From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by David M. Primo, Ani and Mark Gabrellian Professor at the University of Rochester and the co-author of Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters (and an expert witness in numerous campaign finance cases):
In ruling campaign spending limits to be unconstitutional, the Buckley decision handed down by the U.S. Supreme Court in 1976 reshaped election law, affirming that First Amendment protections extended to the speech of political candidates. It also made clear that campaign contributions were protected by the First Amendment and that such restrictions could only be justified to prevent corruption or the "appearance of corruption." I am grateful to the Court for its defense of the First Amendment. Still, I have felt compelled throughout my career to ask: do contribution limits actually achieve these goals?
If you ask Americans, as I have, whether the campaign finance system is corrupt, around 80% say yes. Meanwhile, courts since Buckley have largely agreed that most contribution limits—except really tiny ones—are self-evidently helpful for reducing corruption and the appearance of corruption, thereby ensuring "that confidence in the system of representative Government is not to be eroded to a disastrous extent." Reformers have beaten the "restore trust in government" drum to justify campaign finance laws ever since.
As a social scientist, I think evidence matters. Just because the public or the courts say something is true doesn't make it so. Fortunately, 50 years on from Buckley, we have reams of data on attitudes toward government, and we can use that data to better understand the relationship between the appearance of corruption and contribution limits.
For our 2020 book Campaign Finance and American Democracy: What the Public Really Thinks and Why It Matters, Jeff Milyo (who has written a thought-provoking essay for this series) and I built a dataset of nearly 60,000 survey respondents over a 30-year period from 1987 to 2017. These individuals answered questions about trust and confidence in government, and we know a lot of other things about them: their ideology, party affiliation, age, education, and so on. Meanwhile, states vary in whether they have contribution limits and when they implemented them, making them what political scientists are fond of calling "laboratories of democracy."
From an Institute for Free Speech symposium on the 50th anniversary of Buckley, which I'll be cross-posting over the next couple of weeks; this is by Jeff Milyo, professor of economics and the Director of the Economic and Policy Analysis Research Center (EPARC) at the University of Missouri, and a Senior Fellow at the Cato Institute:
Concerns about money in politics bring into conflict the democratic ideals of liberty, equality, and justice enshrined in the U.S. Constitution. A free society will always exhibit inequalities of wealth and hence access to power and influence, thus imperiling the ideal of equal protection of the law. But efforts to regulate political activities, even setting aside potential hidden and nefarious motives, also violate the fundamental principles of free speech, association, and petitioning for redress of grievances (i.e., lobbying). Any democratic society must resolve this unfortunate tradeoff; American democracy does so in favor of liberty.
The U.S. Supreme Court decision in Buckley v. Valeo (1976) may be viewed through this lens. The Buckley decision makes clear that the government's interest in regulating politics is confined to policies that are narrowly tailored to address the actuality and appearance of quid pro quo corruption. As such, Buckley establishes bright lines for the kinds of regulation of political financing that may or may not pass Constitutional muster. For example, limits on the source and size of campaign contributions to candidates are permissible since they raise the specter of potential quid pro quo arrangements, but an outright prohibition on an individual's ability to support candidates or parties of their choosing goes well beyond what might be thought necessary to limit bribery and influence peddling. In contrast, limits on total spending by candidates for office are not directly related to preventing quid pro quo corruption between a contributor and candidate, so are not permissible.
There is also no anti-corruption rationale for limiting the amount of self-financing by candidates, since candidates cannot corrupt themselves. Similarly, as the Court noted in a later case, there is no anti-corruption rationale for limiting sources or amounts of financial support for speech on ballot initiatives; no amount of spending can change the wording of a ballot proposition, so no quid pro quo is possible via campaign financing of ballot measure campaigns.
These constraints on government regulation of political campaigns are straightforward implications of the anti-corruption rationale expressed in Buckley, but critics of the decision have muddied the waters by seeking to expand the concept of corruption to envelope "undue influence." This is definitely a more vague concept and not really amenable to bright line distinctions. Indeed, in thirty-plus years, I have never once heard anyone articulate a definition of "due influence." Instead, advocates of more regulation offer a modern miasma theory of corruption, whereby too much money and too much influence (most often by those who hold contrary views) constitute corruption.
In this final installment of our series on religious employment under Title VII, we address common objections to the textualist interpretation we describe in our BYU Law Review article. Each objection fails because it ignores Section 702's text or conflates statutory exemptions with constitutional doctrines. We conclude by expressing appreciation for Congress's handiwork—a statute that pursues equality and liberty together.
Racial Discrimination
Critics object that a textualist interpretation of Section 702 would open the door to racial discrimination. Not so.
Section 702 exempts a religious employer from Title VII only when it selects an employee "of a particular religion," a phrase that encompasses religious observances, practices, and beliefs. Adverse employment decisions for other reasons fall outside of Section 702. It follows that Section 702 permits discrimination only if differential treatment is founded in sincere religious observances, practices, or beliefs. And even critics of a textualist interpretation concede that racism is virtually unknown in modern American religious practice.
Bob Jones University v. United States is the best-known case of religiously motivated racism. There, the Supreme Court affirmed an IRS ruling withdrawing the University's tax-exempt status because of its ban on interracial dating and related policies. "Whatever may be the rationale for such private schools' policies, and however sincere the rationale may be, racial discrimination in education is contrary to public policy." But Bob Jones University involved tax-exempt status, not employment discrimination. If anything, it illustrates judicial intolerance for religiously motivated racial classifications.
It is highly unlikely that the Supreme Court would endorse Section 702 as a defense if a religious organization engaged in racial discrimination. Burwell v. Hobby Lobby Stores, Inc. noted that "[t]he Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." If Title VII's bar on racial discrimination satisfies strict scrutiny, Section 702 surely does not exempt a religious organization that crosses the line.
LGBT Equality Claims
Detractors claim that a textualist interpretation of Section 702 allows discrimination against LGBT employees. That criticism misconceives Title VII as an unqualified guarantee of employment nondiscrimination for protected classes. It is not. As our article explains, "Protected classes are guaranteed equal employment opportunity insofar as the statute prescribes it." An LGBT claimant can no more demand that a religious employer disregard its religious employment standards than a small business employee can bring a viable Title VII claim despite the statute's 15-employer threshold.
On Wednesday, the Supreme Court heard oral argument in Trump v. Cook. The leading accusation in this case is that President Trump wanted some excuse to fire a Federal Reserve Board Governor, so he had his administration trump up charges based on mortgage fraud. (I've written about how Collins v. Yellen enabled Bill Pulte, the director of the FHFA, to investigate Cook.) On Thursday, Jack Smth testified before Congress about his service as special counsel. In a somewhat similar fashion, the leading allegation was that the Biden Administration wanted Trump to be indicted, so Merrick Garland retained Jack Smith to trump up some charges. I am sure people on the right would never view Cook in this fashion, and people on the left would never view Smith in this fashion, but the perceptions are there.
This topic was referenced, perhaps indirectly, during oral argument in Cook.
Justice Kavanaugh brought up Justice Scalia's Morrison v. Olson dissent. Kavanaugh, alluding to some amicus briefs, suggested that the mortgage fraud charges were simply a pretext to fire Cook.
JUSTICE KAVANAUGH: But that leads -I mean, that brief, that amicus brief, cites Justice Scalia's dissent in Morrison, which is always a good place to look for wisdom, and the --the concern that you're putting all these resources --because you can't say it's for policy, putting all these resources, let's find something, anything, about this person and --and --and --and then we're good. And, by the way, there's no judicial review, so we're really good. And there's no administrative process.
Justice Scalia's wise words are worth quoting:
As I observed earlier, in the nature of things this has to be done by finding lawyers who are willing to lay aside their current careers for an indeterminate amount of time, to take on a job that has no prospect of permanence and little prospect for promotion. One thing is certain, however: it involves investigating and perhaps prosecuting a particular individual. Can one imagine a less equitable manner of fulfilling the executive responsibility to investigate and prosecute? What would be the reaction if, in an area not covered by this statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as "picking the man and then searching the law books, or putting investigators to work, to pin some offense on him"?
In short, give me the man, and I'll find the crime.
Later in the argument, Paul Clement referred back to Justice Kavanaugh's invocation of the Morrison dissent:
MR. CLEMENT: And, I mean, Justice Kavanaugh alluded to the Morrison dissent and, you know, Justice Scalia creating this beautiful picture of some independent counsel with nothing to do but to find a crime on somebody. But, if all the independent counsel has to do is find gross negligence, then I don't think the independent counsel would need more than a couple of hours with most of us. I mean, that's such an elastic standard. And I just can't imagine that's consistent with all the trouble Congress went to to make this unique entity insulated from kind of the political pressures of the day.
I'm not sure the analogy between Trump's firing of Cook and Alexia Morrison's investigation of Ted Olson quite fits. For starters, the President has the power to remove principal officers, and Congress expressly empowered the President to do so if there is "cause." The independent counsel, on the other hand, was a constitutional aberration that has no grounding in history or tradition. But the differences go deeper. Scalia's objection was, to be sure, that motivated prosecutors can pin a crime on anyone. But the problem of the Independent Counsel, and I would add Jack Smith, is a complete lack of accountability. Though they exercised sweeping powers, they were not nominated by the President and confirmed by the Senate. Moreover, there were protections against their removal, which made it difficult for accountable officfs to supervise them. By contrast, the President is duly elected, and is fully accountable. Trump has taken massive political hits for firing Cook, and threatening Powell. I don't think the analogy quite works.
Solicitor General Sauer pushed back against the insinuation that the President had some improper motivations in firing Cook. Sauer cited the presumption of regularity.
GENERAL SAUER: One of the strongest traditions in this Court's jurisprudence is the --the sort of presumption of regularity to the president's action. That has applied to this provision, I think, effectively for 112 years and it continues to do so.
Sauer returned to the presumption in a later exchange with Justice Kavanaugh:
GENERAL SAUER: And, again, I disagree with that. I think that the --that argument, that presumption [of regularity], when applied to the president, contradicts a very, very --two very strong strains in this Court's jurisprudence that go back to the founding.
Sauer made the point again, citing the cases from Martin v. Mott to Trump v. Hawaii:
GENERAL SAUER: This Court has since Martin against Mott, running all the way through Trump against United States, Trump against Hawaii, a whole host of decisions, accorded, consistently afforded the president the presumption of regularity in his action and consistently declined to probe a president's actions for, you know, their --for their subjective motivations. And so, in the hypothetical question that you pose, that hypothetical future president should also be afforded the very same sort of deference and --and -
A common theme of the Trump presidency is that Trump is not entitled to the presumption against regularity. It would be very dangerous if the Supreme Court gave any credence to this charge.
There was a related exchange between Justice Barrett and the Solicitor General. Barrett asked what's the big deal about a court-ordered hearing before firing Cook:
4:10 PM: University IT engineers continue to monitor updates from Microsoft. They reported initial progress but have acknowledged setback in the deployment of their remediation. Mail to M365 accounts continues to fail at this time.
1:27 PM: Users continue to experience delays sending and receiving email due to a widespread Microsoft 365 (M365) outage. University IT teams are actively monitoring the issue. Updates are provided on uit.stanford.edu as information becomes available. Thank you for your continued patience.
12:55 PM: Users may experience delays sending and receiving email due to a widespread Microsoft 365 (M365) outage impacting several M365 services. University IT teams are actively investigating the issue and will share updates as more information becomes available.
Plaintiff also objects to the Magistrate Judge's refusal to consider one of its sanctions requests (specifically, to resume Defendant's deposition under special conditions) because the request was presented in a footnote. Plaintiff characterizes this refusal as contrary to law, arguing that courts routinely consider unopposed arguments, even when raised in footnotes, and that Magistrate Judge Reinhart's reliance on Sony Music Ent. v. Vital Pharms., Inc. (S.D. Fla. 2022), was misplaced. This objection is overruled. While a court certainly can address a properly preserved argument made in a footnote, Plaintiff cites no Eleventh Circuit or Supreme Court precedent requiring consideration of such buried arguments. Magistrate Judge Reinhart did not clearly err in declining to consider that request, made in a footnote, in the context of Plaintiff's many other requests.
And here's a similar passage from Judge William Dimitrouleas's decision in Sony:
Plaintiffs also request summary judgment on over a dozen of Defendants' affirmative defenses in footnotes throughout their motion. As Defendants point out, addressing legal arguments in footnotes is an incorrect method to present substantive arguments on the merits or otherwise request relief from the Court. Connor v. Midland Credit Mgmt., Inc., No. 18-23023CIV, 2019 WL 717413, at *4, n. 1 (S.D. Fla. Feb. 20, 2019) (citing Mazzeo v. Nature's Bounty, Inc., No. 14-60580, 2014 WL 5846735, at *2 n.1 (S.D. Fla. Nov. 12, 2014) (not considering argument raised in a footnote); see also Mock v. Bell Helicopter Textron, Inc., 373 F. App'x 989, 992 (11th Cir. 2010) (deeming argument waived because it was raised only in a footnote)). Thus, the Court will not address Plaintiffs' request for summary judgment as to Defendants' affirmative defenses.
By some estimates, William Howard Taft weighed nearly 350 pounds at 5 foot, 11 inches. At the Sixth Circuit courthouse in Cincinatti, Taft's chair is on display. Is has the diameter of a barrel. In 1909, Taft was riding a horse at the Grand Canyon. The poor horse "appeared to be unequal to the President's bulk" and gave way. (It seems the horse broke an ankle or leg.) Chief Justice William Howard Taftalso wrote the most robust conception of presidential power in Myers v. United States.
This history brings me to the oral argument in Trump v. United States. There were extended discussions of what process is due when the President seeks to fire an FTC Governor "for cause."
Paul Clement, who represented Cook, used a very memorable phrase to describe the process afforded by President William Howard Taft:
JUSTICE THOMAS: With that said -with that said, what would the hearing look like and what would the review look like?
MR. CLEMENT: So I agree with General Sauer that the president would have a fair amount of discretion in how he or she wanted to fashion that hearing. I mean, one example we have historically is President Taft, and he sort of gave the removed officials the full Taft, and it was notice, opportunity for a hearing before an impartial tribunal that, you know, serendipitously included future-Justice Frankfurter, and then he --I mean, so that's kind of the maximum that the president could give. But we're not suggesting that you need to give the full Taft. The president would have a lot of flexibility on that.
The "Full Taft." What a perfect line. It wasn't a forced attempt at humor, as we've seen elsewhere. It was a very subtle way to describe what Taft did, and it was also memorable allusion to Taft's girth.
Clement leveled up, and invoked Roberts Rules of Order, a nod to another Justice!
MR. CLEMENT: And, look, I --I --I agree with General Sauer. This Court is not going to dictate, like, you know, here is Roberts Rules, you know, have at it. But I think this Court can do something useful, which is essentially to create an incentive for the executive to provide something that's a little bit more protective, a little bit closer to Taft than something incredibly informal. That's -JUSTICE
By the end of this term, Paul Clement will have argued nine or event ten cases--roughly twenty percent of the merits docket. I think this is a modern record for a lawyer not in the SG's office. (During OT 2023, SG Prelogar argued ten cases.)
Even where I disagree with Clement (which seems to be happening more and more of late), I still marvel at his advocacy skills. And on that point, it is a credit that Clement can argue cases on both sides of the aisle. Progressive litigators are less likely to take that path. I still have a hard time accepting with Neal Katyal's defense of the non-delegation doctrine in the tariffs case.
This post is my contribution to the Institute for Free Speech symposium on the 50th anniversary of Buckley v. Valeo, which is jointly published by IFS and the Volokh Conspiracy blog:
This year marks the fiftieth anniversary of Buckley v. Valeo, the 1976 ruling in which the Supreme Court held that federal laws limiting private parties' expenditures on campaign-related speech violate the First Amendment. Critics blame Buckley for a host of current problems in our political system, such as the disproportionate political influence of wealthy people and the spread of misinformation. Our current political situation does indeed have serious flaws. But a contrary decision would not have averted these developments and would have made things much worse in many respects.
Had the Court accepted the fashionable argument that "money isn't speech," that decision would have gravely imperiled freedom of speech and other constitutional rights. Similar dangers would have arisen if the Court had maintained the rule that campaign-related free speech rights do not apply to corporations, which was eventually rejected in in subsequent case of Citizens United v. Federal Election Commission (2010). Contrary decisions in these cases would also have exacerbated rather than ameliorated the problems of voter ignorance and misinformation. Nor would they have significantly reduced political inequality. A contrary decision would have exacerbated—rather than alleviated—the problems of voter ignorance and misinformation, while doing little to reduce political inequality.
Critics of Buckley, Citizens United, and other rulings protecting expenditures on campaign speech love to emphasize that "money isn't speech." That is true enough in a literal sense. But the exercise of almost every constitutional right depends on the use of resources for which monetary compensation is paid. Consider, for example, the right to use contraceptives upheld by the Supreme Court inGriswold v. Connecticut. Just as money isn't speech, money isn't contraception. But a law banning or severely restricting the use of money to purchase contraceptives would clearly violate the constitutional right upheld in Griswold. Otherwise, the government could effectively gut that right simply by barring or severely restricting the purchase of birth control devices.
The same is true of most other constitutional rights. For example, money isn't religion. But a law banning or restricting the use of money to fund religious institutions and services obviously violates the Free Exercise Clause of the First Amendment.
Moreover, the vindication of constitutional rights often requires the filing of lawsuits, which almost always cost money. A law barring the expenditure of funds on such litigation clearly violates the Constitution, even though supporters of such legislation could inveigh that "money isn't litigation."
Consider the Trump Administration's targeting of law firms that engage in constitutional litigation against his policies. Courts have repeatedly ruled against these efforts on First Amendment grounds. But under the "money isn't speech" approach, the administration could instead attack those firms and others on the basis that "money isn't litigation." Thus, litigation protecting constitutional rights could be gutted by laws or regulations barring or restricting the use of money to fund it.
In the Citizens United case, the Supreme Court rightly ruled that Buckley's principles apply to speech by corporations and unions, as well as to that by individuals. Critics argue that this was wrong because corporations are not people, but "state-created" entities whose rights the government can define as it sees fit.
If applied consistently, this logic would destroy freedom of the press. After all, most major media entities are corporations or owned by them. On this view, the government would be free to censor the New York Times, Fox News, CNN, and so on. The same applies to speech on social media sites organized as corporations or owned by them, such as Twitter/X, Facebook, Bluesky, and others.
The same reasoning applies not only to corporate free speech rights, but to all other constitutional rights exercised through the use of corporate resources. If "state-created" entities don't have free speech rights, they don't have any other constitutional rights either. The supposed power to define the rights of state-created entities cannot be limited to free speech rights. Thus, government would not be bound by the Fourth Amendment in searching corporate property (including employee offices). It could take corporate property without paying compensation because the Takings Clause of the Fifth Amendment would no longer apply. It could forbid religious services on corporate property (including that owned by churches which are organized as nonprofit corporations). And so on.
Moreover, corporations are not the only "state-created" entities out there. Universities, private schools, charities, religious institutions, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all or most have special government-created privileges and obligations of various kinds. If corporations are state-created entities that can be denied constitutional rights, the same is true of a vast range of other private organizations.
Politicians could suppress opposition speech and activism by such groups by enacting laws or regulations denying them their legal organizational status unless they abjure speech disfavored by those in power. Even if you trust political leaders of your own preferred party with such power, I suspect you would not have similar confidence in those of the opposing party. My own view is that none of them can be trusted with it.
In recent years, some critics of Buckley and Citizens United have blamed these rulings for the rise of misinformation and exploitation of voter ignorance. They argue that wealthy people such as Trump and Twitter/X owner Elon Musk have exploited these decisions to spread lies and deceptions, influencing electoral outcomes. I agree that political ignorance and misinformation are serious problems, and I have spent much of my career analyzing these dangers. I also agree that Trump and his allies have extensively exploited voter ignorance, in the process, proving that ignorance is an even more serious problem than I previously believed (though the more general problem of voter ignorance long predates the rise of Trump).
But government restrictions on speech financed by wealthy people or corporations are not a good solution to these problems and would likely make them worse. Evidence from around the world shows that right-wing populist movements like Trump's, and the misinformation they promote, disproportionately draw their support from lesser-educated and poorer voters. That is a key reason why we increasingly have a "diploma gap" in US elections, and why the GOP is now the party that tends to benefit from higher voter turnout. Wealth and education are not the same, but the two are highly correlated. Some wealthy influencers and donors do indeed spread misinformation and bogus conspiracy theories. Musk is a prominent example. But, on average, affluence is inversely correlated with susceptibility to such tropes.
Regulations restricting the speech expenditures of wealthy and better-educated people will actually further empower the lesser-educated and more ignorant elements of the electorate, which are also the ones most susceptible to misinformation. Nor are such regulations likely to significantly impede the spread of that misinformation. Fundamentally, the demand for misinformation is a much more serious danger than the supply.
Even if individual wealthy people and corporations are limited in their ability to exploit that ignorance and bias, others will fill the void. Likely candidates include media organizations, social media "influencers," unscrupulous politicians (Trump is just a particularly egregious example), activist groups, and more.
In theory, the government could address this problem by comprehensively suppressing misinformation, regardless of the source. But in addition to virtually destroying freedom of speech, that practice would give the government nearly unconstrained power to suppress opposition. It is unlikely that government would use that power to target misinformation evenhandedly. Rather, it would likely weaponize it to crush opposition speech (whether misleading or not), while continuing to spread its own misinformation and lies. Historically, governments have themselves been major sources of misinformation and deception. A state with broad powers to censor can spread its lies more effectively than otherwise.
Finally, there is the argument that spending on campaign speech must be restricted because it is unjust that wealthy people might otherwise exercise greater political influence than others. Wealth can indeed be a source of political inequality. But it is far from the only such source, and by no means the most egregious.
Celebrities, skilled demagogues, "influencers," politicians, and others also have vastly more political influence than the average voter. When Trump first ran for president in 2016, he actually spent little of his own money. His success was in large part a result of his vast preexisting celebrity. Even a law professor who writes for a prominent blog—like the present author—may exercise much more influence than the average citizen, even if far less than a celebrity.
Many of these other sources of influence are far more unequally distributed than wealth. We have a lot fewer celebrities than people wealthy enough to pay for a television or online ad campaign.
Restricting campaign spending is likely to accentuate the potency of these other, more unequally distributed sources of influence. It will become more difficult for relatively unknown candidates to successfully challenge celebrities and incumbent politicians.
Nor is the influence arising from these other resources somehow better or more meritorious than that arising from wealth. Celebrity status, skill at demagoguery, and being an "influencer" are far from being correlated with merit, good judgment on policy issues, or even basic human decency. Again, Trump is just one particularly egregious example of the lack of correlation between the former list of traits and the latter.
Even if there were some objective way to determine how much influence a given person or group deserves to have over our political discourse, it is highly unlikely that real-world government would identify that rule and scrupulously implement it. Real-world politicians and bureaucrats are far more likely to use that power to strengthen their own hand against potential opposition. The case for freedom of speech rests on the proposition that the state cannot be trusted to make such determinations. As the Buckley Court rightly concluded, "[t]he concept that 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."
From Nuvola, LLC v. Wright, decided Nov. 21 by Hennepin County (Minn.) Judge Laurie Miller:
For the reasons the Court has outlined above, the Court finds Mr. Knaak's failure to check the legal authority cited in his brief and his reliance on non-existent case law in his advocacy before this Court raises a question as to whether he breached his duty of competence to Ms. Wright. The Court will refer Mr. Knaak to the Office of Lawyer's Professional Responsibility (OLPR) for appropriate action. Any mitigating factors proffered by Mr. Knaak, including his compliance with his obligation to educate other lawyers about this issue under this Order, may be relevant to a future ethics investigation and any subsequent recommendations by the OLPR, but the Court will not analyze them here as the Court does not make explicit findings on or enforce ethics rules.
The Court also finds troubling Mr. Braun's [i.e., opposing counsel's] failure to identify or bring the non-existent case citations to the Court's attention before the hearing on the motion to compel arbitration. TheCourt should not be left as the last line of defense against citations to fictional cases in briefs filed with the court.
While Mr. Braun did not create or rely on the fake citations, he also did not detect them. Instead, he admitted he did not review the cases cited by his opponent. If he had checked out the citations in the brief to which he was responding, he no doubt would have brought the issue to the Court's attention by the time of the motion hearing, and that would have allowed the Court to take the non-existence of the cited cases into consideration as it heard the argument on the merits of Defendant's motion to compel arbitration, instead of leaving the Court to discover that issue on its own, after the hearing was concluded.
The Court does not find Mr. Braun's conduct to be sanctionable, as he did not cite any non-existent cases to the Court. [Nonetheless], the Court reminds counsel that it is the obligation of counsel on both sides to respond to each other's arguments, including completing a basic cite-check of the cases cited by the other side.
From Wentworth v. Steinmetz, decided Nov. 12 by the Pa. Super. Ct. Judge Mary Jane Bowes, joined by Judges Victor Stabile and John Bender (see the full opinion for more):
Given the procedural posture of this case, we accept as true the following facts alleged in the Wentworths' complaint. The Wentworths purchased a residential property from Steinmetz …. After moving in, the Wentworths discovered under rugs in the basement a tile floor that incorporated both a swastika and what they perceived to be a Nazi eagle. The Wentworths claimed that they would not have purchased the home had they been aware of the Nazi symbols tiled into the floor, that they could not be expected to live in or sell the home in that condition, and that it would cost $30,000 to replace the floor. Accordingly, they maintained that Steinmetz was liable for compensatory and punitive damages due to his failure to disclose the defect….
{Steinmetz has denied creating the floor pattern in support of Nazism, citing the history of the swastika predating its use by the Nazis. See Steinmetz's brief at 8. The Wentworths acknowledge that the swastika is an ancient symbol that had been used around the world, but suggest that since it is here "styled in the fashion of that used by the Nazis," and accompanied by the German eagle, no reasonable person would believe that this is Native American or Buddhist imagery. In resolving this appeal, we view Steinmetz's subjective intent as irrelevant and accept the Wentworths' allegations that these are pro-Nazi emblems and would likely be viewed as such by guests to their home and prospective buyers.}
The Order raises the inference that his actions were targeted for their message; without the Order, there would have been a much stronger inference that he was prosecuted just for the illegal fire lighting (in violation of valid park safety regulations).
From Chief Judge James Boasberg's decision Tuesday in U.S. v. Carey (D.D.C.):
You cannot falsely shout fire in a crowded theater. What about lighting a fire in a crowded park? After President Donald Trump issued an executive order directing the Department of Justice to prosecute anyone who engages in the protected speech of burning the American flag, Defendant Jan Carey marched to Lafayette Park and burned a flag in protest.
He stands charged with violating park regulations that prohibit setting a fire outside a designated area or receptacle and lighting a fire that damages property or threatens public safety…. The Court holds that the regulations do indeed apply to Carey's flag burning, but it finds that he is entitled to proceed with a further inquiry into whether he is being prosecuted to punish him for his allegedly illegal actions or for his constitutionally protected speech….
The First Amendment protects burning the American flag. Texas v. Johnson (1989). Yet last August, President Trump issued an executive order decrying flag burning and announcing, "My Administration will … prosecute those who … otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority." The order noted that flag burning might violate several "content-neutral laws" that fight "harm unrelated to expression, … such as open burning restrictions … or destruction of property laws."
Outraged, Carey grabbed an American flag and headed to Lafayette Park, which sits right across from the White House. He laid the flag down on a brick path and, clutching a lighter in one hand and a megaphone in the other, declared that he had served in the Army for twenty years and "fought for every single one of your rights to express yourself …. There's a First Amendment right to burn the American flag. The [President] signed an executive order today saying that it was illegal to burn the American flag." Gesturing at the White House, Carey announced, "I'm burning this flag as a protest to that illegal fascist President that sits in that house." He then bent down and lit the flag on fire. Officers on the scene eventually extinguished the burning flag, leaving its charred remains and some scorched bricks underneath….
An excerpt from Judge Joshua Dunlap's opinion concurring in the denial of rehearing en banc yesterday in StandWithUs Center for Legal Justice v. MIT(from my research, just the third opinion he has written since joining the court in November):
This case touches on the intersection of the First Amendment and Title VI. As such, it presents difficult issues relating to the constitutional guarantee of freedom of speech and the scope of antidiscrimination laws—and it does so in the fraught context of hot-button geopolitical controversies and the insidious reality of antisemitism. In my view, the panel went further than it ought to have gone to resolve the present dispute; nevertheless, I do not believe that the arguments raised justify rehearing en banc. I write separately to briefly note my concerns and rationale for denying rehearing….
[A]ntidiscrimination law, of necessity, only provides a partial remedy for antisemitism because of our concomitant dedication to freedom of speech. Title VI provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The First Amendment, however, prohibits government restrictions on speech based on its message, ideas, subject matter, or content, and provides "special protection" to speech relating to matters of public concern—even if it is outrageous. Title VI must therefore be applied with care for the constitutional problems that would arise if it were construed to suppress political speech. Cf. Honeyfund.com Inc. v. Governor (11th Cir. 2024); Saxe v. StateColl. Area Sch. Dist. (3d Cir. 2001); DeAngelis v. El Paso Mun. Police Officers Ass'n (5th Cir. 1995).
The panel addressed this tension by, first, concluding that Title VI does not require a university to "quash protected speech," and, second, concluding that the protesters' actions "did not render their speech antisemitic, much less unprotected." As to the first conclusion, the panel affirmed that speech on matters of public concern is specially protected under the First Amendment, including on college campuses. The panel reached the latter conclusion to avoid determining whether racist speech can be punished under Title VI without violating the First Amendment. I have some concerns with the panel's approach….
[M]y central concern … relates to the panel's determination that the speech alleged in this case was not even plausibly antisemitic…. The panel acknowledges the existence of an "ongoing debate as to the relationship between anti-Zionism and antisemitism—debate that our constitutional scheme resolves through discourse, not judicial fiat." But even as it makes this statement, the panel seems to impose just such a resolution by concluding that statements such as "Palestine will be free, from the river to the Sea!" and "There is only one solution! Intifada revolution!" were not—at least in the context of the facts alleged—antisemitic. But I find it at least plausible that, when made in the immediate aftermath of "the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence," such phrases support an "inference of animus towards Jews."
In this fourth post on our recently published article, we explain how a textualist reading of Section 702 avoids serious constitutional questions under Title VII.
Church Autonomy
The First Amendment Religion Clauses guarantee a religious organization autonomy "with respect to internal management decisions that are essential to the institution's central mission." Included within that autonomy are decisions about who will lead the organization, the shape of its religious beliefs, how to resolve internal religious disputes, and how the organization operates.
A corollary of the church autonomy doctrine is the ministerial exception. It categorically protects a religious organization against a claim of employment discrimination when the claimant is a "minister," meaning a religious leader or one who is entrusted with transmitting the faith.
Some might argue that a religious organization's freedom to make religiously driven employment decisions ends with the ministerial exception. We argue that's wrong. And earlier this month, the Ninth Circuit agreed, holding in Union Gospel Mission of Yakima, Washington v. Brown that the church autonomy doctrine protects a religious organization's freedom to hire non-ministerial employees who are aligned with the employer's faith.
Reading Section 702 as a bare co-religionist privilege would spark substantial questions about Title VII's compatibility with the church autonomy doctrine. To pick one example, a Catholic organization could be liable for choosing a candidate for a key position from among its all-male priesthood. Results like that would interfere with the core of church autonomy—a church or faith-based organization's "internal management decisions that are essential to the institution's central mission."
Title VII could then be on a collision course with the First Amendment. A textualist reading of Section 702 avoids that problem by allowing religious employers to make religious judgments about employment while holding them accountable for employment decisions that discriminate for non-religious reasons.
Immigration officers assert sweeping power to enter homes without a judge's warrant, memo says
WASHINGTON (AP) — Federal immigration officers are asserting sweeping power to forcibly enter people's homes without a judge's warrant, according to an internal Immigration and Customs Enforcement memo obtained by The Associated Press, marking a sharp reversal of longstanding guidance meant to respect constitutional limits on government searches. The memo authorizes ICE officers to use force to enter a residence based solely on a more narrow administrative warrant to arrest someone with a final order of removal, a move that advocates say collides with Fourth Amendment protections and upends years of advice given to immigrant communities.
The memo is here. The specific subject is what are known as Form I-205 Warrants, which are signed by immigration officials and not regular judges. As I read the memo, DHS's position is that they authorize ICE to enter homes based on Form I-205 orders everywhere except in the Central District of California—with that exception due to a 2024 ruling in that district, Kidd v. Mayorkas. Unfortunately, however, the memo does not include any legal analysis.
This raises a big question: Can ICE enter a home to make an arrest without a judicial warrant?
The standard view has been that administrative warrants can't authorize home entry because they're executive branch orders, and the executive branch can't be in charge of deciding whether to give itself a warrant. Under Payton v. New York, 445 U.S. 573 (1980), the government needs an arrest warrant to enter a home to make an arrest. But Payton refers to a "judicial officer" inserting his judgment "between the zealous officer and the citizen," and the immigration officer who signs a Form I-205 is not a "judicial officer." That's the traditional thinking.
That thinking is captured by Judge Wright's reasoning in the Kidd v. Mayorkas opinion. Judge Wright was addressing the broad category of administrative warrants, which included the subcategory of Form I-205 warrants, and here's what he wrote:
A judicial "arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within," Payton, 445 U.S. at 603, 100 S.Ct. 1371, and "consistent with the Fourth Amendment, immigration authorities may arrest individuals for civil immigration removal purposes pursuant to an administrative arrest warrant issued by an executive official, rather than by a judge," Gonzalez v. U.S. Immigr. & Customs Enf't, 975 F.3d 788, 825 (9th Cir. 2020). However, as the Court has previously noted, (see Order re Mot. Dismiss, ECF No. 58), the Supreme Court has expressly declined to consider whether an administrative warrant satisfied the requirements for "warrants" under the Fourth Amendment. See Abel v. United States, 362 U.S. 217, 230, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).
Rather, case law supports the need for independent judgment in issuing warrants. See, e.g., Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) ("The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause…. Thus, an issuing magistrate must … be neutral and detached."); Coolidge, 403 U.S. at 449, 91 S.Ct. 2022 ("[T]he whole point of the basic rule … is that prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations.").
Here, not all case administrative warrants are reviewed by an independent officer. There are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as "[o]ther duly authorized officers or employees of [DHS] or the United States who are delegated the authority." 8 C.F.R. § 287.5(e)(2). For example, a Form I-205 (Warrant of Removal) is reviewed by an ICE supervisor who signs on behalf of the Field Office Director and not by any judge (immigration or otherwise). (Decl. Anne Lai ISO Pls.' Opp'n DMSJ Ex. 12 ("Giles Dep.") 39:23-40:24, ECF No. 492-3.) Because the administrative warrants at issue here lack the independent assurance guaranteed by the Fourth Amendment, they do not immunize Defendants' conduct. This is also consistent with ICE training materials, which affirm "that administrative warrants do not authorize entry into a dwelling without consent." (DSUF 25.)
We don't know the specific basis for DHS's disagreement with that position. But if I had to guess, I would guess that they read Abel v. United States, 362 U.S. 217, 230 (1960). differently than did Judge Wright. In Kidd, above, Judge Wright says that Abel expressly declined to address whether administrative warrants are Fourth Amendment warrants. Technically, that's true. But if you read Abel, Justice Frankfurter is saying that the Court won't hear the defendant's argument that administrative warrants are not valid Fourth Amendment warrants because the defendant did not make the argument below—and Frankfurter drops a bunch of hints that he would be inclined to say that they are valid. Here's the beginning of the discussion from Abel:
