The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Free Speech

District Court Judgment in 303 Creative v. Elenis (the Wedding Web Site Design Case)

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Following the Supreme Court's remand to the Tenth Circuit, which in turn led to the remand to district court, Chief Judge Philip Brimmer (D. Colo.) rendered the following order Tuesday:

It is ORDERED that plaintiffs are the prevailing parties in this action under 42 U.S.C. § 1988(b). Plaintiffs and their counsel are entitled to recover their reasonable attorney's fees, costs, and expenses for work related to litigation before the district court. It is further

ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing the Accommodation Clause of Colorado's Anti-Discrimination Act ("CADA"), Colo. Rev. Stat. § 24-34-601(2)(a)), to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage. It is further

ORDERED that the First Amendment's Free Speech Clause prohibits Colorado from enforcing CADA's Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:

I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God's true story of marriage – the very story He is calling me to promote.

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C.A.V.

What does this bit of legalese mean?

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I just learned it from Third Circuit Judge Cheryl Krause's dissent from denial of rehearing en banc in Lara v. Commissioner. Black's Law Dictionary (Bryan Garner's 11th ed.) tells us that "c.a.v." stands for "curia advisari vult," which in turn literally means "The court will be advised; the court will consider," and "signal[s] a court's decision to delay judgment pending further consideration."

"In England, the phrase is still used in all Court of Appeal decisions when the judgment is reserved; that is, not delivered after the hearing." In America, for better or worse, it seems extremely rare; but in the Third Circuit, it's a thing, with the phrase generally being something like "hold the case c.a.v."

Free Speech

Journal of Free Speech Law: "Investigative Deception Across Social Contexts," by Prof. Alan Chen

The first of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

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The article is here; the Introduction:

People lie to gain access to private property in a surprising variety of contexts. Civil rights "testers" create fake identities and pose as potential buyers or renters to investigate race discrimination by real estate agents and landlords. Union activists secure jobs at nonunion workplaces so they can organize the company's workers. Law enforcement agents pose as drug dealers to gain access to a narcotics warehouse. An investigative journalist infiltrates a white nationalist group so she can write a story about the group's philosophy and propensity for racially motivated violence. A private investigator working with a seniors' advocacy organization gets a job at a local nursing home to document elder abuse. In prior work, I have described these practices as "investigative deceptions," "intentional, affirmative misrepresentations or omissions about one's political or journalistic affiliations, educational backgrounds, or research, reportorial, or political motives to facilitate gaining access to truthful information on matters of substantial public concern."

Each of these situations bears important similarities. First, they all involve the intentional and material misrepresentation of the speakers' true identities, motives, and actual employers or sponsors. Second, the lies are told with the intent of deceiving the target of the investigation and the goal of gaining entry to private spaces and proximity to people who would not consent to such access if they knew the truth. Third, the access achieved through these lies potentially implicates some common law rights. Fourth, all of these liars seek a benefit not for themselves personally but for a greater social good. The information they discover will be used to enforce laws, facilitate political association, inform public discourse, and advance legal and social reforms. And finally, the persons deceived in each case would strongly prefer that the information that comes to light from these investigations not be publicly disclosed. In a sense, all of these lies could be categorized as a form of fraud.

The similarities among these types of investigate deceptions do not, however, carry over to the way that the law, ethics, and perhaps society view them. Civil rights testers, undercover police officers, and union salts are all widely accepted, legally permissible forms of investigative deception. However, much of the journalism profession disputes the ethics of undercover news investigations, and tort claims have been brought against news outlets and reporters for conducting such investigations. The legality of undercover investigations by advocacy groups has also been questioned. Some states have criminalized the investigative deceptions used by animal rights organizations, while others have enacted statutes creating new tort claims against undercover investigators; although some courts have declared those laws to violate the First Amendment, the doctrine is still evolving.

This essay explores the different contexts in which investigative deceptions are employed and seeks to understand why the lawfulness and acceptability of these lies are so divergent.

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Guns

The Second Amendment and 18-to-20-Year-Olds

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From Third Circuit Judge Cheryl Krause's dissent from denial of rehearing en banc yesterday in Lara v. Commissioner; Judges Shwartz, Restrepo, Freeman, Montgomery-Reeves, and Chung also voted to rehear the case en banc, but didn't write an opinion or join Judge Krause's:

When they ratified the Second Amendment, our Founders did not intend to bind the nation in a straitjacket of 18th-century legislation, nor did they mean to prevent future generations from protecting themselves against gun violence more rampant and destructive than the Founders could have possibly imagined. At a minimum, one would think that the states' understanding of the Second Amendment at the time of the "Second Founding"—the moment in 1868 when they incorporated the Bill of Rights against themselves—is part of "the Nation's historical tradition of firearms regulation" informing the constitutionality of modern-day regulations.

Indeed, since the Supreme Court tethered their constitutionality to the existence of historical precedent in District of Columbia v. Heller (2008), we and the other Courts of Appeals have consistently looked to Reconstruction-era, as well as Founding-era sources, and, even as the Supreme Court has acknowledged the "ongoing scholarly debate" about their relevance, it too has relied on Reconstruction-era sources in each of its recent major opinions on the right to bear arms. Notably, the Supreme Court is expected within the next few months, if not weeks, to issue its next seminal opinion, clarifying its historical methodology in the absence of Founding-era analogues.

Yet despite our own precedent acknowledging the relevance of Reconstruction-era sources, our recognition in an en banc opinion just last year that the Supreme Court relies on both Founding-era and Reconstruction-era sources, and an imminent decision from the Supreme Court that may prove dispositive to this case, the panel majority here announced— over Judge Restrepo's compelling dissent—that all historical sources after 1791 are irrelevant to our Nation's historical tradition and must be "set aside" when seeking out the "historical analogues" required to uphold a modern-day gun regulations. The panel majority then held—based exclusively on 18th-century militia laws and without regard to the voluminous support the statutory scheme finds in 19th-century analogues—that Pennsylvania's prohibition on 18-to-20-year-old youth carrying firearms in public during statewide emergencies is unconstitutional.

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Free Speech

Tennessee Generally Bans Political and Religious Discrimination by Financial Institutions

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From a newly enacted bill:

A financial institution shall not deny or cancel its services to a person, or otherwise discriminate against a person in making available such services or in the terms or conditions of such services, on the basis of:

(1) The person's political opinions, speech, or affiliations;

(2) Except [for a financial institution that claims a religious purpose], the person's religious beliefs, religious exercise, or religious affiliations;

(3) Any factor if it is not a quantitative, impartial, and risk-based standard, including any such factor related to the person's business sector; or

(4) The use of a rating, scoring, analysis, tabulation, or action that considers a social credit score based on factors including:

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Immigration

Fifth Circuit Rules Against Texas SB 4 Immigration Law

In the process, the court also rejected Texas's argument that illegal migration and drug smuggling qualify as "invasion."

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Flag of Texas. (NA)

 

Earlier today, the US Court of Appeals for the Fifth Circuit ruled against Texas in a case where the federal government challenged the legality of the state's SB 4 immigration law.  SB 4 is a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas courts the power to order removal of migrants convicted under the law.

Today's decision is not a final ruling on the merits. Technically, all it does is uphold the district court's preliminary injunction blocking enforcement of the law until the courts reach a final decision in the case. However, one of the factors courts assess in deciding whether a preliminary injunction is warranted is "likelihood of success on the merits." And in analyzing that factor, the judges made it clear they think SB 4 is in fact illegal, and Texas deserves to lose.

Most of Chief Judge Priscilla Richman's majority opinion in the Fifth Circuit focuses on whether SB 4 is preempted by federal immigration law. For example, she concludes that the law's provisions on detention and removal conflict with federal laws granting many undocumented migrants the right to remain in the United States while they apply for asylum.

But the majority also rejected Texas's argument that the state has the power to enact SB 4 because illegal migration and cross-border drug smuggling qualify as an "invasion:"

Texas asserts that Article I, § 10 of the Constitution (the State War Clause) permits
some applications of S. B. 4. The State War Clause provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep     Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Specifically, Texas contends that, at a minimum, S. B. 4's application to transnational cartel members is a constitutionally authorized response to an "invasion."

But Texas does not demonstrate why it would be entitled to vacatur of the preliminary injunction. Constitutional text, structure, and history provide strong evidence that federal statutes addressing matters such as noncitizen entry and removal are still supreme even when the State War Clause has been triggered. Such statutes do not pertain to laying any duty of tonnage; keeping troops or ships of war in time of peace; or entering into any agreement or compact with another state or a foreign power….

Texas has not identified any authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law. One would expect a contemporary commentator to have noticed such a proposition. Instead, in The Federalist No. 44, James Madison glossed over the portion of the State War Clause at issue here by writing: "The remaining particulars of this clause fall within reasonings which are either so obvious, or have been so fully developed, that they may be passed over without remark…"

Thus, we cannot say Texas has persuaded us that the State War Clause demonstrates it is likely to succeed on the merits.

Thus, the Fifth Circuit  rejected Texas's Invasion Clause argument (the clause in question is also sometimes called the "State War Clause").  I think this is the right result for reasons I outlined in a recent Lawfare article, and also in my amicus brief in United States v. Abbott, another case before the Fifth Circuit, where Texas has raised the same argument.

But the Fifth Circuit's discussion of the issue is fairly brief and cursory, and doesn't always make the right points. In particular, if illegal migration really does qualify as an "invasion" that "triggers" the Invasion Clause, the text suggests a state really could "engage in war" in response—even if federal law otherwise forbade it to do so. And war powers might include the power to detain or deport citizens of the enemy nation from which the migrants came.

The Fifth Circuit is nonetheless right to conclude that Texas has "failed to provide authority to support its proposition that the State War Clause allows it to enact and enforce state legislation regulating immigration otherwise preempted by federal law." But that's because there is no good evidence indicating illegal migration or drug smuggling qualify as "invasion." The text and original meaning undermine any such notion. A state facing such issues may have various problems. But it has not been "actually invaded."

While the Fifth Circuit reached the right conclusion on the invasion questions, the District Court did a much better and more thorough job of analyzing the relevant issues.

Judge Andrew Oldham filed a lengthy dissenting opinion, most of it devoted to the preemption issues, and to the argument that SB 4 might be legal in at least some applications. But interestingly, he does not consider the "invasion" argument, except to briefly note that the district court rejected it.

For those keeping score, Chief Judge Richman is a conservative George W. Bush appointee. Judge Irma Ramirez, the other judge joining her opinion, is a recent Biden appointee. Judge Oldham is one of the most conservative judges on the Fifth Circuit, appointed by Trump.

In sum, SB 4 is likely to remain blocked for some time to come, even as litigation in the case continues. This—for the moment—concludes a saga in which the Fifth Circuit imposed a temporary "administrative stay" on the district court injunction, the Supreme Court refused to lift it, but the Fifth Circuit itself dissolved the stay within hours, leaving the injunction in place until the court could consider it further.

The Fifth Circuit has now upheld the preliminary injunction, which means the law will remain blocked until the court reaches a final decision in the case or—less likely—the injunction is lifted by the en banc Fifth Circuit or the Supreme Court.

Litigation in this case is going to continue. But today's ruling strongly suggests the Fifth Circuit—like the district court—is inclined to rule against Texas on the merits. That, too, of course, might be reviewed by the en banc Fifth Circuit or by the Supreme Court.

Meanwhile, the "invasion" issue will be before the Fifth Circuit again in United States v. Abbott, which will heard by the en banc court (with all seventeen active judges participating) in April.

Free Speech

State Employer's Requiring Employees to Watch "Antiracist"/"Gender Identity" Videos Isn't Unconstitutional Speech Compulsion

But plaintiff's claim that he was retaliated against for raising religious objections to the training, and discriminated against based on religion as to promotion, can go forward.

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From Norgren v. Minn. Dep't of Human Servs., decided Thursday by the Eighth Circuit, in an opinion by Judge Ralph Erickson, joined by Judges Michael Melloy and Davis Stras:

We take the facts from [Aaron Norgren's complaint]…. Aaron, who continues to work at DHS, has served as a security counselor with the Forensic Mental Health Program for nine years….

[Aaron and his father, Joseph, who also worked at DHS, received an email] … instructing him to complete [online] workplace trainings titled, "How to be Antiracist (CRT Training)" and "Understanding Gender Identity and Expression: Moving Beyond the Binary." … Commissioner Harpstead also emailed employees that the trainings were necessary to foster "brave conversations" and "change … minds for life" and DHS Assistant Commissioner Karen McKinney told employees that "we need all of you to do this."

The Norgrens alleged that the trainings instructed employees to speak or refrain from speaking on certain political and ideological matters. For example, the trainings mandated a minute of silence for George Floyd. They also directed employees to stop using the phrase "I am not a racist" as a defense, to admit to a specific definition of the word "racist," to confess to racist policies they supported, and to accept that the United States is the root of racist ideas. The Norgrens alleged the gender identity training instructed them to refrain from telling others that their gender identities are wrong. The Norgrens opposed the racism training as violative of the traditional view of equality under Title VII, and they opposed the gender identity training as contrary to their sincerely held religious beliefs….

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Politics

Video: ABA Midyear Meeting Panel on Viewpoint Diversity

Are the ABA and the legal profession doing enough to promote viewpoint diversity?

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In February, I participated in an important panel at the American Bar Association Midyear meeting on viewpoint diversity. I will write much more about the event in due course. The video is below, and you can download the transcript here.

Here is the panel description:

Are the ABA and the legal profession doing enough to promote viewpoint diversity? A panel including longtime ABA members with diverse approaches will discuss the issue of viewpoint diversity at the ABA and more broadly.

Welcome and Introduction: Mary Smith, President of the American Bar Association

Panelists:

  • Josh Blackman, Centennial Chair of Constitutional Law at the South Texas College of Law
  • Ellen Rosenblum, Attorney General of the State of Oregon
  • Juan Thomas, Of Counsel, Quintairos, Prieto, Wood & Boyer P.A.
  • Philip D. Williamson, Partner, Teft Stettinius & Hollister LLP

Moderator: Hon. Danny J. Boggs, U.S. Court of Appeals, Sixth Circuit

This panel will discuss whether ABA policies, programs, and membership sufficiently reflect the diversity of viewpoints within the legal profession. Then-ABA President and future Supreme Court Justice Lewis Powell warned almost 60 years ago: "it is essential that the basic policy of avoiding political involvement be strictly followed except where issues clearly involve the Association's primary responsibilities," arguing that delving into partisan politics "could jeopardize the Association's very existence." As the self-described "national voice of the legal profession," the ABA represents all types of lawyers, with differing political views, and has now adopted many policy positions "on diverse issues of importance to the legal profession" including access to justice, criminal justice reform, gun violence, social justice in voting and many more.

Recognizing that we live in an era of sharp political and policy divisions, a recent ABA president asked that we as attorneys focus on "civics, civility and collaboration" to collectively restore confidence in our legal system. Other leaders urge that the ABA must speak out on controversial issues, on which consensus does not exist, even when lawyers disagree. One of our panelists recently observed in the ABA Journal that the Association "needs ideological diversity to ensure its future." While recognizing that "many attorneys contend that the ABA is insufficiently progressive and the bar is too conservative," he argues that present policies and positions of the Association lack the full spectrum of views, "alienate conservative lawyers" and have likely contributed to declining membership and "a growing disconnect" with state bars on issues of professional conduct and diversity. A new caucus within the ABA has organized to investigate and advocate on these issues and hopes this panel starts a conversation about diversity of viewpoints and professionalism within the ABA.

Civil Procedure

Don't Forget Your First-Year Civil Procedure Lessons on Personal Jurisdiction

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From Castro v. Doe, decided Monday by Judge Mark Pittman (N.D. Tex.):

John Anthony Castro filed this lawsuit on June 16, 2023, alleging that former President Donald Trump, among others, conspired to publish defamatory, verifiably false statements about him on his Wikipedia page. These supposedly false statements include the notion that Castro is a "sleazy tax attorney," did not serve in the military, and is under federal indictment. Castro believes Trump is targeting him as retaliation for the over thirty federal lawsuits Castro has lodged against Trump concerning Trump's actions on January 6, 2021.

The court upheld the Magistrate Judge's conclusion that Castro is a vexatious litigant:

Castro's June 2023 original complaint represented the tenth case he has filed in this District in the last five years, six of which have been filed since April 2021. And that says nothing of his dozens of other cases filed across the country in the last few years….

In his Objections, Castro explains, case by case, how each is meritorious and does not support a finding that he is clogging the judicial machinery with meritless litigation. Of note, roughly half of the cases … have suffered problems related to the same issue: jurisdiction, even to Castro's own admission. Even as recently as March 19, 2024, Judge Terry Means, also of the Fort Worth Division, made yet another finding that Mr. Castro brought a lawsuit that lacked personal jurisdiction….

The Court notices a pattern. Mr. Castro seems to pay no attention or care to where he files his lawsuits. Either he actively chooses to sue where he knows the Court lacks personal jurisdiction, or he fails to understand how jurisdiction and venue work, despite many orders informing him of the standard and explaining why he continuously falls short.

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The Court Should Cast Doubt On Havens Realty "Diversion" Standing and Establishment Clause "Offended Observer" Standing

If Alliance for Hippocratic Medicine lacks standing, so should progressive groups.

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On Tuesday, the Supreme Court heard oral argument in FDA v. Alliance Hippocratic Medicine, the mifepristone case. Much of the argument focused on whether AHM had standing to challenge the FDA's actions. From my vantage point, it looks like the plaintiffs will lose. Indeed, the writing has been on the wall since the Court granted a stay of the Fifth Circuit's decision back in April 2023. The question isn't whether AHM will lose; the question is how. I would humbly submit that the Court could take this opportunity to clean up several aberrations in standing law.

First, the Court should claw back so called "diversion of resource" standing based on Haven's Realty. As this theory has been interpreted by some lower courts, an organization can claim Article III standing simply by claiming that a government policy forces the organization to divert resources. In other words, the organization would usually spend their resources on X, but because of some state action, the organization now spends their resources to respond to the state action. That injury seems entirely self-inflicted, and is at odds with decades of standing law. Yet some lower courts accepted this theory in legal challenges to Trump policies. I had hoped that the Supreme Court could address Havens Realty in Acheson, but that case fizzled out on mootness grounds.

During oral argument in AHM, several Justices addressed Havens Realty standing. Earlier in the argument, Justice Barrett said that AHM's injury "sound[s] in the Havens Realty associational standing." Barrett added that these are the sorts of "allegations we see by immigration advocacy groups." They claim a "diversion of resources" in the form of "increased expenses that result from the complications of having to address" the state action. Barrett asked Solicitor General Prleogar to distinguish "diversion of resources" from Havens Realty.

Prelogar explained that in Havens, the civil rights group had a "direct and concrete demonstrable injury" apart from the diversion of resources. Specifically, the organization "organization had a contract to provide low-income housing" and "the racial steering practices directly interfered" the "contractual obligations." Prelogar said Havens Realty did not "bless[] a theory of standing that would allow an organization to assert a setback to its abstract social interests." The Solicitor General acknowledged that "in the immigration context," some "lower courts in particular have seemed to read Havens to endorse far broader theories of standing." Prelogar said "we would welcome an eventual clarification from this Court on organizational standing."

Erin Hawley, representing AHM, said that Havens Realty was "on all fours with this case." Hawley said there "was an impairment of the organization's mission" and "an expenditure of resources." That impairment, Hawley said, is sufficient for an injury-in-fact. Justice Thomas said that reading of Havens makes standing "easy to manufacture." The organization would just have to "us[e] resources to advocate their position in court" and say those expenditures "now causes an injury." Hawley acknowledged that "the lower courts have cabined Havens to say where you have sort of prelude to litigation types of activities." It is not enough to have a diversion of resources. Hawley said AHM's actions were "neither a prelude to litigation, nor would they have occurred but for FDA's unlawful conduct in this case." Justice Thomas did not return to the issue.

Justice Barrett turned to Havens with Hawley. She asked "what additional costs [AHM] might have incurred or how [AHM's] resources were diverted in a way that would satisfy Havens"? Barrett pointed to AHM's conducting and analyzing studies. Barrett replied, "Is that it?" Barrett, and Thomas, did not seem persuaded.

During the Solicitor General's rebuttal, Prelogar said that "clarify" that Havens Realty does not permit "every organization in this country . . . to challenge any federal policy they dislike." I suspect progressive lawyers who are keen to challenge future Trump immigration policies were gritting their teeth when Prelogar made this comment.

Second, the Court can cast some doubt on so-called "offended observer standing" under the Establishment Clause. I have long questioned how someone can claim standing to challenge a policy on Establishment Clause grounds based simply on being offended. Justice Gorsuch raised this issue in his American Legion concurrence. And Gorsuch pushed SG Prelogar on this issue. Prelogar attempted to deflect, and  "would put the Establishment Clause precedent and First Amendment precedent generally in its own bucket." Gorsuch pushed back. "Standing is standing." There is no First Amendment exception to Article III.

Gorsuch "was looking for some guidance" of how to "stitch it all together." Prelogar acknowledged that an "offense or distress type of injury" would "likely go far too much in the direction of allowing Article III courts to weigh in based on generalized grievances." But she said the Court has found an "cognizable" injury where "there is a kind of direct governmental action producing that type of injury." I'm not sure that distinction works. Article III is not satisfies because some "direct governmental action" offends a person. There has to be an actual, concrete injury in fact. Cases like Van Orden and American Legion are inconsistent with decades of standing doctrine.

Ultimately, there are probably more than enough votes to reverse the Fifth Circuit. It is tempting to write a 9-0 decision that finds a way to rule against AHM, without speaking to these broader issues. But it would be helpful if the Court, or at least a plurality of Justices, clamps down on the other standing theories at play in this case. There is some degree of unilateral disarmament when conservative litigants are thrown out of court but progressive groups can skate in under the radar. The Court can reject the broad reading of Havens Realty, and hold that mere emotional distress is insufficient to establish a concrete injury.

Free Speech

Inventing Anna Defamation Case Against Netflix Can Go Forward

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From today's decision in Williams v. Netflix, Inc. by Chief Judge Colm Connolly (D. Del.), which denies Netflix's motion to dismiss (for more backstory, see here):

Plaintiff Rachel DeLoache Williams has sued Defendant Netflix, Inc. based on Netflix's portrayal of Williams in its docudrama series Inventing Anna…. Here, at least two sets of alleged defamatory statements are actionable at the motion to dismiss stage. Williams's 9th set of alleged defamatory statements reads as follows:

After several scenes about the problems with the credit cards at the Hotel and the private museum tour, there is a long scene in which Noah is shown meeting Williams and suggesting to her that they leave immediately because of the "bad situation." At first, Williams says that the problems are over and suggests that they stay but Noah persists, and she gives in. She finds Anna who is alone in her room, drinking heavily and depressed.

Williams tells her that they are leaving, making a bogus excuse. Sorokin begs her not to leave her, but Williams leaves anyway. She and Noah pack and leave the Hotel immediately, leaving Sorokin alone with a hotel guard stationed outside her room.

Williams's 10th set of alleged defamatory statements reads as follows:

NEFF: Please, Rachel abandoned Anna. Kicked her when she was down, and left her alone in some foreign country. Rachel's happy to call herself Anna's friend when it meant free shit, trips to Morocco, but as soon as times got tough … Some friend.

Williams plausibly alleges that both sets of statements are false statements of fact and defamatory. For falsity, she argues that Williams did not "abandon" Sorokin when Sorokin was "alone, depressed and in trouble" but rather that Williams told Sorokin she was leaving in advance, that Sorokin had company when Williams left, and that Sorokin did not appear to be upset. For defamatory meaning, Williams argues that she "is falsely portrayed as a fair-weather friend who abandoned Sorokin when she was alone, depressed and in trouble in Morocco, and needed help and support" and that "[t]hese are negative personal traits or attitudes that Williams does not hold."

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Property Rights

Squatters' Rights Laws Violate the Takings Clause

Where these laws allow squatters to occupy houses without the owner's consent, they qualify as takings of private property that require payment of compensation under the Fifth Amendment.

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(Illustration: Lex Villena; Lev Kropotov )

In recent weeks, there has been a lot of media coverage of squatters' rights laws that sometimes have the effect of blocking property owners from removing trespassers who occupy their houses without the owners' permission. Newsweek describes some highly publicized recent cases:

A recent string of incidents in Georgia, New York and Washington has brought squatting, the practice of occupying someone else's property without their consent, into the spotlight.

In Washington, a squatter named Sang Kim made headlines after preventing Jaskaran Singh, a landlord, from possessing his $2 million property following Kim's refusal to pay rent for two years.

Earlier in March, a New York property owner was arrested over unlawful eviction after confronting a group of alleged squatters who had taken over her deceased parents' home in Flushing, Queens, ABC 7 reported. While the woman held the property's deed, one man said he was on a lease for the house—which meant the property owner was barred from kicking him out [he, in fact, did not actually have a lease].

That same month, David Morris, a landlord in Atlanta, told Fox 5 of a group of squatters who were preventing him from building affordable housing on his nine-acre land and whom he was unable to remove because of a moratorium on evictions.

Morris told the outlet he had agreed to let four people stay on the land without paying rent about 10 years ago, but that he found the number of people occupying the property had grown to about "30 campers." Though the squatters were taken away from the land, Morris said he spent $10,000 to clean up their garbage.

John Stossel of Reason made a video focusing on the New York case.

As often happens when an issue attracts media attention, it is hard to tell from early reports how widespread the issue actually is. But even a few cases of successful squatting may be problematic, because they could incentivize imitation. Media attention could accelerate that process.

Ideally, state and local governments should make it easy for property owners to swiftly remove squatters, and should subject the trespassers to civil and criminal sanctions. But where they instead facilitate this violation of property rights, the laws that do so violate the Takings Clause of the Fifth Amendment, which requires payment of "just compensation" whenever the government takes "private property."

In Cedar Point Nursery v. Hassid (2021), the Supreme Court ruled that even temporary government-authorized physical occupations of private property are "per se" (automatic) takings. Thus, the Court struck down a California law requiring agricultural growers to give union organizers access to their land for three hours per day, 120 days per year. At least some state squatter rights' laws are considerably more egregious than that: They enable squatters to completely occupy the property for many weeks or months on end, totally excluding the owner in the process. That is particularly true of New York City's law, which gives squatters who claim to be tenants strong rights against removal if they have been on the property for at least 30 days. Landowners seeking to remove the squatters after that point must go through an eviction process, which can take as long as two years.

Chief Justice John Roberts' opinion for the Court in Cedar Point does outline some exceptions to the rule that state-mandated physical occupations qualify as takings. But squatter rights don't fall within any of them. For example, the squatters pretty obviously aren't government employees conducting health and safety inspections.

Squatters could perhaps argue that their activities fall within what the Court called "traditional common law privileges to access private property." The common law does recognize the right to claim property through "adverse possession." But traditional common law precedent permits that only after squatters have had continuous exclusive possession of the land for a long period of time (usually five years or more), and only if the owner made no effort to assert his or her rights during that time. The New York City law and others like it go way beyond that.

The Takings Clause may not be the best possible remedy for this situation. Filing and winning such a case could take many months. And if  property owners do prevail, they generally get only the "fair market value" of the rights lost, which may not fully compensate all of their losses. However, this avenue can provide at least some valuable redress; the longer the squatters remain, the greater the amount of compensation the government will have to pay. And fear of takings liability may incentivize state and local governments to repeal or tighten up the laws that cause the problem.

Legal issues aside, it's worth noting that squatters' rights laws end up harming the very people they are supposed to help: low-income tenants. If property owners have reason to fear that squatters can occupy their land without their consent, they will be less willing to rent property to begin with, charge higher rents, screen potential tenants more carefully (thereby potentially excluding those with low income, few or nor references, and the like), or some combination of all of these measures. They may also be incentivized to impose more costly and elaborate security restrictions on access to land (which in turn is likely to raise rents). All of this predictably reduces the availability of housing and increases its costs.

I hope property owners and public interest law firms give serious consideration to bringing takings challenges against these laws. They are not a panacea for the problem. But they could help.

UPDATE: Prominent takings expert Robert Thomas (Pacific Legal Foundation) comments on this post at the Inverse Condemnation Blog:

In other cases where the courts have upheld regulations and restrictions on an owner's right to recover possession from an actual tenant—you know, someone with whom the owner actually and expressly agreed, and then transferred the right to exclude to the tenant—the courts frequently note that "no one is forcing you to become a landlord."

Well here, the owner is being forced to become a landlord.

Professor Somin wraps by noting, "I hope property owners and public interest law firms give serious consideration to bringing takings challenges against these laws. They are not a panacea for the problem. But they could help."

Since we are part of a non-profit, pro bono, public interest law firm as the good professor describes, we shall note here that the welcome mat is out, and if the above-situation is your situation, let us know.

The Holy Roman Empire, Actual Malice, and Criminal Conversation

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The Holy Roman Empire, it was famously put (by Voltaire, I think), was neither Holy, nor Roman, nor an Empire. Likewise, the First Amendment "actual malice" test isn't actually about malice, but rather about whether the speaker knew the statement was false or likely false (and indeed the Court has had to make clear that actual malice in the English sense of ill will or hostility doesn't suffice). And "criminal conversation" was (and in a few jurisdictions still is) a tort, not a crime, and it focuses on illicit sex, not conversation in the modern English sense of the word.

Hence this question: Are there other legalese phrases of two or more words, in which the modern English sense of every one of the words (perhaps excluding articles and prepositions) does not actually correspond to the legal term? To be sure, plenty of legal phrases involve meanings that go beyond the English words ("freedom of speech" may cover communication that wouldn't normally be labeled "speech," such as handwriting, flag waving, flag burning, and the like). Likewise, plenty aren't understood as being composed of English words at all (such as "res judicata" or "habeas corpus"). But I'm looking here for phrases that do use ordinary English words but use them in a sense quite different from the modern English meaning of each word.

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