting self-defense in every inch of a shopping mall parking lot just because the mall includes one small branch bank?"
Under Bruen, in any case, courts cannot uphold a gun control law by weighing its purported public safety benefits against its restrictions on Second Amendment rights. The government has the burden of showing that a law is "consistent with this Nation's historical tradition of firearm regulation."
Courts applying that test to location-specific gun bans have reached varying conclusions. But federal judges in California, Hawaii, Maryland, New Jersey, and New York have deemed at least some of those restrictions unconstitutional under Bruen. And even the U.S. Court of Appeals for the 2nd Circuit, which in December upheld several of New York's "sensitive location" restrictions, rejected the state's default rule against guns in all businesses open to the public unless the owner posts "clear and conspicuous signage" allowing them or "has otherwise given express consent."
That provision "functionally creates a universal default presumption against carrying firearms in public places, seriously burdening lawful gun owners' Second Amendment rights," the unanimous 2nd Circuit panel said. "That burden is entirely out of step with that imposed by the proffered analogues, which appear to have created a presumption against carriage only on private property not open to the public."
The Colorado bill, unlike California's law, does not include a sweeping rule like that. But the cumulative burden of its restrictions would pose a serious obstacle for permit holders who want to carry guns for self-defense in many quotidian contexts.
Given Democratic control of the state legislature, Colorado Newsline says, "the most effective opposition to any gun law reforms will likely come from groups that challenge the legislation in court" under Bruen. Jaquez Lewis is unfazed by that prospect.
The senator notes that resolution of Carralero v. Bonta "could take another one or two years." Although S.B. 24-131 claims its restrictions are "consistent with the second amendment," its supporters think waiting to see whether the 9th Circuit agrees would be reckless. "We didn't want to wait two years," Jaquez Lewis says, "because we know how many incidents of gun violence occur in Colorado in one year—way too many." Given the mismatch between that problem and her proposed solution, the logic is hard to follow.
The post This Colorado Bill Would Abolish the Right to Armed Self-Defense in Many 'Sensitive Places' appeared first on Reason.com.
]]>At one level, the federal government's decision to seek Supreme Court review is what one might expect. There is a circuit split on whether the FDA acted in an arbitrary and capricious fashion when it refused to consider certain materials submitted with PMTAs and departed from previous guidance it had given the industry. Most circuits to hear such claims turned them away. The Fifth Circuit (along with the Eleventh Circuit) did not. Certiorari would thus be warranted to resolve the circuit split and remove any cloud over the FDA's continuing ability to review (and deny) PMTAs for vaping products. Without Supreme Court review, vaping product manufacturers would have every incentive to seek review of any PMTA denials in the Fifth and Eleventh Circuits, and this could undermine the FDA's regulatory authority.
At another level, I suspect there was some discussion within the Departments of Justice and Health & Human Services as to whether this case provides the best vehicle for Supreme Court review of the FDA's regulation of vaping products. The vaping companies in this case may seem like appealing targets, but the record here includes multiple opinions excoriating the FDA's failure to comply with administrative law norms. For this reason, one might have thought the FDA would have preferred to see the Supreme Court accept certiorari in a case in which the FDA prevailed below, and without a dissenting opinion.
Up until this point, it has been my impression that the FDA has been somewhat strategic in deciding which cases to litigate and where. In particular, the agency has been more than happy to defend PMTA denials against relatively small (often regional) vaping product manufacturers, while it has strategically avoided going to court against larger players, particularly those with top-notch DC appellate representation. Thus the FDA voluntarily agreed to reconsider its decision to reject PMTAs from Turning Point and Juul, but went to court against smaller fluid manufacturers of startups. The FDA, thus far, has also been more willing to approve tobacco-flavored vaping products produced by larger companies (often companies with a long history in the tobacco industry) while rejecting PMTAs from just about everyone else. To date, the agency has yet to approve a vaping product with any flavor profile other than tobacco.
Triton Distribution (the name of the vaping company owned by W&WL) is a mid-sized vaping fluid manufacturer, but the case is sure to attract attention from other companies fighting to keep their products on the market. Some of the larger players (including companies that also make cigarettes) may be happy to sit on the sidelines, however, or even take the FDA's side, particularly if their own products have made it through the FDA's regulatory gauntlet. Government prohibition of competing products is a sure-fire way to maintain market share.
While the Supreme Court does not grant certiorari all that often, this would seem like a strong candidate. The circuit split, and its ongoing effects on the FDA's ability to administer the PMTA approval process makes eventual Supreme Court review inevitable, and if this is the case the DOJ pushes to tee up this issue, this is likely the case the Court will accept.
The post Solicitor General Takes Vaping to the Supreme Court appeared first on Reason.com.
]]>Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was driven from public life by a trumped-up, politically motivated arrest aimed at punishing her for engaging in advocacy protected by the First Amendment. On Wednesday, the U.S. Supreme Court considered what sort of "objective evidence" she needs to prove that claim.
The case, Gonzalez v. Trevino, hinges on how to read the Court's 2019 decision in Nieves v. Bartlett, which added "a narrow qualification" to the general rule that the existence of probable cause is enough to defeat a retaliatory arrest claim. In "circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so," Chief Justice John Roberts wrote for the majority in Nieves, "an unyielding requirement to show the absence of probable cause could pose 'a risk that some police officers may exploit the arrest power as a means of suppressing speech.'"
Roberts cited jaywalking as an example. "At many intersections, jaywalking is endemic but rarely results in arrest," he wrote. "If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest."
In such a case, Roberts noted, "probable cause does little to prove or disprove the causal connection between animus and injury." The Court therefore allowed a plaintiff who claims he was arrested in retaliation for constitutionally protected speech to present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."
That is what Gonzalez, who is represented by the Institute for Justice, says happened to her. In 2019, Gonzalez, then a 72-year-old retiree, won an upset victory in a city council election after campaigning on a promise to seek City Manager Ryan Rapelye's replacement. Toward that end, she organized a petition that a resident presented to Mayor Edward Trevino on May 21, 2019, at the first city council meeting that Gonzalez attended.
The ensuing debate about Rapelye's performance continued at a meeting the next day, during which Gonzalez sat next to Trevino, who as mayor presides over city council meetings. After that meeting, according to Gonzalez's Supreme Court petition, she "picked up the papers strewn around her sitting area and put them in her binder," which she left on the table as she crossed the room to converse with a constituent.
"A few minutes later," the petition says, "a police officer in charge of safety at the meeting tapped Gonzalez on her shoulder and explained that the mayor wanted to talk to her. The police officer escorted Gonzalez to the mayor," who "was still at his seat next to Gonzalez's." Trevino "then asked Gonzalez, 'Where's the petition?' Gonzalez responded, 'Don't you have it? It was turned in to you yesterday.' At the mayor's prompting, Gonzalez looked for the petition in her binder and to her surprise found it there. Gonzalez then handed the petition to the mayor," who "volunteered to Gonzalez that she 'probably picked it up by mistake.'"
That was not the end of the matter. Trevino and Police Chief John Siemens, Rapelye's allies, used the briefly missing petition as the basis for a criminal investigation that took nearly two months. "Three weeks into the unfruitful investigation," Gonzalez's petition says, Siemens "deputized an attorney and his friend," Alexander Wright, "to take over as a 'special detective.'" A month later, Wright filed an arrest affidavit that charged Gonzalez with violating Section 37.10(a)(3) of the Texas Penal Code, which applies to someone who "intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record."
Contrary to Gonzalez's claim that she accidentally picked up the petition, Wright alleged that she deliberately moved it. He implied that she was worried about complaints that she had collected signatures "under false pretenses." His affidavit cited Gonzalez's agitation against Rapelye as evidence of her offense. "From her very first meeting in May of 2019," it said, Gonzalez "has been openly antagonistic to the city manager, Ryan Rapelye, wanting desperately to get him fired." That plan, Wright explained, "involved collecting signatures on several petitions." He complained that Gonzalez had visited a resident's house to "get her signature on one of the petitions under false pretenses" by "misleading her" and "telling her several fabrications regarding Ryan Rapelye."
Instead of seeking a summons, the usual approach in Bexar County for nonviolent misdemeanors, Wright sought an arrest warrant. And instead of referring the matter to the district attorney's office, Wright presented his affidavit directly to a judge—a procedure that Gonzalez's petition says is generally "reserved for emergencies or violent felonies." That meant the warrant "wasn't in the satellite booking system, so Gonzalez could not be booked, processed, and released without jailtime." That is why Gonzalez, who "turned herself in as soon as she learned about the warrant," ended up behind bars for a day, "handcuffed, on a cold metal bench, wearing an orange jail shirt, and avoiding the restroom, which had no doors."
Bexar County District Attorney Joe Gonzales, according to Gonzalez's petition, "dropped the charges as soon as he learned about them." Trevino et al. nevertheless achieved what Gonzalez says was their goal all along. "Gonzalez was so hurt by the experience and so embarrassed by the media coverage of her arrest," the petition says, that "she gave up her council seat and swore off organizing petitions or criticizing her government."
In a September 2020 complaint that she filed in the U.S. District Court for the Western District of Texas, Gonzalez said Trevino, Siemens, and Wright had violated her First Amendment rights by orchestrating her arrest in retaliation for her opposition to Rapelye. She noted that "the statute has never been used to arrest a person in an analogous situation."
Based on Nieves, U.S. District Judge David Alan Ezra ruled in March 2021 that Gonzalez could proceed with her lawsuit. A divided panel of the U.S. Court of Appeals for the 5th Circuit disagreed, ruling in July 2022 that Gonzalez's lawsuit was doomed by her failure to cite other cases in which people had not been arrested for conduct similar to hers.
"Were we writing on a blank slate," Judge Kurt D. Engelhardt wrote in the majority opinion, "we may well agree" that "the Constitution ought to provide a claim here, particularly given that Gonzalez's arrest was allegedly in response to her exercise of her right to petition." But "Nieves requires comparative evidence," he said, "because it required 'objective evidence' of 'otherwise similarly situated individuals' who engaged in the 'same' criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short."
Speaking for Gonzalez during Wednesday's oral arguments, Institute for Justice attorney Anya Bidwell said the 5th Circuit's understanding of "objective evidence" was too narrow. "Nieves does not blind courts to all but one type of objective evidence of causation," she said. Under the 5th Circuit's reading, she added, Trevino could have gone on TV and "announced that he was going to have Ms. Gonzalez arrested because she challenged his authority," and "the existence of probable cause would make this evidence legally irrelevant." Bidwell argued that courts should be allowed to consider "evidence of causation" such as "the fact that two police officers looked into Ms. Gonzalez and thought there was nothing warranting an arrest, that a prosecutor dismissed the charges, [and] that a special detective walked a warrant under an emergency procedure designed for fleeing suspects to put away a lady in her 70s."
Unsurprisingly, Justice Neil Gorsuch seemed inclined to agree with Bidwell. Gorsuch dissented in Nieves, saying it gave police officers too much leeway. "Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," he wrote. "If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age."
Gorsuch reiterated that point while questioning Lisa Blatt, the attorney representing Trevino. According to one estimate, he said, there are "over 300,000 federal crimes," and "I can't imagine how many there are at the state and local level. And you're saying they can all sit there unused, except for one person who alleges that I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment, and that's not actionable?"
Justice Elena Kagan echoed Gorsuch's concern. "The 5th Circuit understood this rule to say you have to show a person within this jurisdiction who has engaged in this conduct before and was not arrested," she said. "Justice Gorsuch is saying…that has got to be wrong. Whatever else you want to put into this bucket, you should be able to say they've never charged somebody with this kind of crime before" without having to "go find a person who has engaged in the same conduct." The point of Nieves, she said, is that if "you were arrested for something that somebody who hadn't engaged in your speech activities would not be arrested for," you can use "solid, objective evidence" of that to "get over the probable cause bar."
Kagan asked Blatt to imagine a video of a meeting in which Trevino et al. talk about "how they can get back at Ms. Gonzalez" by arresting her because she "moved this piece of paper." She asked Blatt if such a video, which "seems like pretty good objective evidence to get you over the probable cause bar," would count as "objective evidence" of retaliation. Blatt resisted answering the question, but ultimately her answer seemed to be no. "I worry where you're going," she said, because a judge might then be free to consider any evidence he thinks is "pretty relevant" to the question of whether "she was picked on."
Justice Sonia Sotomayor—who, like Gorsuch, dissented in Nieves—also was sympathetic to Bidwell's argument. Sotomayor noted that "the 5th Circuit is the only circuit that's demanding a specific kind of comparison-based evidence." And she suggested there was at least some evidence of that sort in this case, since Trevino "violated the same statute by taking the petition home and keeping it overnight."
Sotomayor noted that the 7th and 9th circuits have taken a broader view of "objective evidence" than the 5th Circuit, and she wondered if those rulings led to "an explosion of litigation." Not according to an analysis by the National Police Accountability Project, Bidwell said: Out of 178 cases, it found, only 17 survived motions to dismiss or motions for summary judgment.
Blatt argued that siding with Gonzalez would invite every arrestee to claim retaliation. "I really would advise every criminal to put a political bumper sticker on their car," she said, drawing laughter. Without the shield provided by probable cause, she said, retaliation claims would have a paralyzing effect on police officers, because they "literally could never arrest without worrying about getting sued."
Justice Ketanji Brown Jackson seemed skeptical, saying, "I thought that was the point of qualified immunity," which bars federal civil rights claims unless they allege violation of a "clearly established" right. Justice Amy Coney Barrett also seemed to think Blatt's warning was overblown. "I don't think it would be the case that anybody who was arrested could make this charge and then get on to discovery," she said, "because then you'd still have to survive a motion to dismiss." Gonzalez "has all of this evidence for retaliation," Barrett said. "Not everybody who's arrested is going to have the kind of evidence she has on that score."
When Blatt described Gonzalez's alleged offense as "theft," Sotomayor objected. "This wasn't charged as a theft," she noted. "The crime that was charged here was a crime of moving a document, and all it required was a general intent to move it. The defense was, 'I moved it accidentally.'…There are charges brought for stealing government documents, and there are charges that are brought for moving government documents. And [the latter has] never happened in a situation like this."
Speaking as "a former prosecutor," Sotomayor said "we probably wouldn't have brought the charges" in such a case "even if it was intentional…because 'no harm, no foul.'" In Gonzalez's case, she noted, "Two police officers wouldn't charge it; one public prosecutor didn't charge it. In the end, even with a warrant, the charges were dropped….When there's a dispute about things like this, people are not arrested in this way."
Bidwell also argued that the Nieves rule was "designed for a representative case of in-the-field law enforcement," not for decisions by mayors or situations where charges are filed after lengthy investigation and consideration. Under the 5th Circuit's reading, she said, the rule "insulates all government officials," including "the thin-skinned bureaucrat scouring for a crime to pin on his critics."
Kagan thought that distinction was relevant under Nieves. "I agree with you that the split-second arrest seems to be a key part of the Court's reasoning," she told Bidwell. But Kagan worried that "dividing the world into split-second arrest cases versus other cases is going to be a very difficult thing to do." Bidwell said Nieves would apply "as long as probable cause and arrest arise" within an "initial lawful encounter."
Four justices seemed decidedly less receptive to overturning the 5th Circuit. Roberts emphasized that Nieves affirmed "a very strong general rule that had been well-established" while drawing "a very narrow exception." Clarence Thomas, who disagreed even with that "very narrow exception" in Nieves, said he shared Blatt's concern about giving every suspect an excuse to challenge his arrest.
Samuel Alito said Nieves addressed "causal complexity" that could extend beyond "an on-the-spot arrest." Although "the fact pattern here" is "unusual," Brett Kavanaugh said, "the crime's prosecuted on occasion." He added that "the evidence suggests probable cause that someone intentionally stole a document…and did it with a motive because concerns [had] been raised about her role in getting the signatures on the petition."
Bidwell closed by emphasizing that "political retaliation is dangerous." The First Amendment "has to mean something," she said. "Mayors should not be allowed to launder animus through warrants."
The post Will the Supreme Court Let Sylvia Gonzalez Sue the Political Enemies Who Engineered Her Arrest? appeared first on Reason.com.
]]>In his State of the Union address this month, President Joe Biden declared that "no one should be jailed for simply using" marijuana or "have it on their record." He amplified that message on X (formerly Twitter) that night, saying, "No one should be jailed just for using or possessing marijuana." Biden said those things on the same day that federal prosecutors in North Carolina filed a brief defending the federal ban on gun possession by cannabis consumers, whom they likened to "lunatics" and violent felons.
Biden, who during his 2020 campaign promised to "decriminalize the use of cannabis," thinks marijuana users are not doing anything that justifies arresting them. Yet his Justice Department simultaneously insists marijuana users are so dangerous that they cannot be trusted with guns even when they are completely sober—so dangerous, in fact, that they are altogether excluded from "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment. That insulting and scientifically baseless portrayal of cannabis consumers could prove to be a problem for a president who is desperate to motivate young voters by touting his supposedly enlightened views on marijuana.
'The People' Do Not Include Marijuana Users
The Biden administration has been pushing its benighted description of marijuana users in federal courts since 2022. Its argument has been rejected by several judges, including a unanimous 5th Circuit panel. Last October, Louise Flanagan, a federal judge in North Carolina, joined them when she dismissed a charge under 18 USC 922(g)(3), which makes it a felony for an "unlawful user" of a "controlled substance" to receive or possess firearms. In a March 7 brief, two assistant U.S. attorneys, David Bragdon and Sarah Nokes, urge the U.S. Court of Appeals for the 4th Circuit to overturn Flanagan's decision.
As is often true in criminal cases that raise civil liberties issues, the defendant in United States v. Alston is not exactly sympathetic. But keep in mind that the Biden administration's argument is not limited to cannabis consumers with a history of violence. It applies to all of them, even if they have never done anything to suggest they pose a threat to public safety and even if they live in states that have legalized marijuana. Judging from survey data on past-month consumption, more than 40 million Americans qualify as "current" marijuana users, which according to the Justice Department means they have no Second Amendment rights.
This case stems from the arrest of Carlos Alston, whose crimes were not limited to marijuana use. In January 2023, Bragdon and Nokes say, a police officer approached Alston while he was "waiting in line at a restaurant drive-thru" in Henderson, North Carolina. The officer "told Alston that there were active warrants for his arrest and commanded Alston to show his hands." Alston, who was wanted on a charge of assault with a deadly weapon, "instead retrieved and pointed a firearm at the officer." The officer "drew his duty weapon and fired a shot at Alston, striking him in the lower body." Then Alston "exited his vehicle and ran from the officer," who caught him "after a brief pursuit."
Alston's car "emitted an odor of marijuana," and a search turned up "a marijuana cigarette on the passenger seat of the vehicle," along with "a plastic baggie containing approximately 26 grams of marijuana," "digital scales," and additional "plastic baggies." His criminal history "revealed a prior state conviction for possession of marijuana and a state probation revocation…resulting from a positive drug screen indicating the presence of marijuana and failure to register for drug treatment classes, among other violations." In an interview after he was taken into custody by agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Alston admitted to "using marijuana daily" and to "obtaining the firearm at issue in this case after he had been indicted" in state court for assault with a deadly weapon.
Those facts resulted in two federal gun charges: one under Section 922(g)(3) and one under Section 922(g)(n), which makes it a felony for anyone who is under indictment for a crime punishable by more than a year of incarceration to receive a firearm. Alston sought dismissal of both charges, arguing that the underlying statutes are unconstitutional. Robert Numbers, a federal magistrate judge, recommended dismissal of the first charge but not the second. In accepting that recommendation, Flanagan rejected the same arguments that Bragdon and Nokes are now asking the 4th Circuit to accept.
Bragdon and Nokes argue that marijuana users are categorically excluded from "the people" protected by the Second Amendment. That claim is hard to reconcile with the Supreme Court's conclusion that "the people" who have a right to "keep and bear arms"—like "the people" who have a right "peaceably to assemble," "the people" who have a right to be secure against "unreasonable searches and seizures," and "the people" who retain unenumerated rights under the Ninth Amendment—"unambiguously" refers to "all members of the political community." The use of that phrase in the Second Amendment, the Court said in the landmark 2008 case District of Columbia v. Heller, creates "a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans."
Attempting to overcome that presumption, Bragdon and Nokes latch onto Heller's reference to "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." From that phrase, they infer that "the people," contrary to what the Court explicitly said, are limited to Americans who are both "law-abiding" and "responsible."
Although anyone who consumes a federally prohibited substance is breaking the law, Bragdon and Nokes note that the 4th Circuit has said "law-abiding" does not mean "any person committing any crime automatically loses the protection of the Second Amendment." They also note the Justice Department's position that "individuals are not 'law-abiding' if they have committed felony-level conduct," which cannabis consumers typically have not (unless they happen to own guns!). Bragdon and Nokes instead rely on the claim that cannabis consumers are ipso facto not "responsible," which in their view means they are not part of "the people."
Cannabis Consumers Are Not 'Responsible'
According to the Justice Department, people are not "responsible" if "some characteristic or quality they possess makes their possession of firearms particularly dangerous." As Bragdon and Nokes see it, all cannabis consumers, regardless of how often they use marijuana or the circumstances in which they use it, are "particularly dangerous" in this context. The brief offers four reasons for that conclusion.
First, Bragdon and Nokes say, "drug users may mishandle firearms—or use firearms to commit crimes—because of 'drug-induced changes in physiological functions, cognitive ability, and mood.'" They add that marijuana intoxication "causes disinhibition, impaired judgment, [and] disorganized thinking, and can cause 'euphoria, perceptual and other cognitive distortions, hallucinations, and mood changes,' particularly in higher doses."
While it is surely true that "drug users may mishandle firearms" when they are intoxicated, the same could be said of people who consume alcoholic beverages. Yet there is no blanket ban on gun possession by drinkers, and if there were it would be plainly unconstitutional.
Second, Bragdon and Nokes say, "illegal drug users often 'commit crime in order to obtain money to buy drugs'—and thus pose a danger of using firearms to facilitate such crime." They note that "criminal cases are replete with examples of crimes motivated by drug habits."
Leaving aside the point that prohibition-inflated prices foster this kind of crime, its existence does not come close to justifying the conclusion that cannabis consumers, as a group, are "particularly dangerous." How likely is it that the average patron of a state-licensed pot store in Colorado, say, will end up breaking into cars, robbing people, or burglarizing homes to fund his purchases?
Third, Bragdon and Nokes write, "violent crime may occur as part of the drug business or culture." That violence, they say, "can involve not only drug dealers, but also their customers. For example, violence may result from 'disputes and ripoffs among individuals involved in the illegal drug market.'"
The violence to which Bragdon and Nokes refer is almost entirely a product of prohibition, which creates a black market in which there is no legal, peaceful way to resolve disputes. In any case, their concern again seems misplaced as applied to marijuana users. If that Colorado cannabis consumer gets short-changed or is unhappy with his purchase, the chance that he will resort to violence as a remedy is approximately zero.
Fourth, Bragdon and Nokes say, "armed drug users endanger the police." Given "the illegal nature of their activities," the brief explains, "drug users and addicts would be more likely than other citizens to have hostile run-ins with law enforcement officers," which "threaten the safety" of the officers "when guns are involved." Alston himself "exemplified the danger drug addicts with firearms pose to police on the night of the charged offense when he threatened a police officer with a loaded firearm."
Recall that Bragdon and Nokes are defending a blanket ban on gun possession by anyone who uses marijuana, not just by cannabis consumers who are demonstrably inclined to commit violent crimes. While Biden says there is an important difference between violent criminals and people whose only crime is possessing or using marijuana, his Justice Department seems determined to blur that distinction.
As the Department of Health and Human Services recently noted, "the vast majority of individuals who use marijuana are doing so in a manner that does not lead to dangerous outcomes to themselves or others." Yet Bragdon and Nokes want the 4th Circuit to ignore that reality and focus on the tiny minority of cannabis consumers who resemble Alston.
'The Second Amendment's Plain Text'
All of this scaremongering is irrelevant, of course, unless Bragdon and Nokes are right in claiming that "the people" are limited to Americans they view as "responsible." Numbers and Flanagan rejected that claim in no uncertain terms.
While the Supreme Court "may have focused on the rights of law-abiding citizens," Numbers said, "the Second Amendment's protections extend to a broader political community—a community that includes Alston." Flanagan concurred, saying Supreme Court precedent "suggests strongly that all Americans, including those who confess to regular unlawful drug use, enjoy Second Amendment protection."
Bragdon and Nokes next purport to apply the Second Amendment test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. "When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct," Justice Clarence Thomas wrote in Bruen. At that point, he said, "the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." If and only if the government meets that burden, a court may "conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command.'"
It may seem obvious that receiving and possessing ordinary firearms are covered by
"the Second Amendment's plain text." But according to Bragdon and Nokes, that is the wrong question.
"The conduct prohibited by Section 922(g)(3) is not simply receipt (or possession, shipping or transporting) firearms, but rather possession of a firearm by a person who regularly and unlawfully uses drugs," they write. Hence "the conduct subject to the Second Amendment analysis is not merely possession (or receipt), but possession by an unlawful drug user or addict."
Numbers, by contrast, understandably thought the "conduct at issue" in Alston's case was "the receipt of a firearm." So did Flanagan.
"The government argues that the relevant conduct for purposes of constitutional inquiry is 'possessing a firearm while being an unlawful drug user,' contending that defendant's 'conduct in possessing the firearm cannot be divorced from the then-existing condition which made such possession inherently dangerous,'" Flanagan wrote. "This argument is directly foreclosed by Bruen, which analyzed separately whether petitioners were 'part of "the people" whom the Second Amendment protects,' and 'whether the plain text of the Second Amendment protect[ed petitioner's] proposed course of conduct.' The government's position conflates the inquiry conducted above [regarding whether Alston is part of "the people"] with the separate question of whether the statute at issue burdens the right to 'keep and bear arms.' The court 'has little difficulty concluding that' § 922(g)(3), which prohibits the receipt of firearms, burdens conduct within the ambit of the Second Amendment."
Desperately Seeking Analogs
Just in case the 4th Circuit agrees with Flanagan on these two points, Bragdon and Nokes also try to show that Section 922(g)(3) is "consistent with this Nation's historical tradition of firearm regulation." That provision, they argue, is "relevantly similar" to "historical prohibitions on the possession of firearms by the mentally ill, the intoxicated and those considered to be dangerous."
Section 922(g)(3) was not enacted until 1968, and Bragdon and Nokes concede that they cannot find any Founding-era laws that likewise banned gun possession by people who use currently prohibited drugs. They say that's because "the unlawful use of controlled substances was not a problem faced by the Founding Fathers." But it was not a problem faced by the Founding Fathers because there was no such thing as "unlawful use of controlled substances" when the Second Amendment was ratified in 1791. Nor was there such a thing when the 14th Amendment made the Bill of Rights binding on the states in 1868.
As Bragdon and Nokes concede in passing, there was no such thing until 1877, when "Nevada became the first state to require a prescription for the purchase of any drug (in that case, opium)." Even then, Americans generally were free to purchase patent medicines containing currently prohibited drugs, including cannabis, over the counter or by mail without a prescription. That situation persisted into the early 20th century.
"Through much of the 19th century," Bragdon and Nokes write, "there was no need for firearm prohibitions addressing substances other than alcohol because drugs were not widely used as intoxicants in the United States until the late 19th and early 20th centuries." Since the distinction between medicine and intoxicant can be hazy and was not legally enforced, that assertion is questionable. In any case, it seems highly doubtful that Americans in the late 19th century, when patent medicines containing opium, cannabis, and cocaine were widely available, would have thought consumption of such products justified the loss of gun rights under the Second Amendment or state analogs.
As Bragdon and Nokes note, laws enacted in the 18th and 19th centuries did address the combination of alcohol and guns. But all of these laws were narrowly targeted at the danger posed by people who handled guns while intoxicated, and they prohibited public possession or use of firearms in that specific context. They did not apply to private possession, and none of them imposed a blanket ban on gun ownership by drinkers. The claim that they are "relevantly similar" to Section 922(g)(3) is therefore hard to take seriously. The 5th Circuit rejected it, and so did Flanagan.
Colonial laws "forbade shooting guns at drinking events, in taverns, or on certain holidays," Flanagan noted. "None of these laws, however, forbade the possession or acquisition of firearms; they outlawed only the active use of such weapons at sensitive times. The government's reference to nineteenth century laws limiting the intoxicated from using firearms similarly falls short where those laws apply only to actually intoxicated persons, not persons likely so to become."
In case the 4th Circuit is similarly skeptical of the analogy between gun-owning cannabis consumers and drunken gun handlers, Bragdon and Nokes suggest that marijuana users also are similar to "lunatics" whom 19th century justices of the peace were authorized to "lock up" when they were deemed "dangerous to be permitted to go abroad." Lest you think that comparison is implausible, Bragdon and Nokes offer a quote from a pre-Bruen decision in which the U.S. Court of Appeals for the 7th Circuit upheld Section 922(g)(3): "Habitual drug abusers, like the mentally ill, are more likely to have difficulty exercising self-control, making it dangerous for them to possess deadly firearms."
This argument rehashes the claim that "drug users may mishandle firearms," which is equally applicable to drinkers. In both cases, the issue is how people tend to behave when they are intoxicated, and Section 922(g)(3) goes far beyond that situation.
'Deemed Dangerous'
Finally, Bragdon and Nokes argue that "Section 922(g)(3) is analogous to the tradition
of disarming dangerous individuals," such as "individuals who carried [guns] in a manner that spread fear or terror." Are laws against such menacing behavior "relevantly similar" to a law that says anyone who occasionally relaxes with a few puffs of marijuana may not receive or possess guns? Bragdon and Nokes think so.
"Other early statutes disarmed entire groups deemed dangerous or untrustworthy," the brief notes. Bragdon and Nokes mention "those who refused to swear allegiance to the colony or the Revolution's cause." In other cases, the government's lawyers have noted that early statutes likewise disarmed Native Americans and black people. Although "these laws likely would not pass constitutional muster today," Bragdon and Nokes say, "they remain instructive" because they "demonstrate that the Second Amendment was not historically understood to pose an obstacle to disarming, as a class, certain persons deemed dangerous."
That is one way to look at it. One might also view such loathsome laws as a lesson in what can happen when legislators are free to disarm "entire groups" they deem "dangerous or untrustworthy," whether or not there is any rational basis for that judgment.
Although it may seem like I am picking on Bragdon and Nokes, their arguments reflect the position that the Justice Department has taken in one case after another. Again and again, the government's lawyers have argued that cannabis consumers are irresponsible, unvirtuous, dangerous, similar to "lunatics," and just one toke away from a murderous rampage.
That view is not just empirically unsupported and wildly implausible; it blatantly contradicts the president's avowed opposition to depriving people of their liberty "just for using or possessing marijuana." If Biden wants to persuade young voters who overwhelmingly oppose pot prohibition that he is on their side, reconsidering his reflexive defense of this odious gun law would be a good place to start.
The post Biden Decries Criminalization of Cannabis Consumers Even As He Insists They Have No Second Amendment Rights appeared first on Reason.com.
]]>For good reason, much attention was devoted to the Supreme Court's oral arguments on Monday, over government pressure on social media companies to suppress speech that officialdom doesn't like. The same day, though, justices heard arguments in another important case involving free speech principles violated when New York officials leaned on financial institutions to deny services to the National Rifle Association. Importantly, both cases involved "jawboning," the use by government of threats to improperly coerce compliance.
As Reason's Jacob Sullum ably summarizes, arguments in Murthy v. Missouri involve "dueling interpretations of the Biden administration's interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security," with plaintiffs arguing that "those private contacts, combined with public statements condemning the platforms' failure to suppress 'misinformation,' amounted to government-directed censorship."
At stake is the point at which efforts to persuade private companies they ought not offer platforms to certain speakers morph into "nice business you got there; it'd be a shame if something happened to it." Did officials cross the line when they badgered tech firms to muzzle voices skeptical of lockdowns, COVID vaccinations, and election integrity? If you've followed the Twitter and Facebook Files, you know there's significant evidence they did, though it remains to be seen if Supreme Court justices agree.
Remarkably, the evidence of improper strong-arming appears even clearer in National Rifle Association of America v. Vullo. In that case, the NRA, joined by the ACLU, alleges that Maria Vullo, former Superintendent of the New York State Department of Financial Services, abused the power of her position to punish the gun rights organization for its political positions.
"Vullo met with executives at Lloyd's of London to discuss her views on gun control and to tell them she believed the company's underwriting of NRA-endorsed insurance policies raised regulatory issues," according to Abby Smith of the Foundation for Individual Rights and Expression (FIRE). "She told them Lloyd's could 'avoid liability'—but only if the company told its syndicates to stop underwriting their insurance policies, and joined her agency's 'campaign against gun groups.'"
There was nothing subtle about the arm-twisting. In 2018 I wrote about guidance letters New York regulators sent to banks and insurance companies, at the behest of then-Gov. Andrew Cuomo, cautioning "regulated institutions to review any relationships they have with the NRA or similar gun promotion organizations, and to take prompt actions to managing these risks and promote public health and safety." Given that insurance companies and banks are tightly regulated and operate largely at the pleasure of state officials, this would logically be interpreted as a threat. Subsequently, banks and insurance companies alike cut ties with the NRA.
"New York, if these facts are true, tried to circumvent the First Amendment's ban on censorship by relying on this informal pressure campaign," noted FIRE's Smith. "But informal censorship violates the First Amendment, too."
Such informal censorship is known as "jawboning" since, as the Cato Institute's Will Duffield wrote in 2022, it involves "bullying, threatening, and cajoling" in the place of formal legal action.
"Jawboning occurs when a government official threatens to use his or her power—be it the power to prosecute, regulate, or legislate—to compel someone to take actions that the state official cannot," observed Duffield. "Jawboning is dangerous because it allows government officials to assume powers not granted to them by law."
Despite formal protections for individual liberties, such as the First Amendment, the vast regulatory power wielded by government agencies in the United States is easily weaponized against people who don't do the government's bidding. Such abuses aren't hypothetical but are a matter of public record already addressed by the courts.
"People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around," the U.S. Supreme Court recognized in Bantam Books v. Sullivan (1963). That case involved Rhode Island officials hassling booksellers to refrain from stocking allegedly obscene publications. The implied threats and constant nagging of booksellers by state officials "was in fact a scheme of state censorship effectuated by extra-legal sanctions," ruled the court.
Does "a scheme of state censorship effectuated by extra-legal sanctions" better describe the situation in the Murthy case or in the NRA case? Well, Monday was a twofer day, so why not both?
In truth, New York regulators' threats to insurance companies and banks that do business with the NRA and other gun groups were so overt that even commenters hostile to the NRA and self-defense rights concede that state officials went way over the line.
"Every now and then, the Supreme Court takes up a case involving a public official who acted so foolishly…that you wish the justices could each take turns smacking them upside the head," Vox's Ian Millhiser, no fan of the NRA, conceded last November. "National Rifle Association v. Vullo, which the Court announced that it would hear last Friday, is such a case."
And so far, while it's uncertain which way the justices will jump in Murthy, the court seems inclined to agree that it's impermissible for government officials to use regulatory threats to coerce financial firms into cutting ties with disfavored political organizations.
"The Supreme Court on Monday appeared sympathetic to the National Rifle Association's claim that a New York official violated the group's right to freedom of speech when she urged banks and insurance companies that worked with the NRA to cut ties with the group," SCOTUSblog's Amy Howe concluded. ACLU Legal Director David Cole "closed by telling the justices that 'the notion that this is business as usual, for a government official to speak with a private party and say we'll go easy on you if you aid my campaign to weaken the NRA. That is not business as usual. That is not ordinary plea negotiation.' Although it was not entirely clear, a majority of the justices seemed to agree with him."
With government reaching ever further into American life, it's time the court reminds officials, once again, that their intrusive powers aren't supposed to be used to bypass protections for individual rights.
The post Supreme Court Considers Claim That New York Regulators Violated NRA's First Amendment Rights appeared first on Reason.com.
]]>When federal officials persistently pressured social media platforms to delete or downgrade posts those officials did not like, a government lawyer told the Supreme Court on Monday, they were merely offering "information" and "advice" to their "partners" in fighting "misinformation." If the justices accept that characterization, they will be blessing clandestine government censorship of online speech.
The case, Murthy v. Missouri, pits two states and five social media users against federal officials who strongly, repeatedly, and angrily demanded that Facebook et al. crack down on speech the government viewed as dangerous to public health, democracy, or national security. Some of this "exhortation," as U.S. Deputy Solicitor General Brian Fletcher described it, happened in public, as when President Joe Biden accused the platforms of "killing people" by allowing users to say things he believed would discourage Americans from being vaccinated against COVID-19.
Surgeon General Vivek Murthy, who echoed that charge in more polite terms, urged a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might include "legal and regulatory measures." Other federal officials said holding social media platforms "accountable" could entail antitrust action, new regulations, or expansion of their civil liability for user-posted content.
Those public threats were coupled with private communications that came to light only thanks to their discovery in this case. As Louisiana Solicitor General J. Benjamin Aguiñaga noted on Monday, officials such as Deputy Assistant to the President Rob Flaherty "badger[ed] the platforms 24/7," demanding that they broaden their content restrictions and enforce them more aggressively.
Those emails alluded to presidential displeasure and warned that White House officials were "considering our options on what to do" if the platforms failed to fall in line. The platforms responded by changing their policies and practices.
Facebook executive Nick Clegg was eager to appease the president. In emails to Murthy, he noted that Facebook had "adjust[ed] policies on what we're removing"; had deleted pages, groups, and accounts that offended the White House; and would "shortly be expanding our COVID policies to further reduce the spread of potentially harmful content."
Facebook took those steps, Clegg said in another internal email that Aguiñaga quoted, "because we were under pressure by the administration." Clegg expressed regret about caving to that pressure, saying, "We shouldn't have done it."
According to Fletcher, none of this implicated the First Amendment because "no threats happened." He meant that federal officials never explicitly threatened platforms with "adverse government action" while urging suppression of constitutionally protected speech.
That position is hard to reconcile with the Supreme Court's 1963 decision in Bantam Books v. Sullivan. In that case, the Court held that Rhode Island's Commission to Encourage Morality in Youth had violated the First Amendment by pressuring book distributors to drop titles it deemed objectionable.
Notably, the commission itself had no enforcement authority, and at least some of the books it flagged did not meet the Supreme Court's test for obscenity, meaning the distributors were not violating any law by selling them. The Court nevertheless concluded that the commission's communications, which ostensibly sought voluntary "cooperation" but were "phrased virtually as orders," were unconstitutional because they aimed to suppress disfavored speech and had that predictable result.
The Biden administration's social media meddling bears a strong resemblance to that situation. But Fletcher argued that federal officials were simply using "the bully pulpit" to persuade platforms that they had a "responsibility" to curtail dangerous speech.
"Pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all," Aguiñaga noted. "That's just being a bully."
Free Press, an inaptly named organization that aims to promote "positive social change, racial justice and meaningful engagement in public life," warns that a ruling against the government "could allow social-media platforms to leave up misinformation." In other words, a ruling for the government would empower it to define "misinformation" and require its removal—something the First Amendment plainly forbids.
© Copyright 2024 by Creators Syndicate Inc.
The post The Supreme Court Should Reject Clandestine Government Censorship of Online Speech appeared first on Reason.com.
]]>"My biggest concern," said Supreme Court Justice Ketanji Brown Jackson on Monday, "is that your view has the First Amendment hamstringing the government in significant ways."
That comment came during oral arguments in Murthy v. Missouri, the case that asks if President Joe Biden's administration violated the First Amendment when it sought to pressure social media apps to remove information it deemed harmful. It took almost no time for Jackson's tidbit to set off the viral narrative that she doesn't grasp basic constitutional principles, particularly when considering the point of the First Amendment is indeed to hamstring what the government can do in response to speech it may not like.
"Jackson raises eyebrows with comment that First Amendment 'hamstrings' government," wrote Fox News. "Leftists want unlimited government — which is why they hate the Constitution," lamented The Federalist. It was "literally one of the craziest things I've ever seen," said Rep. Jim Jordan (R–Ohio).
But like so many viral narratives, Jackson's comments were fairly benign in context, and were actually echoed by Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps most ironically, her remark spoke fundamentally to the crux of the case: The government, of course, does not have the right to punish someone criminally for the vast majority of speech. But does it have the right to persuade?
Jackson may think it does. Her "hamstringing" comment came attached to a hypothetical scenario she posed to Benjamin Aguiñaga, Louisiana's solicitor general, who argued the Biden administration had overstepped when it contacted social media platforms and attempted to pressure them to remove posts it found objectionable. Suppose a challenge circulated on social media concerning "teens jumping out of windows at increasing elevations," Jackson said. Could the government try to persuade those platforms to remove that content?
No, Aguiñaga said, because that's still protected speech, no matter how dangerous.
That might very well be the correct interpretation. But Jackson's take—that such a view could place too much restraint on the government—is one that's held by many, including, it appears, some of her more conservative colleagues. Kavanaugh, for example, invoked his experience working with government press staff, who regularly call reporters to criticize them and try to influence their coverage. Would it be illegal for the feds to prosecute those journalists for pieces that cast them in a negative light? Absolutely. Is it beyond the pale for the government to express what it believes to be true in seeking better coverage? Not necessarily, Kavanaugh said.
That doesn't mean they're correct. But the great irony of the viral Jackson pile-on is that, based on oral arguments, her view may very well prevail.
Jackson, of course, is not the first to find herself in this situation. At a recent rally in Ohio, former President Donald Trump said there would be a "bloodbath" if he were to lose. The comment set off a media frenzy, despite that, once again, the comment, which seemed to refer to the auto industry, appeared far more benign in context. But if partisans have one thing in common, it's confirmation bias. They often differ on which ideas they want to succeed, but they want their side confirmed just the same—sometimes at the expense of truth.
The post 'Hamstringing the Government': A Viral Narrative Distorts Ketanji Brown Jackson's Understanding of Free Speech appeared first on Reason.com.
]]>When Donald Trump was president, he provoked a First Amendment lawsuit by banning critics from his Twitter account. "Once the President has chosen a platform and opened up its interactive space to millions of users and participants," the U.S. Court of Appeals for the 2nd Circuit ruled in 2019, "he may not selectively exclude those whose views he disagrees with." Although that case became moot after Trump left office, the issues it raised have come up repeatedly across the country because public officials, regardless of their political party, are united in resenting criticism and often prefer to silence irksome constituents rather than simply ignoring them.
In two unanimous decisions published on Friday, the U.S. Supreme Court held that such blocking can violate the First Amendment and clarified the standard for determining when it does. The justices did not actually resolve either case, instead sending them back to the lower courts for reconsideration in light of its newly announced guidelines.
"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," Justice Amy Coney Barrett writes in Lindke v. Freed. "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."
That case involves Port Huron, Michigan, City Manager James Freed, who as a college student "created a private Facebook profile" that he initially "shared only with 'friends.'" He later made the page public and, after he was appointed city manager in 2014, updated it "to reflect the new job," using "a photo of himself in a suit with a city lapel pin" and noting his position in the "About" section. Freed "posted prolifically (and primarily) about his personal life," but he "also posted information related to his job."
The job-related topics included Freed's visits to local high schools, "reconstruction of the city's boat launch," "the city's efforts to streamline leaf pickup and stabilize water intake from a local river," and "communications from other city officials." Sometimes Freed "solicited feedback from the public," and he would delete comments he viewed as "derogatory" or "stupid." During the COVID-19 pandemic, he posted information on that subject, such as "case counts," "weekly hospitalization numbers," "a description of the city's hiring freeze" and "a screenshot of a press release about a relief package that he helped prepare."
Freed's discussion of the pandemic prompted Port Huron resident Kevin Lindke to vent his opinions about the city's "abysmal" response. "The city deserves better," Lindke wrote. After "Freed posted a photo of himself and the mayor picking up takeout
from a local restaurant," Lindke "complained that while 'residents [we]re suffering,' the city's leaders were eating at an expensive restaurant 'instead of out talking to the community.'" At first, "Freed deleted Lindke's comments." Eventually, Freed blocked Lindke, meaning "Lindke could see Freed's posts but could no longer comment on them."
That decision provoked Lindke to sue Freed under 42 USC 1983, arguing that Freed had violated his First Amendment rights under color of law. Lindke said Freed had "engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them."
That lawsuit is viable only if Freed was acting in his public capacity when he blocked Lindke. If Freed was acting as a private citizen, there would be no basis for arguing that he violated the First Amendment.
A federal judge rejected Lindke's claim, concluding that Freed's decision to block him did not qualify as "state action." The judge noted that Freed's posts were mainly personal, that the government was not involved with his account, and that Freed did not use it to conduct official business.
The U.S. Court of Appeals for the 6th Circuit upheld that ruling. Noting that "the caselaw is murky as to when a state official acts personally and when he acts officially," the appeals court asked "whether the official is 'performing an actual or apparent duty of his office,' or if he could not have behaved as he did 'without the authority of his office.'" In the social media context, the appeals court held, that means an official's activity amounts to state action if the "text of state law requires [him] to maintain a social-media account," he uses "state resources" or "government staff" to run the account, or the account "belong[s] to an office, rather than an individual officeholder."
Freed's activity, the 6th Circuit concluded, did not meet that test. But that test, Barrett says, does not account for the subtleties that courts must consider in cases involving public officials' use of social media.
"Lindke cannot hang his hat on Freed's status as a state employee," Barrett notes. "The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look."
Since a Section 1983 claim requires that "the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State," Barrett says, it makes sense to ask whether an official "possessed actual authority to speak on the State's behalf." Under that prong, she says, "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." And if "the plaintiff cannot make this threshold showing of authority, he cannot establish state action."
Because "state officials have a choice about the capacity in which they choose to speak," Barrett adds, an official "is speaking in his own voice" unless he is speaking "in furtherance of his official responsibilities." She illustrates the point with the example of a school board president who announces the lifting of pandemic-related school restrictions at a board meeting, then shares the same information "at a backyard barbecue with friends whose children attend public schools." The former announcement "is state action taken in his official capacity as school board president," she says, while "the latter is private action taken in his personal capacity as a friend and neighbor."
The situation with Freed's Facebook account is "hazier," Barrett writes, because he mixed clearly personal posts with job-related posts and did not include any explicit statement about the nature of the 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," she says. "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."
Because of these fact-specific and context-dependent challenges, the Court vacated the 6th Circuit's decision and remanded the case "for further proceedings consistent with this opinion." It did the same thing in O'Connor-Ratcliff v. Garnier, which involves two California school board members who blocked two parents of students on Facebook and Twitter.
Those decisions, the U.S. Court of Appeals for the 9th Circuit ruled, constituted state action because there was a "close nexus" between the board members' "use of their social media pages" and "their official positions." But "because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke," the Supreme Court said, the lower courts need to take another look.
The post Supreme Court Says Officials Who Block Critics on Social Media Might Be Violating the First Amendment appeared first on Reason.com.
]]>Blocked: Last year, Texas Senate Bill (S.B.) 4—which would've allowed Texas police to arrest those who illegally cross the southern border—passed. Yesterday, the U.S. Supreme Court issued an order that blocks the enforcement of the law "until justices decide whether Texas should be allowed to enforce it before federal court challenges are resolved," reports The Texas Tribune. "Justice Samuel Alito did not put a deadline on the temporary order blocking the law and did not indicate when the high court would decide whether to keep the law from being enforced during ongoing litigation."
S.B. 4 "allows police to question and arrest anyone they believe entered Texas through Mexico illegally and is currently without legal immigration status," per the Tribune. It was not intended to be a means by which law enforcement can go after longtime residents of the U.S. who once crossed illegally (and statutes of limitations further protect such people), but rather a means of detaining recent border-crossers.
The bill says "any migrant seen by the police wading across the Rio Grande could be arrested and charged in state court with a misdemeanor on the first offense," per The New York Times. "A second offense would be a felony. After being arrested, migrants could be ordered during the court process to return to Mexico or face prosecution if they did not agree to go."
No path forward: Since the federal government has immigration-enforcement authority, there is plenty of reason to believe the Texas law will ultimately get struck down. The state, meanwhile, says the law has a necessary deterrent effect.
"No matter how emphatic Texas' criticism of the federal government's handling of immigration on the border may be to some," wrote U.S. District Judge David A. Ezra when ruling on the case last month, "disagreement with the federal government's immigration policy does not justify a violation of the [U.S. Constitution's] Supremacy Clause."
But the Supreme Court intervening, and possibly striking down S.B. 4 altogether, doesn't mean tensions will be cooled—quite the opposite.
"There is either a red wave this November or America is doomed," wrote Elon Musk on X this past weekend, in response to a video about New York City's migrant crisis. "Imagine four more years of this getting worse," he added, ominously. But one thing that will surely get worse, regardless of who gets elected in November, is the degree of polarization driving Americans further away from each other on this issue in particular. There are wonky questions worth sussing out—How many low-skilled job-seekers can our labor market bear? Are there certain low-cost-of-living areas of the country that can better accommodate migrants? How quickly should work authorization be processed?—but both political parties have chosen to sidestep these questions in favor of political posturing that does very little to serve the border-crossers in question.
Scenes from New York: You've heard of carjacking, but what about trainjacking? Inside the strange breed of New York criminal that attempts to…break into subway cars and drive them.
KBJ doubles down: "My biggest concern is that your view has the First Amendment hamstringing the government in significant ways."
That is, quite literally, the entire point of the First Amendment—of the entire Bill of Rights. pic.twitter.com/gWMCaHDG1W
— System Update (@SystemUpdate_) March 18, 2024
The post Texas Barred From Detaining Border-Crossers appeared first on Reason.com.
]]>The U.S. Supreme Court on Monday considered dueling interpretations of the Biden administration's interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security. During oral arguments in Murthy v. Missouri, Louisiana Solicitor General J. Benjamin Aguiñaga said those private contacts, combined with public statements condemning the platforms' failure to suppress "misinformation," amounted to government-directed censorship. U.S. Principal Deputy Solicitor General Brian Fletcher disagreed, saying neither crossed the line "between persuasion and coercion."
If the federal government coerced platforms to censor speech by threatening them with "adverse government action," Fletcher conceded, that would be a clear violation of the First Amendment. But "no threats happened here," he argued, because White House officials merely "use[d] strong language" while encouraging the platforms to suppress speech that offended them and "referred in a general way to legal reforms in response to press questions." Any attempt to enjoin the government from privately pressuring Facebook et al. to crack down on controversial speech or publicly castigating them for failing to do so, he warned, would interfere with constitutionally permissible information sharing, "provision of advice," and federal officials' use of "the bully pulpit" to "call on the platforms to do more."
Aguiñaga argued that federal officials went far beyond providing information that might help the platforms enforce their own content rules. He said officials persistently pressured the platforms to broaden those restrictions and enforce them more aggressively, and the platforms responded by changing their policies and practices. "As the 5th Circuit put it," Aguiñaga said, "the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans." And most of that pressure, he emphasized, was applied behind closed doors, coming to light only as a result of discovery in this case.
"The government badgers the platforms 24/7," Aguiñaga said. "It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options, and it accuses platforms both of playing 'total Calvin Ball' and of 'hiding the ball'—all to get the platforms to censor more speech. Under this onslaught, the platforms routinely cave….Pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That's just being a bully."
Fletcher and Aguiñaga both invoked Bantam Books v. Sullivan, a 1963 case in which the Supreme Court held that Rhode Island's Commission to Encourage Morality in Youth violated the First Amendment by pressuring book distributors to drop titles it deemed objectionable. Notably, the commission itself had no enforcement authority, and at least some of the books it flagged did not meet the Supreme Court's test for obscenity, meaning the distributors were not violating any law by selling them. The Court nevertheless concluded that the commission's communications with book distributors, which ostensibly sought their "cooperation" but were "phrased virtually as orders," were unconstitutional because they aimed to suppress disfavored speech and had that predictable result.
Last September, the U.S. Court of Appeals for the 5th Circuit ruled that some of the Biden administration's communications with social media platforms qualified as coercion under the Bantam Books test. It also held that some of the interactions amounted to "significant encouragement" under the Court's 1982 ruling in Blum v. Yaretsky. Although that case involved due process rather than freedom of speech, the Court held that private decisions can amount to "state action" when the government has "provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." That holding jibes with the general principle that the government may not indirectly do something that the Constitution forbids it to do directly.
In this case, the 5th Circuit held that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency were so heavily involved in content moderation decisions that their "advice" qualified as "significant encouragement" under Blum. As the Foundation for Individual Rights and Expression put it in a brief asking the Supreme Court to uphold the 5th Circuit's decision, federal officials "became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms' policies from the inside."
Fletcher urged the justices to focus on the persuasion/coercion distinction supported by Bantam Books rather than the question of "significant encouragement," which he said
"risks turning the platforms and lots of other entities that are interacting with the government into state actors," thereby "restricting their editorial choices under the First Amendment." And on the question of coercion, he said, it was not enough to show that some federal officials were talking about antitrust action, regulation, and increased liability for user-posted content as ways of holding platforms "accountable" at the same time that others were urging the platforms to banish specific speakers, delete particular posts, or suppress certain kinds of content.
Justice Samuel Alito suggested that the Biden administration treated social media platforms differently than it would treat news outlets such as The New York Times, The Washington Post, and the Associated Press. "The White House and federal officials are repeatedly saying that Facebook and the federal government should be partners," he said. "'We are on the same team.' Officials are demanding answers. 'I want an answer. I want it right away.' When they're unhappy, they curse them out. There are regular meetings. There is constant pestering of Facebook and some of the other platforms…[Officials] suggest…rules that should be applied and [ask], 'Why don't you tell us everything that you're gonna do so we can help you and we can look it over?' And I thought, 'Wow, I cannot imagine federal officials taking that approach to the print media.'…If you did that to them, what do you think the reaction would be?"
At the same time, Alito said, the federal government had "these big clubs" to encourage compliance, including potential legal reforms that would expand the platforms' civil liability. "So it's treating Facebook and these other platforms like they're subordinates," he said.
The cursing to which Alito alluded, Fletcher noted, came in the context of a complaint about problems with President Joe Biden's Instagram account. "Are you guys fucking serious?" Deputy Assistant to the President Rob Flaherty said in an email to Facebook. "I want an answer on what happened here and I want it today." That exchange, Fletcher said, was "not about moderating other people's content."
Fletcher nevertheless conceded that White House officials often adopted a harsh tone when they demanded that platforms suppress messages they viewed as discouraging vaccination against COVID-19. "There's an intensity [to] the back and forth here, and there's an anger that I think is unusual," he said. "But the context for that, I think, is that these platforms we're saying publicly, 'We want to help. We think we have a responsibility to give people accurate information and not bad information, and we're doing everything we can to meet that goal.' That's where this language of partnership comes from. It's not just from the White House; it's these platforms, which are powerful, sophisticated entities, saying, 'We're doing the best we can.'…The anger is when the officials think that the platforms are not being transparent about the scope of the problem or aren't giving information that's available."
Justice Clarence Thomas, who joined Alito and Justice Neil Gorsuch in dissenting when the Court stayed the 5th Circuit's preliminary injunction in October, suggested that even amicable cooperation between the government and social media platforms could run afoul of the First Amendment. He asked Fletcher whether the government could "censor someone" by "agreeing with the platforms, as opposed to coercing the platforms." Suppose the platforms agreed that "we're on the same team" and "work[ed] together" with the government "to make sure that this misinformation doesn't gain sort of any following," he said. "The government can't censor by coordinating with private parties to exclude others' speech?"
Gorsuch likewise made a few points that might support a ruling against the government. He said suppression of a given plaintiff's speech could be deemed "traceable" to the government's conduct if the latter was "a motivating factor" in that particular moderation decision, even if it was not "a proximate cause." And he suggested that "a threat or an inducement with respect to antitrust actions" or protection from civil liability for users' posts, both of which could be relevant here, might "qualify as coercion." Likewise "an accusation by a government official that unless you change your policies, you're responsible for killing people"—a description that fits what Biden said about Facebook and other platforms.
While Fletcher focused on coercion and defined it narrowly, Aguiñaga argued that any contact in which a public official urges a platform to take down objectionable content carries an implicit threat because of the power that the government wields. If "my dear mother" complains to a platform about a post, he said, "they don't know her from Adam," so "they don't care, but they do care if it's the government."
Aguiñaga drew a distinction between rebutting misinformation and demanding its censorship. "If the government thinks there's false speech out there, the remedy for that is true speech," he said. "Nothing prohibits the government from going to that platform and saying, 'We've seen a lot of false information about election activity and COVID and vaccines.'….Nothing prohibits the government from saying, 'Here's a list of everything we say is true. That is true in our view, and you should amplify our speech. And anytime that false speech arises, you should put our posts right there next to it, saying this is the government's view on this issue.'"
Aguiñaga, who described himself as "a purist on the First Amendment," suggested that would be the right approach even when the government is responding to "factually erroneous information" about actions by U.S. troops (a hypothetical posed by Justice Brett Kavanaugh) or a social media "challenge" involving "teens jumping out of windows at increasing elevations" (as imagined by Justice Ketanji Brown Jackson). But he noted that suppression of some online speech, especially in the context of national security, would be constitutional if it withstood "strict scrutiny," meaning it was the least restrictive means of serving a compelling government interest.
"If you're concerned with the breadth of our arguments, that's one fail-safe," Aguiñaga said. "No matter how broad the standard [that] the Court adopts, there's always gonna be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things that you're outlining."
Justice Elena Kagan questioned whether any of the individual plaintiffs who joined Louisiana and Missouri in this lawsuit could prove their speech was suppressed as a result of government pressure rather than independent decisions by social media platforms. "There's just nothing where you can say, 'OK, the government said, take down that communication,'" she told Aguiñaga. "The government is making some broad statements about the kinds of communications it thinks [are] harmful. Facebook has a lot of opinions on its own about various kinds of communications." Based on "standard ideas about traceability and redressability," she said, "I don't see a single item in your briefs that would satisfy our normal tests."
Justice Sonia Sotomayor complained that Aguiñaga's brief was misleading. "You omit information that changes the context of some of your claims," she said. "You attribute things to people who it didn't happen to." In one case, she said, "it was [a plaintiff's] brother that something happened to, not her. I don't know what to make of all this….I'm not sure how we get to prove direct injury in any way."
Aguiñaga apologized. "If any aspect of our brief was not…as forthcoming as it should have been," he said, "I would take full responsibility for that." He cited a couple of examples that he thought "prove direct injury," but Kagan and Sotomayor remained skeptical. And Fletcher argued that the timing of government communications and moderation decisions affecting the plaintiffs does not support an inference that the former resulted in the latter.
Aguiñaga emphasized that the government's intervention resulted in the suppression of speech that otherwise would have been allowed. To illustrate that point, he cited an email from Meta executive Nick Clegg to Surgeon General Vivek Murthy, who had joined Biden in publicly charging Facebook with complicity in the deaths of unvaccinated Americans and urged a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might include "legal and regulatory measures."
After thanking Murthy "for taking the time to meet,'" Clegg said, "I wanted to make sure you saw the steps we took just this past week to adjust policies on what we're removing with respect to misinformation, as well as steps taken to further address the 'disinfo dozen' [users the government has identified as major purveyors of anti-vaccine messages]: we removed 17 additional Pages, Groups, and Instagram accounts tied to the disinfo dozen." Later Clegg told Murthy that Facebook "will shortly be expanding our COVID policies to further reduce the spread of potentially harmful content on our platform." Such exchanges, Aguiñaga said, show that platforms like Facebook were "moving beyond what their own policies require[d] because they felt pressure to take more action and to censor more speech."
In Fletcher's telling, however, federal officials were simply providing information and encouraging voluntary collaboration. Aguiñaga "started by saying that this is a massive attack on free speech," Fletcher said during his rebuttal. "The lower courts called it a coordinated censorship campaign. I want to be clear [that] if those things had happened, they would be reprehensible. It would be a huge problem." But under "a rigorous analysis of the facts and the law," he said, "we don't think that's [what] happened here. We don't think that's supported."
[This post has been updated with comments from Thomas and Gorsuch.]
The post SCOTUS Ponders Whether the Biden Administration Coerced Social Media Platforms To Censor Speech appeared first on Reason.com.
]]>On Monday, the U.S. Supreme Court is scheduled to hear oral arguments in Murthy v. Missouri, which raises the question of when government efforts to suppress "misinformation" on social media violate the First Amendment. Neglecting that central question, The New York Times portrays the case as part of a conspiracy by Donald Trump's supporters to undermine democracy by promoting false claims that mislead voters and threaten the peaceful transfer of power.
"In a world of unlimited online communications" where "anyone can reach huge numbers of people with unverified and false information," Times reporters Jim Rutenberg and Steven Lee Myers ask, "where is the line between protecting democracy and trampling on the right to free speech?" This is not the first time that Myers has described freedom of speech as a threat to democracy. Last year, he worried that "the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem that, in the case of a pandemic, threatens public health and, in the case of the integrity of elections, even democracy itself." The purported conflict between free speech and democracy is a bizarre and highly misleading way to frame the issues raised by Murthy.
When Biden administration officials persistently pressured social media platforms to curtail speech those officials viewed as dangerous, Rutenberg and Myers say, they were trying to "balance free speech with democratic rights" and "seeking a delicate balance between the First Amendment and social media's rising power over public opinion." The implication is that government officials have the authority to weigh freedom of speech against competing values on a case-by-case basis. But that is not the way the First Amendment works.
The First Amendment bars the government from "abridging the freedom of speech," full stop. As interpreted by the Supreme Court, that command applies to all sorts of speech, no matter how inaccurate, misleading, controversial, offensive, or hateful it might be, unless it fits into one of several narrowly defined exceptions, such as defamation, true threats, fraud, obscenity, and incitement to "imminent lawless action."
The speech that worries Rutenberg and Myers, such as false claims about COVID-19 vaccines and fraud in the 2020 presidential election, does not fit into any of those exceptions. It is therefore constitutionally protected, precluding any ad hoc attempt to balance the value of allowing it against the risks that might entail.
The Biden administration concedes as much. "No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content," it says. "But no such threats occurred here."
The dispute in Murthy centers on whether federal officials' interactions with Facebook et al. amounted to "significant encouragement" of censorship and/or crossed the line between persuasion and coercion. While civil liberties groups disagree about the answer to that question, they agree that it needs to be addressed.
The Foundation for Individual Rights and Expression (FIRE) is urging the Supreme Court to uphold the 5th Circuit's conclusion that "executive branch agencies violated the First Amendment by interfering with private moderation decisions." Those agencies, FIRE says, "used both carrot and stick tactics to achieve indirectly what the Constitution prohibits [when it is done] directly: governmental control over social media moderation decisions."
FIRE sees "substantial evidence" that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security
Agency "engaged in unlawful 'significant encouragement' by placing persistent pressure on platforms to change their moderation policies." Some federal officials, it says, "became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms' policies from the inside."
FIRE also agrees with the 5th Circuit that some of these communications qualified as coercive. "White House officials issued 'urgent, uncompromising demands to moderate
content' and used 'foreboding, inflammatory, and hyper-critical phraseology' when social media companies failed to moderate content in the way they requested or as quickly as officials desired," it says. "Demands to remove specific posts 'ASAP,' the use of words and phrases like 'you are hiding the ball,' and officials warning they are 'gravely concerned' made clear the threats to social media companies were 'phrased virtually as orders.' And officials repeatedly 'refuse[d] to take "no" for an answer and pester[ed]' the social media companies until they 'succumb[ed].' More ominously, they 'threatened—both expressly and implicitly—to retaliate against inaction.'"
The record "contains copious evidence that the social media platforms understood communications from the White House and FBI agents to be threats and acted accordingly," FIRE says. "For example, a social media platform expressly agreed to 'adjust [its] policies' to reflect the changes sought by officials. And several social media platforms 't[ook] down content, including posts and accounts that originated from the United States, in direct compliance with' a request from the FBI that they delete 'misinformation' on the eve of the 2022 congressional election. When the White House and FBI 'requested' the platforms to jump, they ultimately, if reluctantly, asked how high."
FIRE adds that the White House and the FBI "threatened 'adverse consequences' to social media platforms if they failed to comply." When the platforms' content moderation "was too slow for the White House's liking, officials publicly accused them of 'killing people'" and "privately threatened them with antitrust enforcement, repeal of Section 230 immunities, and other 'fundamental reforms' to make sure the platforms were 'held accountable.'"
In addition to those "express threats," FIRE says, "both White House and FBI officials' statements contained implied threatened consequences because those officials are backed by the 'awesome power' wielded by the federal executive branch. For example, White House officials frequently alluded to the President's potential involvement should social media platforms not moderate content to their satisfaction." And "as a federal enforcement agency that conducts various internet investigations," the FBI "has tools at its disposal to force a platform to take down content."
The Electronic Frontier Foundation (EFF), which filed a Murthy brief in support of neither side, sees the situation somewhat differently. It worries that too broad an injunction against government interaction with social media platforms could preclude useful and constitutionally permissible contacts that inform Facebook et al. of misinformation threats they might want to counter by applying their own rules. But even EFF thinks some of these contacts can plausibly be viewed as coercive. EFF mentions Deputy Assistant to the President Rob Flaherty's "communications to Facebook regarding specific Tucker Carlson and Tomi Lahren posts expressing COVID-19 vaccine hesitancy," which it describes as "at least a close case that should likely be resolved against the government."
Rutenberg and Myers' article, by contrast, barely acknowledges that Murthy raises any legitimate First Amendment concerns at all. Instead they worry that the Supreme Court's decision "could curtail the government's latitude in monitoring content online." To be clear: Rutenberg and Myers think that would be bad.
As they see it, Trump's stolen-election fantasy poses a clear and present danger to democracy, as evidenced by the Capitol riot that interrupted congressional ratification of Joe Biden's victory. They note that Trump, after being banished from social media in the wake of the riot, is now back on those platforms, free to promote his phony grievance as he tries to unseat Biden in this year's election. Worse, "Facebook and YouTube announced that they would reverse their restrictions on content claiming that the 2020 election was stolen." As a result, "the torrent of disinformation that the previous efforts had slowed, though not stopped, has resumed with even greater force."
Trump's banishment, of course, was the result of private decisions by private companies, as was his restoration. The decisions at issue in Murthy, by contrast, were made in the context of unrelenting government pressure that the Biden administration argues was constitutionally permissible. Rutenberg and Myers clearly agree.
When social media platforms crack down on controversial speech at the government's behest, users are apt to think twice before expressing opinions that might offend the authorities. But Rutenberg and Myers are not worried about such self-censorship. Instead they worry that constitutional objections to the government's social media meddling have had a "chilling effect" on efforts to curtail online speech.
To emphasize the need for such intervention, Rutenberg and Myers quote Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency. "We're in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure," Easterly said at a 2021 conference, "so building that resilience to misinformation and disinformation, I think, is incredibly important." She promised to "work with our partners in the private sector and throughout the rest of the government and at the [Department of Homeland Security] to continue to ensure that the American people have the facts that they need to help protect our critical infrastructure."
Ensuring that Americans "have the facts" is one thing. It involves responding to "misinformation and disinformation" by citing countervailing evidence. But when fighting "misinformation and disinformation" entails government-encouraged censorship of controversial speech, it raises obvious First Amendment concerns. The very idea of a government agency charged with guarding "our cognitive infrastructure" should set off alarm bells for anyone who values freedom of thought and freedom of speech.
The fact that Rutenberg and Myers do not hear those bells suggests they assume that Orwellian mission can only affect speech they do not like, because the government will inerrantly distinguish between "misinformation" and worthwhile content. That is a pretty shortsighted view for people whose work depends on a constitutional provision that bars the government from enforcing such judgments.
The post <i>The New York Times</i> Again Worries That Free Speech Endangers Democracy 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.
]]>Police can traipse onto the vast majority of private property in the country without a warrant thanks to a century-old Supreme Court decision, according to a new study by the Institute for Justice, a libertarian-leaning public-interest law firm.
In a study published in the spring 2024 issue of Regulation, a publication of the Cato Institute, Institute for Justice attorney Josh Windham and research analyst David Warren estimate that at least 96 percent of all private land in the country is excluded from Fourth Amendment's warrant requirement under the "open-fields doctrine," which allows police to forego warrants when they searched fields, woods, vacant lots, and other property not near a dwelling.
That adds up to nearly 1.2 billion acres open to government trespass, and the Institute for Justice says that's a conservative estimate. The organization also says the study is the first attempt to quantify how much private property is affected by the Supreme Court's 1924 ruling in Hester v. U.S., which created the doctrine.
"Now we have hard data showing that the Supreme Court's century-old error blew a massive hole in Americans' property and privacy rights," Windham said in a press release. "Now we know what the open fields doctrine really means: Government officials can treat almost all private land in this country like public property."
Windham added that "courts and lawmakers across the country will have to face the consequences of keeping this doctrine on the books."
As Reason's Joe Lancaster has reported, the Institute for Justice is challenging warrantless searches of private property in several states. Last week, it filed a lawsuit on behalf of Tom Manuel, a Louisiana outdoorsman who hunts on a private parcel of undeveloped land that he owns. Despite fences and "No Trespassing" signs, Louisiana Department of Wildlife and Fisheries agents came onto his property twice last December without a warrant to check his hunting license.
In December 2021, two Pennsylvania hunting clubs represented by the Institute for Justice sued the Pennsylvania Game Commission for setting up trail cameras on their property without their knowledge or permission. The organization filed a similar lawsuit on behalf of Tennessee residents who had trail cameras installed on their property without a warrant.
In one of the more bizarre cases of the open-fields doctrine run amok, a Connecticut couple filed a lawsuit challenging warrantless surveillance after state wildlife officials put a camera on a bear that was known to frequent the private nature reserve they run, turning the animal into a roving police drone.
This is all possible because the Supreme Court ruled that the Fourth Amendment's warrant requirement only extends to the curtilage—the immediate surroundings of a house. "The special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects,' is not extended to the open fields," Justice Oliver Wendell Holmes Jr. wrote in Hester. "The distinction between the latter and the house is as old as the common law."
In 1984 the Supreme Court reaffirmed that decision, ruling in Ray E. Oliver v. U.S. that even the presence of fences and "No Trespassing" signs did not establish a legitimate privacy interest in unoccupied land.
However, the Institute for Justice has argued that Holmes' appeal to the common law is based on a misreading—a misreading that implicates a massive amount of Americans' private property.
The post Study Estimates Nearly 96% of Private Property Is Open to Warrantless Searches appeared first on Reason.com.
]]>Our secular society has replaced the old arbiters of truth, priests and potentates, with science. One simple definition of the scientific method is that it is the self-correcting process of objectively establishing facts through testing and experimentation. Instead of appealing to the wisdom of divinely ordained scriptures or the pronouncements of princes, sophisticated moderns turn to the peer-reviewed scientific literature in search of reliable information on health, engineering, and, yes, public policy. Therefore, as we saw all too well during the late pandemic, politicians, public health practitioners, potion promoters, and pundits more or less all claim to "follow the science." (One notable recent exception is the ruling in a case involving in vitro fertilization by the chief judge of the Alabama Supreme Court.)
So is the recent retraction of three articles by the scientific journal Health Services Research and Managerial Epidemiology an example of the self-correcting processes of science or something less noble? After all, these articles were prominently cited as evidence in a federal court case that will now be heard by the U.S. Supreme Court later this month.
Sage Publications retracted two articles that suggested that the use of the abortion pill mifepristone significantly increased post-abortion emergency room use. Sage also retracted a third article from the same journal that reported that nearly half of Florida physicians the researchers identified as providing abortions had at least one malpractice claim, public complaint, disciplinary action, or criminal charge. (As background consider that a Florida law firm specializing in medical malpractice reports, "Physicians who provide care for women, particularly pregnant women, are the number one practice area for med mal lawsuits. Of OB-GYNs and related practitioners, 85 percent reported that they have been sued at some point during their career.")
In his April 7, 2023 decision, U.S. District Court for the Northern District of Texas judge Matthew Kacsmaryk "followed the science" by citing the now retracted articles when he overturned the U.S Food and Drug Administration's (FDA) approval back in 2000 of the drug as safe and efficacious. Some of the studies have now been cited and their retraction decried in amicus briefs filed with the Supreme Court.
So why were the articles retracted? And why now? The Sage retraction notice states that "we made this decision with the journal's editor because of undeclared conflicts of interest and after expert reviewers found that the studies demonstrate a lack of scientific rigor that invalidates or renders unreliable the authors' conclusions."
With respect to conflicts of interest, the Sage note observes that all but one of the authors of the studies were affiliated with various "pro-life organizations that explicitly support judicial action to restrict access to mifepristone." This is entirely true. What is puzzling is that these affiliations are acknowledged in all of the articles as well as included in the fairly extensive professional biographies at the conclusions of each article. The authors did however declare for each article that there were "no potential conflicts of interest with respect to the research, authorship, and/or publication of this article."
On the other hand, the authors did disclose in two articles the "receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Charlotte Lozier Institute." According to the mission statement of the Lozier Institute, it "advises and leads the pro-life movement with groundbreaking scientific, statistical, and medical research. We leverage this research to educate policymakers, the media, and the public on the value of life from fertilization to natural death."
In its retraction note Sage argues that the authors should have explicitly declared a conflict of interest—not just mentioned the Lozier Institute's funding—had they properly followed the relevant guidelines issued by the International Committee of Medical Journal Editors (ICMJE). The ICMJE disclosure form does ask all authors "to disclose all relationships/activities/interests listed below that are related to the content of your manuscript. 'Related' means any relation with for-profit or not-for-profit third parties whose interests may be affected by the content of the manuscript."
Given that two of these articles challenged the safety of FDA-approved abortion pills, it's pretty clear that the interests of the anti-abortion Lozier Institute would be affected by their content. It's also pretty clear that the editor of the journal could not have been deceived about the institutional affiliations, financial support, and interests of the authors.
The Sage retraction note also reports that "all three articles were originally reviewed by a researcher who was also affiliated with the Charlotte Lozier Institute at the time of the review." It is worth noting that the Sage guidelines ask reviewers to "carefully consider whether you have any potential conflicts of interest [emphasis in original] relating to the paper before undertaking the review. As an example, you should not be reviewing the paper of anyone you have worked with, taught, and/or published work with in the past." Sage points to the Committee on Publication Ethics guidelines that advise reviewers to "declare all potential competing, or conflicting, interests" specifically noting that reviewers should not agree to review if they are employed by the same institution, or have been recent mentors, mentees, close collaborators or joint grant holders.
The authors' response over at the Lozier Institute counters that Sage uses "'double-anonymized' review, meaning neither the author nor the reviewer knows each other's identities." But just how credible is it that the Lozier Institute-affiliated peer reviewer would not have recognized the provenance of the three articles?
What about the "lack of scientific rigor" that post-publication peer review of the articles found? The Sage retraction reports that two independent subject matter experts "identified fundamental problems with the study design and methodology, unjustified or incorrect factual assumptions, material errors in the authors' analysis of the data, and misleading presentations of the data." The retraction does not detail the experts' findings and their reasoning.
Citing a private letter from the Sage journal to the authors, Science reports:
Sage specifies that they "artificially inflat[ed] the number of adverse events" by counting multiple visits by the same patient; that "conflating" ER visits with adverse events without examining diagnoses or treatments "may not be a valid or rigorous approach"; and that one paper's conclusion that the miscoding of incomplete abortions as miscarriages caused serious adverse events was "inaccurate and unsupported by the data."
Some insight as to the specific concerns of the experts engaged by Sage can be discerned from the articles authors' response to an earlier expression of concern last year. It is noteworthy that the expressions of concern appeared only after the research was cited by Judge Kacsmaryk as evidence for overturning the FDA's approval of the abortifacient.
Will the retractions affect the Supreme Court case? "The whole basis of claims of danger from mifepristone to women sits on these papers. There's nothing else in the literature," says New York University bioethicist Arthur Caplan in Science. "If these papers fall, then the argument that upper courts are reviewing falls apart."
Is Caplan correct that there is nothing else in the literature supporting the epidemiological claims about emergency room visits resulting from the use of mifepristone made by the Lozier Institute affiliated researchers? Basically, yes.
A quick check of Google Scholar finds that the retracted articles are thinly cited and mostly by other researchers who are associated with pro-life organizations. One exception citing their articles is a 2023 Canadian study evaluating the adverse events from using a combination of abortion medications. But even that study reported: "Although rare, short-term adverse events are more likely after mifepristone–misoprostol IA [induced abortion] than procedural IA [induced abortion], especially for less serious adverse outcomes."
When comparing women using abortion pills versus outpatient procedural abortions performed at nine weeks of pregnancy or before, the relative risks of serious adverse events was essentially the same (3.4 versus 3.3 per 1,000). In contrast, an earlier Canadian study published in the New England Journal of Medicine in 2022 evaluating the safety of mifepristone found that the incidence of abortion-related adverse events and complications remained stable as the proportion of abortions provided by medication increased rapidly.
Overall, most studies find that both medication and procedural abortions are safe for the women choosing to end their pregnancies. For example, a 2018 study in BMC Medicine estimating the major incident rate related to abortion care found: "The major incident rate for abortion (0.1%) is lower than the published rates for pregnancy (1.4%), as well as other common procedures such as colonoscopy (0.2%), wisdom tooth removal (1.0%), and tonsillectomy (1.4%). Abortion care is, thus, safer than many other unregulated outpatient procedures."
A 2015 study in Obstetrics & Gynecology reported: "The major complication rate was 0.23%: 0.31% for medication abortion, 0.16% for first-trimester aspiration abortion, and 0.41% for second-trimester or later procedures." And a 2024 study in Nature Medicine evaluating the safety and effectiveness of telehealth medication abortions found that "in total, 0.25% of patients experienced a serious abortion-related adverse event."
In its 2022 evidence-based evaluation of 99 medical abortion studies, the non-profit Cochrane Collaboration concluded, "Medical abortion is a safe and effective way to terminate pregnancy in the first three months." The Cochrane analysis added, "Mifepristone combined with misoprostol is more effective than using these medications on their own."
Toting up all of the cases reported to the FDA since 2000 finds that around 0.07 percent of the 5.9 million American women who have used medications to terminate their pregnancies have experienced any adverse events from taking them. Not surprisingly, researchers associated with various pro-life organizations including the Lozier Institute challenged the FDA figures in a 2021 article in, where else?, Health Services Research and Managerial Epidemiology.
So how could the Lozier Institute researchers come to conclusions contrary to the results found by so many other researchers with respect to the safety of medication abortions? The broken science of epidemiology is perhaps to blame. Epidemiologists anxious to make a significant finding can unconsciously or consciously torture nearly any set of observational data into confessing to whatever correlations that just happen to confirm the researchers' hypotheses.
Stanford statistician John Ioannidis surveys the dire state of epidemiology in his seminal 2005 PLoS Medicine article, "Why Most Published Research Findings Are False." "Any claim coming from an observational study is most likely to be wrong," asserted National Institute of Statistical Sciences researchers Stanley Young and Alan Karr in their 2011 article in the journal Significance. Young has estimated that only 5 to 10 percent of observational studies can be replicated. Of course, all of the researchers seeking to analyze the side effects of mifepristone are parsing observational data with respect to their prevalence and severity. The upshot is that the epidemiological literature is so cluttered with flawed studies that anyone can find some that confirm what they already believe and so assert that they are just "following the science."
The disclosure justifications cited by Sage for retracting the articles are largely spurious since the researchers behind the three retracted studies clearly did not hide their pro-life institutional affiliations. More problematically, the conflicted peer reviewer should have declined to evaluate the studies. And whatever their methodological failings, the three outlier articles from an obscure journal would most likely never have attracted extra scrutiny except for being cited as "follow the science" evidence to challenge the FDA's approval of a widely used abortifacient.
At the center of the case before the Supreme Court later this month is the proposition that any odd federal judge who claims to be "following the science" can overrule the decisions of the FDA that also claims to be "following the science." Will the Supreme Court now "follow the science" and ignore the retracted articles when it rules on that issue later this year?
The post Abortion Pill Studies Retracted: Politics or Science? appeared first on Reason.com.
]]>Next Monday the Supreme Court is scheduled to hear oral arguments in Murthy v. Missouri, which poses the question of whether federal officials violated the First Amendment when they persistently pressured social media platforms to curtail "misinformation." That is what the U.S. Court of Appeals for the 5th Circuit concluded last September, and the Foundation for Individual Rights and Expression (FIRE) is urging the justices to affirm that decision.
FIRE says the 5th Circuit was right to conclude that Biden administration officials engaged in "significant encouragement" of speech suppression and that they crossed the line between persuasion and coercion. But the organization's brief also highlights the First Amendment "hypocrisy" of the lead plaintiffs in this case, which it says "inadvertently" reinforces their argument.
Murthy v. Missouri, originally known as Missouri v. Biden, began with a federal lawsuit that Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry, both Republicans, filed in May 2022. Schmitt, now a senator, was succeeded in January 2023 by another Republican, Andrew Bailey, who took over the case. Landry, now Louisiana's governor, was succeeded by Republican Liz Murrill in January 2024.
Even as they oppose government control of social media in Murthy, FIRE notes, Missouri and Louisiana are asking the Supreme Court to uphold it in Moody v. NetChoice and NetChoice v. Paxton. Those cases involve First Amendment challenges to Florida and Texas laws that restrict Facebook et al.'s content moderation decisions in the name of promoting ideological diversity. During oral arguments in the NetChoice cases last month, most of the justices seemed inclined to agree that the two states are attempting to override the platforms' constitutionally protected editorial discretion.
The contradictory positions taken by Missouri and Louisiana in Murthy and the NetChoice cases suggest those states "believe the First Amendment permits them to do directly what it prohibits other government actors from doing indirectly," FIRE lawyers Robert Corn-Revere and Abigail Smith write. "In fact, they argue not just that the First Amendment permits state regulation of private speakers, but that state regulation is necessary for free speech to exist. This argument—that regulation is free speech—is distinctly Orwellian."
While decrying "their political opposition's use of informal measures to steer
the public debate," the attorneys general of Missouri and Louisiana "are at the same time asking this Court in the NetChoice cases to approve formal state control of online platforms' moderation decisions, saying it presents no First Amendment question at all," FIRE says. "Unbelievable."
The hypocrisy does not end there. The "same officials" who describe the Biden administration's interactions with social media companies as "arguably…the most massive attack against free speech" in U.S. history, Corn-Revere and Smith note, have "actively and repeatedly issue[d] threats and use[d] their official authority to suppress speech they oppose."
The day after Bailey welcomed U.S. District Judge Terry Doughty's July 2023 ruling against the Biden administration as a blow to "bully-pulpit censorship," FIRE says, he "signed a letter along with six other state AGs threatening Target Corporation for the sale of [LGBTQ]-themed merchandise as part of a 'Pride' campaign, warning ominously" that selling those products "might violate state obscenity laws." The items to which Bailey et al. objected "included such things as T-shirts with the words Girls Gays Theys" and "what the letter described as 'anti-Christian designs,' such as one that included the phrase Satan Respects Pronouns," Corn-Revere noted in a Reason essay last July. "The claim that such messages could violate obscenity law would embarrass a first-year law student. And by signing on to the Target letter while simultaneously issuing press releases praising Doughty's decision, Bailey showed his attitude toward constitutional freedoms is, well, flexible."
The point of that letter "was not to make a coherent legal argument," FIRE's brief says. "It was to get Target's leadership to think long and hard about the risks the company might run by expressing messages powerful government officials didn't like." In other words, it bore more than a passing resemblance to the official bullying that Bailey was decrying in his lawsuit against the Biden administration.
There's more. Last December, Bailey "announced a fraud investigation into the advocacy group Media Matters because it had criticized the social media company X for allegedly placing advertisements adjacent to extremist or neo-Nazi content, thus causing a number of advertisers to withdraw from the platform." Bailey and Landry sent "follow-up letters to the advertisers to alert them to Missouri's investigation and urg[e] them to ignore the claims made by Media Matters."
Although Bailey and Landry "tried to frame their actions as a defense of free speech, their explanations rang hollow given their nakedly partisan objectives and coercive tactics," FIRE says. "They described Media Matters as an organization dedicated to 'correcting conservative misinformation in the U.S. Media,' but with a 'true purpose' of 'suppressing speech with which it disagrees.'" Bailey complained that "the progressive mob" was demanding "immediate action" in response to Media Matters' criticism, saying the response from advertisers was hurting "the last platform dedicated to free speech in America."
In short, FIRE says, Bailey and Landry "were simply flexing state muscle to take sides in a culture war dispute." The brief quotes Reason Contributing Editor Walter Olson, who observed that "the most risible bit of the letter—better than satire, really" was Bailey's claim "to be standing up for free speech by menacing his private target with legal punishment for its speech."
Defending the First Amendment "can be a source of consternation because it requires you to share your foxhole with political opportunists," Corn-Revere and Smith write. "They see free speech principles as nothing more than tools they can cynically exploit for temporary partisan advantage, and their headspinning inconsistencies mock notions of neutrality." But far from undermining their argument in Murthy, "their inconsistent behavior and situational approach to First Amendment interpretation stand as monuments for why this Court must use this case to reinforce principles that will bind all government actors, including the state AGs who brought this case."
The post FIRE Highlights the Blatant Hypocrisy of State Officials Who Decry Government Meddling With Social Media appeared first on Reason.com.
]]>Earlier today, Lawfare published my article criticizing the Supreme Court's recent article in the Trump Section 3 disqualification case. Here is an excerpt from the introduction:
The Supreme Court's unanimous recent decision in Trump v. Anderson overturned the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the 14th Amendment. It does so on the grounds that Section 3 is not "self-executing." In a per curiam opinion jointly authored by five justices, including Chief Justice John Roberts, the Court ruled that only Congress, acting through legislation, has the power to determine who is disqualified and under what procedures. This outcome was predictable based on the oral argument… But the Court nonetheless got the issue badly wrong….
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or … an officer of the United States" or a state official and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the Jan. 6, 2021, attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it, whether his actions were protected by the First Amendment, whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices may hope they can avoid ever having to decide these questions.
In my view, Trump deserved to lose on all these points, and the Colorado Supreme Court correctly rejected his arguments on them. But I think he did have a plausible argument on the issue of whether his involvement in the Jan. 6 attack was extensive enough to qualify as "engaging" in insurrection. At the very least, he had a better argument there than on self-execution. The Court's resolution of the latter issue is based on badly flawed reasoning and relies heavily on dubious policy arguments invoking the overblown danger of a "patchwork" of conflicting state resolutions of Section 3 issues. The Court's venture into policy was also indefensibly one-sided, failing to consider the practical dangers of effectively neutering Section 3 with respect to candidates for federal office and holders of such positions.
The post New Lawfare Article on "What the Supreme Court Got Wrong in the Trump Section 3 Case" appeared first on Reason.com.
]]>Separation of powers is a core concept of America's Constitution. In the Founders' scheme, Congress, the courts, and the executive are independent branches of government, with their own roles and duties, intended to check one another.
But since 1984, the Supreme Court has hamstrung its own ability to act independently in the face of executive power. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the high court adopted a blanket presumption of deference to statutory interpretations put forth by regulatory agencies in any case where the statute was ambiguous, so long as the interpretation was reasonable.
If there is ambiguity about what the text of a law says, the Supreme Court decided in that case, then the courts should defer to the government's experts. This became known as the Chevron deference.
In practice, the Chevron deference undermined the Court's independence, since it forced courts to just accept executive branch interpretations in many tough cases.
The doctrine also creates perverse incentives for the other two branches. For example, by giving deference to agencies in ambiguous cases, it gave executive branch regulators incentive to hunt for ambiguities in order to expand their own power. This led to decades of executive overreach, as administrations used convoluted readings of statutes to pursue agendas Congress never imagined.
By the same token, Chevron deference shifted the burden of making well-written and fully thought-out laws away from Congress. Empowering regulators meant that, at the margins, Congress had less reason to write clear, consensus-based legislation.
The result, over 40 years, has been a shift away from the intended constitutional order, in which Congress writes laws, the executive branch implements them, and the courts rule independently on matters of dispute. We now live under an often dysfunctional system in which Congress is less inclined to compromise and legislate on tough issues, regulators are more inclined to take matters into their own hands, and courts have less power to tell executive branch officials when they have overreached.
The system lends itself to politicized regulatory pingponging, as courts are generally required to defer to the differing and even dramatically opposed interpretations put forth by shifting Democratic and Republican administrations.
This was what was at stake in January, when the Supreme Court heard oral arguments that put the legacy of Chevron on trial. In Loper Bright Enterprises v. Raimondo, a group of herring fishermen from New Jersey objected to a federal rule requiring them not only to host government monitors on their boats but to pay the cost of those monitors—about $700 a day.
That requirement was based on the 2007 Magnuson-Stevens Act (MSA), which does require some types of fishing operations to host and pay for government monitors. But the fishermen in this case weren't explicitly covered by that requirement, so when the National Oceanic and Atmospheric Administration (NOAA) decided to expand the purview of the MSA in order to cover a budget shortfall, the fishermen went to court.
The fishermen's cause is important on its own merits. But for larger constitutional purposes, it's something of a red herring. The specifics of their complaint are less important than whether or not the courts had to defer to NOAA's newly stretched interpretation of the MSA.
In oral arguments, the three justices appointed by Democrats seemed inclined to keep Chevron as is, with all three suggesting that experts in regulatory agencies are better equipped than courts are to make tough decisions about difficult-to-parse statutes.
But the rest of the Court seemed skeptical. Justice Neil Gorsuch noted that Chevron deference tends to empower agencies at the expense of less-powerful individuals, such as immigrants, veterans, and Social Security claimants. Addressing the Court, Paul Clement, who defended the fishermen, put it this way: "One of the many problems with the Chevron rule is it basically says that when the statutory question is close, the tie goes to the government."
Outside the Court, news reports and activists warned of the consequences of taking down Chevron, noting that much of the federal government's vast regulatory authority rested on its rule of deference. As a USA Today report on the case noted, "The court's decision could undo decades of rules and procedures involving land use, the stock market, and on-the-job safety."
Loper Bright was not the only Supreme Court case to challenge major parts of the government's regulatory authority this term. Sheetz v. County of El Dorado takes aim at regulatory takings, and Securities and Exchange Commission v. Jarkesy revolves around the question of whether the government violates the Seventh Amendment's requirements about jury trials when judging securities claims. Collectively, wrote Cameron Bonnell in The Georgetown Environmental Law Review, these cases "indicate the Court's eagerness to continue shaping the proper scope of government regulatory authority."
For too long, the administrative state has run unchecked over much of American life. That might finally be coming to an end with this year's Supreme Court term. In discussing the problems with Chevron with NPR, Clement said, "I think it's really as simple as this, which is: When the statute is ambiguous, and the tie has to go to someone, we think the tie should go to the citizen and not the government." One can hope.
The post SCOTUS Takes on <i>Chevron</i> Deference appeared first on Reason.com.
]]>
Michael Rappaport is one of the nation's most prominent originalist legal scholars, and author of such important works as Originalism and the Good Constitution (coauthored with John McGinnis). For those who care, he's also considerably to the right of me politically. In a recent post at the Originalism Blog, he skewers the Supreme Court's recent ruling in Trump v. Anderson, the Section 3 disqualification case:
The Supreme Court has decided by a 9-0 vote that former President Donald Trump cannot be kept off the ballot. In my view, the reasoning in the opinion is a disaster…. While I agree with the Court that Trump cannot be disqualified, it is not because of the nonoriginalist, made-up argument in the majority and concurring opinions. It is because section 3 applies to those who engage in an insurrection, not those who aid and assist a riot.
In my view, section 3 is self-enforcing. This follows pretty clearly from the constitutional text. Section 3 prohibits an oath-breaking insurrectionist from serving in certain offices. State officials are required by oath to respect this constitutional provision. That Congress is specifically given the authority to eliminate the bar by a two-thirds vote makes this even clearer. The section simply cannot be read as saying that only Congress or the federal government can enforce it.
The opinion relies upon spurious, non-textual reasoning. It says that the 14th Amendment restricts state autonomy and therefore it is unlikely that the state was allowed to enforce it against federal candidates. But the 14th Amendment restricts state autonomy only as to the rules it sets. For example, it prohibits states from violating the equal protection of the laws. But it does not prohibit the state from enforcing the equal protection clause. On the contrary, the state can pass a law that enforces the equal protection clause…..
The Supreme Court opinion says that nothing in the Constitution delegates to the states the power to disqualify federal candidates. But this is obviously mistaken under the original meaning. The Constitution says that "each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." This provision allocates to the states the power how to run their presidential elections. State legislatures could decide not to hold elections at all but could assign their electoral votes to the candidate of their choosing. States have broad authority to structure their presidential elections. While this authority might be subject to other constitutional limitations, the Court does not point to any such limitation here.
Some might question whether the Constitution could really have allowed individual states to disqualify people for insurrections, given how difficult it might be to define this term. But the Constitution did not leave this issue unaddressed. Congress has the power, under section 5 of the 14th Amendment, to preempt state disqualification by creating a federal procedure for such disqualifications. Even without such federal legislation, the Supreme Court has the authority to hear challenges to the state determinations, as it did in this case (although it is possible that such challenges might not lead to complete national uniformity as to section 3 questions….).
It is true that presidential elections have come to be viewed as national elections. This view has led many people to view the electoral college as inconsistent with such national elections and to argue for a national popular vote method instead. But that is not the system that the Constitution establishes. Instead, the Constitution grants significant authority to states over presidential elections. That is the original meaning.
I think Mike is right here on virtually all counts. I offered some similar criticisms of the Court's ruling here.
As Mike suggests, even if the Court had ruled against Trump on the self-execution issue, he could have potentially avoided disqualification on one of several other grounds, one of which is the argument that the January 6 attack was not an "insurrection," but merely some other kind of violence.
In my view, the the January 6 attack on the Capitol was pretty obviously an insurrection (see also here and here). The argument on the other side is so weak that Trump's lawyer Jonathan Mitchell chose not to advance it in his brief before the Supreme Court.
Mitchell did make the much stronger argument that Trump's involvement in the attack wasn't great enough to qualify as "engaging" in insurrection. I think that was the best argument on Trump's side of the case, though I also think the Colorado Supreme Court offered compelling reasons to reject it.
Be that as it may, Michael Rappaport is right about the federal Supreme Court's reliance on the claim that Section 3 isn't self-executing with respect to candidates for federal office. It is, as he puts it, "an unprincipled, pragmatic resolution" of the case, one that cannot be justified on originalist grounds.
I am less convinced he is right to suggest this outcome occurred because the Court's "self-interest was severely implicated." Perhaps the justices were driven by genuine, even if overblown, fears that letting states adjudicate Section 3 issues with respect to candidates for federal offices would lead to a chaotic "patchwork" of conflicting rulings. But if so, that's still a triumph of consequentialist "living constitution" reasoning over originalism.
The post Michael Rappaport on "the Originalist Disaster" of the Supreme Court's Ruling in Trump v. Colorado appeared first on Reason.com.
]]>Some Democrats close to the Biden administration and high-profile lawyers with past White House experience spoke to West Wing Playbook on condition of anonymity about their support for Sotomayor's retirement. But none would go on the record about it.
They worried that publicly calling for the first Latina justice to step down would appear gauche or insensitive. Privately, they say Sotomayor has provided an important liberal voice on the court, even as they concede that it would be smart for the party if she stepped down before the 2024 election. There is a firm belief that a Senate controlled by Republicans will simply not confirm a Biden-picked Court nominee should he run and win reelection. Should a vacancy occur under a Republican run Senate with a Republican in the White House, it could expand the current 6-3 conservative majority into an even more powerful 7-2 split.
But getting party leaders to speak more openly about those realities has been difficult.
Party leaders may be unwilling to broach the topic, but Josh Barro isn't. He writes:
Sonia Sotomayor will turn 70 this June. If she retires this year, Biden will nominate a young1 and reliably liberal judge to replace her. Republicans do not control the Senate floor and cannot force the seat to be held open like they did when Scalia died. Confirmation of the new justice will be a slam dunk, and liberals will have successfully shored up one of their seats on the court — playing the kind of defense that is smart and prudent when your only hope of controlling the court again relies on both the timing of the deaths or retirements of conservative judges, plus not losing your grip on the three seats you already hold.
But if Sotomayor does not retire this year, we don't know when she will next be able to retire with a likely liberal replacement. It's possible that Democrats will retain the presidency and the Senate at this year's elections, in which case the insurance created by a Sotomayor retirement won't have been necessary. But if Democrats lose the presidency or the Senate this fall (or both) she'll need to stay on the court until the party once again controls both. That could be just a few years, or it could be a while — for example, Democrats have previously had to wait 14 years from 1995 to 2009, and 12 years from 1981 to 1993.2 In other words, if Sotomayor doesn't retire this year, she'll be making a bet that she will remain fit to serve through age 82 or 84 — and she'll be taking the whole Democratic Party coalition along with her in making that high-stakes bet.
If Democrats lose the bet, the court's 6-3 conservative majority will turn into a 7-2 majority at some point within the next decade. If they win the bet, what do they win? They win the opportunity to read dissents written by Sotomayor instead of some other liberal justice. This is obviously an insane trade. Democrats talk a lot about the importance of the Court and the damage that has been done since the court has swung in a more conservative direction, most obviously including the end of constitutional protections for abortion rights. So why aren't Democrats demanding Sotomayor's retirement?
Some may worry that Senate Republicans would seek to block the confirmation of a replacement. I doubt this is a serious threat. For one thing, Senate Republicans under Mitch McConnell demonstrated that a committed majority can get a nominee through. For another, were Sotomayor to announce plans to retire, she could make it contingent upon the confirmation of a replacement, and rescind her retirement should a replacement not get confirmed in time.
All this said, I doubt Justice Sotomayor will retire this year (not that I would be one to know). If she were to make such a decision, it would likely be communicated to the White House this spring, and announced at the end of the Supreme Court's term.
The post Should Justice Sotomayor Retire? Some People Think So. appeared first on Reason.com.
]]>The other Supreme Court decision. Fresh off a unanimous decision keeping former President Donald Trump on the Colorado state ballot, the U.S. Supreme Court has told Texas to halt the implementation of its controversial immigration law that gives state officials the power to arrest and deport migrants.
The Texas law had been set to take effect this coming Saturday, reports the Associated Press, thanks to a Fifth Circuit Court of Appeals decision that reversed a lower court judge's opinion blocking the law.
The order issued by U.S. Supreme Court Justice Samuel Alito pushes back the start date of the Texas law to March 13 for the moment. The delay is intended to give the Supreme Court more time to consider whether they'll let Texas enforce its own immigration policies.
Texas Gov. Greg Abbott signed S.B. 4, the law in question, back in December 2023. The new law makes it a state misdemeanor to cross the border illegally. Repeat offenders can be charged with more felonies. Per the Texas Tribune, the law also requires judges to order convicted illegal border crossers to leave for Mexico and empowers police to dump them off at the border.
Civil liberties groups have been up in arms about Texas trying to chart its own way on immigration.
"Make no mistake: S.B. 4 bypasses federal immigration authority and threatens the integrity of our nation's constitution and laws," said the American Civil Liberties Union and other civil rights groups in a joint statement urging the Supreme Court to block the law. "We have long warned that this law will separate families, lead to racial profiling across the state, and harm people."
The Supreme Court has put limits on states getting into the business of immigration enforcement in the past. Most notably in 2012, it struck down parts of a 2010 Arizona law that allowed police to arrest suspected illegal immigrants without a warrant and made it a state crime for immigrants to not carry immigration papers with them.
Meanwhile, everyone is processing yesterday's Supreme Court decision that keeps Trump on the ballot in their own way. The big man himself was certainly pleased with the court's unanimous ruling that states can't unilaterally kick candidates for federal office on the ballot because they participated in "insurrection."
"If you're going to win or lose, you have to win or lose at the ballot box, not in a courtroom," said former President Donald Trump, apparently without irony, on Fox News yesterday. "It was a really well-crafted decision. People were very happy about it. Actually, all sides were pretty much respectful of it."
"If you're going to win or lose, you have to win or lose at the ballot box, not in a court room." - President Trump pic.twitter.com/CPoo7z8GBO
— Anthony Hughes (@CallMeAntwan) March 5, 2024
Of course, not everyone was satisfied with the court's ruling. Liberal news commenter Keith Olbermann, measured as always, said the decision signaled the end of democracy and the need to dissolve the Supreme Court entirely.
The Supreme Court has betrayed democracy. Its members including Jackson, Kagan and Sotomayor have proved themselves inept at reading comprehension. And collectively the "court" has shown itself to be corrupt and illegitimate.
It must be dissolved.
— Keith Olbermann (@KeithOlbermann) March 4, 2024
Less hysterical liberal commentators are worried about what the decision signals for courts' willingness generally to sanction Trump.
"To anyone hoping that Trump's efforts to overturn the last election would lead the judicial system to meaningfully penalize him before the next one, recent developments have proved sobering," wrote Sarah Ellison and Toluse Olorunnipa over at The Washington Post.
Read Jacob Sullum's analysis for Reason about the relatively unsurprising ruling and some of the finer points the justices argued over.
Scenes from D.C.
Policy makers in the nation's capital are once again making changes to the city's tipped minimum wage policy. Back in 2022, D.C. voters approved a ballot initiative that gradually eliminates businesses' ability to pay a lower hourly minimum wage to workers who earned tips.
This ballot initiative had already been passed once before in 2018, and then repealed by the city council at the behest of city restaurants and bars and many of their workers.
To cope with the ending of the tipped minimum wage, businesses in the city are starting to apply automatic service fees to their checks, causing no shortage of customer confusion and complaints.
Today, the city council will consider a bill that would zero out the tipped minimum wage by 2025 (instead of 2027) while lowering this year's planned base minimum wage increase to 25 cents instead of $2.
.@councilofdc will be considering Tues speeding up elimination of tipped min wage by 2 years (2025 instead of 2027) in exchange for essentially increasing it 25 cents instead of $2 in July.
This is why per @ChmnMendelson
My story. h/t @amanduhgomezhttps://t.co/50NIyFXGCi pic.twitter.com/ncOIm0kGwX— Barred in DC (@BarredinDC) March 5, 2024
The post Supreme Court Tells Texas to Hold On appeared first on Reason.com.
]]>As Mark Joseph Stern noted yesterday on Xitter, the three-justice opinion concurring in the judgment appears to have been originally drafted as an opinion by Justice Sotomayor "concurring in part and dissenting in part." So either Justice Sotomayor was confused about how to style an opinion that reaches the same bottom line judgment of the majority (unlikely), or something changed in one or both opinions. [Sidenote: Who thinks to check metadata by double-clicking random parts of an opinion or searching for ghost text?]
There are other indications things may have been revised quite late. For instance, the three-justice opinion accuses the majority of holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." The majority certainly holds that Section 5 of the Fourteenth Amendment vests in Congress the power to enforce Section 3, but nowhere does it require a "particular kind of legislation." Might this be responding to language in a per curiam draft that was later watered down? It's quite possible the per curiam was changed leaving no time for additional revisions to other opinions.
There's also a line in Justice Barrett's separate opinion that seems to be jousting with something that is not there. After explaining why she did not join parts of the per curiam, Barrett writes:
The majority's choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.
"Stridency"? Really? Justice Barrett does not strike me as that sensitive. Perhaps the thre-justice opinion's citations to the Chief's separate Dobbs opinion and Breyer's Bush v. Gore dissent were a tad salty, but "strident"? This makes me wonder further whether there was language in the three-justice opinion that was watered down or removed, and the rush to issue the opinion prevented further revisions in response. (Or perhaps Justice Barrett initially drafted this language in response to a Justice Sotomayor partial dissent.
There are other places where the opinions do not quite mesh the way one would expect were there time for lots of back-and-forth, but these are a two I thought worth highlighting.
I had also initially wondered about the lack of a syllabus, but it turns out this is standard for per curiam slip opinions. They are initially issued without syllabi, which are later added for publication in the U.S. Reports.
Well, that's enough procrastination-through-speculation for one day.
The post Were There Last Minute Changes to Trump v. Anderson? appeared first on Reason.com.
]]>In this week's The Reason Roundtable, editors Matt Welch, Katherine Mangu-Ward, Nick Gillespie, and Peter Suderman debate the pros and cons of various ideas for electoral reform ahead of this week's Super Tuesday primary contests.
00:27—The Supreme Court rules Colorado can't remove Donald Trump from the ballot.
06:19—Electoral dysfunction, incentives, plus pros and cons of various proposed reforms
36:40—Weekly Listener Question
45:48—Sen. Mitch McConnell (R–Ky.) announces his retirement.
56:06—This week's cultural recommendations
Mentioned in this podcast:
"Supreme Court Unanimously Rules That States May Not Disqualify Trump As an Insurrectionist," by Jacob Sullum
"Does Ranked Choice Voting Disenfranchise Minorities?" by Joe Lancaster
"The Modern Supreme Court Agrees With Chief Justice Chase: Trump Cannot Be Removed From the Presidential Ballot," by Josh Blackman
"Supreme Court Rules for Trump in Section 3 Disqualification Case," by Ilya Somin
"'Super' Week," by Eric Boehm
"How Ranked Choice Voting Would Sort the Republican Primary Field," by Eric Boehm
"Morris P. Fiorina: Why 'Electoral Chaos' Is Here To Stay," by Nick Gillespie
"In Alaska, Ranked Choice Voting Worked," by Eric Boehm
"Gerrymandering Is Making Elections Less Competitive," by Eric Boehm
"The Commission on Presidential Debate's 15 Percent Polling Criterion Must Go, Argues Lawsuit from Gary Johnson," by Brian Doherty
"How GOP Fiscal Sanity Died, in 7 Easy Steps," by Matt Welch
"Dune: Part Two Is a Glorious Sci-Fi Spectacle," by Peter Suderman
"The Great Gatsby's Creative Destruction," by Nick Gillespie
"Comic: Robert A. Heinlein in 'The Moon Is a Hot Babe,'" by Peter Bagge
"Robert Heinlein at 100," by Brian Doherty
"The Parables of Octavia Butler," by Amy H. Sturgis
"Science Fiction Is for Socialists?" by Katherine Mangu-Ward
"Sandra Newman: Reimagining 1984 From Julia's Perspective," by Nick Gillespie
"Science Fiction: Created Worlds," by John Pierce
"Review: Dune and The Velvet Underground," by Kurt Loder
"Herbert's Dune It Again," by Patrick Cox
"Giant Douche and Turd Sandwich Debate," by South Park Studios
"Episode 77: Nick Gillespie / The Byrds," by Scot Bertram and Jeff Blehar
Nick Gillespie's Q&A on C-SPAN
Send your questions to roundtable@reason.com. Be sure to include your social media handle and the correct pronunciation of your name.
Today's sponsor:
Audio production by Ian Keyser; assistant production by Hunt Beaty.
Music: "Angeline," by The Brothers Steve
The post Rank Choices appeared first on Reason.com.
]]>Today's unanimous per curiam Supreme Court decision in Trump v. Anderson overturns the Colorado Supreme Court ruling disqualifying Donald Trump from the presidency under Section 3 of the Fourteenth Amendment. It does so on the ground that Section 3 is not "self-executing." Thus, only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures. This outcome was predictable based on the oral argument. But it is nonetheless badly wrong.
Section 3 states that "No person" can hold any state or federal office if they had previously been "a member of Congress, or… an officer of the United States" or a state official, and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
Under the Court's reasoning only Congress, through special legislation, has the power to enact legislation specifying which people are to be disqualified and under what procedures—at least when it comes to candidates for federal office, and officials holding those offices. The majority claims that Congress' Section 5 power to enact "appropriate" legislation enforcing the Fourteenth Amendment is the exclusive mode of enforcing Section 3.
There are multiple flaws in the Court's reasoning. Start with the fact that there is no good reason to believe that Section 5 is the exclusive mode of enforcing Section 3. As the Colorado Supreme Court pointed out in its ruling, Section 5 allows Congress to enforce not just Section 3, but every other part of the Fourteenth Amendment, including its protections against racial and ethnic discrimination, the Due Process Clause, and more. All these other provisions are considered to be self-executing, under longstanding Supreme Court precedent. Thus, state governments and federal courts can enforce these provisions even in the absence of federal Section 5 enforcement legislation. Otherwise, as the Colorado Supreme Court notes, "Congress could nullify them by simply not passing enacting legislation." Why should Section 3 be any different? Today's Supreme Court decision doesn't give us any good answer to that question.
The Supreme Court ruling also notes, following longstanding precedent, that Congress' Section 5 power is "remedial" in nature: it must be "congruent and proportional" to violations of the Amendment it is intended to remedy. If Section 5 legislation is supposed to be remedial—including when it comes to enforcing Section 3—that implies someone else—state governments and federal courts—has the initial responsibility for ensuring compliance with Section 3. The role of Section 5 is to remedy violations of that duty.
The per curiam opinion emphasizes the need for uniformity in determining eligibility for federal office, and argues that states lack the power to make such determinations:
Because federal officers "'owe their existence and functions to the united voice of the whole, not of a portion, of the people,' " powers over their election and qualifications must be specifically "delegated to, rather than reserved by, the States." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995)…. But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.
This argument ignores the longstanding role of states in enforcing and adjudicating other constitutional qualifications for candidates for federal office, such as the requirements that the president must be 35 years old, and a "natural born" citizen of the United States. In 2016, there was litigation in multiple states over claims brought by Trump supporters to the effect that Texas Sen. Ted Cruz, his chief rival for the GOP presidential nomination, was not a "natural born" citizen. State courts in Pennsylvania and New Jersey ruled that Cruz was eligible. But no one doubted that they had the authority to adjudicate the issue.
In a 2012 decision written when he was a lower court judge on the US Court of Appeals for the Tenth Circuit, Supreme Court Justice Neil Gorsuch upheld Colorado state officials' decision to bar from the ballot a would-be presidential candidate who was clearly not a natural born citizen. Then-Judge Gorsuch wrote that "a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." This reasoning applies to Section 3 just as readily as to the Natural Born Citizen Clause.
The main motive for the Court's decision may be the fear that letting states adjudicate Section 3 disqualifications will, lead to a "patchwork" of conflicting procedures and determinations. On top of that, there is fear that partisan state officials will seek to disqualify opposing-party candidates for specious reasons.
These are legitimate concerns. But, for reasons outlined in my commentary on the oral argument, they are overblown:
If state officials or state courts reach unsound or contradictory legal conclusions about the meaning of Section 3 (e.g.—by adopting overbroad definitions of what qualifies as an "insurrection"), their determinations could be reviewed in federal court, and the Supreme Court could impose a uniform definition of the terms in question. Indeed, it could do so in this very case! Non-uniform interpretations of provisions of the federal Constitution by state and lower federal courts can occur in many contexts. Settling such issues is one of the reasons why we have a Supreme Court that can be the final arbiter of federal constitutional questions.
Conflicting legal and factual determinations about candidate eligibility for office can also arise with respect to other constitutional qualifications for the presidency. For example, there might be disputes over the accuracy or validity of a candidate's birth certificate (recall "birtherist" claims that Barack Obama wasn't really bon in the United States, and that his birth certificate was fake).
The possibility of divergent conclusions on such issues is an unavoidable aspect of a system in which control over elections for federal offices is largely left to individual states, rather than reserved to a federal government agency. Perhaps the Framers of the Constitution made a mistake in setting up that system. Maybe it would be better if we had a national agency administering all elections for federal office, like Elections Canada, which fulfills that function in our neighbor to the north.
But the framers chose otherwise. As the per curiam opinion recognizes,"the Elections and Electors Clauses… authorize States to conduct and regulate congressional and Presidential elections, respectively. See Art. I, §4, cl. 1; Art. II, §1, cl. 2." That gives state governments initial authority (subject to federal judicial review) to enforce other constitutionally required qualifications for federal office. Section 3 is no different.
Concerns about a potential "patchwork" of conflicting state rulings are ultimately policy objections to the Constitution's decentralized state-by-state scheme of election administration. As the conservative justices (rightly) love to remind us in other contexts, courts are not permitted to second-guess policy determinations that are under the authority of other branches of government or—as in this case—the framers and ratifiers of the Constitution.
While today's Supreme Court opinion is unanimous, it's notable that both Justice Amy Coney Barrett (writing for herself alone) and the three liberal justices (in a joint opinion) wrote concurrences that seem to reject or at least call into question much of the majority's reasoning. I will likely have more to say about these opinions later.
By focusing exclusively on the self-execution issue, the Court left for another day all the other arguments at stake in the Trump case, such as whether the January 6, 2021 attack on the Capitol qualifies as an "insurrection," whether Trump "engaged" in it (the claim that he didn't strikes me as the best argument for his side of the case), whether Trump received adequate due process, and whether the president is an "officer of the United States" covered by Section 3. The justices likely hope they can avoid ever having to decide these questions!
The one good aspect of today's ruling is that it eliminates nearly all remaining uncertainty about whether Trump can assume the presidency if he wins the 2024 election. By holding that Section 5 enforcement legislation is the sole mechanism by which federal office-holders can be disqualified, the decision forestalls such potential scenarios as a Democratic Congress refusing to certify Trump's election. In theory, Congress could enact new enforcement legislation between now and January 20, 2025 (when Trump would take office, should he win). But that is incredibly unlikely.
The price of certainty is that Section 3 is largely neutered with respect to federal office-holders. Unless and until Congress enacts new Section 5 enforcement legislation, former officeholders who engaged in insurrection will be mostly free to return to power, and try their hand at subverting democracy again.
Perhaps political norms will keep that from happening. But if norms were that effective, Trump probably would never have been elected to office in the first place, and he certainly would not once more be a leading candidate for the presidency today.
Finally, I should acknowledge an error I made in gauging what the Supreme Court was likely to do in this case. At an academic conference on Section 3 held at the University of Minnesota in October 2023, I said that if this issue came to the Supreme Court, there would be a 50-50 chance of a ruling against Trump. It's now obvious I seriously overestimated the likelihood of such a result, an error likely caused by underestimation the justices' concerns about the potential dangers of a "patchwork" of divergent state rulings on disqualification. When commentators err, they should acknowledge their mistakes, not try to bury them and hope everyone forgets. This is my acknowledgement.
NOTE: I will have more to say about the ruling in an article likely to be published within the next few days.
UPDATE: I should perhaps note I filed an amicus brief in the case, which addressed an issue largely left unaddressed by today's decision: whether a criminal conviction for insurrection is a required prerequisite for Section 3 disqualification.
The post Supreme Court Rules for Trump in Section 3 Disqualification Case appeared first on Reason.com.
]]>The Supreme Court today ruled unanimously that states may not exclude Donald Trump from this year's presidential ballot based on the claim that he "engaged in insurrection" by inciting the Capitol riot on January 6, 2021. "Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 [of the 14th Amendment] against federal officeholders and candidates," the Court says in Trump v. Anderson, the Colorado Supreme Court erred by applying that provision to the former president and barring him from the ballot.
That conclusion is not suprising given the misgivings the justices expressed when they considered the case last month. The issue that drew the most attention during oral arguments was whether states have the authority to independently enforce Section 3 in federal elections. By focusing on that question, the Court avoids delving into the issue of how to characterize the Capitol riot or Trump's role in it.
Section 3, which was aimed at preventing former Confederates from returning to public office after the Civil War, says: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
The Supreme Court's per curiam opinion endorses the interpretation of Section 3 that Chief Justice Salmon P. Chase embraced the year after the 14th Amendment was ratified. Chase, acting as the circuit justice for Virginia, noted that implementing Section 3 requires determining "what particular individuals are embraced" by that provision. "To accomplish this ascertainment and ensure effective results," he added, "proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable."
The Constitution "empowers Congress to prescribe how those determinations should be made," the Supreme Court says. "The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass 'appropriate legislation' to 'enforce' the Fourteenth Amendment."
The opinion quotes Sen. Jacob Howard (R–Mich.), who explained during the debate over the 14th Amendment that Section 5 "casts upon Congress the responsibility of seeing to it, for the future, that all the sections of the amendment are carried out in good faith." The Court also notes that Sen. Lyman Trumbull (R–Ill.) said congressional legislation was necessary to keep former Confederates out of public office. Consistent with that view, Congress approved the Enforcement Act of 1870, which "authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3" and "made holding or attempting to hold office in violation of Section 3 a federal crime."
This case "raises the question whether the States, in addition to Congress, may also enforce Section 3," the Court says. "We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency."
Federal officials "owe their existence and functions to the united voice of the whole, not of a portion, of the people," the Court notes, quoting a 1995 decision involving term limits. "Powers over their election and qualifications" therefore "must be specifically 'delegated to, rather than reserved by, the States.'" Yet "nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates." The terms of the 14th Amendment "speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5."
That reservation of power, the Court says, is consistent with the general thrust of the 14th Amendment, which says states may not "abridge privileges or immunities, deprive persons of life, liberty, or property without due process, deny equal protection, or deny male inhabitants the right to vote." It would be "incongruous," the opinion says, "to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office."
The Constitution does "authorize States to conduct and regulate congressional and Presidential elections," the Court concedes. "But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. Granting the States that authority would invert the Fourteenth Amendment's rebalancing of federal and state power."
The last sentence of Section 3, the Court says, reinforces the impression that Congress alone has that authority. It "empowers Congress to 'remove' any Section 3 'disability' by a two-thirds vote of each house," the opinion notes. "The text imposes no limits on that power, and Congress may exercise it any time, as the respondents concede. In fact, historically, Congress sometimes exercised this amnesty power postelection to ensure that some of the people's chosen candidates could take office. But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle."
The Court thinks it is telling that the Colorado voters who challenged Trump's eligibility failed to identify "any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment." States "did disqualify persons from holding state offices following ratification of the Fourteenth Amendment," the opinion observes. "That pattern of disqualification with respect to state, but not federal offices provides 'persuasive evidence of a general understanding' that the States lacked enforcement power with respect to the latter."
If the Colorado Supreme Court were correct in concluding otherwise, we would probably not get "a uniform answer consistent with the basic principle that 'the President…represent[s] all the voters in the Nation," the justices say. "Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations." The upshot "could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record)."
Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson concurred in the result. But they filed a separate opinion that faults their colleagues for deciding more than was necessary to resolve the case. They agree that allowing each state to decide whether a given presidential candidate is disqualified under Section 3 "would create a chaotic state-by-state patchwork, at odds with our Nation's federalism principles." That conclusion, they say, would have been sufficient reason to overrule the Colorado Supreme Court.
But the majority went further, they argue, by holding that "a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment." That conclusion, they add, "shuts the door on other potential means of federal enforcement. We cannot join an opinion that decides momentous and difficult issues unnecessarily, and we therefore concur only in the judgment."
Sotomayor et al. argue that the text of Section 3 suggests the majority is wrong to conclude that candidates can be barred as insurrectionists only through congressional legislation. "Section 3 provides that when an oathbreaking insurrectionist is disqualified, 'Congress may by a vote of two-thirds of each House, remove such disability,'" they write. "It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3's operation by repealing or declining to pass implementing legislation."
Sotomayor et al. also suggest that the majority opinion misrepresents Trumbull's position on Section 3. The majority, they say, "neglects to mention the Senator's view that '[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,' with the proposed legislation simply 'affor[ding] a more efficient and speedy remedy' for effecting the disqualification."
The majority's position "forecloses judicial enforcement of [Section 3], such as
might occur when a party is prosecuted by an insurrectionist and raises a defense on that score," Sotomayor et al. write. "The majority further holds that any legislation to enforce this provision must prescribe certain procedures 'tailor[ed]' to Section 3, ruling out enforcement under general federal statutes requiring the government to comply with the law."
By resolving a question it did not need to reach, "the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office," Sotomayor et al. say. "It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course."
Justice Amy Coney Barrett also wrote a separate opinion concurring in the judgment. "I agree that States lack the power to enforce Section 3 against Presidential candidates," she says. "That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced."
At the same time, Barrett implicitly rebukes Sotomayor et al. for "amplify[ing] disagreement with stridency." The Court "has settled a politically charged issue in the volatile season of a Presidential election," she writes. "Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present
purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home."
The post Supreme Court Unanimously Rules That States May Not Disqualify Trump As an Insurrectionist appeared first on Reason.com.
]]>Is a painting of a giant burger a sign or a mural? The answer to that question could determine whether Steve Howard can keep some half-finished burger art on the side of his restaurant or be forced to take it down.
Howard is the owner of The Cozy Inn in Salina, Kansas—a restaurant known for the sliders it serves with a generous helping of aromatic onions.
Back in November, Howard commissioned a local artist to decorate the side of The Cozy Inn with a large burger mural, some smaller slider-shaped UFOs, and a caption reading, "Don't fear the smell! The fun is inside!!"
Within a few days, a Salina official was telling Howard to halt the paint job. The city reasoned that because Howard's wall art would depict a product his restaurant also sold, it was not a mural (which the city doesn't regulate), but rather a sign (for which it has extensive rules).
Under Salina's sign code, Howard's business could only post signs totaling 62 square feet in size and he'd already used up 52 of those feet with existing signage. His planned burger wall art would take up 528 square feet. Downtown businesses' signs also need approval from the city's Design Review Board.
Since being told to stop work on his burger painting, Howard has been going back and forth with the city over whether he'll be able to complete the work. Earlier this month, the city sent him a letter telling him to hold off on the painting while it "reviewed" its signage regulations.
Rather than wait, Howard filed a federal lawsuit arguing that because the legality of his mural turns on the particular images it depicts, his free speech rights are being violated. If he had commissioned wall art of car parts or some other product his business didn't sell, he'd be well within his rights to proceed with the mural.
"In our view, this is a clear content-based restriction on speech," says Sam MacRoberts of the Kansas Justice Institute, which is representing Howard.
The U.S. Supreme Court theoretically put limits on this kind of sign regulation with its decision in the 2015 case Reed v. Gilbert, which struck down an Arizona town's regulations on temporary signs that applied stricter rules to nonpolitical signage.
"The town definitely was drawing lines based on what messages the signs conveyed," says Betsy Sanz, an attorney with the Institute for Justice (which is not affiliated with the Kansas Justice Institute). "The court said that was not allowed."
Nevertheless, cities post-Reed continue to enforce restrictions on business murals that include images of what the business sells.
The Institute for Justice has litigated multiple mural cases, pre- and post-Reed. It is currently representing business owner Sean Young in a First Amendment lawsuit against Conway, New Hampshire, which has told him a donut mural painted by local art students on his bakery violates the town's sign code.
Despite the likely unconstitutionality of many towns' sign restrictions, business owners are often reluctant to challenge them.
That means businesses will often just paint over their murals or change them so that they're no longer showing products the business sells.
In 2012, The Washington Post reported on a smoke shop in Arlington, Virginia (a hotspot of mural censorship), that changed its mural of a man smoking a cigar to a man holding a whale to comply with county regulations.
Sanz urges the Supreme Court to take up the issue of towns' regulation of business murals, saying, "There are still government bodies that wish to control speech. The Supreme Court is going to need to take signs up again to help clarify things for individuals."
The post Town Says Burger Joint's Mural Can't Show Any Burgers appeared first on Reason.com.
]]>The state of California employed Kendall Jones as a correctional officer for 29 years and as a firearms and use-of-force trainer for 19 years. But in 2018, when Jones sought to renew the certificate of eligibility required for firearms instructors, the California Department of Justice (DOJ) informed him that he was not allowed to possess guns under state law because of a 1980 Texas conviction for credit card abuse. Jones committed that third-degree felony in Houston when he was 19, and his conviction was set aside after he completed a probation sentence.
According to the DOJ, that did not matter: Because of his youthful offense, which Jones said involved a credit card he had obtained from someone who falsely claimed he was authorized to use it, the longtime peace officer was permanently barred from owning or possessing firearms in California. That application of California law violated the Second Amendment, a federal judge ruled this week in Linton v. Bonta, which also involves two other similarly situated plaintiffs.
"Plaintiffs were convicted of non-violent felonies decades ago when they were in the earliest years of adulthood," U.S. District Judge James Donato, a Barack Obama appointee, notes in an order granting them summary judgment. "Each conviction was set aside or dismissed by the jurisdiction in which the offense occurred, and the record indicates that all three plaintiffs have been law-abiding citizens in every respect other than the youthful misconduct. Even so, California has acted to permanently deny plaintiffs the right to possess or own firearms solely on the basis of the original convictions." After considering the state's cursory defense of those determinations, Donato thought it was clear that California had "violated the Second Amendment rights of the individual plaintiffs."
Like most jurisdictions, California prohibits people with felony records from buying, owning, receiving, or possessing firearms. That ban encompasses offenses that did not involve weapons or violence, and it applies regardless of how long ago the crime was committed. Federal law imposes a similar disqualification, which applies to people convicted of crimes punishable by more than a year of incarceration (or more than two years for state offenses classified as misdemeanors). But the federal law makes an exception for "any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored."
California's policy is different. "The DOJ will permit a person with an out-of-state conviction to acquire or possess a firearm in California only if the conviction was reduced to a misdemeanor, or the person obtained a presidential or governor's pardon that expressly restores their right to possess firearms," Donato explains. The requirements for California convictions are similar.
In Jones' case, the same state that suddenly decided he was not allowed to possess guns employed him as the primary armory officer at the state prison in Solano, where he specialized in "firearms, chemical agents, batons and use of deadly force training," for nearly two decades. Despite all that experience, the sudden denial of his gun rights put an end to his work as a law enforcement firearms and use-of-force instructor in California. The other two plaintiffs told similar stories of losing their Second Amendment rights based not only on nonviolent offenses that happened long ago but also on convictions that were judicially nullified.
According to the 2018 complaint that Chad Linton filed in the U.S. District Court for the Northern District of California, he was pulled over by state police in 1987, when he was serving in the U.S. Navy at Naval Air Station Whidbey Island in Washington. The complaint concedes that Linton was "traveling at a high rate of speed" on his motorcycle while "intoxicated" and that he initially "accelerated," thinking "he might be able to outrun" the cops before he "reconsidered that idea, pulled over to the side of the highway, and voluntarily allowed the state trooper to catch up to him."
Linton was charged with driving under the influence, a misdemeanor, and attempting to evade a police vehicle, a Class C felony. He pleaded guilty to both charges and received a seven-day sentence, time he had already served. In 1988, he "received a certificate of discharge, showing that he successfully completed his probation." It "included a statement that 'the defendant's civil rights lost by operation of law upon conviction [are] HEREBY RESTORED.'"
Linton, who was born and raised in California, returned there in 1988 after he was discharged from the Navy. He successfully purchased several firearms after passing background checks. But when he tried to buy a handgun in 2015, the DOJ told him he was disqualified because of the 1987 felony conviction. In response, he asked the Superior Court of Washington to vacate that conviction, which it did in April 2016. The order "set aside" the conviction and released Linton "from all penalties and disabilities resulting from the offense." But when he tried to buy a rifle in November 2016, he was rejected.
The same thing happened in March 2018, when Linton tried to buy a revolver for home protection. The following month, Donato notes, "DOJ agents came to Linton's home and seized several firearms from him that he had legally acquired and owned for years, including an 'antique, family-heirloom shotgun.'"
Although Linton moved to Nevada in 2020, partly because of these experiences, he still owns a cabin in California. He said he felt "unsafe and unprotected" there "without at least the option of having appropriate firearms available or at hand if needed." He added that he "would like to be able to possess or handle firearms or ammunition for recreational purposes, such as target shooting," while visiting friends and relatives in California.
Paul McKinley Stewart's disqualifying offense dates back even further than Jones' and Linton's. In 1976, when he was 18 and living in Arizona, he "stole some tools from an unlocked truck in a commercial yard." He was found guilty of first-degree burglary, a felony, and served three years of probation, after which he was told that his conviction had been dismissed.
Stewart moved to California in 1988 and tried to buy firearms in 2014 or 2015 (the record is unclear on the exact date). The DOJ "advised him that he was 'disqualified' from purchasing or possessing firearms 'due to the presence of a prior felony conviction.'" Like Linton, Stewart went back to the court of conviction. In August 2016, Donato notes, the Arizona Superior Court "ordered 'that the civil rights lost at the time of sentencing are now restored,' 'set aside [the] judgment of guilt,' ordered the 'dismissal of the Information/Indictment,' and expressly held that the restored rights 'shall include the right to possess weapons.'" The DOJ nevertheless blocked a gun purchase that Stewart attempted in February 2018, citing the 1976 conviction that officially no longer existed.
Defending these denials in federal court, the state argued that the plaintiffs were not part of "the people" whose "right to keep and bear arms" is guaranteed by the Second Amendment because they were not "law-abiding, responsible citizens." In California's view, Donato writes, "a single felony conviction permanently disqualifies an individual from being a 'law-abiding, responsible citizen' within the ambit of the Second Amendment." He sees "two flaws" that "vitiate this contention."
First, Donato says, "undisputed facts" establish that all three plaintiffs are "fairly described as law-abiding citizens." Judging from the fact that "California entrusted Jones with the authority of a sworn peace officer, and with the special role of training other officers in the use of force," that was the state's view of him until 2018, when he was peremptorily excluded from "the people." And as with Jones, there is no indication that the other two plaintiffs have been anything other than "law-abiding" since their youthful offenses. "Linton is a veteran of the United States Navy with a clean criminal record for the past 37 years," Donato notes. "Stewart has had a clean criminal record for the past 48 years."
Second, Donato says, California failed to identify any "case law supporting its position." In the landmark Second Amendment case District of Columbia v. Heller, he notes, the Supreme Court "determined that 'the people,' as used throughout the Constitution, 'unambiguously refers to all members of the political community, not an unspecified subset.'" That holding, he says, creates a "strong presumption" that California failed to rebut.
Donato notes that the U.S. Court of Appeals for the 3rd Circuit rejected California's argument in no uncertain terms last year, when it restored the Second Amendment rights of Bryan Range, a Pennsylvania man who had been convicted of misdemeanor food stamp fraud. "Heller and its progeny lead us to conclude that Bryan Range remains among 'the people' despite his 1995 false statement conviction," the 3rd Circuit said. "The Supreme Court's references to 'law-abiding, responsible citizens' do not mean that every American who gets a traffic ticket is no longer among 'the people' protected by the Second Amendment."
Since Jones, Linton, and Stewart are part of "the people," California had the burden of showing that disarming them was "consistent with this Nation's historical tradition of firearm regulation"—the test that the Supreme Court established in the 2022 case New York State Rifle & Pistol Association v. Bruen. "California did not come close to meeting its burden," Donato writes. It did little more than assert that Americans have Second Amendment rights only if they are "virtuous," a criterion that is highly contested and in any case would seem to be satisfied by the plaintiffs' long histories as productive and law-abiding citizens.
"California otherwise presented nothing in the way of historical evidence in support of the conduct challenged here," Donato says. "It did not identify even one 'representative analogue' that could be said to come close to speaking to firearms regulations for individuals in circumstances akin to plaintiffs'. That will not do under Bruen."
Donato rejected "California's suggestion that it might have tried harder if the Court had asked." Under Bruen, "the government bears the burden of proving the element of a national historical tradition," he writes. "California had every opportunity to present any historical evidence it believed would carry its burden. It chose not to do so."
Donato was dismayed by the state's attitude. "The Court is not a helicopter parent," he writes. "It is manifestly not the Court's job to poke and prod litigants to live up to their burdens of proof."
The policy that Jones, Linton, and Stewart challenged seems inconsistent with California's criminal justice reforms, such as marijuana legalization and the reclassification of many felonies as misdemeanors. It is also inconsistent with the way California treats voting rights, which are automatically restored upon sentence completion. Gun rights in California, by contrast, are easy to lose and hard to recover, even when they have been restored by courts in other states. That disparity seems to reflect the California political establishment's reflexive hostility to the Second Amendment.
"This case exposes the hypocrisy of California's treatment of those convicted of non-violent crimes," says Cody J. Wisniewski, an attorney with the Firearms Policy Coalition, one of several gun rights groups that joined the lawsuit. "While California claims to be tolerant of those that have made mistakes in the past, that tolerance ends when it comes to those individuals [who want] to exercise their right to keep and bear arms. Now, the state has no choice but to recognize the rights of peaceable people."
The post California Violated the Second Amendment by Disarming People Based on Nullified Convictions appeared first on Reason.com.
]]>As I noted in a blog post three weeks back, there were serious arguments in favor of the Court granting this case to iron out some aspects of the D.C. Circuit's ruling against Trump. (On this point, see this essay by Jack Goldsmith.)
While the D.C. Circuit correctly rejected Trump's immunity claims in a hastily drafted (yet largely well-crafted) decision, there are questions about how presidential immunity claims should be conceived and the extent to which immunity claims prevent even the initiation of prosecution, as opposed to requiring the government to make certain showings (e.g. that given acts were not official acts, etc.). That said, I would have preferred that the Court had acted a bit more quickly than it did, but the Court is not always known (or celebrated) for speed. (It seems the "shadow docket" has its virtues.)
The Court's order treated Trump's application for a stay as a petition for certiorari and rewrote the question presented in the case. Trump's application for a stay presented two questions:
I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President's official acts, i.e., those performed within the "'outer perimeter' of his official responsibility." Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).
II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.
The Court limited its grant of certiorari to the following:
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
There are a few points worth making about this. First, the Court is not considering the second question at all. The U.S. Court of Appeals decisively (and correctly) rejected this argument below. It was never a serious argument, and is not worth the justices' time. No, a failure of the Senate to convict an impeached President does not preclude subsequent prosecution for the same or related acts.
Second, as Jack Goldsmith notes in this Xitter thread, the Court framed the issue in terms of "presidential immunity," not "absolute immunity" as Trump had argued. Further, by asking both "whether" and "to what extent" a President may be immune, the Court can make clear that mere invocation of alleged "official acts" is not enough to make the prosecution go away, while still providing immunity for core executive prerogatives. So the Court could decide that running for reelection is not an "official" act entitled to any immunity, or not sufficiently core to executive function to justify immunity, without raising the specter of future partisan prosecutions of former presidents for official acts (e.g. ordering military actions, like drone strikes, that result in the death of U.S. citizens, etc.).
Stepping back, while I liked the idea of the Court simply leaving the D.C. Circuit's decision in place and allowing a trial to go forward, there is no question that this case was objectively cert worthy. Ideally, the Senate would have convicted Trump after he was impeached, as the argument that the Senate lacked such authority was quite weak, but that was not to be. It would also have been far preferable had the Justice Department acted more quickly to investigate and initiate prosecution than it did, but that was not to be either. This leaves us with the unhappy choice of letting the Supreme Court further define the contours of presidential immunity on the eve of a presidential election in which the defendant is a candidate. That is not a great place to be, but that's where we are.
UPDATE: Ed Whelan flags another interesting aspect of the Court's order that I overlooked.
The Court failed to grant Trump's stay application. The grant of certiorari had the same effect, however, as the Court ordered the D.C. Circuit to withhold its mandate. Here's the interesting part: It take five votes to grant a stay, but only four to grant certiorari. Thus the lack of a stay suggests a majority of the Court may have been inclined to affirm the D.C. Circuit, even if some had concerns about the lower court's reasoning. That at least four voted to grant certiorari may also mean no more than at least four justices saw a need to refine the D.C. Circuit's analysis so as to provide greater clarity about the scope of presidential immunity going forward.
The post The Supreme Court's Grant in Trump v. U.S. (UPDATED) appeared first on Reason.com.
]]>Get ready. The Supreme Court has agreed to hear former President Donald Trump's presidential immunity claim that he is protected from prosecution for his role in plotting to overturn the 2020 election results, and has set oral arguments for April. The Court's term ends in June, so hearing arguments in April means it is very likely a decision will be released before the justices leave.
"The justices scheduled arguments for the week of April 22 and said proceedings in the trial court would remain frozen, handing at least an interim victory to Mr. Trump," reported The New York Times. "His litigation strategy in all of the criminal prosecutions against him has consisted, in large part, of trying to slow things down."
If he does not have immunity, a criminal trial will follow, probably over the summer—during the height of election season.
Earlier this month, the Court also heard a case on whether states such as Colorado are within their rights to remove Trump from ballots—the 14th Amendment argument. It is expected to issue a ruling soon.
Surely this time will be different: If Congress can't pass appropriations bills to fund the government by midnight Friday, the federal government will enter a partial shutdown. House Speaker Mike Johnson (R–La.) is going for yet another stopgap bill to attempt to keep the government open, which "would extend funding for some government agencies for a week, through March 8, and the rest for another two weeks, until March 22," per The New York Times.
The caveat is that Congress would be expected to approve six of the 12 spending bills to fund the government for the next year, while buying a little more time for legislators to negotiate and pass the rest of the spending bills. Somewhat surprisingly, news broke last night that Johnson has managed to get a fair number of colleagues on board with the plan.
Still, it's a piecemeal solution that pleases practically nobody. The far-right flank of Republicans in the House continues to pursue deep spending cuts that neither Johnson nor Kevin McCarthy before him has managed to prioritize, as well as weaning Ukraine off U.S. government aid. Continuing resolutions—a.k.a. patchwork solutions that temporarily stave off government shutdowns but do not set any sort of long-term budget—were passed in September, November, and January. And Republicans have only a two-seat majority in the House, with quite a few of them riled up about the crisis at the southern border—which they keep saying must be secured, in order for other issues to be tackled—so there are few signs that Congress will get its act together anytime soon.
Are South Koreans having enough sex? Statistics Korea recently released data showing that the fertility rate declined by 8 percent in 2023 when compared with 2022. Normally, such a drop would not be greeted as catastrophic, except that this comes at a time when many developed countries have fertility rates in free-fall and South Korea already had the lowest fertility rate in the world. If current rates hold, the country's population (51 million at present) is predicted to halve by 2100.
"The average number of babies a South Korean woman is expected to give birth to during her life fell to 0.72 from 0.78 in 2022, and previous projections estimate that this will fall even further, to 0.68 in 2024," reported Al Jazeera. The replacement rate is 2.1 children. For comparison, the U.S. fertility rate has been hovering around 1.7, with a little dip in 2020 that has since recovered.
These new data, coupled with a BBC article that featured women across South Korea and their frustrations with their predicaments, has led to a robust debate among the punditry as to whether South Korea's aggressive pro-natalist policies were all for naught. ("Pro-natalist policies have a weak track record in every country where they've been tried," wrote Reason's Elizabeth Nolan Brown back in June 2023. "South Korea spent more than $200 billion subsidizing child care and parental leave over the past 16 years, President Yoon Suk Yeol said last fall. Yet the fertility rate fell from 1.1 in 2006 to 0.81 in 2021.")
Demographer Lyman Stone, meanwhile, called the BBC article "a demography reporting crime" and said that "South Korea spends less in government money per child than the OECD average" and that "much of the spending Korea claims it does never gets to families, but is actually a morass of local government subsidies, grants, and other intermediated forms of spending." When it does actually get to families, the fertility rate is positively affected, Stone argued.
But there are other factors, too: South Korea's graying population, for one—and how coughing up funds for retirees affects younger taxpayers' ability to save—as well as cultural influences, like the fact that one of Korea's biggest exports, K-pop stars, are generally forced by their agencies to abstain from dating (wouldn't want to destroy the fantasy, I guess). There are massive cultural expectation issues, too, like the fact that most South Koreans—nearly 80 percent!—send their kids to expensive private schools, so the cost of having a child is perceived to be extra high.
For more on this, watch Just Asking Questions with the Washington Examiner's Tim Carney (who has a new book out soon on precisely this subject): "Why aren't people having more kids?"
Scenes from New York:
This woman used OMNY to pay for the bus. Once you hit 12 fares paid within a 7-day period, you get free rides. Cops boarded bus & forced riders to prove they'd paid didn't know how to handle this, threw her off, & hit her w a $100 ticket. Is this city a joke or what? pic.twitter.com/tD1fAvSnwL
— Liz Wolfe (@LizWolfeReason) February 28, 2024
Full article here, courtesy of Hell Gate.
California politics in a nutshell ???? pic.twitter.com/XE1XRzj7eh
— Alec Stapp (@AlecStapp) February 28, 2024
Huge loss. If Democrats hated Mitch McConnell as GOP leader, wait til they see the ones who come next.
As for Republicans, well, this is good news only if you like how the GOP House functions & want more of that. McConnell has been GOPs most effective Congress leader in decades. https://t.co/JpqPy8brjN
— Brian Riedl ???? ???????? (@Brian_Riedl) February 28, 2024
richard lewis & larry david back in the day pic.twitter.com/lxKoB0Lzzc
— Marlow Stern (@MarlowNYC) February 28, 2024
The post SCOTUS Takes on Trump appeared first on Reason.com.
]]>On March 26, 2019, every American who owned a bump stock, a rifle accessory that facilitates rapid firing, was suddenly guilty of a federal felony punishable by up to 10 years in prison. That did not happen because a new law took effect; it happened because federal regulators reinterpreted an existing law to mean something they had long said it did not mean.
On Wednesday, the U.S. Supreme Court considered the question of whether those bureaucrats had the authority to do that. The case, Garland v. Cargill, turns on whether bump stocks are prohibited under the "best reading" of the federal statute covering machine guns. While several justices were clearly inclined to take that view, several others had reservations.
The products targeted by the government are designed to assist bump firing, which involves pushing a rifle forward to activate the trigger by bumping it against a stationary finger, then allowing recoil energy to push the rifle backward, which resets the trigger. As long as the shooter maintains forward pressure and keeps his finger in place, the rifle will fire repeatedly. The "interpretive rule" at issue in this case, which was published in December 2018 and took effect three months later, bans stock replacements that facilitate this technique by allowing the rifle's receiver to slide back and forth.
Officially, the purpose of that rule was merely to "clarify" that bump stocks are illegal. According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), they always have been, although no one (including the ATF) realized that until 2018.
Federal law defines a machine gun as a weapon that "automatically" fires "more than one shot" by "a single function of the trigger." The definition also covers parts that are "designed and intended…for use in converting a weapon" into a machine gun.
During Wednesday's oral arguments, Principal Deputy Solicitor General Brian H. Fletcher maintained that a rifle equipped with a bump stock plainly meets the criteria for a machine gun. It "fires more than one shot by a single function of the trigger," he said, because "a function of the trigger happens when some act by the shooter, usually a pull, starts a firing sequence." An ordinary semi-automatic rifle, according to Fletcher, "fires one shot for each function of the trigger because the shooter has to manually pull and release the trigger for every shot." But "a bump stock eliminates those manual movements and allows the shooter to fire many shots with one act, a forward push."
Fletcher argued that a rifle with a bump stock also "fires more than one shot automatically, that is, through a self-regulating mechanism." After "the shooter presses forward to fire the first shot," he said, "the bump stock uses the gun's recoil energy to create a continuous back-and-forth cycle that fires hundreds of shots per minute."
Jonathan F. Mitchell, the attorney representing Michael Cargill, the Texas gun shop owner who challenged the bump stock ban, argued that Fletcher was misapplying both of those criteria. First, he said, a rifle equipped with a bump stock "can fire only one shot per function of the trigger because the trigger must reset after every shot and must function again before another shot can be fired." The trigger "is the device that initiates the firing of the weapon, and the function of the trigger is what that triggering device must do to cause the weapon to fire," he added. "The phrase 'function of the trigger' can refer only to the trigger's function. It has nothing to do with the shooter or what the shooter does to the trigger because the shooter does not have a function."
Second, Mitchell said, a rifle with a bump stock "does not and cannot fire more than one shot automatically by a single function of the trigger because the shooter, in addition to causing the trigger to function, must also undertake additional manual actions to ensure a successful round of bump firing." That process "depends entirely on human effort and exertion," he explained, because "the shooter must continually and repeatedly thrust the force stock of the rifle forward with his non-shooting hand while simultaneously maintaining backward pressure on the weapon with his shooting hand. None of these acts are automated."
Justices Elena Kagan and Ketanji Brown Jackson seemed eager to accept Fletcher's reading of the law, arguing that it is consistent with what Congress was trying to do when it approved the National Firearms Act of 1934, which imposed tax and registration requirements on machine guns. Although bump stocks did not exist at the time, they suggested, the law was meant to cover any firearm that approximated a machine gun's rate of fire.
According to Fletcher, "a traditional machine gun" can "shoot in the range of 700 to 950 bullets a minute," while a semi-automatic rifle with a bump stock can "shoot between 400 and 800 rounds a minute." As he conceded, however, the statute does not refer to rate of fire. "This is not a rate-of-fire statute," he said. "It's a function statute." To ban bump stocks, in other words, the ATF has to show that they satisfy the disputed criteria.
"It seems like, yes, that this is functioning like a machine gun would," Justice Amy Coney Barrett said. "But, you know, looking at that definition, I think the question is, 'Why didn't Congress pass…legislation to make this cover it more clearly?'"
Justice Neil Gorsuch made the same point. "I can certainly understand why these items should be made illegal," he said, "but we're dealing with a statute that was enacted in the 1930s, and through many administrations, the government took the position that these bump stocks are not machine guns." That changed after a gunman murdered 60 people at a Las Vegas country music festival in October 2017, and it turned out that some of his rifles were fitted with bump stocks.
The massacre inspired several bills aimed at banning bump stocks. Noting that "the ATF lacks authority under the law to ban bump-fire stocks," Sen. Dianne Feinstein (D–Calif.) said "legislation is the only answer." President Donald Trump, by contrast, maintained that new legislation was unnecessary. After he instructed the ATF to ban bump stocks by administrative fiat, the agency bent the law to his will. Noting that "the law has not changed," Feinstein warned that the ATF's "about face," which relied partly on "a dubious analysis claiming that bumping the trigger is not the same as pulling it," would invite legal challenges.
Feinstein was right about that, and one of those challenges resulted in the decision that the government is now asking the Supreme Court to overturn. In January 2023, the U.S. Court of Appeals for the 5th Circuit rejected the ATF's redefinition of machine guns.
"A plain reading of the statutory language, paired with close consideration of the mechanics of a semi-automatic firearm, reveals that a bump stock is excluded from the technical definition of 'machinegun' set forth in the Gun Control Act and National Firearms Act," 5th Circuit Judge Jennifer Walker Elrod wrote in the majority opinion. And even if that were not true, Elrod said, "the rule of lenity," which requires construing an ambiguous criminal statute in a defendant's favor, would preclude the government from punishing people for owning bump stocks.
Gorsuch alluded to Feinstein's prescient concerns about the ATF rule's legal vulnerability: "There are a number of members of Congress, including Senator Feinstein, who said that this administrative action forestalled legislation that would have dealt with this topic directly, rather than trying to use a nearly 100-year-old statute in a way that many administrations hadn't anticipated." The ATF's attempt to do that, he said, would "render between a quarter of a million and a half million people federal felons," even though they relied on guidance from "past administrations, Republican and Democrat," that said bump stocks were legal.
Justices Brett Kavanaugh and Samuel Alito also were troubled by that reversal's implications for people who already owned bump stocks. Fletcher tried to assuage those concerns.
"ATF made [it] very clear in enacting this rule that anyone who turned in their bump stock or destroyed it before March of [2019] would not face prosecution," Fletcher said. "As a practical matter," he added, "the statute of limitations for this offense is five years," meaning prosecutions of people who owned bump stocks before the rule took effect will no longer be possible a month from now. "We have not prosecuted those people," he said. "We won't do it. And if we try to do it, I think they would have a good defense based on entrapment by estoppel," which applies when someone follows official advice in trying to comply with the law.
"What is the situation of people who have possessed bump stocks between the time of the ATF's new rule and the present day or between the time of the new rule and the 5th Circuit decision?" Alito asked. "Can they be prosecuted?" Fletcher's answer: "probably yes." That prospect, Alito said, is "disturbing."
Kavanaugh wondered about gun owners who did not destroy or surrender their bump stocks because they did not know about the ATF's rule. "For prosecuting someone now," he asked, "what mens rea showing would the government have to make to convict someone?" Fletcher said the defendant would "have to be aware of the facts" that, according to the ATF's reinterpretation of the law, make bump stocks illegal. "So even if you are not aware of the legal prohibition, you can be convicted?" Kavanaugh asked. "That's right," Fletcher replied.
"That's going to ensnare a lot of people who are not aware of the legal prohibition," Kavanaugh said. "Why not require the government to also prove that the person knew that what they were doing…was illegal?"
Gorsuch mocked Fletcher's apparent assumption that gun owners can be expected to keep abreast of the ATF's edicts. "People will sit down and read the Federal Register?" he said to laughter. "That's what they do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog."
Maybe not, Fletcher admitted, but the publicity surrounding the ban and the legal controversy it provoked probably brought the matter to many people's attention. "I agree not everyone is going to find out about those things," he said, "but we've done everything the government could possibly do to make people aware."
Beyond the unfairness to gun owners who bought products they quite reasonably thought were legal, the ATF's about-face lends credibility to the complaint that its current interpretation of the law is misguided. If the ATF was wrong before, how can we be confident that it is right now?
According to the agency's new understanding of the statute, Mitchell noted, "function of the trigger" hinges on what the shooter is doing. But "function is an intransitive verb," he said. "It can't take an object grammatically. It's impossible. The trigger has to be the subject of function. It can't be the object."
Gorsuch picked up on that point, noting that the government had likened "function of the trigger" to "a stroke of a key or a throw of the dice or a swing of the bat." But "those are all things that people do," he said. Since function is an intransitive verb, "people don't function things. They may pull things, they may throw things, but they don't function things."
Gorsuch noted that the ATF is relying on "a very old statute" designed for "an obvious problem" posed by gangsters like Al Capone armed with machine guns that fired repeatedly "with a single function of the trigger—that is, the thing itself was moved once." Maybe legislators "should have written something better," he said. "One might hope they might write something better in the future. But that's the language we're stuck with."
What about the ATF's claim that a rifle equipped with a bump stock shoots "automatically"? Fletcher conceded that "an expert" can bump-fire a rifle "without any assistive device at all" and that "you can also do it if you have a lot of expertise by hooking your finger into a belt loop or using a rubber band or something else like that to hold your finger in place." But he added that "we don't think those things function automatically because the definition of 'automatically'" entails "a self-regulating mechanism."
As the government sees it, a shooter creates such a mechanism by using a bump stock, notwithstanding the "manual actions" that Mitchell highlighted. "There's nothing automatic about that," Mitchell argued. "The shooter is the one who is pushing. It's human effort, human exertion. Nothing automatic at all about this process."
Barrett asked Fletcher how the ATF would treat an elastic "bump band" marketed as an accessory to facilitate rapid firing. "Why wouldn't that then be a machine gun under the statute?" she wondered. "We think that's still not functioning automatically because that's not a self-regulating mechanism," Fletcher replied.
Mitchell, by contrast, argued that Barrett's hypothetical product and a bump stock are "indistinguishable when it comes to 'automatically.'" Bump firing with either involves "a manual action undertaken entirely by the shooter," he said. "There is no automating device….It is all being done by the shooter."
Justice Sonia Sotomayor, who was sympathetic to Fletcher's argument, nevertheless implied that the legal status of bump stocks might not be as clear as the government suggests. "The back-and-forth here leads me to believe that at best there might be some ambiguity," she said. But if the statute is in fact unclear, the 5th Circuit said, the ambiguity should be resolved in a way that protects gun owners from prosecution for a crime invented by bureaucrats.
The post SCOTUS Ponders the Implications of Prosecuting Gun Owners for a Crime Invented by Bureaucrats appeared first on Reason.com.
]]>If privately owned social media platforms enforce speech policies you don't like, should you: a) publicly tell them off while finding other means of getting out your message; or b) use the coercive power of government to impose different policies that you prefer? State officials in Florida and Texas tried the second approach and it looks like the U.S. Supreme Court is about to hand them a spanking.
Big tech companies have been criticized in recent years for imposing arbitrary and ideologically motivated restrictions on speech. Often, the platforms responded to government pressure, as revealed by the Twitter Files and Facebook Files. Government agencies got slapped by the courts for their censorious shenanigans. But the platforms have their own editorial biases and, whatever we may think of them, have the right to make their own rules for good or ill.
Some government officials don't agree. In 2021, Texas passed a law that forbade large social media platforms to "block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression." It was a good defense of free expression in the context of a publicly owned forum, but "blatantly unconstitutional," as Reason's Jacob Sullum pointed out, when imposed on private organizations exercising discretion over their property. Florida passed an even broader speech regulation that was quickly trimmed back by the courts.
"Platforms are private enterprises, not governmental (or even quasi-governmental) entities," Judge Kevin C. Newsom wrote for the U.S. Court of Appeals for the 11th Circuit in 2022. "No one has a vested right to force a platform to allow her to contribute to or consume social-media content."
Under challenge by NetChoice, a trade group which favors free enterprise and free expression, and the Computer & Communications Industry Association, both laws landed this week before the U.S. Supreme Court as Moody v. NetChoice and NetChoice v. Paxton. If early impressions are correct, it looks like the nation's high court is poised to largely echo Judge Newsom.
"Justice Elena Kagan was one of several justices to question the constitutionality of the Texas and Florida laws," Amy Howe noted for SCOTUSblog. "Why, she asked [Florida Solicitor General Henry] Whitaker, 'isn't this a classic First Amendment violation,' when the state is preventing the platforms from making their own editorial judgments."
Kagan is one of the left-leaning justices on the court, but her concerns were shared by several of her colleagues on the right.
"Justice Brett Kavanaugh also appeared unconvinced," commented Howe. "He noted that the First Amendment protected against the suppression of speech 'by the government' (an observation echoed by Chief Justice John Roberts) and that the Supreme Court has a line of cases 'which emphasize editorial control as being fundamentally protected by the First Amendment.'"
Howe added, "Justice Amy Coney Barrett seemed to agree with Kavanaugh."
Justices Thomas and Alito seemed more inclined to let the laws stand, but the back-and-forth before the court left the distinct impression that the majority sees both the Texas and Florida laws as violations of the First Amendment.
"The oral arguments suggest a clear majority of the justices believe these laws violate the First Amendment rights of social media providers," observed George Mason University law professor Ilya Somin. "I think it's clear there are at least five or six justices who accept the distinctions made by Roberts and Kavanaugh [between state and private action], and therefore are inclined to rule against Florida and Texas on that basis."
Both Somin and Howe point out that several justices are skeptical of the lower court opinion against Florida's law—not because it's more respectful of the First Amendment than its Texas counterpart, but because it applies to so much online activity that isn't all protected by the First Amendment.
"In the Florida case, several justices suggested they might not be able to uphold the lower-court ruling against the law, because that state's legislation is so broad that it may cover websites that aren't expressive in nature at all, such as Uber or Etsy," comments Somin. "The social media firm plaintiffs brought a facial challenge to the law, which may require them to prove that the law is unconstitutional in all or nearly of its applications."
That might force the plaintiffs challenging Florida's law to amend their complaint so that it's limited to editorial discretion over expressive activity.
The battle over the Florida and Texas laws has been joined by numerous third parties, many of which filed amicus briefs in the case. Among those groups is the Foundation for Individual Rights and Expression (FIRE), which takes a traditional civil libertarian stance in favor of keeping government out of the business of regulating, mandating, or suppressing speech.
"We argued that it's unconstitutional for Florida and Texas to prohibit large social media platforms from moderating content based on their own standards," Talia Barnes wrote for FIRE. "For similar reasons, FIRE also filed an amicus brief in another case that will be heard by the Court this term, Murthy v. Missouri, which surrounds government 'jawboning' — that is, pressuring private social media platforms to suppress and deplatform disfavored views. In both NetChoice cases and in Murthy, we're urging the Court to keep the government's hands out of online content moderation."
Obviously, there's more than a little tea leaf reading in play when observers try to predict court decisions based on justices' questions, tone, and even body language. But the tea leaves in these cases look to be spelling out a message that's encouraging for people who favor barring government from regulating speech.
If the Supreme Court lives up to expectations the result should be a First Amendment victory. That may mean that some people will find their speech suppressed on private platforms by those companies' moderators. But it will also mean that people can move elsewhere to speak freely by different rules without worrying about interference from government lawmakers and regulators who might punish their choices using the power of the state.
The post Supreme Court Looks Poised To Gut Restrictive Social Media Laws appeared first on Reason.com.
]]>A social media platform is like a telegraph, Texas Solicitor General Aaron Nielson told the Supreme Court on Monday, defending his state's restrictions on content moderation by Facebook, X (formerly Twitter), and YouTube. Former U.S. Solicitor General Paul Clement, speaking on behalf of the tech trade group NetChoice, rejected that comparison, saying a social media platform is more like a newspaper.
Neither of those analogies is entirely satisfying. But Clement's has the advantage of recognizing that Facebook et al., unlike "dumb pipes" that simply transmit messages, unavoidably curate a vast amount of content, exercising the sort of editorial discretion that the Supreme Court has said is protected by the First Amendment.
Most of the justices seemed to recognize that point. In response to concerns that content moderation favors certain viewpoints over others, Chief Justice John Roberts noted, Florida, like Texas, decided that the solution is "exercising the power of the state" over those decisions.
Florida Solicitor General Henry Whitaker, who was defending his state's social media law, had argued that it served "an important First Amendment interest" by "ensuring the free dissemination of ideas." But "since we're talking about the First Amendment," Roberts wondered "whether our first concern should be with the state regulating what we have called 'the modern public square.'"
The Florida law at issue in Moody v. NetChoice requires social media platforms to host speech by any "candidate for office," even when it flagrantly violates their content rules. The law also says Facebook et al. may not limit the visibility of material "by or about" a political candidate and may not "censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast."
The Texas law challenged in NetChoice v. Paxton is similar but in some ways broader, saying social media platforms may not "censor" speech based on "viewpoint." It defines censorship to include not just the deletion of posts and banishment of users but also any steps that make user-generated content less visible, accessible, or lucrative.
Public statements by Florida Gov. Ron DeSantis and Texas Gov. Greg Abbott made it clear that both laws were aimed at correcting a perceived bias against conservative speech. As they see it, Facebook et al. are using their influence to promote a progressive agenda.
Whitaker nevertheless insisted that content moderation decisions do not communicate any particular message. When platforms enforce their terms of service, he said, they are engaging in "conduct, not speech."
Yet that conduct, like the constitutionally protected decisions of newspapers and parade sponsors, reflects value judgments about which sorts of speech are beyond the pale, which is precisely why DeSantis and Abbott object to it. If platforms are legally barred from discriminating based on "content" or "viewpoint," they cannot exercise those judgments.
Even DeSantis and Abbott might not like the results. If the Texas law takes effect, Clement warned, his clients would be forced either to decree that users must avoid certain subjects altogether or to treat all viewpoints the same, no matter how abhorrent they might be to users and advertisers.
If platforms allowed pro-Jewish speech, for instance, they would have to give anti-Semitism equal prominence. They would be required to take a neutral stance regarding suicide prevention vs. suicide promotion, speech condemning terrorism vs. speech glorifying it, and posts encouraging vs. discouraging dangerous conduct such as bulimia and the "Tide Pod Challenge."
That is probably not a situation that most users would welcome, which is why platforms established content rules to begin with. While people may reasonably object to the specifics of those rules or the way they are enforced, those complaints do not justify using state power to impose different policies.
Given the choices available to people who do not like a particular platform's rules, equating those rules with government censorship is "a category mistake," as Clement observed. Based on that mistake, politicians are perversely arguing that the First Amendment must be sacrificed in order to save it.
© Copyright 2024 by Creators Syndicate Inc.
The post Texas and Florida Say the First Amendment Must Be Sacrificed to Save It appeared first on Reason.com.
]]>I co-authored an amicus brief in the case. The brief is on behalf on 9 U.S. Senators, led by Cynthia Lummis (R-Wyo.), 10 law/history professors, and the Independence Institute (the Denver think tank where I work).
Garland v. Cargill v. is not a Second Amendment challenge. The case is about administrative law: is BATFE's new interpretation of the relevant federal statute (the National Firearms Act of 1934) correct?
Despite the procedural posture, some gun prohibition advocates have been sending frantic emails to prospective donors, warning that if Cargill prevails, all of the bump stock laws enacted by state and local governments will be overturned. This is false. Presuming that the state and local laws were enacted according to proper procedures by state legislatures or city councils, a decision in favor of Mr. Cargill would have no effect on these laws.
The right to arms appears in the case only by implication, as explained in an excellent brief by the Second Amendment Law Center and other civil rights organizations: if BATFE in Cargill can get away with an egregious misinterpretation of the National Firearms Act, then BATFE's next step could be to declare that all semiautomatic firearms are "machineguns."
There are two main issues in Cargill v. Garland: first, principles of statutory interpretation. Second, interpretation of the statute at issue. The Senators' amicus brief addresses both.
Regarding principles of interpretation, the Senators are, unsurprisingly, much in favor of Article I of the Constitution, especially regarding federal criminal laws. Because criminal laws are so consequential, they should be clearly authorized by Congress, and should be clearly written so that citizens can obey them.
In two other cases this term, the Supreme Court is currently considering what do with the Chevron doctrine. (Loper Bright Enterprises v. Raimondo; Relentless, Inc. v. Department of Commerce.) As applied by lower courts, this doctrine holds that any reasonable interpretation by an executive branch of an ambiguous statute is lawful. The Senators argue that even if the Court decides to retain Chevron for certain matters, such as business regulation, Chevron should not be applied to criminal law. Citizens should not be made criminally liable for changing whims of regulatory agencies; here, for example, BATFE ruled 10 times that bump stock devices like those at issue in Cargill are not machine guns. Then, on orders from the President, BATFE adopted a completely contrary, novel interpretation.
Before the Supreme Court, the Solicitor General is not relying on Chevron deference. However, BATFE invoked Chevron deference when announcing its anti-precedential new interpretation, and several lower courts in other circuits upheld the new interpretation on the basis of Chevron.
A second interpretive rule is the Rule of Lenity: in criminal law, an ambiguous statute should be construed against the government. As the Senators argue, Congress has a duty to write clear laws, and enforcement of the Rule of Lenity provides an incentive to do so.
According to the Senators' amicus brief, once all the normal rules of statutory interpretation have been applied, if the statute is still ambiguous, then the Rule of Lenity controls.
However, some (not all) Supreme Court precedent suggests that the Rule of Lenity applies only if there is "grievous" ambiguity. The amicus brief argues that the traditional standard (any reasonable doubt as to statutory meaning) is better rooted in the Anglo-American legal tradition, starting with the universally-accepted principle of the Founding that criminal statutes must be strictly construed.
The Supreme Court followed this approach in a 1992 case involving the very same section of the U.S. Code at issue in Cargill, 26 U.S.C. sect. 5845. See United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992). There, the plurality (Justice Souter) and the concurrence (Justice Scalia) both applied the standard rules of statutory interpretation, found that the statutory subsection was still ambiguous, and then immediately applied the Rule of Lenity, without considering whether the ambiguity was "grievous."
As for the statutory language at issue in Cargill, the National Firearms Act defines a "machinegun" as a that firearm fires "automatically more than one shot … by a single function of the trigger." 26 U.S.C. § 5845(b). Later, the Firearms Owners' Protection Act of 1986 outlawed the acquisition of new machine guns (manufactured after May 19, 1986) by persons other than government employees, and also treated machine gun conversion kits the same as machine guns.
A bump stock does not fit within the statutory definition. A bump stock device makes a firearm operate much more rapidly; like a machine gun, an ordinary gun with a bump stock can fire about four times as fast as an ordinary semiautomatic. However, a gun with a bump stock still fires only one shot per "function" of the trigger.
The Solicitor General and her amici argue at length that "single function of the trigger" should be interpreted to mean "single pull of the trigger." But, obviously, this is not what the statute says. If Congress had enacted a statute that instead said "single pull," then the statute would have exempted the WWI-era Maxim and Vickers machine guns, whose trigger is pushed rather than pulled.
As a fallback, the Solicitor General and amici claim that Congress meant for the National Firearms Act to apply to all rapid-fire guns. But this plainly is not true. The Gatling gun, first patented in 1861, could fire 300 rounds per minute, and by the 1880s could fire 1,200 per minute. It is undisputed that the National Firearms Act does not apply to traditional Gatling guns, which are operated by a hand crank. (Electric-powered Gatling guns are another matter.) The BATFE has twice so ruled.
Notably, neither the Solicitor General nor her amici address the contradiction between their claims of what they want the NFA mean versus the undisputed fact that rapid-fire Gatling guns are not covered by the NFA. If Congress in 1934 had meant to restrict firearms that have more than a particular rate of fire, Congress could have enacted a statute that did so. Given the words of the statute that Congress actually did enact, Cargill v. Garland ought to be an easy case.
The post Preview of Supreme Court Bump Stock Case appeared first on Reason.com.
]]>On Monday, Florida Solicitor General Henry Whitaker and Texas Solicitor General Aaron Nielson defended state laws that restrict content moderation by social media platforms, telling the Supreme Court they uphold a First Amendment value by protecting freedom of speech. To the contrary, former U.S. Solicitor General Paul Clement said on behalf of the tech trade group NetChoice, those laws violate the First Amendment by interfering with constitutionally protected editorial judgments.
It is not clear whether the Court will resolve that issue now rather than remanding the two cases for further development. But most of the justices seemed inclined to side with NetChoice.
In Moody v. NetChoice, Whitaker argued that Florida's law serves "an important First Amendment interest" by "promoting and ensuring the free dissemination of ideas." Chief Justice John Roberts was immediately skeptical.
Roberts noted that Whitaker had expressed concern about the ways in which Facebook et al. use their "market power" to shape online debate. "Your response to that is going to be exercising the power of the state to control what goes on on the social media platforms," the chief justice said. "I wonder, since we're talking about the First Amendment, whether our first concern should be with the state regulating what we have called 'the modern public square.'"
In NetChoice v. Paxton, the Texas case, Roberts noted that "the First Amendment doesn't apply" to social media companies. "The First Amendment restricts what the government can do," he said, "and what the government's doing here is saying you must do this: 'You must carry these people; you've got to explain if you don't.' That's not the First Amendment." The case "turns on whether" decisions about who may speak and what they may say should be left with the "various platforms" or the government, Roberts said, and "the First Amendment has a thumb on the scale when that question is asked."
Roberts also questioned Nielson's analogy between social media platforms and the telegraph, a "common carrier" barred from discriminating against communications based on their content. "You're assuming that they are like the telegraph," he said. "The telegraph had a particular[ly] compelling type of monopoly. I mean, if you didn't want to use the telegraph that was there, you usually didn't have an alternative choice." Likewise with railroads and "other types of common carriers," he added. "I'm not sure the same thing applies with respect to social [media] platforms." In the Texas case, Roberts described that market as "incredibly dynamic," suggesting that the common carrier model "may be totally inapt" in "the wild west economy surrounding the social media platforms and the Internet."
Justice Brett Kavanaugh likewise was openly skeptical of the position taken by Florida and Texas. During oral arguments in the Florida case, Kavanaugh quoted "a really important sentence in our First Amendment jurisprudence" from the Court's 1976 decision in Buckley v. Valeo, which dealt with campaign finance regulations: "The concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment."
Kavanaugh also noted the Court's 1974 decision in Miami Herald v. Tornillo, which rejected a Florida law giving political candidates a "right of reply" to unflattering newspaper articles. "The Court went on at great length…about the power of the newspapers," acknowledging "vast changes" that had placed "in a few hands the power to inform the American people and shape public opinion," which "had led to abuses of bias and manipulation," he said. "The Court accepted all that but still said that wasn't good enough to allow some kind of government-mandated fairness."
Kavanaugh suggested that Florida's logic of "government-mandated fairness" on social media could support similar restrictions on publishers, movie theaters, bookstores, and newsstands, requiring them to provide a forum for material they otherwise would reject. Whitaker replied that bookstores, unlike social media platforms, are "engaging in inherently expressive conduct."
Like Roberts, Kavanaugh emphasized that the First Amendment does not apply to private businesses. "In your opening remarks," he told Whitaker, "you said the design of the First Amendment is to prevent 'suppression of speech.' And you left out what I understand to be three key words…'by the government.'"
When "the government excludes speech from the public square, that is obviously a violation of the First Amendment," Kavanaugh said while questioning Clement in the Florida case. "When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally [as] editorial discretion, even though you could view the private entity's decision to exclude something as 'private censorship.'"
Whitaker noted that "upwards of 99 percent of what goes on the platforms is basically passed through without review," suggesting that Facebook et al. do not engage in meaningful editing prior to publication. But in the 1995 case Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Kavanaugh noted, the Court upheld a private organization's First Amendment right to exclude a gay pride float from a St. Patrick's Day parade, and "the mere fact that the parade organizer usually took almost all comers was irrelevant to the First Amendment interests." In that case and others, Kavanaugh said, the Court has "emphasize[d] editorial control as being fundamentally protected by the First Amendment."
In Hurley, Justice Elena Kagan noted, "we said they don't have a lot of rules, but they have some rules, and we're going to respect the rules that they do have. Even though they let a lot of people come in, they don't let a few people come in, and that seems to be quite important to them." Similarly, she said, social media companies may decide "you can't have hate speech on this site" or "you can't have misinformation with respect to particular subject matter areas." They "have thousands and thousands of employees who are devoted to enforcing those rules," she noted, and "they're making content judgments about the kind of speech that they think they want on the site and the kind of speech that they think is intolerable."
In general, Kagan said, "all these places say we're open for business—post whatever you like, and we'll host it. But there are exceptions to that…which the companies take seriously." They might, for example, make an exception for "misinformation about voting," "misinformation about certain public health issues," "hate speech," or "bullying." Kagan asked Whitaker why it wouldn't be "a classic First Amendment violation for the state to come in and say, we're not…going to allow you to enforce those sorts of restrictions even though…it's like an editorial judgment." Kagan made her answer clear, saying, "I take it to be First Amendment activity."
Justice Amy Coney Barrett agreed that "it all turns on editorial control," asking Whitaker why Facebook et al. are not relevantly similar to a newspaper in that respect. He replied that "it is a strange kind of editor" that "does not actually look at the material that is going [into] its compilation." But even algorithms that filter posts on a larger scale reflect editorial judgments, Barrett noted: "TikTok might have boosted pro-Palestinian speech and reduced pro-Israel speech. That's a viewpoint, right? And if you have an algorithm do it, is that not speech?"
Social media platforms organize content "in ways that reflect preferences, that are expressive of their terms and conditions," Barrett observed. "Don't all methods of organization reflect some kind of judgment?" And "even though there may not be physical space constraints," she said, "there are the constraints of attention," which require platforms to "present information to a consumer in some sort of organized way" so "the consumer can absorb it."
Barrett, like Kavanaugh, brought up bookstores: "Could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can't organize or put some things closer to the front of the store that they think their customers will want to buy?" Whitaker did not directly address that question, although he conceded that "you certainly could imagine…an algorithm that could be expressive."
Justice Ketanji Brown Jackson questioned the significance of describing social media platforms as common carriers. "I hear you suggesting that we can just say Facebook is a common carrier and, therefore, everything it does qualifies as conduct and not speech," she told Whitaker. "And I don't think that's really the way we've done this in our past precedents."
Jackson wondered if Nielson was "suggesting that a common carrier…could never have First Amendment protected activity." She suggested that the constitutional analysis depends not on an organization's classification but on "what exactly" it is "doing in a particular circumstance."
Justice Sonia Sotomayor also suggested that the "common carrier" label does not accomplish what Florida wants. The government can't do "some of these things even to common carriers," she said. "A common carrier doesn't have to permit unruly behavior….It can throw somebody off the train if they are threatening somebody else or if they're doing other things." During the oral arguments in the Texas case, Sotomayor said, "I have a problem with laws like this that are so broad that they stifle speech just on their face."
The post Most Justices Seem Skeptical of the Florida and Texas Social Media Laws appeared first on Reason.com.
]]>Yesterday, the Supreme Court heard oral arguments in NetChoice v. Paxton and Moody v. NetChoice, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation, thereby requiring them to host content they disapprove of. The oral arguments suggest a clear majority of the justices believe these laws violate the First Amendment rights of social media providers. I agree with the assessment of my Cato Institute colleague Thomas Berry, who said "It appears that a majority of the Court is likely to find that the laws violate the First Amendment, at least when they force traditional social media sites like Facebook and X to change their moderation practices and disseminate speech they want to exclude."
Justice Elena Kagan summarized the issues best, when she noted, in the Florida argument, that, if social media firms have "content-based restrictions" on what kinds of speech they wish to host (e.g.—by keeping out what they consider "misinformation… [or] "hate speech or bullying") "why isn't that….a classic First Amendment violation for the state to come in and say, we're not allowing… you to enforce those sorts of restrictions even though… it's like an editorial judgment, you're excluding particular kinds of speech?"
Chief Justice John Roberts similarly emphasized that "[t]he First Amendment restricts what the government can do, and what the government is doing here is saying, you must do this, you must carry these people; you've got to explain if you don't,…[t]hat's not the First Amendment." Liberal Justice Sonia Sotomayor that the two states' laws are "so broad that they stifle speech just on their face."
If the New York Times or Fox News refuse to publish articles I submit to them because they disapprove of my views or even just because they think my writings will offend their audience, they surely have a First Amendment right to do so. If I don't like Fox's editorial policies, I can submit my content somewhere else. The same reasoning applies to Twitter or Facebook.
The states argue big social media companies have a special status because they reach so many people. But the same is true of major traditional media firms. If the New York Times rejects an op ed I submit, and I end up publishing it in The Hill or the Boston Globe (such things have actually happened to me!), I am likely to reach a much smaller audience than if the piece was accepted by the Times.
As with NYT or Fox News, social media firms seek to create a curated forum that caters to the interests of their audience, and avoids unnecessarily annoying or offending them. Few users actually want a completely unmoderated social media environment, or one that accepts all content that isn't illegal. Sites with right-wing owners, such as Elon Musk's Twitter/X or Donald Trump's Truth Social nonetheless have content-based restrictions in their terms of service.
Samuel Alito and Clarence Thomas—the two justices most sympathetic to the states—repeatedly characterized social media content moderation as "censorship." Justice Brett Kavanaugh effectively responded to this trope:
When the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment. When a private individual or private entity makes decisions about what to include and what to exclude, that's protected generally editorial discretion, even though you could view the private entity's decision to exclude something as "private censorship."
I think that's exactly right. If Fox News or the New York Times reject my content because they don't like my views, that is not censorship, but the exercise of their own First Amendment rights. The same goes if Elon Musk bars me from posting on his site. And that's true even if Fox, NYT, or Musk object to my content for dubious reasons, or even downright stupid ones. Ditto if they treat right-wing speech more favorably than the left-wing kind, or vice versa.
I think it's clear there are at least five or six justices who accept the distinctions made by Roberts and Kavanaugh, and therefore are inclined to rule against Florida and Texas on that basis.
In the Florida case, several justices suggested they might not be able to uphold the lower-court ruling against the law, because that state's legislation is so broad that it may cover websites that aren't expressive in nature at all, such as Uber or Etsy. The social media firm plaintiffs brought a facial challenge to the law, which may require them to prove that the law is unconstitutional in all or nearly of its applications. If the Court vacates the lower court decision on this basis, the case could be remanded, and the plaintiffs might have to amend their complaint to turn it into an "as applied" challenge focused on social media firms that exercise editorial discretion. Justice Sotomayor suggested they might remand the case, but also leave the preliminary injunction against the Florida law in place, in the meantime.
Fortunately, these kinds of procedural issues are much less significant in the Texas case, where the law in question is more clearly focused on big social media firms. In oral argument, Texas Solicitor General Aaron Nielson conceded his state's law does not cover firms like Uber and Etsy.
Thus, the Supreme Court could potentially vacate and remand the Florida decision, but rule against Texas. The precedent set by the latter ruling would govern any future litigation in the Florida case, and challenges to similar laws that might be enacted by other states.
The justices also discussed the states' argument that it can bar content moderation because social media firms are "common carriers." I think most of the Court did not find that theory persuasive. rightly. I criticized the badly flawed common carrier theory in some detail here.
Finally, there was much discussion of the issue of whether the tech firm plaintiffs' arguments that they are exercising editorial discretion somehow undermine their exemption from liability for posting user content under Section 230 of the Communications Decency Act. To my mind, this issue isn't really before the Court. And in any case, there is no real contradiction between holding that the tech firms are engaging in First Amendment-protected speech when they moderate content, and also holding that such speech is exempt from certain types of liability under Section 230. But I am no Section 230 expert, and I will leave this issue to commentators with greater knowledge of the relevant issues.
In sum, I am guardedly optimistic that the free speech will prevail in these cases, though procedural issues might lead to a remand in the Florida litigation.
In previous posts, I have explained why the Texas law is a threat to freedom of speech, and argued that these laws violate the Takings Clause of the Fifth Amendment, as well as the Free Speech Clause of the First Amendment (the takings issue is not before the Supreme Court).
For those keeping score on matters of ideological and jurisprudential consistency, I refer you to the relevant part of my September 2023 post about these cases:
I consistently opposed the Texas and Florida laws both before and after Elon Musk acquired Twitter (now called X). I didn't much like the content moderation policies of the pre-Musk management, and I like Musk's policies even less. But they nonetheless both have a First Amendment right to decide which speech they wish to host, and which they don't….
I am also one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel of judges) upholding the Texas social media law. The First Amendment bars government from both forcing social media firms to take down content the state disapproves of and forcing them to put up content the firms themselves object to.
The post Supreme Court Seems Likely to Strike Down Florida and Texas Social Media Laws appeared first on Reason.com.
]]>"Teaching constitutional law today is an enterprise in teaching students what law isn't," Leah Litman, a professor at the University of Michigan law school, told me.
Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. "While I was working on my syllabus for this course, I literally burst into tears," she told me. "I couldn't figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I'm feeling very depleted by having to teach it."
At least she's still trying. Larry Kramer, a widely respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court's divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller's majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result.
Professor Kramer was the dean of Stanford law school at the time, and after the Heller ruling, he told me recently, "I couldn't stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis." First-year law students, he felt, "should be taught by someone who still believed in what the court did."
And so on. I have heard many others voice these concerns, and I worry that they demonstrate a lack of perspective that will dis-serve our students.
Last fall I presented at a conference on "Teaching in a Time of Change and Conflict" on some of these themes. I've now posted on SSRN my presentation: Teaching Constitutional Law in a Crisis of Judicial Legitimacy. I offer a quite different take. From the introduction:
The topic of our symposium is "Teaching in a Time of Change and Conflict" and my specialty is constitutional law, so as you can imagine I have some things to say. With recent developments in the Supreme Court, I regularly hear other professors, including colleagues and friends, ask: How can we teach constitutional law in such a crisis of judicial legitimacy? How can we still teach students that courts are a place to seek justice? . . . These sentiments reflect a real challenge for teaching constitutional law today. But I fear they demonstrate a lack of perspective. The things that today's law professors say about today's Supreme Court are things that others could have said, and sometimes did say, about the Supreme Court for many decades. The real crisis in teaching constitutional law today is not in the Supreme Court, but in legal academia: the question is whether we can maintain the perspective necessary to teach effectively about the Court and the Constitution.
From the argument:
There is a perception that there is something different, something more challenging, about teaching constitutional law today because the Supreme Court has been doing so many things, so quickly, that are so hard to justify.
This perception is wrong. You have always been teaching law in a time of a crisis of judicial legitimacy. The Supreme Court has never been the same thing as the Constitution. It has never been infallible at interpreting the Constitution. It has long been engaging in awe-inspiring power grabs. Dobbs, Bruen, and Bush v. Gore have nothing on Cooper v. Aaron, Miranda v. Arizona, Baker v. Carr and Reynolds v. Sims, Gideon v. Wainwright, The School Prayer Cases, The School Busing Cases, Roe v. Wade and Planned Parenthood v. Casey, Boumediene v. Bush, and Obergefell v. Hodges. If you were asking yourself just two years ago how we can still teach our students about constitutional law . . . then you have not been teaching them very well until now.
In sum, the Court has always been making questionable calls in high-profile cases, likely for a mix of political reasons and genuine differences of opinion about the nature of the Constitution. What has really changed is not that the Court is newly imperial, or newly lawless, or newly political. What has changed is that many more folks inside the Ivory Tower have noticed, and no longer see their values and ways of thinking represented as often by the Court. That reflects a change in what the Court thinks the law is, to be sure. But it does not reflect a change in whether the Court is doing law.
. . . .
I am not naïve enough to think that the solution to the legitimacy crisis will arrive anytime soon, and indeed I can't guarantee that anybody who needs to hear these admonitions will listen to them. But at least listen when I say this: There are lots of people, and even lots of law students, outside the bubble. And they can hear you.
And from the conclusion, with a great debt to C.S. Lewis:
Now let me tell you why we should not succumb to cynicism about constitutional law.
In 1939, C.S. Lewis preached a sermon called "Learning in War-Time." "A University is a society for the pursuit of learning," he began. But, "this seems to be an odd thing to do during a great war. What is the use of beginning a task which we have so little chance of finishing? Or, even if we ourselves should happen not to be interrupted by death or military service, why should we—indeed how can we—continue to take an interest in these placid occupations when the lives of our friends and the liberties of Europe are in the balance? Is it not like fiddling while Rome burns?"
Lewis's ultimate answer was that the war had not truly altered the human condition: "All the animal life in us, all schemes of happiness that centered in this world, were always doomed to a final frustration. In ordinary times only a wise man can realize it. Now the stupidest of us knows. We see unmistakably the sort of universe in which we have always been living, and must come to terms with it." If learning was worth doing in normal times, it was no less worthy during a time of war.
So, too, if constitutional law was worth learning and arguing about in 1964 or 1984, it is worth learning and arguing about in 2024. Once we realize that somebody has always been holding the short end of the Supreme Court, somebody has always been losing, somebody has always been having important decisions ripped away from them on contestable legal grounds, the task of the professor has not fundamentally changed.
It is not my place to tell you, let alone my students, how to feel about the Supreme Court, or whether to try to decimate it as an institution. But if we cannot understand it, if we cannot teach it, we have no business in this business.
For more, including a discussion of Scott Alexander's review of Martin Gurri's Revolt of the Public, a discussion of the methodological Turing test, and other concrete pedagogical suggestions, you can read the whole thing, only eight pages.
The post Teaching Constitutional Law in a Crisis of Judicial Legitimacy appeared first on Reason.com.
]]>The Supreme Court heard oral arguments today in two pivotal cases concerning social media. These cases—NetChoice & CCIA v. Paxton and Moody v. NetChoice and CCIA—are of huge importance for the future of free expression and free association online.
"The fate of free expression on the internet is largely at stake," said Lawrence Walters, general counsel with the Woodhull Freedom Foundation, at a Monday afternoon press conference. It would be "mass chaos…if the states were allowed to enforce these rules."
The challenges were brought by tech industry groups NetChoice and the Computer and Communications Industry Association (CCIA) against first-of-their-kind laws in Florida and Texas. The tech groups were also joined today by U.S. Solicitor General Elizabeth Prelogar, who participated on their behalf.
Today's arguments touched on everything from common carrier requirements and public accommodations laws to terrorism, Section 230, antitrust law, net neutrality, newspapers, and much more. But at the crux of this matter is a simple question of whether the government can compel speech.
In Texas, the state declared large social media platforms "common carriers" and forbade them from viewpoint-based blocking or suppressing of content. The law "is blatantly unconstitutional and inconsistent with federal law," wrote Reason Senior Editor Jacob Sullum when it first passed in 2021. Texas Gov. Greg Abbott justified the law by saying social media platforms disproportionately silence conservatives—a contention not borne out by evidence. But even if true, tech companies would be well within their rights to do so. The First Amendment means the government can't make you associate with speech you don't want to associate with. It can't force a baker to make a pro–gay marriage cake and it can't force a website to carry pro-Trump comments, and so on.
The Florida law, also passed in 2021, says large social media platforms can't reject speech by any "candidate for office," can't suppress or block content "by or about" political candidates, and can't "censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast." This is also blatantly unconstitutional, for the same reasons that apply to the Texas case. The First Amendment doesn't just prohibit government authorities from censoring speech but also from compelling speech.
Both laws "violate the First Amendment rights of private social media platforms, which build user bases by facilitating and moderating content in ways the users find beneficial," Max Gulker, a senior policy analyst with the Reason Foundation (the nonprofit that publishes this website), pointed out last December. "Supporters of the state laws…repeatedly lose track of this distinction." (For a deeper look at arguments against these laws, check out the amicus brief filed by the Reason Foundation and several other nonprofit groups.)
The NetChoice and CCIA challenges to both laws have been winding their way through the federal court systems for years and, today, finally landed before the U.S. Supreme Court.
Representatives from NetChoice and CCIA appeared in good spirits at a post-court press conference, where they rehashed some of the high-level arguments against the Texas and Florida laws.
"The state has no business protecting individual viewpoints or picking winners and losers in the marketplace of ideas," said Matt Schruers, CCIA president and CEO. He noted that in court, both states desperately attempted to "reframe the editorial choices of websites as conduct" so as to try and escape First Amendment protections (which is something we see all too frequently with laws aimed at social media companies).
"The government cannot violate the First Amendment, and it especially cannot do so in the name of preserving free speech—that is Orwellian," said Chris Marchese, director of the NetChoice Litigation Center.
He noted that there was a lot of talk during oral arguments about Section 230, a federal communications law that protects social media platforms from some liability for the speech of their users.
But Section 230 questions may distract from the fact that this is a First Amendment case.
"If the law violates [the First Amendment], the 230 [question] is effectively moot since 230 procedurally facilitates 1A," commented Jess Miers, senior counsel with the Chamber of Progress and an adjunct professor at Santa Clara Law, on X (formerly Twitter).
Alas, this is something very hard for people—including, apparently, some Supreme Court justices—to understand. "I'm not really sure how else NetChoice can make this clear," Miers commented after the issue kept coming up again and again. "The Court just doesn't get it."
Tech policy analysts who oppose the Texas and Florida laws saw some reasons for optimism and some reasons for concern in today's oral arguments.
"An uncomfortably large number of the justices peered down an uncomfortably large number of rabbit holes that, if they fall in, will result in disaster for the platforms and the Internet as a whole," commented Corbin Barthold, internet policy counsel at TechFreedom. (Barthold did a very extensive, real-time rundown of the arguments on X.)
But at least some justices appeared skeptical of Texas' arguments that social media should be regulated like a common carrier that has a legal obligation to serve everyone. For instance, Justice Samuel Alito said Texas was assuming social media companies are like the telegraph or telephone companies, and he doesn't think they are.
"This is crucial—if the Court doesn't buy common carriage, Texas loses," commented Miers.
Kavanaugh also seemed to scoff at the idea that a state can simply say social media companies are common carriers. "Kavanaugh gets it—he knows that you can't just declare common carriage and he's effectively drawing that out here," noted Miers.
"In the Florida case, the justices' questioning recognized the wide variety of services these laws could impact beyond traditional social media platforms," said Jennifer Huddleston, tech policy research fellow at the Cato Institute, in a statement. (Huddleston also posted live updates on X about the oral arguments.) Their questions indicated that "they understood other services subject to the law include marketplaces like Etsy, email services, and even apps like Uber."
Thomas Berry, also a research fellow for the Cato Institute, said, "It appears that a majority of the Court is likely to find that the laws violate the First Amendment, at least when they force traditional social media sites like Facebook and X to change their moderation practices and disseminate speech they want to exclude. As Justice Kavanaugh repeatedly urged, the First Amendment protects private actors against government censorship; it does not allow the government to tell private actors what they must publish. Chief Justice Roberts and Justice [Elena] Kagan also indicated strong skepticism that a website's core editorial functions can ever be commandeered by a state law without violating with the Constitution."
"What is less clear is how the Court will resolve the case," Berry added, noting that "many options are on the table, including potentially a request to the state courts to lend greater clarity on the scope of the laws."
Vera Eidelman, staff attorney with American Civil Liberties Union's Speech, Privacy, and Technology Project, noted at the press conference that the courts could settle the different laws in different ways.
Miers posted that she thinks the laws are "unlikely to survive" and that the justices will "likely vacate and remand" to the lower courts.
"The court had significant concerns with the scope of these laws, with the compelled speech requirements, with some of the vagueness… so I think the states are going to be in a little bit of trouble here," said Walters.
But is this all just a giant game of Whac-A-Mole? Whatever happens here, noted Walters, "the states are not going to stop trying to regulate the internet."
The post Texas and Florida Want the Supreme Court To Bless Their Unconstitutional Social Media Laws appeared first on Reason.com.
]]>A Florida man accused of facilitating an illegal health care scheme has been spared additional prison time, ending the Justice Department's attempt to reprosecute him after his sentence was commuted by former President Donald Trump.
Philip Esformes on Thursday pleaded guilty to one count of conspiracy to commit health care fraud and was sentenced to time served, with prosecutors agreeing to dismiss the remaining five counts. It's a quiet conclusion to a controversial prosecution that saw the federal government resuscitate the criminal case against him not long after he'd spent four and a half years behind bars and was released from prison in December 2020, despite that he had already been sentenced for the same counts on which they sought to retry him.
In 2016, Esformes—who owned a network of skilled nursing and assisted living facilities—was arrested, held without bond in solitary confinement, and charged with over two dozen counts in connection with allegedly bribing doctors to secure patients for his establishments, where the government says he billed Medicare and Medicaid for unnecessary treatments. But while Esformes was convicted on 20 of those counts, including money laundering, the jury deadlocked on six of the most serious charges.
A judge sentenced him, however, as if he'd been convicted of them, in a little-known practice that often offends people's basic impressions of the protections built into the U.S. criminal justice system. Particularly in federal court, if a defendant receives a split verdict—a conviction on one or some counts, with an acquittal or a hung jury on the remaining charges—a judge may punish them as if they were found guilty of everything.
Esformes' case was somewhat timely in that "acquitted conduct sentencing," as it's typically called, has come under particular scrutiny in recent years. The Supreme Court has previously ruled that judges are permitted to consider counts on which a jury rendered a not guilty verdict, or by extension on which they deadlocked, if he or she decides by a "preponderance of the evidence" that the defendant is, in fact, guilty. That standard of proof is considerably lower than the one employed by juries, which are instructed to convict only if the panel concludes the defendant is guilty beyond a reasonable doubt.
Judge Robert Scola of the U.S. District Court for the Southern District of Florida was explicit that Esformes' 20-year sentence was in part based on the charges for which a jury did not reach a verdict. (Esformes was also ordered to forfeit $38.7 million and to pay $5.5 million in restitution, which were not absolved with the clemency order handed down by Trump.) "I don't know what more you are going to get out of the case if you try those additional counts," he told the prosecution at a restitution hearing in November 2019. There was no utility in a retrial, Scola said, because he had already baked the charges on which a jury hung into the prison sentence he'd given Esformes two months prior.
The federal government agreed. "Certainly, Your Honor, if the case comes back on appeal, we would ask the hung counts to run with the appeal so the whole thing could be retried," Assistant U.S. Attorney Elizabeth Young responded. "We have entered into agreements to dismiss the hung counts if the defendant's appeal is dismissed, and we would agree to do so here."
But after Esformes received clemency in December 2020, the Justice Department reneged on its promise, pledging to retry Esformes on an indictment that isolated the hung counts for which he'd already been sentenced and received a commutation.
The move was not without criticism. "This defendant, as much as you might not like him…do you think he should be punished two or three times for the same conduct?" Brett Tolman, the former U.S. Attorney for the District of Utah and now the executive director of Right on Crime, asked me last year. "I don't find anybody who thinks that's fair." Both Sen. Mike Lee (R–Utah) and Rep. Andy Biggs (R–Ariz.) sent letters urging Attorney General Merrick Garland to change course, accusing his department of politicizing the clemency process. The Subcommittee on Crime and Federal Government Surveillance called a congressional hearing centered around Esformes' case in June 2023, during which both sides of the political aisle sparred over a "two-tiered system of justice."
The reaction, however, did not fall entirely neatly along partisan lines. "If you walk through the facts, it's clearly double jeopardy," Jessica Jackson, the left-leaning attorney and activist who helped spearhead the advocacy around the landmark FIRST STEP Act, told Reason last year. "The judge on the record at sentencing used the hung conduct as part of his sentence….That sentence was then commuted by President Trump. In my mind, while it's a novel area of legal precedent, this is double jeopardy by the letter of the law, really."
The root of the legal issue here—whether or not judges should be able to sentence defendants for crimes they weren't convicted of—continues to be a subject of intense debate, the climax of which coincided with Esformes' reprosecution. In June of last year, just over a week after the congressional hearing dedicated to his case, the Supreme Court declined to hear a petition from Dayonta McClinton, who was sentenced to 19 years in prison after he helped rob a CVS Pharmacy. "The driving force" of that sentence, the judge said, was for killing his friend, Malik Perry, after a jury acquitted McClinton of causing that very death.
The post The Justice Department Quietly Ends Reprosecution of Man Who Received Clemency From Trump appeared first on Reason.com.
]]>JUSTICE JACKSON: If I understand you correctly, each new company that is created in an industry can suddenly bring a challenge that might risk or undermine valid –invalidation of the entire basis of the industry, each new company, because you say each new company that's created can bring such a lawsuit. Now, whether or not it will succeed, I understand, but aren't you risking destabilization of the industry in this way?
MR. WEIR: We don't think so. We—we think the experience in the Sixth Circuit is what you'll see. There –there was no uptick in challenges to old regulations in the Sixth Circuit, and we would have seen them there in the last —
JUSTICE JACKSON: Is —is that possible because we had other doctrines that prevented, so, you know, for example, Chevron existed and so there were lots of things that already –you know, right? Like, there are reasons why you might not have an uptick. I'm just wondering, in a world in which you could bring these actions, why wouldn't you have this problem?
MR. WEIR: Well, I –I think that because most regulations are –are valid, there's –there's no argument that they're unlawful. So you would –so you wouldn't see them. It's only the ones that have defects that you're going to see challenges to or potential defects.
Was this a suggestion that Chevron will no longer exist after this term? I suppose we will know by July.
UPDATE: I should have listened to the second-half of the argument before posting. Had I done so, I would have noted this question from Justice Kagan:
JUSTICE KAGAN: Mr. –Mr. Snyder, I want to emphasize that I'm asking you a hypothetical question. It's an "if" question. There is obviously another big challenge to the way courts review agency action before this Court. Has the –has the Justice Department and the agencies considered whether there is any interaction between these two challenges? And, again, you know, if Chevron were reinforced, were affirmed. If Chevron were reversed, how does that affect what you're talking about here?
Does this question make it more or less likely that Justice Jackson inadvertently disclosed Chevron's fate? Was Justice Kagan just being precise? Or was she covering for her colleague's gaffe? Again, time will tell.
The post Did Justice Jackson Disclose the Outcome in Relentless and Loper-Bright? (UPDATED) appeared first on Reason.com.
]]>Hopes that the U.S. Supreme Court might strike down rent control this term were dashed today when the Court declined to take up the two remaining rent control cases on its docket. But a short statement from Justice Clarence Thomas otherwise agreeing not to take up the cases does provide rent control critics some optimism that the Court might reconsider the issue at a future date.
The cases, 74 Pinehurst LLC v. New York and 335-7 LLC v. City of New York, both involved New York City rental property owners' challenges to their state's stabilization regime and related New York City regulations implementing that regime.
The petitioners argued that the 2019 amendments to New York's rent stabilization law amounted to a physical taking because they prevented property owners from choosing their tenants or withdrawing their property from the rental market. They also argued that New York's post-2019 rent stabilization law amounted to a regulatory taking by tanking the value of their properties and removing avenues to "deregulate" (charge market rents on) their units.
Lower courts rejected these arguments. So, last spring, the landlord plaintiffs in both cases petitioned the Supreme Court to take up their case.
The fact that the two cases stayed on the Supreme Court's docket even after it had declined to take up another, higher profile, and more sweeping challenge to New York's rent stabilization law in October raised hopes that the justices might still take up these cases.
At a minimum, rent control critics offered some hopeful speculation that one or more of the justices might write a lengthy dissent to any court decision to not take up the cases that would outline how another rent control challenge could make its way back to the Supreme Court.
Neither of those things happened today. But today's order wasn't a total loss for rent control opponents.
Justice Clarence Thomas did issue a short statement saying that the "constitutionality of regimes like New York City's is an important and pressing question."
Ultimately, Thomas agreed with the Court's denial of cert, saying that petitioners' claims in their lawsuits "primarily contained generalized allegation." In order to evaluate their "as-applied" challenges, the Court would need to see more specific arguments about the circumstances of individual landlords.
For that reason, Thomas wrote, the 74 Pinehurst and 335-7 pleadings would "complicate" the Court's review.
"Any time you get something more than just a denial, I would say that gives you reason for optimism," says Mark Miller, an attorney with the Pacific Legal Foundation, which has supported constitutional challenges to rent control. "Oftentimes justices give statements like this to give you a roadmap for how to better tee up the issue."
In the meantime, however, New York City property owners are offered no relief from the state's rent stabilization regime.
Rent-stabilized owners argue the state's limits on rent increases are so punishingly strict that they can't finance basic repairs or turn over vacant units. The ongoing struggles of New York Community Bancorp, which lent heavily to rent-stabilized buildings, are only compounding this problem.
Without greater flexibility to raise rents or obtain private capital, "the future of rent-stabilized buildings is in the hands of the state government," said the Community Housing Improvement Program (CHIP) and the Rent Stabilization Association (RSA) in an emailed statement reacting to the Supreme Court's decision today. "Thousands of buildings housing hundreds of thousands of tenants are in financial distress. Without action, the homes of many hard-working New Yorkers will deteriorate.
CHIP and RSA had been plaintiffs in another challenge to New York's rent stabilization regime that the Supreme Court also declined to take up last year. Thomas' statement seems to have done little to raise their optimism about future rent control cases.
"We do expect there will be many more challenges to this law, which remains irrationally punitive," they said.
The post After Supreme Court Denies Cases, Clarence Thomas Offers Hope to Rent Control Critics appeared first on Reason.com.
]]>Today we see another example of this. Among the cases in which the Court denied certiorari on today's order list is South Carolina State Ports Authority v. National Labor Relations Board. In addition to noting that certiorari was denied, the order list also notes that Justice Kavanaugh would have granted the petition.
This case presented the following interesting questions:
1. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can "control" the primary employer's work assignments.
2. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.
While I find these questions interesting, it does not appear that four justices found them to be worthy of certiorari.
While he appears to want the Court to hear more cases, Justice Kavanaugh did not join Justice Alito's dissent from denial of certiorari in Coalition for TJ v. Fairfax County School Board, a case concerning the extent to which school districts may consider race (or proxies for race) in school assignment decisions. (My co-blogger Ilya Somin blogged about the lower court's decision here.)
What this may suggest is that while Justice Kavanaugh wants to hear more cases that raise questions of significance to the business community or regulatory matters, including cases involving patents, tort litigation and labor law, he is not as keen to hear cases implicating culture war flashpoints, such as race.
An important qualification to note here is that justices are not required to disclose when they would have granted certiorari in a given case. So while we know at least some cases in which Justice Kavanaugh would have granted certiorari, we do not know how his colleagues voted in these cases, or whether there are other cases in which Justice Kavanaugh would have supported certiorari, but chose not to disclose that fact.
The post Justice Kavanaugh Still Wants SCOTUS To Hear More Cases appeared first on Reason.com.
]]>This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.
The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.
The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.
For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.
Also, here are my prior blog posts about this case and the issues it raises:
The post Supreme Court Denies Red State Effort to Intervene in Mifepristone Case appeared first on Reason.com.
]]>There's an inverse relationship between the shock value in Erma Wilson's criminal justice experience and the remedy, or lack thereof, afforded to her for an alleged violation of her constitutional rights. Despite a federal judge calling her story "utterly bonkers," she has been barred from going before a jury and stating her civil case against a rogue ex-prosecutor.
In a rare turn, that may finally change. The U.S. Court of Appeals for the 5th Circuit this week agreed to rehear her petition—implying a majority of judges may be inclined to reverse the court's previous ruling, which shielded from liability a former assistant district attorney in Texas who allegedly helped prosecute Wilson while he covertly worked for the same judges overseeing his cases.
In 2001, the Midland County district attorney promoted Weldon "Ralph" Petty Jr. from law clerk to prosecutor. But instead of transitioning to his new role, he kept both, simultaneously prosecuting cases and assisting judges as their right-hand man. That means by day, Petty, like any prosecutor, pursued rulings vindicating the government. And then at night, like no prosecutor, he would draft the very rulings he'd sought.
That year, Wilson found herself in the same courthouse. Police arrested her after finding some crack cocaine on the ground near where she and some friends were standing. She vehemently denied it was hers, and law enforcement informed her she could go free if she told them whom it belonged to. She said she didn't know.
The government attempted to avoid a trial, offering Wilson several plea deals. She declined all of them, insisting on both her innocence and a trial by jury, the latter of which is vanishingly rare in the modern criminal justice system. She was convicted and sentenced to eight years of community supervision. But Wilson's punishment has subsisted to this day, in that her conviction precluded her from becoming a nurse, her dream since childhood, because Texas forbids people convicted of drug-related offenses from obtaining a nursing license.
Petty's dual-hat shenanigans lasted from 2001 to 2014, and again from 2017 to 2018. It didn't come to light until the following year when Midland County District Attorney Laura Nodolf reviewed his accounting records and was confronted with the fact that hundreds of cases may have been tainted by his conflict of interest. Fortunately for Petty, the timing of that discovery coincided with his retirement. He was ultimately disbarred in 2021—two years after he'd left his post.
It is an extremely difficult task to achieve any remedy when a prosecutor violates the Constitution, as the role is typically protected by absolute immunity. After Petty's misconduct came to light, Wilson tried anyway via a lawsuit that alleges Petty infringed on her Fourteenth Amendment rights by moonlighting for then-Judge John G. Hyde, who adjudicated her case. Hyde passed away in 2012.
But when Wilson sued under § 1983—the relevant civil rights statute—her claim died before a court could evaluate whether Petty was entitled to absolute immunity, thanks to yet another barrier placed before similarly situated alleged victims of government abuse. "A convicted party cannot seek § 1983 damages for unconstitutional conviction or imprisonment without first showing that the conviction or sentence has been reversed on appeal or otherwise declared invalid," wrote Judge Don Willett for the 5th Circuit in December. "The wrinkle here is that Petty's conflicted dual-hat arrangement came to light only after Wilson had served her whole sentence."
In other words, a technicality would prevent Wilson from asking a jury if she deserved damages. Willett wrote that he was bound by precedent and that only a Supreme Court ruling or an en banc decision—where all 5th Circuit judges convene to hear and reconsider a case—could countermand that. The 5th Circuit obliged.
Should they rule in Wilson's favor, she will then have to confront absolute immunity, which, true to its name, also usually dooms cases before they begin. This case may be different. The doctrine protects prosecutors from civil suits if their alleged misconduct was committed in the scope of their prosecutorial duties. But Petty technically committed his as a law clerk. Wilson's claim "is a stepping stone toward upending prosecutorial immunity," Alexa Gervasi, formerly an attorney at the Institute for Justice, told me in 2022. "What this case will do is show why absolute immunity in any respect is wrong. It creates incentives to do wrong and to violate the Constitution."
Midland County claims that Petty, despite working for Hyde, didn't interfere with Wilson's case. The same cannot be said for Clinton Young, who was sent to death row in 2003 for a murder he has long maintained he did not execute. At trial, one of Young's co-defendants, David Page, testified that Young, not Page, had murdered Doyle Douglas and Samuel Petrey. The kicker, however, is that Page's testimony came in exchange for a more lenient sentence—something Young's attorneys say was not properly disclosed.
Petty's dual arrangement amounted to "shocking" misconduct that "destroyed any semblance of a fair trial," wrote Senior District Judge Sid Harle in 2021, a queasy turn in any circumstance, but especially so when considering it nearly sent a man to his death.
"Rabid sports fans howl nonstop about blown calls and revel in accusing officials of losing their team the game," wrote Willett in that December decision. Indeed. And if you wouldn't want someone near your sports team, it stands to reason you wouldn't want them as your prosecutor or judge—much less as both.
The post This Prosecutor Secretly Worked for the Judges Overseeing His Cases. Will His Victims Be Able To Sue? appeared first on Reason.com.
]]>Conservatives who are leery of government power in other contexts often have a blind spot when it comes to police officers. Tough-on-crime instincts, coupled with anger at left-wing critics of police practices, frequently translate into a reflexive "back the blue" stance that is inconsistent with limited government, civil liberties, and the rule of law. Donald Trump's promise to "restore law and order" by indemnifying police officers "against any and all liability" appeals to that sentiment, even as it underestimates the difficulty of successfully suing police officers and overlooks the fact that cops already are routinely indemnified against damages when plaintiffs manage to overcome the barrier created by qualified immunity.
Qualified immunity bars federal civil rights claims unless they allege misconduct that violated "clearly established" law. A new Institute for Justice (I.J.) report on the consequences of that doctrine further complicates the conventional conservative narrative by debunking the assumption that qualified immunity mainly applies to allegations of police brutality.
In an analysis of 5,526 appeals involving qualified immunity that federal circuit courts heard from 2010 through 2020, I.J. researchers found that half involved lawsuits against other kinds of government officials, including "mayors and city managers, university and school officials, prosecutors and judges, and child protective services workers." The report reinforces the complaint that qualified immunity frustrates meritorious claims of constitutional violations and casts doubt on the belief that it mitigates the burden of litigation for defendants.
"While police were the most common defendants, fully half of appeals featured other types of government officials, either alongside or instead of police," data scientist Jason Tiezzi, I.J. deputy litigation director Robert McNamara, and I.J. attorney Elyse Smith Pohl report. "Prison officials made up the next largest share, but in more than one in five of all appeals, or 21%, defendants were neither police nor prison officials."
Many of the appeals involved claims of excessive force (27 percent) or false arrest (25 percent). But nearly a fifth (18 percent) "encompassed violations of First Amendment rights, including speech, association, and religious liberty." In total, "only 23% of appeals fit the popular conception of police accused of excessive force."
What do the other cases look like? Based on a representative sample of 125 First Amendment cases, Tiezzi et al. found that three-fifths "involved plaintiffs alleging premeditated abuse by government officials in retaliation for protected First Amendment activity." Nearly half involved government workers who "alleged retaliation from their superiors," while nearly a third were filed by private citizens who "claimed they were targeted for retaliation by government officials."
Sylvia Gonzalez's case illustrates the point that claims under 42 USC 1983, which authorizes lawsuits against state and local officials for constitutional violations, frequently deviate from "the popular conception of police accused of excessive force." Five years ago, Gonzalez, a newly elected member of the Castle Hills, Texas, city council, was charged with concealing a government record, a misdemeanor that would have resulted in her removal from office if she had been convicted. The charge was based on a document—a petition that Gonzalez herself spearheaded—that she says she accidentally collected with other papers during a city council meeting.
Although Bexar County District Attorney Joe Gonzales declined to pursue the charge, Gonzalez, who is represented by I.J., plausibly argued that her arrest was politically motivated. The lead defendant in her lawsuit was Castle Hills Mayor Edward Trevino, a political opponent who she said had instigated the arrest. Last fall, the U.S. Supreme Court agreed to consider Gonzalez's appeal, which poses the question of what counts as "objective evidence" that someone was arrested in retaliation for constitutionally protected activity.
Another case that contrasts with popular impressions of qualified immunity involves Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested for violating an obscure state law that supposedly criminalized a standard reporting practice: obtaining information that "has not been made public" from a "backchannel source" at the local police department. Villarreal argued that police punished her for her vocal criticism of local law enforcement agencies. But an appeals court ruled that the officers who were involved in her arrest were protected by qualified immunity because busting someone for practicing journalism was not "obviously unconstitutional."
Other Section 1983 lawsuits have involved people who were arrested for jokes posted on social media. In a Louisiana case, Waylon Bailey, who made a questionable but constitutionally protected joke about COVID-19 on Facebook, ultimately recovered damages. But he was initially frustrated by a ruling based on qualified immunity before he persuaded an appeals court to reverse that decision. In an Ohio case, an appeals court concluded that qualified immunity barred a First Amendment claim by Anthony Novak, who was arrested because of a Facebook parody mocking the Parma Police Department.
Even though these incidents involved police officers, they should give pause to conservatives who see qualified immunity as a shield that protects cops from frivolous claims of excessive force. It is not hard to imagine how a conservative's controversial opinions or attempts at humor might provoke the sort of retaliation that Gonzalez, Villarreal, Bailey, and Novak suffered.
Or consider Allan Minnerath, an I.J. client who "saw his company's trucks and drivers detained for hours by an overzealous county road engineer in Mahnomen County, Minnesota." The official, "who opposed a state contract awarded to Allan's firm, decided to do something about it: He changed the weight limits on roads he knew the trucks would travel, then played traffic cop by personally stopping the now-overweight vehicles."
None of these cases involves the sort of good-faith, "split-second" decisions for which qualified immunity is supposedly designed. The defendants all had plenty of time to think better of their actions after considering the relevant constitutional constraints. Those situations had nothing to do with the scenario that Trump imagines, in which fear of litigation prevents police officers from doing their jobs, forcing them to "let a lot of bad people do what they want to do."
That scenario is also quite different from cases in which school officials retaliate against irksome parents, state university officials try to squelch views that offend them, or government-employed social workers separate parents from their children for no good reason. And again, these abuses do not uniquely affect people of any particular ideology.
Keeping in mind that civil rights claims may involve government abuses that would outrage conservatives and plaintiffs they would find sympathetic, how does qualified immunity figure in these cases? In the cases analyzed by I.J., "59% of qualified immunity appeals were resolved solely in favor of government defendants, while 24% were resolved solely in favor of plaintiffs." Tiezzi et al. note that "qualified immunity disadvantages plaintiffs for arbitrary reasons" because a circuit's population and publication rate affect the availability of precedents that could be used to overcome that barrier.
Unlike plaintiffs, the report notes, defendants in these cases have a right to immediately appeal an adverse ruling on qualified immunity, and "they can do this multiple times in the same lawsuit." Nearly all of the cases that I.J. analyzed involved such "interlocutory appeals," which help explain "why the median duration of a qualified immunity lawsuit was three years and two months, 23% longer than the typical federal civil suit up on appeal."
Worse, "qualified immunity rulings often lack precision and clarity," which makes it "hard for plaintiffs to pinpoint the clearly established law required to win." The report's authors "often could not untangle courts' reasons for granting qualified immunity—if reasons were even offered."
This opacity poses a challenge for defendants as well as plaintiffs. "Qualified immunity confuses instead of clarifies the rules government workers must follow to avoid burdensome litigation," Tiezzi et al. write. "If legal experts struggle to make sense of qualified immunity, the average government official—let alone one facing a life-or-death situation—cannot be expected to do so."
UCLA law professor Joanna Schwartz, a leading critic of qualified immunity, has made the same point. Schwartz argues that "qualified immunity's boldest lie" is the premise that police officers can reasonably be expected to keep abreast of relevant case law, such that they would know when their actions closely resemble conduct that was previously deemed unconstitutional. She documented a yawning gap between that implausible assumption and the reality of how cops are actually trained.
"Nowhere in the [Supreme] Court's decisions is consideration given to how, exactly, police officers are expected to learn about the facts and holdings of the hundreds—if not thousands—of Supreme Court, circuit court, and district court opinions that could be used to clearly establish the law for qualified immunity purposes," Schwartz notes. "Nor has much consideration been given to the likelihood that police officers recall the facts and holdings of these hundreds or thousands of cases as they are making split-second decisions about whether to stop and frisk someone, search a car, or shoot their gun."
Even if that information is nearly impossible to collect and remember, you might assume, qualified immunity at least reduces the burden that litigation imposes on defendants. Schwartz's research suggests otherwise. Her conclusions are based on an analysis of nearly 1,200 federal civil rights cases, a survey of about 100 lawyers practicing in this area, and in-depth interviews with 35 of them. While abolishing qualified immunity can be expected to increase the number of claims filed, she says, it is unlikely to result in a flood of frivolous lawsuits, given the financial and professional incentives that lawyers face. At the same time, she concludes, scrapping the doctrine would tend to make any given lawsuit less burdensome for defendants because qualified immunity "increases the cost, complexity, and time associated with civil rights litigation."
Tiezzi et al.'s findings jibe with that assessment. "Qualified immunity fails to protect officials from the burdens of litigation, most notably potentially intrusive discovery," they write. "Nearly 70% of appeals came at the summary judgment stage of litigation, when courts typically have already allowed discovery. Qualified immunity clogs up the courts with extra, often lengthy, appeals—some 2,000 interlocutory appeals that would not have existed without the special appeal rights given to government defendants."
This evidence suggests that qualified immunity blocks meritorious claims while increasing the complexity and cost of litigation for both sides. "Our results add to a growing body of research finding qualified immunity unacceptably burdens plaintiffs and fails at its goals," Tiezzi et al. conclude. "This strengthens the argument for the Supreme Court to overturn [Harlow v. Fitzgerald], the case in which it created the doctrine four decades ago. If it will not, Congress can and should act to end qualified immunity."
The post Qualified Immunity Is Not Limited to Police Brutality. It Protects a Wide Variety of Abusive Officials. appeared first on Reason.com.
]]>