The Volokh Conspiracy

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Free Speech

Too Many Does

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Images courtesy of Judicature.

 

From Roe v. Gowl, decided yesterday by Judge Jesse Furman (S.D.N.Y.):

The Court previously ordered Plaintiff, who is currently proceeding without counsel and has been temporarily granted leave to proceed under the pseudonym "Jane Doe," to either consent to electronic service via ECF or move to participate as an ECF filer no later than February 10, 2026. On that date, the Court received a communication from Plaintiff, attached here, indicating that she had been advised that she could not create a PACER account under the pseudonym "Jane Doe" and asking the Court for guidance.

The undersigned spoke with members of the Clerk's Office, who explained that creating a PACER or ECF account in the name "Jane Doe" is not feasible because of the volume of "Jane Does" in the ECF system. To resolve this issue, permit Plaintiff to maintain her anonymity (as long as she is permitted to proceed pseudonymously), and ensure that Plaintiff receives filings in a timely fashion as long as she is proceeding without counsel, the Court will change Plaintiff's pseudonym to "Marcia Roe." Plaintiff should create a PACER account using the name "Marcia Roe" for the purposes of this litigation. Plaintiff should also create a new email address using that name to open that PACER account….

This reminded me of my broader concerns with the overuse of Doe (and for that matter Roe), which led me to publish an article in Judicature called "If Pseudonyms, Then What Kind?" You can read the PDF here and the text here; here are the opening sections:

[* * *]

Writers may have their noms de plume; revolutionaries may have noms de guerre. Here, though, we will speak of (to coin a phrase) the noms de litige, and ask: When pseudonymous litigation is allowed, what sorts of pseudonyms should be used? In particular, how can we avoid dozens of Doe v. Doe precedents or Doe v. University of __, all different yet identically named? This piece discusses some approaches to achieving the twin goals of pseudonyms: protecting privacy and avoiding confusion.

The Options

Courts generally disfavor pseudonymous litigation, but sometimes allow it.1 Indeed, they sometimes themselves pseudonymize cases for publication, even when the party names remain in the court records.2 Both courts and parties also sometimes pseudonymize the names of nonlitigant witnesses and victims. But what kinds of pseudonyms should be preferred? There are many options, including:

  1. Traditional pseudonyms, such as John and Jane Doe, Richard Roe, Paul and Pauline Poe (or even Francis Foe, Walter Woe, or Xerxes Xoe3), XYZ Co., Anonymous, or the archaic Noakes or Stiles.4 Unsurprisingly, there are other names that are used in other Anglophone legal systems, for instance "Ashok Kumar" for unnamed defendants in Indian copyright litigation, and that are likely to make their way into American court one day.5
  2. Fictitious pseudonyms, unrelated to the party's name, such as Wesley Goffs.6
  3. Fictitious first names-plus-initials, such as Wesley G.7
  4. Fictitious initials, such as W.G.8
  5. Common names, such as Smith.9
  6. Pure initials of the party, such as E.V.10
  7. First names plus initials of the party, such as Eugene V.11
  8. Names based on the party's initials, perhaps following the new Navy-Marine Corps Court of Criminal Appeals preference for the military alphabet or the Greek alphabet, such as "Dr. Alex Foxtrot" or "Colonel Donna Whiskey" for, say, Alan Franks or Diane Walters.12
  9. Neutral descriptive pseudonyms, such as Pseudonym Taxpayer, Rose and David Septuagenarian, or Hmong I.13
  10. Potentially argumentative pseudonyms, or more broadly ones that are likely to arouse sympathy, such as Jane Endangered and Jane Imperiled, Whistleblower, Victim A, or Navy Seal.14
  11. Famous-name pseudonyms, such as Publius,15 Hester Prynne from The Scarlet Letter, Gertrude Stein, or Marie, Joseph, and Carol Danvers from the Ms. Marvel/Captain Marvel comics.16
  12. Even likely puns, such as Femedeer (doe, a deer, a feme deer).17

(I focus here on pseudonyms chosen for the purpose of litigation; when parties already have well-established pseudonyms, for instance as authors, there may be reason to retain them, assuming that such pseudonymity in litigation is found to be allowed.18)

The Costs and Benefits

Each option, unsurprisingly, has its strengths and weaknesses.

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Religion

Oral Testimony at the House Judiciary Subcommittee Hearing on the "Preserving a Sharia-Free America Act"

It was notable that the GOP members and witnesses made little effort to actually defend the legislation in question.

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Yesterday, I testified against the proposed "Preserving a Sharia-Free America Act" at a hearing before the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government. This proposed legislation would bar or deport virtually all non-citizen Muslims from the United States by  mandating that "Any alien in the United States found to be an adherent of Sharia law by the Secretary of State, Secretary of Homeland Security, or Attorney General shall have any immigration benefit, immigration relief, or visa revoked, be considered inadmissible or deportable, and shall be removed from the United States."

My written testimony is available here. In it, I explained why the proposed law violates the Free Exercise and Free Speech clauses of the First Amendment, and why - if enacted and upheld by the courts - it would set a dangerous precedent, cause great harm to many thousands of innocent people, and damage US national security by giving a propaganda victory to radical Islamist terrorists. The other witnesses' written testimony is available here.

I embed the video of the oral testimony and hearing below. The hearing featured lots of political grandstanding, as is perhaps to be expected. So I can well understand if some readers decide watching the whole thing isn't worth their time. For those interested, my own opening statement runs from about 1:03 to 1:08:

 

Notably, the GOP members on the Subcommittee and the other three witnesses (all called by the Republicans; the minority party is allowed only one witness, in this case me) mostly didn't even try to defend proposed bill. Instead, they focused on various issues with Sharia law that - even if valid - would not require mass deportation or exclusion of migrants to address.

I won't try to go over the testimony of the other three witnesses in detail. Many of the concerns they raised were hyperbolic, often to the point of ridiculousness. No, there is no real threat that Sharia law is somehow going to take over the US legal system or that of the state of Texas (the focus of much of the testimony). And it is no grave threat to American values if some Muslims plan to establish a private compound where they live in accordance with their religious laws, especially since it turns out the compound in question will not actually enforce Sharia law on residents. Other religious groups do similar things all the time.

On the other hand, there may be some merit to Stephen Gelé's concerns that US courts sometimes enforce judgments issued by Sharia courts in Muslim dictatorships, in cases where they should not, because it would have harmful or illiberal consequences (e.g. - child custody rulings). The solution to such problems, however, is not to deport Muslim immigrants, but to alter the relevant legal rules on comity and conflict of laws. And, in fairness, Gelé's testimony did not recommend deportation and exclusion as a fix. If Texas courts are giving too much credence to some types of foreign court decisions, the GOP-dominated Texas state legislature can easily fix that problem!

Finally, the opposing witnesses and others who fear the supposed spread of Sharia law and the impact of Muslim immigrants often act as if Islam and Sharia are a single, illiberal monolith, irredeemably hostile to liberal values. In reality, as noted in my own testimony, there is widespread internal disagreement among Muslims about what their religion entails, as is also true of Christians and Jews. Most Muslim immigrants in the US are not trying to impose Sharia on non-Muslims, or establish some kind of Islamic theocracy.  Indeed, many are themselves refugees from the oppression of radical Islamist dictatorships, such as those in Iran and Afghanistan.

My Cato Institute colleague Mustafa Akyol - a prominent expert on Islamic political thought - makes some additional relevant points on the diversity of Muslim thought in a recent article.

Some Muslims do indeed have awful, reprehensible beliefs on various issues. But there are lots of ways to address any danger that poses, without resorting to censorship, discrimination on the basis of religion, mass deportation, and other unconstitutional and repressive policies. The most obvious solution is to simply enforce the First Amendment's prohibitions on the establishment of religion, and persecution and discrimination on the basis of religious belief.

This was the third time I have testified in Congress. The other two times were at the invitation of Senate Republicans (see here and here). The issues at the three hearings were very different. But in each case, I tried to defend limits on government power that are essential to protecting individual rights to life, liberty, and property. I doubt my testimony had any great impact. But perhaps it made a small difference at the margin.

Book Review of "The Digital Fourth Amendment"

Now out in the Harvard Law Review.

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I was very pleased that the new issue of the Harvard Law Review includes a book review of my 2025 book, The Digital Fourth Amendment.  The review, by Jennifer Granick of the ACLU, is here: Fourth Amendment Equilibrium Adjustment in an Age of Technological Upheaval.

If you want to buy the book, you can get it here. If you want to listen to the first hour of the audiobook for free, you can listen that here (the book starts 75 seconds in, after an introduction by the audio book company).

Climate Change

Is This the End of Endangerment?

The Environmental Protection Agency is reportedly prepared to rescind the "endangerment finding" that underpins the regulation of greenhouse gases under the Clean Air Act.

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Tomorrow the Environmental Protection Agency (EPA) is expected to release its final rule rescinding the "endangerment finding" for greenhouse gases. By taking this step, the Trump Administration is hoping to undercut the federal regulation of greenhouse gases and deprive the EPA of any authority to adopt such rules under the Clean Air Act.

I am on record arguing that this is a risky move. As a legal matter, attempting to undo the endangerment finding is not as simple or straightforward as many political commentators seem to think. The rule will immediately be subject to legal challenge, initially in the U.S Court of Appeals for the D.C. Circuit, which is not the most friendly venue for aggressive deregulatory moves. As the New York Times reported, the Administration is nonetheless hoping that it can get this issue before the Supreme Court before the end of the Trump Administration, lest a new administration undercuts the defense of the rule.

It is hard to handicap any prospective legal challenge to the final rule rescinding the endangerment finding until it is released, as much will depend on the specific strategy the EPA has adopted, and how well that strategy is executed.

For background on the legal issues and what may be in store, here are some of my posts on the subject:

More to come!

Some Upcoming Talks

Commandeering, the Shadow Docket, and Unsustainable Assertions of Executive Power

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Just a quick post to note some upcoming talks and presentations.

  • This Friday, February 13, I will be presenting my paper "Conservation Commandeering" at the Pacific Legal Foundation/Catholic University Law Review symposium, "Searching for Constitutional Limits on Environmental &
    Natural Resources Law," a tthe Columbus School of Law at the Catholic University of America in Washington, DC. In this paper I explain why the imposition of vicarious liability on state and local governments under the Endangered Species Act often violates the anti-commandeering principle.
  • On Wednesday, February 25, I will be participating in the Harvard Law School Rappaport Forum: "The Docket That Shall Not Be Named – The Supreme Court's Emergency Orders." This event is an exchange with Professor Kate Shaw, moderated by Professor Richard Re.
  • On Friday, March 27, I'll be back at Harvard Law School for the symposium, "Reflecting on the Future of Environmental Law One Year Into Trump 2.0." co-sponsored by the HLS Environmental and Energy Law Program and the Harvard Environmental Law Review. I will be presenting a draft paper, tentatively titled "Unsustainable Assertions of Executive Power," with commentary from Professors Thomas Merrill and Thomas McGarity.

Abortion

Federal Court Recognizes Constitutional Right to Abortion to Prevent Serious Harm to Woman's Health

The court also draws an interesting analogy to self-defense rights.

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From a decision Monday by Judge Lynn Winmill (D. Idaho) in Seyb v. Members of Idaho Bd. of Medicine:

At issue [in this case] is not the general right to abortion—definitively rejected in Dobbs—but the right to self-preservation.

In Idaho, the Defense of Life Act makes abortion a felony except when necessary to save the life of the mother (unless her death would be due to self-harm) and for a small subset of rape and incest victims. The law does not contain an exception for pregnancies that will cause serious and permanent harm short of death. Essentially, pregnant women are required to sacrifice their health for the sake of the fetus—even if the fetus will, tragically, not survive past birth….

But the record before the Court provides significant evidence that {the right to a medically indicated abortion} is deeply rooted in our nation's history, bound up with traditional and fundamental principles such as self-defense and necessity. For centuries, a range of legal and medical authorities have recognized that abortion is not a crime when performed to protect a woman's health and safety….

[1.] The History-and-Tradition Test

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Free Speech

Voting Machine Company Smartmatic's Defamation Suit Against Ex-Trump-Lawyer Sidney Powell Can Go Forward

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From Judge Carl Nichols' opinion Monday in Smartmatic USA Corp. v. Powell (D.D.C.):

Smartmatic USA Corp. [and related companies] sued Sidney Powell for making allegedly defamatory statements about Smartmatic's role in the 2020 election. Powell moved to dismiss the complaint ….

Powell raises four categories of substantive challenges to Smartmatic's underlying claims. She contends that Florida's single publication/action rule bars Smartmatic from asserting claims for both defamation and injurious falsehood based on the same statements. She argues that the Court should dismiss Smartmatic's injurious falsehood claims for failing to plead special damages. She contends that several of Smartmatic's defamation claims are deficient for not pleading special damages because they actually sound in injurious falsehood. And she argues that the Court should dismiss certain claims that are supported only by statements made by individuals other than Powell….

The court concluded that Florida law does allow suing both over defamation and the related tort of injurious falsehood, and that Smartmatic had adequately alleged damages. And it had this to say about Powell's argument that Smartmatic hadn't sufficiently alleged defamatory statements by Powell:

Counts II and VIII allege defamation and injurious falsehood where "Ms. Powell, Mr. Giuliani, and Fox published and/or republished false statements and implications … that Smartmatic's election technology and software were widely used in the 2020 U.S. election including in contested states where claims of election fraud were made." These claims rely on two of Powell's statements: (1) "[T]his is a massive election fraud. And I'm very concerned it involved, not only Dominion and its Smartmatic software, but that the software essentially was used by other election machines also," and (2) "We're talking about the alteration and changes in millions of votes …. Computers being overwritten to ignore signatures. All kinds of different means of manipulating the Dominion and Smartmatic software, that of course we would not expect Dominion or Smartmatic to admit." Powell contends that "neither involve the contention that Smartmatic's election technology and software were widely used."

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Politics

2-1 Ninth Circuit Decision in Suit Against Airline Brought by White Father Traveling with Black Adopted Son

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From DelVechhia v. Frontier Airlines, Inc., decided Tuesday by the Ninth Circuit, in an opinion by Judges Michael Daily Hawkins and Johnnie Rawlinson:

[1.] Peter DelVecchia, a White man, and his adopted son A.D., who is Black, sued Frontier Airlines, Rex Shupe (a Frontier pilot), and Scott Warren (a Frontier flight attendant) for racial discrimination under 42 U.S.C. § 1981….

Plaintiffs have produced sufficient evidence of racial discrimination under § 1981 to survive summary judgment. A jury could conclude that the decision to separate plaintiffs during the flight arose from the flight attendants' disbelief that the plaintiffs were related given their different races, and that the flight attendants more generally viewed plaintiffs with suspicion because they were of different races.

Frontier points to the fact that one flight attendant said she witnessed Peter caressing A.D.'s face in an unusual manner, as well as Warren's report that he had seen Peter with his hand on A.D.'s crotch while the pair were asleep. But as to the former, a jury could conclude that the alleged caressing was appropriate behavior as between a parent and child of A.D.'s age, and that the reason it raised suspicion was because of the plaintiffs' races. In addition, no other person saw Peter with his hand on A.D.'s crotch, including the passenger seated in the same row, so that issue depends on Warren's credibility as a witness.

In addition, after the flight landed, one flight attendant mentioned a human trafficking class and the fact that plaintiffs have different races when discussing the incident with police on the ground. On this record, a reasonable jury could conclude that Frontier's decision to separate plaintiffs during the flight was based on racial biases and denied plaintiffs the equal right to contracted-for services based on race….

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Birthright Citizenship

The Original Meaning of Birthright Citizenship

Problems ahead for the Trump administration

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The Harvard Journal of Law and Public Policy has just published a symposium issue on the birthright citizenship debate. The focus of those contributions is on the original meaning of birthright citizenship in the United States and in the Fourteenth Amendment. Contributors include Ilan Wurman, Gerard Magliocca, and me. I am grateful to the heroic efforts of the editors at the journal for getting this issue ready and out in such a timely manner.

My piece -- By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States -- focuses on the content, scope, and qualifications of the common law rule of birthright citizenship as it developed in England and was carried into the United States and eventually embodied in the text of the Fourteenth Amendment. In doing so, it reaffirms the traditional view that birthright citizenship would extend to children of unauthorized aliens born in the United States and critiques revisionist theories old (Eastman) and new (Wurman, Lash).

From the introduction to the paper:

The conventional wisdom is right, and the Executive Order is wrong. Children born within the territory of the United States are natural-born citizens except under very narrow exceptions. Those historically recognized exceptions do not include the case of unauthorized aliens, and there is nothing about the logic of those exceptions that make them analogous to the modern situation of unauthorized aliens.

This Article reinforces the traditional view of the narrow exceptions to birthright citizenship by reconsidering the common law and statutory precursors that the constitutional language of the Fourteenth Amendment was understood to recognize and entrench. In particular, it pushes back against the new, revisionist view that alien parents must owe a robust form of allegiance to the United States and be members of the polity in order for their infants born within the United States to receive the benefit of birthright citizenship. This is a misreading—and indeed a reversal—of the common law rule that the Fourteenth Amendment embodies.

You can read the whole thing here.

The Supreme Court will hear oral arguments on Trump's executive order excluding birthright citizenship to children of unauthorized aliens and temporary visitors on April 1.

What Happens If A Religion Precludes A Person From Supporting Zionism?

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The anti-semitism maelstrom on the right continues to swirl faster by the day. And, in what has become a familiar posture, I keep getting stuck in the eye of the storm. I have come to regret my participation in the National Conservatism Conference and had to resign from the Heritage Foundation. Both of those entities have not taken the needed steps to distance themselves from the growing tides of antisemitism on the right. Now, another one of my affiliations has been swept up. 

On Monday, February 8, the White House Religious Liberty Commission held a public meeting in Washington, D.C. The theme of this session was anti-semitism. I am on the legal advisory board of the Commission. Though I was not able to attend, I played a small role in the planning process. When this commission was formed last year, I could not have fathomed how the ecosystem on the right would radically change. I now think the Carlson-Roberts exchange will come to be seen as the moment the dam broke.

The meeting garnered attention because Carrie Prejean Boller, a commissioner, asserted that her Catholic faith is incompatible with Zionism. She said, "Catholics do not embrace Zionism, just so you know." You can see the fireworks around the 1:30:00 mark at C-SPAN. I don't profess any expertise on this point. Fellow commissioner Ryan Anderson, who is a leading Catholic intellectual, argued that Boller's position is wrong as a matter of doctrine. He read from Second Vatican Council's Nostra aetate and Popes John Paul II and Benedict XVI. I found this article by EWTN to be extremely insightful:

Catholic teaching does not explicitly oppose Zionism, the movement supporting Jewish self‑determination in a homeland in Israel. Israel is seen as God's chosen people through whom God revealed himself and prepared the way for the coming of Jesus Christ. The Catholic Church universally condemns antisemitism. The Church recognizes Israel's fundamental right to exist.

But let's not fight the hypothetical. Let's assume there is a religion that rejects the modern conception of Zionism. In other words, the person firmly believes it is a mortal sin for the modern Jewish state to exist in Israel. They believe the world will suffer if Israel is allowed to exist. Think of a group like the Westboro Baptists. Moreover, this religion teaches that only one people--the Jewish people--are unable to have a homeland in the biblical land of Israel. Other religions can have their own states--even in the Holy Land--just not the Jews. The prophecy is silent about Muslim, Christian, or Hindu states. Further, let's assume that this belief is sincerely held. (I am skeptical that all of these assumptions can ever be true, but go with it for now.) To make things simple, we will call this faith the Church of Anti-Zionism.

How should a proponent of religious liberty approach this issue? And let's use a familiar hypothetical. A baker in Colorado is a devout member of the Church of Anti-Zionism. A Jewish customer walks into his shop, and asks for a cake to celebrate Yom Ha'atzmaut, Israeli Independence Day. The cake will include an outline of the map of Israel with the present-day boundaries, an Israeli flag, and figures of rabbis praying at the Western Wall. The baker refuses to bake the cake. He will make other Jewish-related cakes. For example, he will make a Bar Mitzvah cake or a cake for a Jewish wedding. Just nothing about the modern state of Israel. Indeed, the baker would make a cake depicting Ancient Israel before the crucifixion, but no representation of a Jewish state after. The customer brings suit under the Colorado public accommodations law. The baker seeks an exemption from the public accommodations law on Free Exercise grounds. (To simplify the hypothetical, the baker does not bring Free Speech claims, and as we all know, Colorado lacks a RFRA.)

What happens? Here, the baker's religion precludes any support of the modern Jewish state in Israel. Does a sincerely held belief in the Church of Anti-Zionism warrant an exemption? Can this case be materially distinguished from the claim brought by Jack Phillips of the Masterpiece Cakeshop? (Forget for a moment how the Court punted on the issue based on findings of animus.)

Throughout this hypothetical, I have repeatedly assumed that this belief is sincerely held. Asserting sincerity in the context of anti-semitism will be very difficult. Why? There is always a double-standard. Anti-Zionists assert that one, and only one people are not entitled to a religious homeland: the Jews. Catholics can have a religious country and Muslims can have a religious country and Hindus can have a religious country, but not the Jews. But under my hypothetical, the opposition to Zionism is premised on a specific religious teaching concerning the Jewish people, and their biblical claim to the holy land. The Church of Anti-Zionism has no teachings at all concerning these other faiths. Here, the double standard argument would not work.

Still, I think such a religious claim will be so gerrymandered to address a particular problem that it is unlikely to ever pass the sincerity prong. I see this faith as akin to the church of marijuana or the church of abortion, or some such gospel of convenience. Jack Philips's beliefs on marriage date from immemorial. The Church of Anti-Zionism would have a more recent vintage, and seems conjured to address a political point.

It should be simple enough for Catholics to explain why Boller (who apparently became a Catholic less than a year ago) is wrong on the theology. I understand it is also problematic for one person--especially someone with no formal training--to assert what the teachings of the Catholic Church are.

There is great irony that the rejection of a single religion's right to have a homeland would itself be a religious belief. Boller's testimony was just a test run. My cynical take is that the views advanced by Boller and others are not religious at all. But that analysis merely delays an inevitable reckoning. I think people on the woke right will increasingly dress up anti-semitism in the garb of religious liberty, in the same way that people on the woke left dress up anti-semitism in the garb of political ideology. There is always a reason to blame the Jews. 

For now, religious leaders who are experts in doctrine need to speak up, and do so loudly, to prevent their faiths from being hijacked down a road we have sadly traveled far too many times.

Update: Boller was removed from the Commission. Lieutenant Governor Dan Patrick posted on X:

Carrie Prejean Boller has been removed from President Trump's Religious Liberty Commission. No member of the Commission has the right to hijack a hearing for their own personal and political agenda on any issue. This is clearly, without question, what happened Monday in our hearing on antisemitism in America. This was my decision.

The Commission has done outstanding work through five hearings. Two more are scheduled. The testimony has been both illuminating and heartbreaking. Under the Biden Administration, Americans of all faiths had their religious liberty not only stolen from them but were often punished for standing up for their faith, in education, the military, the private sector, and even the ministry.

This spring, the Commission will deliver one of the most important reports in American history directly to the President.

The President respects all faiths. He believes that all Americans have a right to receive the great inheritance given to them by our founding fathers in the First Amendment.

I am grateful to President Trump for having the vision and boldness to create this Commission. Fighting for the Word of God and religious freedom is what this nation was founded upon. Leading this fight will be one of his greatest legacies.

Dan Patrick
Lt. Governor of Texas
Chair of the President Trump's Religious Liberty Commission

Religion and the Law

Pro-Palestinian Protesters' Religious Beliefs Don't Preclude Trespass Prosecution

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From Hubersberger v. State, decided yesterday by Arizona Court of Appeals (Division 2) Judge Eppich, joined by Judge Vásquez and Chief Judge Staring:

In November 2023, Appellants, motivated by their sincerely held religious beliefs, participated in a protest against Raytheon because of its role as a weapons supplier to Israel and the bombings occurring in Gaza. Appellants' demonstration occurred on private property, and their stated purpose was to disrupt Raytheon's daily operations by blocking Raytheon workers from entering the facility. The morning of the protest, Pima County Sheriff's deputies arrived and informed Appellants that they were trespassing. Appellants refused to move, and they were arrested….

Appellants moved to dismiss the [criminal trespass] complaints against them pursuant to FERA [the Arizona Free Exercise of Religion Act], arguing that because their protest was motivated by their religious faith, their arrest and prosecution substantially burdened their free exercise of religion….

FERA protects Arizonans' fundamental right to freely exercise their religion without undue government interference "even if laws, rules or other government actions are facially neutral." Under FERA, the government cannot substantially burden a person's exercise of religion unless it demonstrates that the burden both (1) furthers a compelling government interest and (2) is the least restrictive means of furthering that interest. This statute may be asserted in a judicial proceeding as a claim or a defense. It parallels the federal Religious Freedom Restoration Act (RFRA).

Appellants do not dispute on appeal that the government had a compelling interest to protect the peace and Raytheon's private property rights. We therefore only address the second prong of the FERA analysis: whether the arrest and prosecution of Appellants was the least restrictive means in which the government could have furthered its interests in this case…. To show it used the least restrictive means to further its interest, the state need not prove that the means used were the least restrictive means "conceivable," only that it used the least restrictive means available and that any proposed alternative is "ineffective or impractical."

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Preemption

Federal Court Blocks California Ban on Masked Federal Law Enforcement, Because the Ban Exempts State Officials

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From U.S. v. California, decided yesterday by Judge Christina Snyder (C.D. Cal.):

"A state law or regulation impermissibly discriminates against the federal government if it treats a state entity more favorably than it treats a comparable federal entity." Furthermore, the Ninth Circuit has held that a state law may not "single[] out" the federal government for greater burdens "than that which applies elsewhere in the State," even where the statute seeks to address a specific harm controlled by the federal government.

The No Secret Police Act's facial covering prohibition applies to "law enforcement officers," who are defined as any "peace officer, as defined in Section 830 [of the Cal. Penal Code], employed by a city, county, or other local agency as well as any officer or agent of a federal law enforcement agency or any law enforcement agency of another state or any person acting on behalf of a federal law enforcement agency or law enforcement agency of another state." This definition does not "single out" the federal government because it also applies to local law enforcement officers and law enforcement officers for states other than California. However, it excludes California state law enforcement officers, such as California Highway Patrol officers.

In evaluating the government's unlawful discrimination claim, it is critical that the Court compare similarly situated federal and state actors. "So if the State defines the favored class by reference to job responsibilities, a similarly situated federal worker will be one who performs comparable duties." The Court is not persuaded by California's arguments that state law enforcement officers are not similarly situated to federal law enforcement officers. First, California concedes that some state law enforcement officers perform similar law enforcement functions to federal officers, including the types of interactions with the public that the facial covering prohibition generally targets.

Second, those state law enforcement officers are not differently situated merely because state law enforcement officers have not recently engaged in "large-scale operations while wearing facial coverings," like some federal law enforcement officers. While the Act may be a direct response to recent federal law enforcement practices, the Act's text plainly addresses the harms caused by the use of facial coverings by "law enforcement" generally during enforcement activities. The Act, therefore, does not directly regulate federal functions or target federal practices but rather generally applies to law enforcement officers in California. However, the Act treats federal law enforcement officers differently than similarly situated state law enforcement officers.

Accordingly, the Court finds that the United States is likely to succeed on the merits of its claim that the facial covering prohibition of the No Secret Police Act unlawfully discriminates against the federal government in violation of the intergovernmental immunity doctrine.

{At the hearing, counsel for the United States acknowledged that the No Secret Police Act would not be unlawfully discriminatory if it was amended to apply to all law enforcement officers in California.}

The federal government also argued that the law was independently invalid because it unduly interfered with federal law enforcement­; this argument, if accepted, would have applied even for a law that was amended to include state officers as well. But the court rejected this argument, both as to the masking ban and a separate law that generally required law enforcement officials to visibly display their agency identification and a name or badge number. Indeed, since the identification display requirement applied to all officials and thus wasn't discriminatory, the court held the requirement was likely constitutional:

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New in Civitas: Two Hails For The Chief's NDA

"Press conferences would let the American people hear the justices in their own words. And in doing so, the Court would relieve pressure and help to clamp down on leaks."

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Last week I wrote about Jodi Kantor's latest report that Chief Justice Roberts requires Court staff (but probably not the Justices) to sign an non-disclosure agreement. I think this is a good step, but I am skeptical of how helpful it would be. Indeed, even after these agreements have been signed, the New York Times continues to write about leaks.

My latest essay for Civitas Outlook offers a different proposal to address the phenomenon of leaks:

There is a better way: the more the Court opens up, the less need there will be for disclosures. Instead of trying to futilely plug the dam to stop leaks, the Court should release a safety valve. The justices can start by holding regular press conferences. . . . In an ideal world, there would be no need for the justices or their surrogates to leak information to the press. But in the real world, this need exists. In my view, press conferences could be a vehicle to relieve some of that pressure. The justices would not disclose confidential information about the Court, but they could address lingering concerns and perhaps reduce the incentives to leak further.

As they say, read the whole thing. I admit this idea may seem crazy at first blush, but press conferences would serve purposes for both the Justices and the public.

Here is my conclusion:

Who will watch the watchmen? If anything, these press conferences would give the justices a chance to forcefully push back against the unfair attacks on them. This task usually falls to surrogates. Reporters are also far better at asking questions than answering them. I routinely contact reporters who err, and the most common response is somewhere between denial and indignation. On balance, these press conferences would let the American people hear the justices in their own words. And in doing so, the Court would relieve pressure and help to clamp down on leaks. To use another metaphor, perhaps the best remedy for the so-called "shadow" docket is sunlight.

This piece is part of a broader series of works on potential reforms the Court might take that would not exclusively benefit either side of the aisle.

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Recent Volokh Posts

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Too Many Does

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Today in Supreme Court History: February 12, 1965

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Open Thread

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Oral Testimony at the House Judiciary Subcommittee Hearing on the "Preserving a Sharia-Free America Act"

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Book Review of "The Digital Fourth Amendment"

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Is This the End of Endangerment?

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Some Upcoming Talks

8

Federal Court Recognizes Constitutional Right to Abortion to Prevent Serious Harm to Woman's Health

9

Voting Machine Company Smartmatic's Defamation Suit Against Ex-Trump-Lawyer Sidney Powell Can Go Forward

10

2-1 Ninth Circuit Decision in Suit Against Airline Brought by White Father Traveling with Black Adopted Son

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