The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

Florida Bans Residential Picketing with "Intent to Harass or Disturb" -- but What Exactly Does That Mean?

A content-neutral ban on all residential picketing would be constitutional; but the "intent to harass or disturb" limitation may make the law unconstitutional or ineffective.

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The law, signed by Gov. Ron DeSantis yesterday, provides:

(1) As used in this section, the term "dwelling" means a building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families.

(2) It is [a misdemeanor] for a person to picket or protest before or about the dwelling of any person with the intent to harass or disturb that person in his or her dwelling….

(4) Before a person may be arrested for a violation of this section, a law enforcement officer … must go as near to the person as may be done with safety and shall command any person picketing or protesting before or about the dwelling of a person to immediately and peaceably disperse. If any such person does not thereupon immediately and peaceably disperse, he or she may be arrested for a violation of this section.

Now a flat ban on all "focused picketing taking place solely in front of a particular residence" would be constitutional, as the Court expressly held in Frisby v. Schultz (1988), interpreting an ordinance that used the "before or about" language. (In Carey v. Brown (1980), the Court had held that a content-based residential picketing ban was unconstitutional, but Frisby held that content-neutral ones are fine.)

But this statute wouldn't ban all such residential picketing, but only picketing "with the intent to harass or disturb." I appreciate the desire to narrow the ordinance; consider Justice Stevens' dissent in Frisby, which faulted the ordinance for making it a crime "for a fifth grader to carry [a] sign" outside a friend's home saying, "Get well Charlie—our team needs you." But I think this attempt to narrow it might actually make it unconstitutionally content-based, unconstitutionally vague, or perhaps effectively meaningless.

The problem is that the ordinance doesn't define "harass," and the closest state law analog—the Florida stalking statute—defines "harass" to "mean[] to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose." What counts as a "legitimate purpose"? The stalking cases haven't set forth a categorical test, and indeed acknowledge its uncertainty (and circularity):

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Law & Government

The Indian Commerce Clause: The Natelson/Ablavsky Debate

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Professor Greg Ablavsky, perhaps the leading historian of Federal Indian Law, has a short piece up on SSRN replying to a short piece by Professor Rob Natelson, whose work frequently appears on this blog. Since the Supreme Court has a case about some of their debates pending next term, I thought the entire exchange might be of interest to some readers.

In 2007, Natelson published The Original Understanding of the Indian Commerce Clause. The article was repeatedly cited by Justice Clarence Thomas in a subsequent case.

In 2019, Ablavsky filed an amicus brief in the Fifth Circuit Brackeen litigation (now on review at the Supreme Court). The brief argues that Natelson's work "is deeply flawed, marred by inaccurate versions of sources and unsupported assertions directly at odds with explicit Founding-era evidence."

In 2022, Natelson apparently discovered the brief and published a short response, claiming that Ablavsky's brief "has a shyster-like quality:"

(1) It misrepresents my conclusions and then attacks the misrepresented version rather than what I actually wrote.

(2) It wrenches quotations out of context to make them appear to say things they did not.

(3) It seeks to divert attention away from how the ratifiers understood the Constitution during the ratification process and toward how federal congressmen and officials may have understood it after ratification. Of course, self-interested federal officials' subsequent interpretation of their own powers is virtually worthless as evidence of the previous ratification bargain.

Ablavsky now has a response posted on SSRN. Here's the abstract:

Robert Natelson recently responded to a three-paragraph critique of his 2007 law review article that I offered in an amicus brief in the ongoing Brackeen litigation. Though Natelson concedes that critical examination is an integral part of the scholarly process, he claims that my brief was not only unscholarly but "shyster-like."

I disagree. In this reply, I rebut his critiques. I reiterate the key, uncontested point that his original article relied on an inaccurate version of a vital piece of evidence from ratification, Sydney's New York Journal essay. In the correct version, Sydney observed that ratification would "totally surrender into the hands of Congress the management and regulation of the Indian affairs." Natelson's response attempts to explain away this language as a mere slip of Sydney's pen. But in my view this effort to rewrite the historical source's explicit language to agree with Natelson's original hypothesis is unpersuasive.

I then challenge Natelson's claims that I distorted his arguments. As I show, nearly all the critiques that my brief offered drew from near identical arguments in my 2015 Yale Law Journal article that Natelson himself concedes was "generally respectful." Moreover, I argue that each of my characterizations of Natelson's article, while necessarily a summary, accurately reflected his arguments and underscores the substance of our scholarly disagreement.

It is unfortunate that Mr. Natelson took my brief so personally. This case is not about either Mr. Natelson or me. As all parties would agree, the outcome will significantly impact people's lives. I briefly discussed Mr. Natelson's scholarship in the amicus not to denigrate him but because I have spent my academic career researching the history at issue here, and because, in my scholarly assessment, Mr. Natelson's frequently invoked article was flawed and at odds with historical evidence. I am disheartened that this important academic discussion has devolved to ad hominem attacks.

The exchange was also linked last week on The Originalism Blog, where Mike Ramsey added "I'm carefully not taking sides on this one, which readers can judge for themselves."

I agree that the personal turn this debate has taken is unfortunate. In any event, the underlying question -- what are the scope of the Indian Commerce Clause and other congressional powers -- is an important one, and one that the Supreme Court will likely turn to next year. Natelson has suggested that he will have future work forthcoming on this question; I assume that Ablavsky will file a brief with the Court in due course.

My own tentative hypothesis is that Congress's Article I power to define and publish offenses against the law of nations may also be an important source of Article I power here. And in addition to Ablavsky's and Natelson's work, I also recommend Chris Green's Tribes, Nations, States: Our Three Commerce Powers, which tries to reconcile the evidence of a broad tribal and foreign commerce power with that for a narrower interstate commerce power.

I hope to write more about this as the issue ripens next term.

Some Unsolicited Advice on Abortion and the Religion Clauses

The Free Exercise Clause, the Establishment Clause, and the Third-Party Harm Doctrine.

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Today Politico explored various strategies that abortion-rights groups will pursue if Roe is overruled. Most of these approaches do not begin in the courts. These groups will lobby Congress and state houses for protections, and promote state constitutional amendments. Democracy in America! Moreover, we should expect some creative executive actions from the Biden administration, which will invariably end up in Court. For example, the executive branch will "interpret" old statutes in new ways that conveniently recognize abortion protections. Who knew that the Emergency Medical Treatment and Labor Act, which President Reagan signed into law in 1986, requires hospitals to perform certain abortions!

Still, the most intriguing strategy involves the Free Exercise of Religion. Politico spells out how this argument could work:

Attorneys are also exploring a tactic long used by the anti-abortion side — religious freedom — as a tool to fight state bans on abortion. Specifically, they're looking into mobilizing Jewish plaintiffs whose religion allows abortion and even requires it in some circumstances, such as a threat to the life of the mother.

"The Supreme Court has never ruled on the application of the free exercise clause of the First Amendment to the right to access abortion services," said Nancy Northup, president and CEO of the Center for Reproductive Rights. "And there are religions which are supportive of abortion rights, and so a free exercise claim is absolutely on the table."

The free exercise clause prohibits states from passing laws that substantially burden the ability of people to exercise their religious beliefs. Leila Abolfazli, director of federal reproductive rights at the National Women's Law Center, said such cases brought by Jewish plaintiffs could present "a profound moment for a country that has only talked about abortion in negative terms for nearly 49 years."

"Those types of cases really help people understand this is not a black-and-white issue," she said. "People come to it with incredible passion and some with incredible religious beliefs that drive them, and that's an important part that the other side has tried to dominate."

I think abortion rights advocates are especially keen on this argument because it sets up the conservative Justices as hypocrites! Conservatives have religious liberty, but liberals do not?! The Slate pitches write themselves.

Still, as someone with experience litigating religious liberty cases, I offer some unsolicited advice to my fair-weathered friends.

First, we must begin with sincerity. The federal courts will (generally) not scrutinize the specific aspects of religious doctrine. Courts will not actually decide if Judaism, or other faiths, in fact imposes some sort of religious obligation to perform or receive abortions. Nor will the courts mediate whether teachings of Reform Judaism or teachings of Orthodox Judaism are the "true" faith. But courts can scrutinize whether an individual plaintiff sincerely holds such beliefs. It is well known that during military drafts, people suddenly discover pacifist faiths like Quakerism. And during the pandemic, many people who were looking for an excuse to avoid vaccination mandates found religion. I think it will be difficult for a pregnant woman, who has never before expressed any connection to these religious teachings, to demonstrate the necessary sincerity to obtain a time-sensitive abortion. But some abortion doctors, who routinely perform these procedures, may be able to establish this showing of sincerity. Some doctors--not all doctors. Atheist doctors need not apply. Or these groups could follow the lead from the International Church of Cannabis, and form a new faith in which abortion is a sacrament. Call them Roetarians, not to be confused with Rotarians. Norma McCorvey could be the patron saint.

Second, I am intrigued by the focus on Jewish plaintiffs. Eugene's recent post focused more broadly on a religious person, in general, who "sincerely believes that he has a religious obligation (perhaps based on his view of the parable of the Good Samaritan)." In January, Professor Sherry Colb wrote about this issue from the Jewish perspective:

I even received a message from a scholar of Jewish law proposing that protecting the free exercise of Judaism might in some cases require the government to allow a woman to get an abortion. Here is the example: a woman is sick because of her pregnancy, but she is not in danger of dying. She is, however, becoming increasingly depressed because of the physical debilitation. In Jewish law, the raw material inside a woman's uterus is not a person until a designated stage of labor. Therefore, if a woman is sick and depressed because she is pregnant, she may have a religious obligation to terminate her pregnancy. With a robust protection of the free exercise of religion, couldn't this Jewish woman and her doctor obtain an exemption from a law prohibiting abortion?

For purposes of this analysis, I will presume that the Jewish doctor and Jewish woman sincerely hold these religious beliefs. And I'll presume the Free Exercise claim is successful. What remedy would a court craft? There could be an as-applied challenge: in this particular case, a state's abortion laws could not be applied to the particular doctor and patient. Still, I'm skeptical courts could move quickly enough to enter a temporary restraining order based on very difficult questions about religious doctrine. Courts have mandated fast-track procedures for judicial bypass with minor abortions, for example. But I don't think similar procedures would exist for free exercise claims. I suppose lawyers could certify a class of all Jewish patients and all Jewish doctors who share these beliefs about abortion. Due to the intricacies of faith, I think certification will be difficult. But let's assume Rule 23 works. What would that remedy look like? Only Jewish doctors can perform abortions? Only Jewish patients can receive abortions?

Third, welcome to the Establishment Clause. With these sorts of remedies, only religious people could perform and receive abortions. But non-religious doctors and patients would be out of luck. Pregnant atheists would be stuck. Generally, the government violates the Establishment Clause by granting a benefit only to religious people, but denying that same benefit to non-religious people. What, then, should the courts do? Level up or level down? Perhaps the courts could say that it would be unconstitutional to only allow religious people to perform and receive abortions, so everyone gets an abortion, regardless of faith! This argument would invoke Eisenstadt v. Baird--it violates Equal Protection to only provide contraception to married couples. Or the courts could find that a remedy only for Jewish patients and doctors would be unconstitutional, so they would deny relief for everyone on those grounds. I don't think there is that much play in the joints.

Fourth, don't forget about the third-party harms doctrine. I'm old enough to remember Justice Ginsburg's poignant Hobby Lobby dissent:

In sum, with respect to free exercise claims no less than free speech claims, "'[y]our right to swing your arms ends just where the other man's nose begins.'" Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

If the draft Dobbs majority opinion holds, the Court need not resolve at what point life begins. But this opinion does defer to Mississippi's finding that the state's compelling interest to protect life begins at fifteen weeks--and presumably earlier. And, it follows, that a doctor or patient who seeks an exemption from the abortion ban will have to overcome that third-party harm to the fetus. This harm is far more clearly defined than the harm at issue in Hobby Lobby. In that case, female employees had ample alternative means to obtain certain forms of contraception. But if the abortion is performed, the harm to the fetus is unavoidable.

Plus, there is longstanding precedent on point. Indeed, Reynolds v. United States (1879) is one of the oldest Free Exercise Clause precedents. Chief Justice Morrison Waite explained:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?

Reynolds is even older than Jacobson v. Massachusetts, so it must be a valid and current statement of constitutional law!

FifthRoe and Casey were tethered to fetal development: as the fetus gets closer to term, the state's interest in protecting life would increase. But the Free Exercise Clause claim would not be premised on fetal development. Rather, the religious belief in terminating the pregnancy would exist throughout all nine months. If this argument is granted, abortion providers and women would have an even greater right to abortion that Roe and Casey permit.

Sixth, abortion rights groups should be careful what they wish for. If the Court recognizes a Free Exercise right to perform or receive an abortion, then conservatives can cook up even more aggressive religious liberty strategies. I'll bring the bagels for the next meeting of the Temple of Automatic Weapons.

These thoughts are only tentative. And I'm sure that abortion rights groups are not interested in what I have to say.

Crime

Today in Supreme Court History: May 17, 1954

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5/17/1954: Brown v. Board of Education and Bolling v. Sharpe are decided.

An end to end-to-end encryption?

Episode 407 of the Cyberlaw Podcast

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Is the European Union (EU) about to save the FBI from Going Dark by essentially outlawing end-to-end encryption? Jamil Jaffer and Nate Jones tell us that a new directive aimed at preventing child sex abuse might just do the trick. That view is backed by people who've been fighting the bureau on encryption for years.

The Biden administration is prepping to impose some of the toughest sanctions ever on Chinese camera maker Hikvision, Jordan Schneider reports. No one wants to defend Hikvision's role in enabling China's Uyghur policy, but I'm skeptical that we should spend all that ammo on a company that is far from the greatest national security threat we face. Jamil is more comfortable with the measure, and Jordan reminds me that China's economy is shaky enough that it may not pick a fight to save Hikvision. Speaking of which, Jordan schools me on the likelihood that Xi Jin Ping's hold on power will be loosened even by a combination of the Chinese tech downturn, harsh pandemic lockdowns, and the grim lesson provided by Putin's ability to move without check from tactical error to strategic blunder and then to historic disaster.

Speaking of products with more serious national security impact than Hikvision, Nate and I try to figure out why the effort to get Kaspersky software out of U.S. infrastructure is still stalled. I argue that the Commerce Department should take the blame.

In a rare triumph of common sense and science, the wave of dumb laws attacking face recognition may be receding as lawmakers finally notice what's been obvious for five years: The claim that face recognition is "racist" is false. Virginia, fresh off GOP electoral gains, has revamped its law on face recognition so it now more or less makes sense. In related news, I puzzle over why Clearview AI accepted a settlement of the ACLU's lawsuit under Illinois's biometric law.

Nate and I debate how much authority Cyber Command should have to launch actions and intrude on third country networks without going through the interagency process. A Biden White House review of that question seems to have split the difference between the laissez-faire spirit of the Trump administration and the analysis-paralysis of the Obama years.

Quelle surprise! Jamil concludes that the EU's regulation of cybersecurity is an overambitious and questionable expansion of the U.S. approach.

The EU may not be alone. Jordan notes the Defense Department's effort to keep small businesses who take its money from decamping to China once they start to succeed. Jordan and I fear that the cure may be worse than the disease.

I get to say I told you so about the unpersuasive and cursory opinion issued by United States District Judge Robert Pitman, when he enjoined Texas' social media law. The Fifth Circuit has overturned his injunction, so the bill will take effect, at least for a while. In my view some of the provisions are constitutional and others are a stretch; but Judge Pitman's refusal to do a serious severability analysis means that all of them will get a try-out over the next few weeks.

Jamil and I debate geofenced search warrants and the reasons why companies like Google, Microsoft and Yahoo want them restricted.

In quick hits,

Download the 407th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Roberts Can Still Write

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My criticism of the Chief Justice is virtually unflagging, but I must give credit where it's due: Roberts is still the strongest writer on the Court. Look no further than his self-assigned majority opinion in FEC v. Cruz.

A paragraph on page 7 begins:

These arguments have an Alice in Wonderland air about them, with the Government arguing that appellees would not violate the statute by repaying Cruz, and the appellees arguing that they would. But this case has unfolded in an unusual way. 

Three paragraphs later, on the bottom of page 8, Roberts pays off the Alice reference:

But we need not go further down this rabbit hole.

Perfection.

The best standup routines will often include a joke at the beginning that establishes a theme. The comic will revisit that theme throughout the set. And then, for the very last line, he will come back to the opining theme to a standing ovation. This sort of delivery requires skill, patience, and craft.

Today, judges often attempt humor with one-liners and zingers that are over as soon as they begin. These barbs seldom leave a mark but often miss the mark. In Cruz, the Chief plants the seed, builds up to it, then pays it off subtly. You know some thought went into this argument. Well done. (One of the reasons why I am so hard on Roberts's jurisprudential sophistry is because I know he knows better.)

Then, from rabbit holes to mouse holes, we get this line from Justice Gorsuch's dissent in Patel v. Garland:

Often this Court rejects as implausible statutory interpretations that seek to squeeze elephants into mouse holes. See, e.g., Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Today's interpretation seeks to cram a veritable legislative zoo into one clause of one subparagraph of one subsection of our Nation's vast immigration laws.

Unsolicited advice for West Virginia v. EPA: retire all future analogies about mouse holes. Justice Scalia penned a classic line twenty years ago. Now we're just beating a dead elephant.

Finally, Justice Kagan's dissent in FEC v. Cruz missed an obvious, and inappropriate joke:

By contrast, when a campaign uses a donation to repay the candidate's loan, every dollar given goes straight into the candidate's pocket. With each such contribution, his assets increase; he can now buy a car or make tuition payments or join a country club—all with his donors' dollars.

Cruz could have bought a return plane ticket from Cancun!

Law & Government

Total COVID-Related Closure of Trial and Suppression Hearing (With Public Audio But Not Video) Was Unconstitutional

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From today's opinion in U.S. v. Allen, written by Judge Sandra Ikuta and joined by Judge Lawrence VanDyke and Tenth Circuit Judge Carlos Lucero; seems generally right to me:

At the height of the coronavirus pandemic in 2020, the district court here prohibited members of the public from attending the defendant's suppression hearing and trial and rejected the defendant's request for video-streaming of the proceedings. This appeal raises the question whether the court's order violated the defendant's Sixth Amendment right to a public trial.

We conclude that the district court's order was not narrowly tailored, in part because courts throughout the country, facing the same need to balance public health issues against a defendant's public trial right, consistently developed COVID protocols that allowed some sort of visual access to trial proceedings. Accordingly, we conclude that the court's COVID protocols in this case violated the defendant's public trial right, and he is entitled to a new suppression hearing and trial….

The court's protocol for Allen's pretrial hearings and trial precluded members of the public from entering the courtroom, and gave them access to the proceedings only by streaming audio over the internet.

Allen objected to this protocol as violating his Sixth Amendment right to a public trial. At a hearing to consider this and other pretrial issues, Allen's counsel argued that while neither audio nor video streaming of the trial was equivalent to an in-person trial, Allen would accept video as "an adequate substitute" for public access because it "comes closer to recapturing that in-person experience more so than telephone."

According to counsel, "the ability to have the courtroom open is not simply to hear the witnesses but to see the witnesses, to see the jury, to see the defendant, to see the attorneys, see the court," as well as "to see the exhibits … and have as close to a re-creation of that ability to walk into the courthouse." By contrast, counsel asserted, telephone access was not an adequate substitute because "you miss all of that flavor." Counsel argued that this factual difference adds up to "a constitutional legal difference." …

The [district] court ruled that there was no basis "for concluding that there's a constitutional difference between audio and video." It then rejected the counsel's proposed alternative of video-streaming the trial. According to the court, it would be improper to live-stream the proceedings over the internet because the court would be unable to prevent viewers from recording the trial. And the court concluded that live-streaming the video to a different room in the courthouse would not meet the objectives of closing the courthouse and curbing the spread of COVID, because it would not limit the number of persons in the courthouse.

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Free Speech

Why the Texas Social Media Law is a Menace to Freedom of Speech

The law forces social media firms to host and promote speech they oppose, and would set a dangerous precedent if upheld by the courts..

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In December, federal district court Judge Robert Pitman ruled against HB 20, Texas' sweeping new social media law that bars social media firms from engaging in almost any moderation of the content that can appear on their sites. Not only are they forbidden to completely exclude content they disapprove of; they are also not allowed to treat it differently on the site (such as by flagging it as possibly unreliable "misinformation" or reducing its prominence relative to other speech on the same platform).

Last week, the US Court of Appeals for the Fifth Circuit issued a 2-1 ruling imposing a stay on the injunction against enforcement of the law issued by the trial court.  The Fifth Circuit ruling is purely procedural, and is not accompanied by any opinion explaining the court's reasoning. So it's hard to say whether the stay is based on purely technical procedural considerations, or signals that the majority believes the law is actually constitutional.

On Friday, the tech firms challenging the law asked the Supreme Court to lift the Fifth Circuit's stay, in a brief drafted by a virtual Who's Who of prominent conservative appellate lawyers, including "super-lawyer" Paul Clement (former Bush administration Solicitor General), and former Texas Solicitor General Scott Keller.

I will not try to assess the purely procedural issues involved in the fight over the stay. But I completely agree with the brief's discussion of the substantive free speech question. HB 20 is blatantly unconstitutional because it compels speech, forbids the exercise of editorial discretion by social media firms, and is meant to target firms the Texas state government believes are hostile to "conservative" speech specifically.

HB 20 is an extreme version of proposals to treat social media firms as "common carriers" who have a legal duty to accept all or virtually all would-be customers. I criticized such proposals in detail here. Most of the points I make are relevant to the present case:

Let's start with first principles. Eugene Volokh asks "Whose rules should govern how Americans speak with other Americans?"…..

Th[e] answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.

Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their  rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries' views….

Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm "no."

The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power….

The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news,  35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than that from television and news websites.

What is true of news is also true of opinion and commentary about political and social issues in the news…..

To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major outlets as Fox News, the Wall Street Journal editorial page, the Washington Times, the New York Post, and others.

In sum, social media sites have nothing approaching a monopoly over the market for political information generally, or even over its distribution online.

One measure of Big Tech social media's inability to control political discourse is their utter failure to prevent the rise of widespread attacks on Big Tech itself! Real monopolists worthy of the name should be able to at least suppress speech that directly threatens their own interests.

Moreover, as I explained in a January [2021] op ed in USA Today (itself one of the many alternatives to social media!), the big social media sites don't even command a true monopoly over social media, narrowly defined. Rival sites with different (and often much looser) moderation rules can and do compete with them….. If they aren't as popular as Facebook and Twitter, it's not because of lack of competition, but because fewer consumers like them. Facebook and Twitter themselves challenged previous, supposedly dominant incumbents. If they annoy enough consumers, or if someone develops a more appealing competing platform, today's supposedly unassailable "giants" will suffer the same fate…..

Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory….. [this part of my piece critiques analogies between social media and phone lines and mail delivery services].

The potential imminent takeover of Twitter by Elon Musk - who promises to greatly reduce content moderation - is a further sign that the market is fully capable of generating competition for platforms with restrictive moderation of policies.

I also explained why, if courts accept the HB 20 or "common carrier" approach to regulating social media, it would set a dangerous precedent for government control over other media:

In addition to banning content moderation rules that many consumers like, common carrier restrictions also create serious slippery slope risks. If the monopoly rationale for imposing common carrier rules on social media platforms is accepted, it could just as easily justify the imposition of similar requirements on many types of traditional media.

Even if Twitter and Facebook don't actually monopolize the market for political information, it's certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same theory would rationalize imposing the same requirements on other types of media. Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can't always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!

Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg's views have any more clout than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does. And it's not clear that they are any more worthy of their influence than Zuckerberg is.

Giving government a free hand to impose common carrier restrictions on any website or media outlet that "monopolizes" a particular audience or otherwise has "too much" influence is a power that can and will be abused. Call it "common carrier creep!"

The party in power will have obvious incentives to use it to neuter media that oppose them. Even if conservatives are comfortable with giving such discretion to GOP politicians, are they equally at ease with giving it to Joe Biden, Kamala Harris, or Elizabeth Warren? How about the bureaucrats Democratic presidents are likely to appoint to federal regulatory agencies tasked with implementing such common carrier regulations (and deciding which firms should be subject to them)?

Liberal advocates of social media regulation (of whom Warren is a prominent example) should ask themselves whether they would be willing to entrust such regulatory authority to the likes of Donald Trump or Josh Hawley. Given the chance, those guys would be happy to make social media great again - under their definition of greatness, of course.

Free Speech

Court Overturns Ban on Ex-Spouse's "Making Disparaging Comments" About Ex to "Anyone"

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In Israel v. Israel, decided today by the Indiana Court of Appeals (Judge Mark Bailey, joined by Judge Edward Najam and Chief Judge Cale Bradford), the trial court had issued a divorce decree that provided, among other things,

The parties shall refrain from making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone. Disparaging remarks include[e], but are not limited to, negative statements, criticisms, critiques, insults[,] or other defamatory comments. The parties shall not say or do anything or allow a third party to say or do anything about the other party in [Child's] presence that may estrange [Child] from the other party or impair his regard for the other party. The parties shall not involve [Child] in matters that are adult matters and that solely involve the parents or the other parent.

Unconstitutional, the appellate court held:

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Free Speech

Grandmother of Dead Child May Post Child Protection Services Documents That Are Confidential Under State Law,

but that she received from the lawyers for the man accused of killing him.

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From Schrader v. Sunday, decided today by Judge Jennifer P. Wilson (M.D. Pa.):

This is an action seeking injunctive relief filed by Plaintiff Victoria Schrader … against David W. Sunday, Jr., the District Attorney of York County … and Josh Shapiro, the Attorney General of Pennsylvania …. According to the complaint, on December 20, 2018, the Commonwealth of Pennsylvania charged Tyree M. Bowie … with the murder of Dante Mullinix … a two-year old child. {The criminal case against Bowie remains pending ….}

Schrader is Dante's grandmother, who believes that the York County Office of Children and Youth Services … "failed to protect Dante and prevent his death." Similarly, Sarah Mercado …, Dante's aunt and Schrader's daughter, believes that York County CYS failed Dante and that Bowie is innocent of Dante's murder. {Mercado has two cases pending with the court seeking relief similar to that requested in the instant case ….} To advocate for these beliefs, Mercado maintains a Facebook group entitled "Justice for Dante" on which she posts her belief that Bowie is innocent, and that York County CYS was the party responsible for failing Dante, rather than Bowie.

During the course of discovery in his criminal case, Bowie received various documents concerning investigations into Dante's death, including documents from CYS. Before Dante's death, Mercado made a report to CYS expressing concern for Dante's wellbeing. Mercado's report, and the documents associated with the investigation stemming therefrom, were part of the documents available to Bowie in his ongoing criminal case. After Bowie received these documents, he sent them to Mercado, who posted them to the Justice for Dante Facebook page as additional evidence of CYS's alleged failings surrounding Dante's death.

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CUNY Law Graduation Speaker is Recently-Named "Antisemite of the Year"

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I accidentally posted a link a few minutes ago that I meant to post elsewhere, but you can find the basic story here.

The student in question is best-known for pulling out a lighter, lighting it, and then threatening to set someone's Israel Defense Forces shirt on fire--while he was wearing it. CUNY Law School responded with a statement denouncing antisemitism and then, remarkably, "CUNY Law dean Mary Lu Bilek withdrew the condemnation and issued a statement apologizing and stating that Kiswami 'exercised her First Amendment right to express her opinion.'" Please note, that, while that is the incident she is best-known for, it's hardly the only "highlight" of her activist career.

"Are Jews a Race Under U.S. Law?

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A new article of mine in Tablet magazine, which begins:

Is being Jewish a race? A national origin? An ethnicity? A religion? All four?

The answer is: It's complicated.

Now Justice Barrett Uses "Noncitizen" Instead of "Alien"

"Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States."

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Justice Barrett's majority opinion in Patel v. Garland begins:

Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances.

Yet, Congress does not use the word "noncitizen." The immigration laws use the word "alien."

Now, Justice Barrett has joined Justice Kavanaugh, Justice Sotomayor, the Solicitor General, and others, with swapping out "alien" for "noncitizen." The lower courts—including the Eleventh Circuit—continue to squabble over this issue.

Fortunately, Justice Barrett did not expurgate the word "alien" from quotations, like Justice Sotomayor did.

Section 1182(a)(6)(C)(ii)(I) renders inadmissible an "alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under" state or federal law.

In Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), we had to decide whether subparagraph (C)—which bars review of "any final order of removal against an alien who is removable by reason of having committed" certain criminal offenses—prohibits review of how a legal standard applies to undisputed facts.

Meanwhile, Justice Gorsuch's dissent that ruled for Patel, which was joined by the Court's progressives, used the word "alien" repeatedly.

No Pseudonymity for Lawyer Who Wants to Conceal Litigation Against Government from Future Clients

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From Chief Judge Beryl Howell's opinion in Doe v. U.S. Dep't of Homeland Security (D.D.C. Mar. 14, 2022):

Plaintiff, an attorney, has moved to proceed pseudonymously as he litigates his instant claim under the Freedom of Information Act seeking information from various government agencies about a January 2021 incident, during which plaintiff was stopped at an international airport while attempting to reenter the United States and subjected to an interrogation "about legal representation he has provided and continues to provide." …

Plaintiff, an attorney licensed in Texas, represents "individuals in U.S. Immigration and Naturalization matters" and "criminal and national security investigations," including clients "who are under investigation by the FBI." … In 2021, plaintiff "was attempting to reenter the United States … through a Global Entry kiosk" at an international airport located in Dallas, Texas. He was "rejected entry at the kiosk and transferred to an in-person primary inspection, and then to a secondary inspection area," where he was "separately interrogated" by a CBP officer and two Department of Homeland Security ("DHS") employees "about his law practice, personal life, parents, and his personal U.S. immigration history."

One of the officers then asked him to "unlock his iPhone so that the digital contents … could be inspected," to which request plaintiff responded "he could not consent" because "the iPhone contained extensive privileged information and allowed for the accessing of privileged information that is stored remotely." In the face of plaintiff's denial of the request for access to his iPhone, the officer "informed Plaintiff that DHS was seizing the iPhone and that the digital contents would be searched" and "physically assaulted" plaintiff. Thereafter, plaintiff "submitted FOIA requests for documents, records and videos pertaining to the Plaintiff and the January 3, 2021, incident" to each of the defendant agencies.

Due to the defendants' alleged failure timely to comply with plaintiff's FOIA requests, plaintiff brings this suit challenging their denials and inaction under FOIA. He seeks to proceed under pseudonym because of "safety concerns for Plaintiff and his family given that part of this litigation involves an assault that occurred by an employee" of one of the defendants, and because "third parties associated with Plaintiff could be negatively impacted or harmed by the nature of this litigation."

The court noted the strong presumption against pseudonymity, and held it wasn't rebutted in this case; here's an excerpt from the reasoning: Read More

Supreme Court

Akhil Amar on the Draft Dobbs Opinion

A prominent progressive law professor challenges some of the prevailing orthodoxy on Roe, Dobbs, and Supreme Court precedent.

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Over the weekend, Yale law professor Akhil Amar had a substantial essay in the Wall Street Journal discussing the leaked draft opinion in Dobbs by Justice Alito that would overturn Roe v. Wade. Professor Amar is one of the nation's most prominent constitutional law professors. He is fairly progressive, but also considers himself an originalist. As a consequence, he sometimes breaks with prevailing academic sentiments, and he did so here, arguing there is "nothing radical, illegitimate or improperly political in what Justice Alito has written."

While some commentators have claimed the Dobbs draft would represent a dramatic break from the Court's prior treatment of precedent, Professor Amar claims there was not "anything unusual" in the draft's treatment of precedent.

Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. Over the last century, the Court has overruled itself about twice a year—roughly the same rate at which the Court has overturned acts of Congress.

Precedents fall for many reasons. Sometimes the world changes in ways that mock the logic and expectations of the old ruling. Sometimes opposing lines of cases evolve and clash, and something must give. Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.

Amar could have added that, since John Roberts has been Chief Justice, the Supreme Court has overturned precedents (and invalidated federal statutes) at a measurably lower rate than did the Rehnquist, Burger, and Warren Courts.  This could well change in the years ahead given the Court's current composition, but it has not yet. Overruling Roe would be quite significant--and would almost certainly be the most consequential overturning of a precedent to date in this century--but it would not represent a dramatic departure from the Court's recent approach to precedent.

Unlike most of his colleagues on the Left, Amar believes that Roe should be overturned (or at least substantially rethought). He writes:

Today, the Supreme Court's 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft. (Full disclosure: The draft cites me and several others as constitutional scholars who oppose Roe but personally support abortion rights.) Even the late Justice Ruth Bader Ginsburg was sharply critical of the decision.

Professor Amar also disputes some of the fear-mongering about what overturning Roe would mean for other constitutional rights. As he also noted in a recent episode of his podcast, many of these claims are quite unfounded.

Does Justice Alito's draft, as many are now claiming, inflict collateral damage on other areas of constitutional case law, such as the Warren Court's precedents on contraception and interracial marriage?

It does not. In fact, the Dobbs draft reinforces these iconic opinions by explaining why they were right—namely, because the freedoms recognized in these cases were "deeply rooted in the Nation's history and tradition." These watershed rulings were once controversial in conservative constitutional circles, thanks to the influential work of Robert Bork, but now they are safe.

Amar goes on to explain how the draft opinion provides a ready basis to distinguish cases like Griswold v. Connecticut and Loving v. Virginia. Unlike abortion, rights related to marriage are "deeply rooted in the Nation's history and tradition," and there is no widespread political movement seeking the reversal of the precedents. Loving also rests on an Equal Protection rationale that, if anything, has become stronger over time. The current Court is arguably even more hostile to explicit race-based classifications than its predecessors.

Amar concedes that "the draft's logic could be seen to undermine the Obergefell decision" recognizing a right to same-sex marriage, but does not think that decision is under threat either. He notes the increasing spread and acceptance of same-sex marriage and that marriages implicate more substantial reliance interests (as that concept has been traditionally understood in the law) than does a right to abortion.

Amar closes with some broader points about the Court, and persistent progressive attacks on it.

Notwithstanding the alarms triggered by the Dobbs leak and draft, what I told the Senate back in 2018, testifying as a Never Trumper in support of Brett Kavanaugh's nomination to the Court, remains true: "Americans generally and with good reason view today's Court more favorably than today's Congress and Presidency. The current justices are outstanding lawyers who do loads of close reading, careful writing, and deep thinking; try hard to see other points of view; spend lots of time pondering constitutional law; and spend little time posturing for cameras, dialing for dollars, tweeting snark, or pandering to uninformed extremists or arrogant donors. Can today's President and Congress say the same?"

In short, I am a Democrat who supports abortion rights but opposes Roe. The Court's ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I'm wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.

Crime

Today in Supreme Court History: May 16, 1918

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5/16/1918: The Sedition Act of 1918 is enacted. The Supreme Court upheld prosecutions brought under this law in SchenckDebs, and Abrams.

Crime

Today in Supreme Court History: May 15, 2000

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5/15/2000: U.S. v. Morrison is decided.

Free Speech

Linking Fired Women's Gymnastics Coach to Sex Abuser Larry Nassar Could Be "Libel by Implication"

So the Michigan Court of Appeals held Thursday, in a case brought by the former head women's gymnastics coach at Central Michigan University.

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From Reighard v. ESPN, decided by Chief Judge Mark Boonstra and Judges Michael J.  Kelly & Brock Swartzle (Presiding Judge Boonstra also concurred separately to agree with Justices Thomas and Gorsuch's recent criticisms of the U.S. Supreme Court's libel jurisprudence, and with Justice White's past criticisms):

For 35 years, [Jerry] Reighard was the head women's gymnastics coach at Central Michigan University (CMU). On February 20, 2019, CMU announced that it had placed Reighard on paid administrative leave pending an investigation. No details regarding the investigation were disclosed in that announcement. However, citing confirmation by CMU's athletic director, multiple news articles reported on that date that the investigation had "nothing to do with [former gymnastics physician] Larry Nassar's case or sexual misconduct of any kind" or "Title IX."

Defendant Daniel Murphy is a reporter for defendant ESPN, Inc. In that capacity, Murphy had previously reported on issues relating to gymnastics, including coverage of Nassar's sexual abuse of gymnasts and John Geddert's reported physical and mental abuse of gymnasts…. On February 21, 2019, Murphy posted on Twitter consecutive tweets about two public announcements concerning women's gymnastics coaches in Michigan. The first tweet referred to an announcement by the Michigan attorney general:

Michigan's attorney general announced today her office is taking over an investigation of John Geddert, the 2012 Olympic team head coach and close friend of Larry Nassar. Several gymnasts have publicly abused [sic] Geddert of physically and mentally harming them.

The second tweet—which was posted within a minute of the first tweet—addressed CMU's announcement concerning Reighard:

On the same day as the AG's announcement, Central Michigan said it was putting longtime gymnastics coach Jerry Reighard on leave amid an internal review. No details of the review were shared, but Reighard has a long personal and professional relationship with Geddert.

Reighard requested a retraction of the tweets. Murphy then searched for and discovered the earlier reporting in which CMU had confirmed that its investigation of Reighard had nothing to do with Nassar or Title IX. Murphy also then spoke directly with a CMU representative, who again confirmed to Murphy that the investigation had nothing to do with Nassar or Title IX, and that by "Title IX," he meant "sexual misconduct."

Following that conversation, Murphy concluded that a retraction was unnecessary because there was nothing factually incorrect in the tweets. Instead, on March 11, 2021, he posted an additional tweet—which he testified was not meant as a retraction, but instead was intended to "add more information to [his] reporting"—on Twitter:

Central Michigan hopes to have its internal investigation of Jerry Reighard completed by the end of the semester. An athletic dept. spokesman confirmed today Reighard remains on paid leave and the investigation is not connected to the Larry Nassar scandal or sexual misconduct.

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