3/26/2012: NFIB v. Sebelius is argued.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
What’s on your mind?
Additional Testimony Against the Proposed "Preserving a Sharia-Free America Act"
I submitted some additional testimony to a House subcommittee, in response to questions from Rep. Mary Gay Scanlon.
I recently submitted additional written testimony for the US House of Representatives Judiciary Committee's Subcommittee on the Constitution and Limited Government. It is a supplement to my original written and oral testimony against the "Preserving a Sharia-Free America Act," which would bar virtually all immigration by Muslims, and require deportation of non-citizen Muslims currently in the United States.
My initial testimony 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 threatening religious liberty for a variety of groups, 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.
The additional testimony is in response to a question from Rep. Mary Gay Scanlon, ranking minority member of the Subcommittee, inviting me to comment on any issues I was not able to adequately address during the February 10 hearing.
Here is a brief summary of the additional testimony:
I would like to focus this additional testimony on the 2024 survey of American Muslims
commissioned by the Heritage Foundation, raised in the hearing by Representative Brandon Gill (R-Texas). Rep. Gill mentioned several items from that survey in queries directed at me, but did not give me any meaningful opportunity to respond. I tried to point out that Heritage is a highly questionable source, and that survey questions must be carefully analyzed, because wording can often have an important impact on the validity of their results. But Rep. Gill cut me off before I could make these points. He instead continued to claim that the survey items indicates most American Muslims have dangerous and troubling views on a variety of issues related to Sharia law, religious tolerance, and terrorism.Since the February 10 hearing, I have had a chance to analyze the methodology of the survey and the wording of the questions…. It turns out the survey is seriously flawed and should not be relied on as an indicator of the views of American Muslims.
The hearing focused on fears that American Muslims are seeking to impose Sharia law on the US, creating some sort of Muslim theocratic legal system. It turns out the Heritage question purporting to address this issue is seriously flawed, and better survey data points to a very different conclusion:
Rep. Gill and some others at the hearing expressed grave concern about the supposed desire of Muslims to impose religious Sharia law on Americans. The question on this topic in the Heritage survey finds that 39% of Muslims either "strongly support" or "somewhat support" the "implementation [of Sharia law] in the US in the next 20 years."
But it would be a mistake to assume this proves 39% of Muslim respondents support
imposition of a Muslim theocracy or enforcement of Sharia law through government
coercion. "Implementation" is an ambiguous term that could simply imply voluntary
adherence by private individuals. It does not even necessarily imply that such voluntary adherence should extend to all Americans, as opposed to just some (perhaps only those who are adherents of Islam).If asked, many Christians might answer that they would support "implementation" of
Biblical morality in the United States over the next twenty years. But that would not mean all such Christians seek to impose Christianity through government coercion, even though some such "integralists" do exist and have become more prominent in recent years. As described in my original testimony, there is extensive disagreement among Muslims about what exactly is required by Sharia law, and what relationship it should have to the state.A better-worded 2019 survey question on this same issue, conducted by the Institute for
Social Policy and Understanding (ISPU), found that only 12% of American Muslims believe that their religion should be "the main source of American law," compared with 17% of Protestants, and 17% of white Evangelicals.13 A larger number (33%) believed their religion should be "a source of American law, but not the only source"; this latter figure is similar to that for other religious groups including Protestants (39%), Catholics (28%), and white Evangelicals (54%). Many religious people believe religion should have at least some impact on law, even if in many cases it is a relatively small impact that can be outweighed by other factors. The advantage of the ISPU question wording over that used in the Heritage survey is that the former specifically asked about the use of religion as a source of law enforced by the government, as opposed to merely about "implementation" of religious law, which could potentially be a matter of voluntary private action. [footnotes omitted]
The additional testimony also outlines a number of other methodological flaws in the Heritage survey. My Cato Institute colleague David Bier recently wrote about why survey data often underestimates the extent to which Muslim immigrants and their children embrace American liberal democratic values. His analysis came too late to be cited in my testimony. But it is valuable reading for anyone interested in this subject.
Elsewhere in the additional testimony, I noted that the Heritage Foundation is a dubious source, given its descent into anti-Semitism and other bigotry, and skewing of research for political ends. These trends have led many prominent conservative scholars and intellectuals to break with Heritage (including prominent Princeton political theorist Robert George and my Volokh Conspiracy co-blogger Josh Blackman), and caused most of its leading scholars to resign. I wrote about these issues in more detail here, here, and here. As noted in my testimony, Heritage's degeneration does not by itself prove that any study it commissions is flawed. But it is grounds for serious skepticism about recent Heritage products.
What Would Have Been Justice Scalia's Legacy If He Survived Into The Trump Presidency?
Richard Re poses thought provoking questions about a Scalia counterfactual on Earth 2.0.
Richard Re wrote a characteristically insightful post evaluating Justice Scalia's "uncertain legacy." Richard makes a fair point that many of Justice Scalia's most important jurisprudential contributions have fallen out of favor by conservatives. Chevron was reversed in Loper Bright. Auer was scaled back in Kisor. Employment Division v. Smith was nearly reversed in Fulton, but was saved by Justices Kavanaugh and Barrett. Mirabelli embraced the sort of substantive due process that Justice Scalia rejected, particularly in Troxel v. Granville. Moreover, while Justice Scalia championed textualism and original public meaning originalism, the modern Court has gravitated towards "history and tradition" in Bruen and Rahimi. The tariffs ruling, especially Justice Barrett's concurrence focused on "common sense," a concept that Justice Scalia likely would have dismissed. There are more such examples.
Richard posits two counterfactuals. In Earth 2.0, what would have happened to Justice Scalia's legacy had Hillary Clinton prevailed in the 2016 election?
In another sense, however, Scalia's legacy has suffered a misfortune. Imagine for a moment that Hillary Clinton had won the presidency in 2016 and, as a result, the Supreme Court had become decidedly liberal for the next generation. In that alternate universe, conservatives would still be able to point to Scalia as a visionary. Untested by success, Scalia's views on textualism, originalism, agency deference, religious exemptions, executive unitarianism, and all the rest would remain pristine. Admirers might continue to extol his unrealized project. In fact, however, Scalia's own disciples are the ones who are quietly altering, ignoring, or repudiating many of his views. And if even the persons most committed to the justice cannot quite bring themselves to adhere to his foundational ideas, then one must wonder about the ideas themselves.
In Earth 3.0, what would Justice Scalia have done in a Trump administration? In short, Richard speculates that Justice Scalia would have continued to evolve in the trajectory of current legal conservatives, thus undermining his legacy.
But both Scalia's earlier views and his later, nascent ones tracked the interests of conservative political interests at those respective times. If Scalia had actually thrown overboard his decades of support for Chevron deference, that result would have diminished his legacy by striking at its core: a demand for intellectual integrity, independent of party politics. A better basis for praising Scalia is that he was slow to adopt the latest interpretive fashions. . . . In hindsight, then, it may be doubly fateful that Scalia passed away when he did. Not only did that timing create an opportunity for political mobilization around conservatism, leading to President Donald Trump's first election and a supermajority conservative court, but it also prevented Scalia from pivoting any further in light of changing political trends. As a result, his jurisprudence today stands on a stronger, more coherent footing.
Counterfactuals are fun to speculate about, but there too many variables to control. In 2012, I tried writing a historical fiction about what would have happened if Chief Justice Roberts voted to strike down Obamacare. I wrote that President Obama feebly attacked the courts, but still lost in 2012 to Mitt Romney as a defeated president. I stopped writing it because I realized there was no way to isolate how a single event, even a huge one, would change the arc of history. But, it's still fun to speculate!
If Justice Scalia had not passed away in 2016, would Trump still have won? I'm inclined to think so. Trump's skills as a politician are situational. If he did not take advantage of the Supreme Court vacancy, he would have found some other way to secure the Republican base. I know many people despise him, but he is a political force of nature unlike any other in my lifetime. His election in 2016 was likely inevitable. Proof of this is the fact that he somehow managed to come back in 2024 despite everything that happened before. As a result, I will not dwell on what Scalia would have done in a Hillary Clinton presidency.
The far more fascinating hypothetical is what would have happened had Scalia lived into a Trump presidency. Indeed, Justice Scalia would have celebrated his ninetieth birthday this month.
Even before his death, Justice Scalia was reportedly souring on Auer and Chevron. Justice Thomas has told the story several times where Scalia said that Auer was a terrible decision, and Thomas replied, "Nino, you wrote it." I don't think he would have reversed himself on Smith. Justice Barrett, who is very much keeping the Scalia legacy alive, reinforces that point. Substantive due process is trickier. While Roe was still the law of the land, Justice Scalia had every reason to be skeptical of substantive due process. Troxel was a very confusing opinion, and I'm not sure that Scalia categorically rejected Pierce and Meyer. Had Scalia lived to see the overruling of Roe, I don't think a reconsideration of Pierce and Meyer would have been out of the question. What about "history and tradition"? Well, keep in mind that Heller spent some time discussing the meaning of the Second Amendment after ratification in 1789. I don't think it would have been that much of a leap. Then again, I would have much rather had Justice Scalia write Bruen than Justice Thomas. What about the major questions doctrine? Well, Scalia was the first one to point out the elephant/mousehole problem. I don't know how Scalia would have come out on the tariffs case. For sure he did not favor the non-delegation doctrine argument.
Then again, think about all of the victories that Scalia set in motion. Dobbs vindicate his Casey dissent. Kennedy v. Bremerton finally overruled the ghoulish Lemon test. Bruen finally followed through on Heller and McDonald. The Court is poised to reverse Humphrey's Executor. All of these landmark rulings can be traced to Scalia. To this day, Justices cite legislative history with some apprehension. Reading Law is the most cited treatise around. Advocates fight over which position Justice Scalia would embrace.
I think a 90 year old Scalia would have spent another decade expanding his legacy. It is a shame he could not have made it to the present. Indeed, shortly after Dobbs was decided, I asked Eugene Scalia what his father would have done had he lived to see Roe overruled. Eugene said it would have been a crowning achievement of the Justice's legal career.
Whenever I talk to law students, I always lament that they will never see Scalia in real life, but can only read his writings. I miss Justice Scalia, and his opinions dearly.
Sam Altman et al. "May Not Inquire into Musk's Ketamine Use" at Trial of Musk Suit Over OpenAI
But "evidence related to his political activities, attendance at Burning Man in 2017, and relationship with Shivon Zilis" will be allowed.
From today's order by Judge Yvonne Gonzalez Rogers (N.D. Cal.) on a motion to exclude certain evidence in Musk v. Altman:
Musk seeks to exclude evidence related to his political activities, possible ketamine use, attendance at Burning Man in 2017, and relationship with Shivon Zilis as irrelevant and irreparably prejudicial.
The Court agrees with Musk that defendants may not inquire into Musk's ketamine use because, although any supposed lapse in memory resulting from ketamine during Musk's negotiations with OpenAI may be relevant, defendants could not point to other evidence in the record that suggests that Musk used ketamine or that could explain the effects of ketamine. The Court grants the motion on that basis.
Article Reporting on Jan. 6 as "Insurrection" Not Defamatory + Pardon Isn't "Acquittal"
From Bitzer v. Tegna, Inc., decided today by Judge Thomas Varlan (E.D. Tenn.):
Plaintiff alleges that on August 5, 2024, defendants published an article falsely claiming that plaintiff faced "January 6 Insurrection Charges," which he contends implied he was "accused of a grave, treasonous offense akin to seditious conspiracy under 18 U.S.C. § 2384—an accusation wholly absent from [p]laintiff's record." Plaintiff states that the article used "selective still images" to falsely portray plaintiff as a "violent participant" in the events of January 6, 2021, while ignoring publicly available United States Capitol security footage showing that plaintiff chanted peacefully and "gesturally displaced a stanchion." Additionally, plaintiff maintains that his public "acquittal records" confirm "no convictions, and no insurrection charges, rendering [d]efendants' portrayal patently false." …
Plaintiff sued for libel, but the court dismissed the claim:
While WBIR and Tegna's two defenses, that is, the fair report privilege and the substantial truth defense, have slightly different analyses (e.g., whether the report is "fair and accurate" versus whether the statement is "substantially true"), in this case, those analyses boil down to a single question: are the statements in the news article about the criminal charges against plaintiff an accurate statement of those charges. Before delving into that matter, the Court notes that plaintiff appears, at least in part, to argue about the validity of the criminal charges he faced (referring to "baseless charges" and suggesting that charges alleging "assaults or violence" were "fabricated"). But that is not the question before this Court. The question is whether the article at issue accurately reported what the criminal charges were; whether or not the criminal charges had a sufficient factual basis is irrelevant to the instant inquiry.
Turning to the truth or accuracy of the article, the Court notes that plaintiff appears to essentially raise two challenges to the article: (1) that he was not charged with an "insurrection" charge; and (2) that the events at the United States Capitol on January 6, 2021, were not an "insurrection."
As to the first of these arguments, there can be no doubt that the article is at least "substantially" true and accurate. The article's headline reads "Tennessee man to face several charges, including engaging in physical violence, during Jan. 6 Insurrection." The article further states, in full:
Ex-Law-Student's Defamation Claim Against Howard University Can Proceed in Part
His breach of contract and race discrimination claims, however, are dismissed.
A short excerpt from the long opinion in Newman v. Howard Univ. School of Law, decided today by Judge Trevor McFadden (D.D.C.):
Three years after he enrolled at Howard University School of Law, Michael Newman found himself in court—though not as a budding lawyer. Howard expelled Newman before his final year. Before that, Newman lost his scholarship, drew backlash from his peers, and feuded with administrators.
Newman now proceeds pro se in this case against his alma mater and several of its administrators (collectively, "Howard"). His claims have dwindled during the years this case has progressed. As things stand, Newman presses several contract breach claims (related to his lost scholarship), claims for racial interference with a contract under 42 U.S.C. § 1981 (again, related to his scholarship), and a handful of defamation claims. Howard now seeks summary judgment. The Court grants that motion as to all but two of Newman's defamation claims….
A sample of the rejected claims:
First up is Newman's theory that Howard manipulated its ranking systems to his disadvantage. The evidence does not bear this out.
Instead, it shows that Newman failed to rank in the top half of his class because he struggled academically. Newman's problems began when he matriculated at Howard Law. He had trouble keeping track of deadlines. His mind wandered during virtual lectures. These troubles were reflected in his first semester grades—a pair of Ds and a C. Newman Transcript at 2. That performance, Newman concedes, put him in the bottom five of his section. Newman found his footing in the spring. But even so, that left him with an 82.08 average for his first year. That GPA placed him in the bottom half of the class….
But some of Newman's defamation claims were allowed to continue:
Last, consider Newman's defamation claims against Dean Holley. Those claims turn on three statements made during Newman's 2022 disciplinary hearing. First, "Holley accused Newman of 'harassment' against her and against the students." Second, "Holley called Newman's email regarding a deceased classmate 'defamatory' and repeatedly characterized Newman's general conduct as 'defamatory.'" And third, "Holley accused Newman of saying African-Americans suffer from hive mind."
Brief Challenging California Law Banning Publication of Information About Sealed Arrests
From the Introduction to an amicus brief filed by Gill Sperlein and Ronnie London (the Foundation for Individual Rights and Expression) on behalf of FIRE, the First Amendment Coalition, and me in Blackman v. Substack, Inc.:
The trial court correctly granted Defendants' special motion to strike in holding Blackman's claims arose from activity protected by California's anti-SLAPP statute and that he failed to demonstrate a probability of success on those claims. That ruling safeguards an essential concern of the First Amendment: the ability of journalists to report on matters of public concern using lawfully obtained information. A contrary decision—one that would permit private parties like Blackman to impose liability on journalists for publishing truthful information of public interest—would violate Supreme Court precedent.
"Blackman was arrested in December 2021 for domestic violence at a time when he was the CEO of Premise Data[.]" "[P]olice officers prepared a report ('Incident Report') describing the incident[.]" "No charges were ultimately pursued against Blackman," and "the Superior Court entered an order sealing the arrest records under Penal Code sections 851.91 and 851.92[.]" Defendant Poulson "published a blog post reporting the arrest and relating what was described in the Incident Report," and "there is no evidence [he] and the other defendants knew the arrest was sealed before [he] reported on it[.]"
Before ultimately filing the action below, Blackman pressured Poulson to remove the information from the internet. And he received help doing so from San Francisco City Attorney David Chiu, who "contact[ed] at least some of the defendants to request that they remove information about the Incident Report."
Aware of these efforts, and as regular opponents of resorts to legal process to deny the public access to information about public issues, amicus Volokh sought to write about Blackman's censorial efforts, while amicus FAC and LaRoe wanted to comment publicly—including in the press, on FAC's website, and in public letters to lawmakers or other officials—about the risks to press freedom and transparency exemplified by the efforts of Blackman and the government to suppress Poulson's publication. But they were concerned that they, too, would be targeted by Blackman and the City Attorney.
Possible $5K Sanctions for Repeated Mis-Citation in Coomer v. Lindell / My Pillow Election-Related Libel Suit
"It appears that the Court’s prior admonitions and sanctions have had little, if any, remedial impact."
I blogged last year about the $6K sanctions imposed earlier in this case for AI hallucinations, as well as about the earlier order identifying the hallucinations and the lawyer's response; here's a follow-up, from today's Order on Post-Trial Motions by Judge Nina Wang (D. Colo.):
Before concluding, the Court must address Frankspeech's brief in response to Plaintiff's Motion to Amend Final Judgment. Troublingly, given the background of this case, Frankspeech's response brief misattributes a district court case to the Tenth Circuit. On the first page of its brief, Frankspeech states that "[t]he 10th Circuit recognized in Capital Solutions, LLC v. Konica Minolta Business Solutions USA, Inc., 695 F.Supp.2d 1149, 1154-56 (10th Cir. 2010), that the jury's determination on this issue is entitled to finality." As the Federal Supplement reporter citation indicates, however, Capital Solutions is not a Tenth Circuit decision. See Cap. Sols., LLC v. Konica Minolta Bus. Sols. U.S.A., Inc., 695 F. Supp. 2d 1149 (D. Kan. 2010). Nor was that decision appealed to the Tenth Circuit. A reasonable review by counsel should have alerted them of the error; it is well-understood to any lawyer that the Federal Supplement is the reporter for district, not circuit, court decisions.
{Although the Court is primarily concerned with counsel's erroneous citation, this description of Capital Solutions's holding is also misleading. Capital Solutions dealt with a Kansas statute that "prescribes a procedure by which the jury first determines whether punitive damages should be allowed, and then the court determines the amount of such damages in a separate proceeding." Before trial, the court held that the Seventh Amendment's "trial by jury" clause—not the Reexamination Clause—entitled a plaintiff "to have the entirety of its claim for punitive damages, including the determination of the amount, decided by the jury." In other words, Capital Solutions dealt with whether a jury should decide the amount of punitive damages in the first instance, as opposed to ruling that an award of punitive damages is "entitled to finality" in the post-trial context.}
The Court has previously sanctioned defense counsel under Rule 11 for, among other things, this exact type of error. At that time, defense counsel both admitted that their previous citation errors were produced by artificial intelligence but then claimed that the errors resulted from a one-off mistaken filing of the wrong draft, not a failure to properly review their citations for accuracy..
On Scholarly Engagement
Some thoughts on a Balkinization post on the birthright citizenship debate
Over at Balkinization, my colleague Samuel Moyn and Yale student Pranjal Drall have a new post on the birthright citizenship debate. As a brief history of recent scholarly and constitutional arguments on birthright citizenship, it is helpful. But they seem to ultimately want to make a point about scholarly engagement, and on that the post seems much less helpful.
That history serves a broader point about constitutional politics with which I am in entire agreement -- legal arguments (and scholarly arguments about law) work in a political environment, and they gain traction in that broader environment not just because of their objective merits but because of their pragmatic utility in the moment and the extent to which they resonate with the ideas and interests of a broader audience. My arguments about any given topic are always correct (of course!), but whether anyone else agrees with them or thinks they are even worth reading, let alone discussing, is beyond my control. Being correct (bracket what that means and how one would know) is not a sufficient condition -- and is probably not even a necessary condition -- for being embraced by others, whether those others are academic colleagues, government officials, or members of the general public. Oddly, others do not always recognize my brilliance, or the brilliance of my arguments.
Utah Court of Appeals Upholds Dismissal of Child Sexual Abuse Accusations
An excerpt from the detailed discussion in State v. Murphy, decided Thursday by the Utah Court of Appeals (Judge David Mortensen, joined by Judges Gregory Orme and Ryan Harris):
… Murphy was charged with aggravated sexual abuse and sodomy on a child for incidents that had occurred many years prior involving the son (Jonathan) of one of Murphy's former close friends (Mother). The magistrate, citing lack of evidence at a preliminary hearing to establish probable cause that Murphy committed the alleged abuse, declined to bind Murphy over for trial….
The allegations of abuse in this case came to light when Jonathan, who was fifteen years old at the time, was taken to an emergency room following a mental health episode. During a subsequent interview at the Children's Justice Center (CJC), Jonathan described being abused when he was younger while being babysat for several hours at night when Mother worked an evening shift….
"A defendant may be bound over for trial only if the prosecution produces evidence sufficient to demonstrate probable cause that the charged crimes were committed." This requirement "is aimed at ferreting out groundless and improvident prosecutions, relieving the accused from the substantial degradation and expense incident to a modern criminal trial when the charges against him are unwarranted or the evidence insufficient." … Accordingly, a magistrate may deny bindover "when the evidence, considered under the totality of the circumstances, is wholly lacking and incapable of reasonable inference to prove some issue which supports the prosecution's claim." …
Here, the magistrate struggled to find sufficient evidence that Murphy was the one who perpetrated the abuse of Jonathan. In the magistrate's words, "[T]he element in question is identity…. The evidence here is so wholly inconsistent as to the when and the who as to render the testimony regarding identity just simply incredible and as wholly lacking and incapable of supporting a reasonable inference that the defendant is the person that [Jonathan] is talking about."
Grant of Mental Health Pretrial Diversion for Man Accused of Attempted Murder Reversed
The man "was just released from a psychiatric facility when he thereafter failed to take his medications and committed the crimes that are the subject of this appeal."
From People v. Superior Court (Taylor), decided two weeks ago by the California Court of Appeal (Justice Frances Rothschild, joined by Justices Helen Bendix and Michelle Kim):
Penal Code section 1001.36 authorizes a court to grant pretrial diversion to a defendant with a qualifying mental disorder who agrees to comply with mental health treatment and will not pose an unreasonable risk of danger to public safety "if treated in the community." … Impliedly finding Taylor would not pose an unreasonable risk of danger to public safety if treated in a community facility, the trial court granted diversion….
The People allege that on the morning of March 3, 2023, [Job Uriah] Taylor, age 25, went on a violent, racially motivated rampage targeting multiple victims in Santa Monica. Taylor approached Christian Hornburg, who is Black, from behind and clubbed him over the head with a metal pipe and then stomped his head while he was on the ground, helpless. Duane Ziegler, a witness who attempted to protect Hornburg, heard Taylor say he was there to "kill that nigger."
When Jade Carter, who is also Black, tried to intervene, Taylor attacked her with the pipe and hurled racial slurs.
Footage from a police body camera showed Taylor continued his racist rant until he was arrested. Both Hornburg and Carter were transported to the hospital. Hornburg sustained life-altering injuries.
Police learned that earlier that morning, Taylor threatened Michael Okyere, who is Black, with the metal pipe and shouted racial slurs at him. Nearby firefighters intervened and chased him away….
Today in Supreme Court History: March 25, 2014
3/25/2014: Burwell v. Hobby Lobby Stores argued.
Open Thread
What’s on your mind?
What Is The Original Meaning of "Sectarian"?
The Blaine Amendments purported to do exactly what Town of Greece rejected: permit "generic" expressions of religion but not expressions of specific religious beliefs.
Town of Greece v. Galloway (2014) presaged the Court's turn towards history and tradition in the Establishment Clause context. The case concerned whether religious prayers could be offered before a town council meeting began. Some of the prayers were fairly "generic." They referred to general concepts like "Lord," "Our father," and so on. Other prayers were explicitly Christian and referenced Jesus, crucifixion, and resurrection. During oral argument, Justice Kagan read from one of the more sectarian prayers: "We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength from His resurrection. . . . Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn and put us by His side." Justice Kennedy's majority opinion rejected the argument that Greece's prayer policy "falls outside of our traditions because it was not generic or non-sectarian." Stated differently, the Establishment Clause does not permit the Court to block the prayer because it is sectarian.
The word "sectarian" has always given me difficulty. Where exactly is the line between "sectarian" and "non-sectarian"? Justice Kagan thought watered-down liturgy was fine but actual liturgy was not. Of course, to an Atheist or a Satanist, even a bland reference to "God" would be sectarian. So what is the actual meaning of "sectarian"?
A recent dissental from the Ninth Circuit in Woolard v. Thurmond speaks to this issue. The author, of course, is the judge who forever will be known as Swinging Dick VanDyke.
The case concerns California's Blaine Amendment, which prohibits the teaching of "sectarian or denominational doctrine" in California's public schools. But what does "sectarian" mean? The majority ruled that "sectarian" simply means religious. But Judge VanDyke offers a different answer:
The defendants, the district court, and the panel simply took for granted that "sectarian" means "religious." But linguistics and history show something else. The push for "nonsectarian" education did not represent a nineteenth-century attempt to secularize the first public schools—it instead represented a compromise among the Protestant Christian majority to educate public-school children in Christian teaching without wading into areas of denominational disagreement. The word "sectarian" thus deliberately encompassed some religious beliefs (such as beliefs peculiar to Catholics or Mormons, or even denominational doctrinal divides between Protestants), but not all religious beliefs (such as teaching from the King James Bible and the Apostles' Creed). California's Blaine Amendment thus presents a clear-cut case of attempted facial discrimination between competing religious beliefs. On its face, the law expressly allows the teaching of nonsectarian, generic Christian doctrine in public schools, but not the teaching of any sectarian doctrine. That discrimination between religions plainly runs afoul of the First Amendment's Religion Clauses, as the unanimous Supreme Court clarified once again just last term. See Cath. Charities Bureau, Inc. v. Wisc. Lab. & Indus. Rev. Comm'n, 605 U.S. 238, 247 (2025) (noting that "[a] law that differentiates between religions along theological lines" violates the Establishment Clause and the Free Exercise Clause).
Judge VanDyke relies on Robert Natelson's 2018 article, Why Nineteenth Century Bans on "Sectarian" Aid Are Facially Unconstitutional: New Evidence on Plain Meaning.
Judge VanDyke writes further:
Most nineteenth-century Americans considered Catholics and Mormons to be "sectarian," and some contemporaneous writers thought that Muslims and some Jews could be "sectarian" too, while Christians such as Unitarians, Quakers, Methodists, Baptists, Episcopalians, and even Orthodox Christians were spared the label. Id. at 104–05. But either way, saying that "sectarian" means "religious" is like saying that "dime" means "coin." All sectarian materials are religious, but not all religious materials are sectarian. . . . The takeaway is clear enough: both before and after California's Blaine Amendment went into effect, explicitly religious Christian doctrine was commonplace in California public schools. So we should stop pretending that California's Blaine Amendment was ever meant or originally applied to ban all "religious" content from public education. It was meant to ban only some religious content—that deemed too "sectarian" or "denominational"—while welcoming other more generic, "nonsectarian" Christian content. In short, California's Blaine Amendment was meant and applied to discriminate based on religion—not between the religious and the secular, as California and the panel have wrongly assumed, but instead between some religious content and other religious content.
If Judge VanDyke is right, then Blaine Amendments are facially unconstitutional. Like in Town of Greece, it cannot be the rule that "generic" religion can be taught but teachings of a particular faith cannot be taught. To use an example, the law cannot permit teaching doctrines from the Unitarian Church but not the Catholic Church.
I will note that Judge VanDyke favorably cited Noah Feldman. Feldman called the "swinging dicks" dissent "a contender for the most vulgar piece of judicial writing in the 300-plus-year history of recorded judicial decisions in the English language." I think Buck v. Bell should win that category. If only Holmes began the opinion, "This case is about cutting tubes."
Trump Administration Agrees to Consent Decree in Missouri v. Biden Social Media Case
From the Consent Decree filed today in Missouri v. Biden (W.D. La.):
As President Trump stated upon taking office on January 20, 2025, "[o]ver the last 4 years, the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve." "Under the guise of combatting 'misinformation,' 'disinformation,' and 'malinformation,' the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government's preferred narrative about significant matters of public debate." To prevent such censorship from recurring, Plaintiffs and Defendants agree to the terms set forth below, to be enforced upon approval by the Court, for a period of 10 years.
Individual Plaintiffs, Dr. Aaron Kheriaty, Ms. Jill Hines, and Mr. Jim Hoft, joined by the States of Missouri and Louisiana, alleged … that federal government Defendants unlawfully pressured, coerced, induced, and encouraged major social media platforms to censor their posts about Covid-19, the Hunter Biden laptop report, and the 2020 Presidential election….
The Parties … agree that government, politicians, media, academics, or anyone else applying labels such as "misinformation," "disinformation," or "malinformation" to speech does not render it constitutionally unprotected. See United States v. Alvarez (2012) (plurality op.) ("Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.")….
[T]he Government [therefore] cannot take actions, formal or informal, directly or indirectly—except as authorized by law—to threaten Social-Media Companies with some form of punishment (i.e., an adverse legal, regulatory, or economic government sanction) unless they remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech….
Court Dismisses Suit Against N.Y. Times & Serial Productions over The Idiot Podcast
The podcast is M. Gessen’s story about cousin Allen Gessen (who is the plaintiff in this case) and his murder-for-hire conviction. Extra juicy tidbit in this case: Venue!
For some backstory, see this DoJ press release ("Murder For Hire Convict Sentenced To Ten Years In Prison" / "Allen Gessen Was Convicted Of Soliciting an Undercover Agent to Murder the Estranged Mother of His Children") and the N.Y. Times introduction of the podcast. From Allen Gessen v. Masha Gessen, decided today by Judge Leo Sorokin (D. Mass.); note that Allen Gessen is a lawyer, albeit unsurprisingly now a disbarred one:
This action began with a flurry of simultaneous filings by [Allen] Gessen. He filed a complaint naming himself and his children, O.G. and E.G., as plaintiffs and bringing claims against a journalist who is his cousin, The New York Times, and Serial Productions. The claims seek to prevent the publication of a podcast the defendants are producing about Gessen and his family. The complaint was accompanied by motions to proceed anonymously and to seal Gessen's submissions to the Court.
$14K Sanction for Local Counsel's Not Meaningfully Supervising Out-of-Jurisdiction Counsel
with cameo appearance by out-of-jurisdiction counsel's citation of non-existent cases.
Lawyers who aren't members of a court's bar can still usually represent clients in that court, so long as they ask for admission "pro hac vice" (for this occasion only) and engage a local counsel who is a member of the bar. Unsurprisingly, this means local counsel will be responsible for the pro hac counsel, as an opinion from Magistrate Judge Mark Clarke (D. Ore.) yesterday in Couvrette v. Wisnovsky illustrates:
The Court ORDERS [local counsel] Mr. Murphy to pay [$14,205.66, which is] 15% of Defendants' Amended Bill of Costs and Reasonable Attorney Fees. Mr. Murphy is also ORDERED to attach this Opinion and Order with any future motions for leave to appear pro hac vice in which he seeks to associate as local counsel in the District of Oregon….
Ms. Couvrette … [had] asked Mr. Murphy to serve as local counsel for Mr. Brigandi's pro hac vice admission. Mr. Murphy signed Mr. Birgandi's pro hac vice application and personally attested that he read and understood the requirements of serving as local counsel under LR 83-3….
Mr. Brigandi's son was dating Ms. Couvrette's daughter, and Mr. Brigandi had agreed to represent Plaintiffs for free. According to Mr. Murphy, Mr. Brigandi was primarily responsible for the litigation strategy and for all dispositive motions practice. Mr. Murphy explained, "[m]y role mostly involved strategizing with Mr. Brigandi and Ms. Couvrette on how to fashion a settlement in connection to the commercial property…. I believed that my expertise in landlord tenant law would be helpful." …
At issue before the Court is whether Mr. Murphy willfully violated [Local Rule] 83-3 by failing to meaningfully participate in the case. Mr. Murphy argues that the Court should not impose a sanction because he did not participate in the summary judgment briefing and he was unaware that the Local Rules required him to review his associated pro hac vice counsel's filings prior to submission.
