The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

"Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade

Such speech can be found to be "impermissible harassment," the court says, partly because "deference to schoolteachers is especially appropriate today, where, increasingly, what is harmful or innocent speech is in the eye of the beholder."

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From B.B. v. Capistrano Unified School Dist. (C.D. Cal.), decided last month but just posted on Westlaw:

When B.B. was in first grade, she made a drawing (the "Drawing") that included the phrase "Black Lives Mater [sic]" printed in black marker. Beneath that sentence, B.B. added "any life," in a lighter color marker. B.B. gave the Drawing to a classmate, M.C., who took it home. When M.C.'s mother saw the Drawing, she emailed the school, stating that she would not "tolerate any more messages given to [M.C.] at school because of her skin color" and that she "trust[ed]" the school would address the issue.

Later that day, the school's principal, Becerra, approached B.B. at recess. Becerra told B.B. that the Drawing was "inappropriate" and "racist," and that she was not allowed to draw anymore. {At the hearing, the parties disputed whether B.B. testified that Becerra told her the Drawing was racist. Although B.B.'s deposition is unclear, the Court must construe her testimony in the light most favorable to B.B.} He also instructed B.B. to apologize to M.C., which B.B. did twice.

When B.B. returned to class from recess, two of her teachers told her that she was not allowed to play at recess for the next two weeks. The teachers did not tell B.B. the reason she could not play at recess, and there is no direct evidence that Becerra directed B.B.'s teachers to punish B.B. in this way….

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First Amendment

Court Should Focus on Coercion in Murthy v. Missouri

The government is entitled to try to persuade social media to take down posts, but not to coerce them to do so.

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Blocked Facebook page
(Rafael Henrique | Dreamstime.com)

On Monday, the Supreme Court held oral argument in Murthy v. Missouri, a case in which the states of Missouri and Louisiana,  and several private plaintiffs argue that the Biden Administration pressured social media firms into taking down posts they deemed to be "misinformation." Most of the justices emphasized that at at least some degree of coercion is required before courts can intervene to block the government's actions in such a case.

If government officials are merely resorting to persuasion, however vehement, that doesn't by itself violate the First Amendment. Indeed, such suasion is is normal behavior for public officials. As Justice Brett Kavanaugh put it, "my experience is[that] the United States, in all its manifestations, has regular communications with the media to talk about things they don't like or don't want to see or are complaining about factual inaccuracies." Kavanaugh was likely referring to his service as a White House official in the George W. Bush Administration.  Justice Elena Kagan, also a former White House official, made a similar point:

[L]ike Justice Kavanaugh, I've had some experience encouraging press to suppress their own speech. You just wrote about editorial. Here are the five reasons you shouldn't write another one. You just wrote a story that's filled with factual errors. Here are the 10 reasons why you shouldn't do that again. I mean, this happens literally thousands of times a day in the federal government.

Cynics might argue that Kavanaugh and Kagan are biased by their own experience in government service. But this distinction between suasion and coercion is inherent in the text of the First Amendment. The Free Speech Clause doesn't restrict any and all government efforts to constrain speech. Rather it, bars government actions "abridging the freedom of speech" (emphasis added). If the state—or anyone—persuades a private entity to cut back on speech voluntarily, the freedom of speech has not been abridged, even if the total amount of speech may be reduced.

Louisiana Solicitor General Benjamin Aguinaga, arguing for the plaintiff states, suggested things are different in the case of social media firms, because here the government is urging them to cut back on the speech of "third parties" (users of their websites) rather than their own. But that's no different than if a government official I criticize on this blog contacts Reason and urges them to stop allowing me to post on its site because (they claim) my critiques of government policy are inaccurate and unfair. As long as there is no coercion, neither my freedom of speech nor Reason's would have been violated if Reason decides to bar me from the site. I only have a right to post here in so far as Reason lets me, and barring me (should they choose to do so) would be an exercise of their freedom speech.

This still leaves the question of whether various federal agencies did in fact coerce social media sites into barring speakers from their sites. As I wrote in a post about the Fifth Circuit decision the Court is reviewing here, I think the answer is likely "yes." But I admit there can be some difficult factual issues in cases like this. Clever officials my rely on veiled threats rather than open ones. Context is critical in assessing such situations.

Importantly, the Fifth Circuit found that officials did in fact threaten to punish social media firms that refused their demands:

[T]he officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms' best interests to comply. As one official put it, "removing bad information" is "one of the easy, low-bar things you guys [can] do to make people like me"—that is, White House officials—"think you're taking action."

That sure seems like coercion to me! Importantly, the people making these statements were officials whose superiors had the power to carry out at least some of these veiled threats. The evidentiary and interpretive issues here are—as noted in my previous post—similar to those that sometimes arise when organized crime organizations, like the Mafia, engage in extortion or protection rackets:

It's noteworthy that the record analyzed by the [Fifth Circuit] doesn't seem to include any examples of direct, unequivocal threats, such "If you don't take down X, I will inflict punishment Y." But as the court recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because "that's one of the easy, low-bar things you can do to make people like me and the Don happy," the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material.

If it is indeed true that government officials "threatened…. to retaliate against inaction," then the Supreme Court should uphold the Fifth Circuit injunction against the defendant agencies, at least in so far as that injunction bars coercive pressure. As discussed in my previous post, I am far less convinced that the Fifth Circuit acted appropriately in also enjoining "significant encouragement" defined as "a governmental actor exercis[ing] active, meaningful control over the private party's decision." If the private party gave the governmental actor such control voluntarily, that may be bad media ethics, but it is not a violation of freedom of speech.

For those keeping score, my position here is exactly the same as in the Texas and Florida social media law cases argued before the Supreme Court last month. There, social media firms urged the Court to strike down state laws requiring them to host speech the firms object to. These laws clearly qualify as government coercion, and should be struck down. On the other hand, if Texas and Florida officials had merely sought to persuade Facebook and Twitter to host various types of right-wing speech voluntarily, there would be no violation of the First Amendment there either.

In sum, the First Amendment bars government from coercing social media firms to either post speech the firms object to (as Texas and Florida seek to do) or take down speech the firms would like to allow (as various federal agencies apparently did). On the other hand, both federal and state officials have every right to urge firms to put up or take down posts voluntarily.

Much of Monday's oral argument was devoted to questions of whether the plaintiffs had standing. My impression is that the justices could potentially go either way on that question, though I myself think at least some of the plaintiffs do have standing (because their speech on social media got restricted in response to coercive pressure brought to bear by government agencies). If the Court rules the private plaintiffs lack standing, it may be tough sledding for the state governments, as the Supreme Court has not been very friendly to creative state standing claims in recent years. I will leave the details of these standing issues to other commentators.

If the Court reaches the merits, I hope they make clear that coercion is the appropriate standard, but also that veiled, but credible threats of retaliation by government officials qualify as such coercion.

UPDATE: In the original version of this post, I accidentally attributed a statement by Justice Elena Kagan to Justice Ketanji Brown Jackson. I apologize for the mistake, which has now been corrected.

Second Amendment

Law Enforcement Trainers File Scotus Amicus Brief against Maryland Rifle Ban

Citizens should be able to choose the same high-quality defensive arms that peace officers choose

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Last week the International Law Enforcement Educators & Trainers Association filed an amicus brief in a U.S. Supreme Court case challenging Maryland's ban on many common semiautomatic rifles. The case is Bianchi v. Brown, and it has an unusual procedural posture; it is a petition for certiorari before judgement. Yet the case is one on which the U.S. Supreme Court has already ruled.

This post will first summarize the amicus brief, and then provide the procedural background, which is detailed in the Bianchi plaintiffs' cert. petition.

The facts about the banned rifles

As detailed in the amicus brief, the semiautomatic rifles banned by the Maryland General Assembly fire only one shot each time the trigger is pressed. This is the same rate of fire as the most common semiautomatic handguns, such as those made by Glock, Smith & Wesson, or Ruger.

The claim by gun prohibition advocates that such guns fire 300 to 500 times per minute has no basis in fact, and is contrary to common sense. It would take a superhuman trigger finger pull a trigger at the rate of 5 to 8 times per second, let alone do so for a full minute.

Nor are the banned rifles, including those based on the AR-15 platform, more powerful than nonbanned rifles. To the contrary, their standard ammunition is .223 inch or 5.56mm bullets that are small compared to most other rifle ammunition. Accordingly, their kinetic energy is lower.

Because the banned rifles are more powerful than handguns, but less powerful than most other rifles, the relatively low wounding power of this ammunition has been confirmed by decades of study by the US Army's Ballistic Research Laboratory.

Moreover, as documented in police training manuals, the banned rifles are the safest for defensive use within buildings, because their ammunition is especially unlikely to penetrate a wall.

The deadliest firearms in mass shootings are handguns. Researchers led by Dr. Babak Sarani, founder and chief of the Center for Trauma and Critical Care at George Washington University Hospital, examined the relationship between the type of firearm used, wounding characteristics, and probability of death in mass shootings. Babak Sarani, et al., Wounding Patterns Based on Firearm Type in Civilian Public Mass Shootings in the United States, 228 J. Amer. College Surgeons 228 (Mar. 2019). They studied firearm types and autopsy reports for 232 victims from 23 mass shootings, including high-casualty shootings with "assault weapons" at Orlando and Las Vegas.

Surprisingly, the researchers found that mass shootings with handguns are more lethal than those with rifles because handguns result in more wounds per victim and more injuries to vital organs. Id. at 228-29, 232-33. "All of us were shocked," Dr. Sarani said. "We came to the table with our bias that an assault weapon would be worse." Carolyn Crist, Handguns More Lethal Than Rifles in Mass Shootings, Reuters (Dec. 31, 2018).

Law enforcement perspectives

Because the banned rifles are relatively low-powered, their recoil is lower, and hence they are more accurate. Additionally, the rifles are replete with features (outlawed by Maryland) that enhance accuracy.

For example, a telescoping stock can adjust for a precise fit to the user's size. The customizable forward grip provides stability. Surrounding the barrel are rails (sometimes called the handguard or forend) that make it easy to add optics, such as scopes, red dots, and/or flashlights – all for greater accuracy.

So it is no wonder that these semiautomatic rifles are very commonly chosen by law enforcement officers to carry in their patrol cars. Law enforcement officers choose their patrol rifles for only one purpose: lawful defense of self and others. It is preposterous for a legislature to claim (falsely) that these rifles are "weapons of war," are useless for self-defense, and are made only for mass killing. This is a libel against law-abiding law enforcement officers.

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Russia

Video of Marshall University Online Talk on "Putin's Western Supporters"

In the presentation I explain why Putin's regime appeals to these people, and how they compare with Western sympathizers with the USSR during the Cold War.

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Marshall University recently posted the video of my online talk on "Putin's Western Supporters," which is part of their weekly series of panels and lectures related to Russia's war against Ukraine.

In the presentation, I distinguish between Westerners who like and admire Putin's regime from those I call "anti-anti-Putinists," a term inspired by Cold War-era anti-anti-communists. I also explain why Cold War-era Western sympathizers with the Soviet Union were overwhelmingly on the political left, while Putin's Western supporters are mostly on the political right. Whereas the USSR's appeal was tied to that of egalitarian socialism and communism Putin's Russia promotes nationalism and social conservatism. Finally, I discuss the relative strengths and weaknesses of Putin's regime in the international war of ideas, and what can be done to counter it. Some of the points made relate to issues addressed in my recent National Affairs article, "The Case Against Nationalism" (coauthored with Alex Nowrasteh).

Here's the video:

Race Discrimination

Employers May Not "Take Adverse Employment Actions … Based on [Employees'] Race or Gender to Implement" "Diversity and Inclusion" Programs

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From Tuesday's Fourth Circuit decision in Duvall v. Novant Health, Inc., written by Judge Agee and joined by Judges Quattlebaum and Floyd (upholding a damages award of "about $4 million"):

After a week-long trial, a North Carolina jury found that Novant Health, Inc. terminated David Duvall because of his race, sex, or both, in violation of Title VII of the Civil Rights Act of 1964. In addition to the finding of liability, the jury awarded Duvall $10 million in punitive damages [reduced to the statutory maximum of $300,000].

The court summarized the facts, as usual in this situation, in light most favorable to the verdict:

Duvall, a white man, began working for Novant Health in 2013, when Executive Vice President and Chief Consumer Officer Jesse Cureton, a black man, hired him as Senior Vice President of Marketing and Communications. Based in North Carolina, Duvall reported directly to Cureton and held the same position throughout his employment with Novant Health. Evidence presented at trial demonstrated that Duvall performed exceptionally in his role, receiving strong performance reviews and gaining national recognition for himself and the marketing program he developed for Novant Health.

Despite all that, Cureton fired Duvall in July 2018, a decision that came as a shock to both Duvall and his colleagues. Moreover, Novant Health—a multibillion-dollar company with tens of thousands of employees and an extensive human resources department—had no record of any documented criticism of Duvall's performance or reasons for his termination.

Immediately after firing Duvall, Novant Health elevated two of Duvall's deputies, a white woman and a black woman, to take over his duties. It then later hired another black woman to permanently replace Duvall.

Believing Novant Health fired him merely to achieve racial and gender diversity—or more specifically, to hit certain diversity "targets"—within its leadership, Duvall sued his former employer under Title VII and North Carolina state law in federal district court….

The court concluded there was sufficient evidence to support the jury verdict:

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Race Discrimination

Racially Discriminatory Enforcement Lawsuit Against Duluth Police Officer Can Go Forward

A black resident called the police to complain about alleged racial harassment by white neighbor; the resident alleges the police arrested him for leaving the scene after the police arrived, but didn't arrest the neighbor for doing the same thing.

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From Kirk v. City of Duluth, decided last Wednesday by Judge Patrick Schiltz (D. Minn.):

Plaintiffs Aaron Kirk, who is black, and Amy Kirk, who is white, are a married couple who reside in a predominantly white neighborhood in Duluth, Minnesota. The Kirks allege that, beginning in 2007 and continuing for many years thereafter, they were subjected to a campaign of racist harassment from two of their neighbors (who lived with each other). Specifically, the neighbors repeatedly made false and unfounded complaints about the Kirks to the Duluth Police Department, subjecting the Kirks (and sometimes their children) to over 100 interactions with the police. On every occasion, the responding officers found the complaints to be unfounded.

The neighbors' complaints ran the gamut from frivolous to serious, including complaints that the Kirks' daughter was drawing on the sidewalk with chalk; that the Kirks' dog (a small Schnauzer) was aggressive and made too much noise; that the Kirks were running a methamphetamine lab; that Aaron Kirk was abusing his child; that Aaron Kirk was "slamming doors" and making noise inside his own home; and that Aaron Kirk was planning to steal roofing materials that the neighbors' contractor had left outdoors. On one occasion, one of the neighbors called Aaron Kirk "nigger" and threatened to call the Ku Klux Klan. The same neighbor twice told police that she was going to shoot the Kirks' dog.

According to the complaint, the "most recent[ ]" incident—an incident that did not involve the neighbors—occurred in July 2020. Aaron Kirk was driving on a Duluth street when defendant Dustin Turcotte cut him off. Kirk sounded his horn, and Turcotte responded by, among other things, repeatedly calling Kirk "nigger," following Kirk first to a restaurant and then to a bank, blocking Kirk's car in the restaurant parking lot, and repeatedly threatening to beat Kirk with brass knuckles.

Turcotte fled after a squad car arrived while the two were outside the bank. Kirk reported Turcotte's conduct to the responding officer, Sara Schutte, who then walked away from Kirk and began speaking to a third-party witness. Kirk left the scene, but officers later showed up at his home and arrested him for fleeing a police officer. While transporting Kirk to jail, Schutte remarked to Kirk: "I could have let you go, but you were being an asshole so I'm taking you to jail." Schutte eventually cited Kirk for disorderly conduct, obstructing the legal process, and reckless driving. Kirk remained in jail for four days; all charges were eventually dropped.

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The Priorities of the Judicial Conference of the United States

Rather than addressing bankruptcy and patent forum and judge shopping, on which there is a large bipartisan consensus, the Judicial Conference rushed through a botched proposal in response to political pressure and Twitter noise.

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I think it is helpful to take a step back and consider the priorities of the Judicial Conference of the United States.

For decades, people on both sides of the aisle have raised valid complaints about forum shopping in patent and bankruptcy cases. There is not just judge shopping; there is actual judge selling, in which judges invite litigants to file in their courts. This is a real problem that may not garner headlines, but affects far more cases than those brought by the Texas Attorney General. And unlike with constitutional or administrative law challenges, which are reviewed de novo, and can be stayed by higher courts quickly, patent and bankruptcy cases are reviewed with a very deferential standard, and tend to stand.

But the Judicial Conference did not adopt a policy to address this issue on which there is bipartisan consensus. Instead, they adopted a policy with the express intent to clamp down on a practice used on only side of the aisle. These judges were surely aware of the impact of their policy. But they proceeded anyway.

And I've learned this policy was viewed as utterly uncontroversial. The Judicial Conference has two lists–the consent list and the discussion list. Items on the former list are adopted by acclamation without any debate. Items on the latter list are discussed before the vote. The policy on randomized assignments was placed on the consent list. Could it really be that every member of the Judicial Conference thought this issue was so uncontroversial that it didn't even warrant a discussion?

It gets worse. Was the policy adopted at the meeting mandatory or optional? On Tuesday, Judge Sutton told reporters that the policy was mandatory, and would "supersede local standing orders." But by Friday, a memorandum was released suggesting the policy was only optional. What happened? There are two possibilities.

First, the policy, as voted on, was optional, but Judge Sutton completely messed up. Second, the policy as voted on was mandatory, but after the blowback from me and others, they changed course, and the mandate became optional.

The first possibility would cast Judge Sutton in a bad light, but maybe it is unfair to make him the scapegoat. The second possibility, however, would cast the entire Judicial Conference in a bad light. Rather than standing strong behind their policy adopted by acclamation, they cut and ran when negative press came in. I will take some credit here, because, as usual, I shifted the Overton window to set the terms for debate. If everyone fell in line with what my friend Sam Bray wrote, the policy may never have been changed. You're welcome.

In many regards, this episode illustrates much that is wrong with the judiciary. People who become judges care deeply and profoundly what others think about them. Indeed, this approach to careerism is the only way to navigate oneself through the political process to a lifetime appointment. I've written this before, but I'll say it again: anyone who actually wants to be a lifetime judge should be immediately disqualified from holding the position. The problem, of course, is that someone has to hold these positions, and it will be difficult to slot in people who don't actually want the job. At times I favor term limits for the sole purpose of sussing out those who seek this lifetime power.

Will there be any oversight from Congress on this matter? While the courts are generally immune from inquiries about their decisions, their work as an administrative body stands in a very different light. At a minimum, I would be interested to see what sort of research was done on how often nationwide or statewide relief resulted from a single-judge division. Surely such a report was circulated to the judiciary in advance of this non-momentous vote. Or did the committee just vote based on claims from Schumer or Vladeck? I would also be interested to see whether the policy approved on March 12 was mandatory or optional, and whether a change was made in response to public pressure. If the Judicial Conference will operate as a body that responds to political pressure, it should be treated as such.

Academia

The Ethics of Law Professor Amicus Briefs Revisited

Are law professors too quick to sign their names on briefs submitted to courts? Is this a problem?

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The number of amicus briefs submitted by academics has increased dramatically over the past several decades. In principle, such scholars' briefs should help courts resolve difficult cases by sharing relevant expertise. Judges are necessarily generalists. Scholars in a particular field, on the other hand, may have genuine expertise about the specific issues at hand in a given case that could assist the judges in making a decision.

Whatever the merits of such briefs in theory, some have raised questions about their value in practice. In a 2012 Journal of Legal Analysis article, Professor Richard Fallon suggested that too many  professor "compromise their integrity" by joining amicus briefs "too promiscuously." In 2001, Professor Ward Farnsworth reached a similar conclusion, and suggested that law professors "should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." (My co-bloggers Orin Kerr and Ilya Somin also weighed in on some of these questions in 2010.)

As the number of amicus briefs has increased, I suspect the influence such briefs have on the courts has declined—and I suspect this is particularly true for those briefs filed by interest groups (which often file briefs for fundraising or promotional purposes) and large groups of academics. While a brief submitted by a few well-known experts in their field of expertise may well matter, I doubt many judges are impressed by relatively generic submissions filed on behalf of dozens of academics–and with good reason.

In some fields, it is rather common for professors to sign on to just about any academic brief that argues for their preferred outcome, without regard for what arguments are actually made or whether those arguments align with the academic signatories' scholarly views. In some cases professors will sign on even when they know little about the subject matter–such as, say, what a given state's law has to say about a complex matter–and when they have engaged in no independent study of the issue. In still other cases, academics may solicit signatories for briefs sight unseen–and some apparently sign under such conditions. (Indeed, I saw one such solicitation just within the past month.)

If the value of an academic amicus brief is to provide academic expertise, then it would seem to me to be quite unethical for academics to sign their names to briefs that do not reflect their academic expertise. And insofar as some (many?) academics do not adhere to such a principle, it should not surprise us if this lessens the value of such briefs overall, as judges learn to cast aside what are little more than well-formatted policy statements.

In my own case, I have never been willing to sign on to amicus briefs that did not address matters within my expertise and that would satisfy the Farnsworth standard, but I have become even more reluctant to sign such briefs over time. These days, as a general rule, I will not sign a brief unless I helped to write it or had some role in shaping the arguments, unless by serendipity a brief aligns with my previously well-considered views (which may happen if, say, the brief author drew from my published work). It is not that I do not have opinions about how I would like many cases to be decided. It is rather that there is no reason a court should care what I think about a case unless I can say, without hesitation, that I have studied the matter to a degree the judges have not. Is this approach too stingy? Perhaps, but I am inclined to think it is the right one.

From Professor Fallon's 2012 article:

With respect to questions of professional identity, many of today's law professors want to be valued as scholars on a par with professors on faculties of arts and sciences who devote their careers to the sometimes lonely search for truth or honest insight. Yet many also aspire to achieve an immediate influence on public events in ways that few members of faculties of arts and sciences could dream of. In seeking to realize the latter ambition, we law professors may face temptations to tailor our arguments to our audiences, to overstate the strength of the support for our conclusions, and to omit to say what would reduce our impact.

The vocation of a law professor is not exclusively that of a scholar. We can, and should, play multiple roles. In doing so, however, we should remember that when we attempt to influence public matters, we almost inevitably seek to trade on the credibility that we—and our predecessors and colleagues—have earned in the roles of scholar and teacher. Those roles create obligations of responsibility, trustworthiness, and confrontation. If emerging norms in the signing of scholars' briefs betray expectations of scholarly responsibility, trustworthiness, and confrontation that we have sought to promote, or seek to capitalize upon, then we should hold ourselves to higher standards

 

And the RBG Leadership Award Goes To . . .

For the "Not-from-the-Onion" File

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In descending order of absurdity, the five honorees this year are: Elon Musk, Rupert Murdoch, Sylvester Stallone, Michael Milken, and Martha Stewart.

Seriously?!  Yes, I am afraid so.

The award has been given annually since 2019 by the Dwight D. Opperman Foundation, and was established to "recognize an extraordinary woman who has exercised a positive and notable influence on society and served as an exemplary role model in both principles and practice." Previous winners were Barbra Streisand, Diane Von Furstenburg, and Queen Elizabeth II.

The Foundation—set up after the death of Mr. Opperman, who was the CEO of West Publishing Company and a Trustee of NYU Law School for many years, as well as a personal friend of the Justice—issued a press release announcing the award that breaks new ground in tone-deafness.  E.g.,

"Justice Ginsburg became an icon by bravely pursuing her own path and prevailing against the odds," said Brendan V. Sullivan, Jr., chair of the RBG Award. "The honorees reflect the integrity and achievement that defined Justice Ginsburg's career and legend." [How, exactly?]

"Regardless of Elon Musk's stratospheric accomplishments, in receiving the first RBG Award for Entrepreneurship, Musk's focus is clear and unwavering: 'Free speech is the foundation of democracy,' Musk said."

"Rupert Murdoch, the most iconic living legend in media, will be bestowed with the Media Mogul RBG Award. Murdoch said: 'This recognition not only reflects my journey in the media and publishing industry but also represents the relentless defense of civil liberties and a commitment to civil discourse that Justice Ginsburg embodied'"

You could come up with a less appropriate list of honorees—but not easily. It is truly unbelievable. Not that the Foundation might want to bestow awards on incredibly rich white guys; as the saying goes, "I was born on a Tuesday, but it wasn't last Tuesday," and I understand how this game works. But that nobody stopped and said "Um, maybe this won't look so great"? Or "Maybe we should go for the only-one-incredibly-rich-white-guy-a-year strategy"?

I know both of RBG's children—record producer James and law professor Jane—and I was wondering how they would react to the news.  Their reaction came over the weekend in a public announcement: "An affront to the memory of our mother" and "an insult to her name and legacy," and a demand that her name be removed from the award.  Sounds right to me.

Science Fiction

The Economics and Politics of Star Trek

Akiva Malamet has interesting posts on these topics at the Econlib site.

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At the Econlib site, political philosophy graduate student and UnPopulist editor Akiva Malamet has two insightful new pieces on the economics and politics of Star Trek.

The first is "Star Trek: Just Short of Utopia." Here's an excerpt:

Star Trek is often seen as utopian science fiction, but a close look shows that the world of the Federation is not as peaceful and inclusive as it first appears. Following Gene Roddenberry's dream of a future society lacking prejudice and focused on inclusion, social and legal equality, and egalitarian post-scarcity economics, Trek is well-known for its strong moral compass and its progressive, even leftist values.

It is a world I appreciate and admire, as a die-hard Trekkie who holds many similar commitments. And yet the United Federation of Planets doesn't truly resolve deep differences and divergent interests among different beings. Rather, it obscures them with cultural uniformity, propounding a quasi secular humanist, even anti-religious philosophy, coupled with a near-complete transcendence of material constraints. This allows the Federation to sidestep the kind of conflicts that real differences, both in beliefs and in material endowments, create. By contrast, the staunchly economic perspective of the Ferengi makes them better able  to cope with hard tradeoffs and ensure genuine respect for diversity, despite their many ethical and social deficiencies. Yet the discussion cannot end there; in the final analysis, we need a synthesis that incorporates the moral ideals of the Federation together with the Ferengi's pragmatism to find a balance of the wisdom embodied in the Star Trek universe.

The second is entitled "Star Trek: Markets on the Edge," and takes a closer look at economic issues in the Trek universe:

In the Federation, most goods and services are produced via replication. The need for production and trade via the division of labour is greatly diminished (though there is demand for luxury artisanal, non-replicated goods….). Thus, the Federation seems to have overcome much of the knowledge problem around satisfying dynamic, subjective preferences and efficiently allocating scarce resources with competing uses. It is an economy of abundance beyond even the dreams of most economists or sci-fi writers. This is coupled with egalitarian values and the self-important assurance that the Federation is populated by virtual saints only interested in self-actualization and universal brotherhood.

By contrast however, outside (and sometimes within!) the Federation's utopian core of planets, people often fight over insufficient replicators, scarce machinery, food, medicine, and other resources. Supply ships are vital for bringing scarce items to distant worlds, and for transporting goods that can't be replicated, such as dilithium and rare medicines….

Notably, while replicators can recreate almost anything, it appears that replicators themselves cannot be easily reproduced. Trek never tells us if creating replicators is costly. Yet it is apparent that replicators cannot be provided easily for all. Contrary to Jean-Luc Picard's assertion that "…the acquisition of wealth is no longer the driving force in our lives" the Federation has not overcome self-interest, greed, or other constraints of human nature. It has simply changed the transaction costs of conflict by exploiting technology that severely reduces scarcity. When scarcity returns, so does conflict over resources.

Job allocation adds further support to the view that the Federation relies on advanced technology more than it does a sci-fi version of the New Soviet Man or Rawlsian ideal theory. It is unclear how the Federation incentivizes people to take on jobs that are less desirable or whose social importance is less well-understood….

As they say, read the whole thing!

I made similar points about Star Trek's treatment of political and economic issues in a 2016 article for Learn Liberty. Like Malamet, I praised the franchise for its commitment to ethnic tolerance and diversity, but also expressed reservations about the Federation's seeming intolerance for ideological diversity:

Star Trek creator Gene Roddenberry stressed the virtues of tolerance and cooperation across racial, ethnic, and national lines. In the original 1960s series, the bridge crew of the Enterprise includes an Asian, a Russian (included at the height of the Cold War), and a black African, at a time when such diversity in casting was unusual. The inclusion of a black female bridge officer was considered such an important breakthrough for racial equality that Martin Luther King persuaded Nichelle Nichols, the actress who played Lt. Uhura, to stay on the show when she was thinking of quitting.

Star Trek also featured the first interracial kiss on an American network TV show, and—in the 1990s—one of the first lesbian kisses.

The Federation… seems to successfully incorporate a wide range of cultures and lifestyles, and offers a combination of material abundance and toleration….

The uncritical acceptance of socialism may be a manifestation of the Federation's more general troubling ideological homogeneity. Especially among the human characters, there seems to be remarkably little disagreement over ideological and religious issues. With one important exception (discussed below), few human characters oppose the official Federation ideology, and those few are generally portrayed as fools, villains, or both.

The Federation is a collection of racially and ethnically diverse people who all think alike, at least when it comes to the big issues. The series' creators likely intended this as an indication of humanity's future convergence toward the "truth." But it is also subject to a more sinister interpretation: just as socialism tends to stifle independent economic initiative, it also undermines independent thought….

Even more than Malamet, I was troubled by Star Trek's largely uncritical embrace of socialism, and relative neglect of the value of economic incentives:

[A]t least from a libertarian perspective, the otherwise appealing ideological vision of Star Trek is compromised by its commitment to socialism.

The Federation isn't just socialist in the hyperbolic sense in which some conservatives like to denounce anyone to the left of them as socialist. It's socialist in the literal sense that the government has near-total control over the economy and the means of production.

Especially by the period portrayed in The Next Generation, the government seems to control all major economic enterprises, and there do not seem to be any significant private businesses controlled by humans in Federation territory. Star Fleet characters, such as Captain Picard, boast that the Federation has no currency and that humans are no longer motivated by material gain and do not engage in capitalist economic transactions…..

The problem here is not just that Star Trek embraces socialism: it's that it does so without giving any serious consideration to the issue. For example, real-world socialist states have almost always resulted in poverty and massive political oppression, piling up body counts in the tens of millions.

But Star Trek gives no hint that this might be a danger, or any explanation of how the Federation avoided it. Unlike on many other issues, where the producers of the series recognize that there are multiple legitimate perspectives on a political issue, they seem almost totally oblivious to the downsides of socialism.

Elsewhere in our respective pieces, Malamet and I both explain why the existence of replicators and other incredibly advanced tech doesn't vitiate the problems associated with socialism. He and I may be the only two commentators to call attention to the importance of the fact that there is no way to replicate a replicator, and therefore these devices turn out to be important scarce goods in the Star Trek universe.

We also both highlight ways in which Deep Space 9—my favorite among the many Star Trek series—takes a more critical view of the Federation than previous movies and series' did, including both its ideological and religious homogeneity, and some aspects of its political economy.

Since I published my piece in 2016, there have been several new Star Trek series, most notably Discovery, Picard, and Strange New Worlds. Malamet largely ignores these new series. But all three take a more critical perspective on the Federation than earlier franchise products have. Discovery and Picard both have severe flaws, sometimes to the point of becoming sprawling, incoherent messes. But Strange New Worlds is much better. It takes a highly critical perspective on on several aspects of Federation ideology and society, most notably its hostility to genetic engineering. I hope to have more to say about it in the future.

Skeptical readers may wonder why we should even care about the politics and economics of a fictional universe. The most obvious answer is because it's fun! I give some additional reasons in this 2011 article, emphasizing that science fiction and other aspects of popular culture can influence the broader political discourse.

Ireland

Two Posts on Irish-American Politics and History, and its Lessons for Today

St. Patrick's Day is a good time to re-up my posts on what can be learned from the declining political significance of Irish-American identity, and whether Hispanics are following the same path of assimilation as the Irish did.

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Happy St. Patrick's Day to all who celebrate!

It is, I hope, an appropriate time, to re-up two posts on the Irish-American politics and history:

  1. "The Declining Political Significance of Irish-American Identity," Mar. 17, 2023

This post describes how and why the political salience of Irish-American identity has declined enormously over the last century, and what can be learned from that experience. An excerpt:

Today is St. Patrick's Day. And tonight, Irish-Americans across the country will be gathering to toast their control of the highest political office in the land. After all, Joe Biden is only the second Irish Catholic president of the United States. For their part, millions of WASPs are seething about the loss of their political hegemony to the Irish. St. Patrick's Day celebrations are a painful reminder of their humiliation. Police forces in major cities are on alert for possible ethnic riots.

OK, actually nothing like that is happening! In reality, very few Americans care that Biden is an Irish Catholic. Even fewer fear that he is somehow promoting Irish interests at the expense of WASPs….. Political conflict between Irish-Americans and WASPs has almost completely disappeared….

It wasn't always so. In the 19th and early twentieth centuries, political antagonism between Irish and WASPs was ubiquitous, sometimes rising to the level of anti-Irish rioting by nativists. There was also substantial discrimination and social prejudice against the Irish….

How did this change come about? The story is long and complicated… But one crucial factor was that most Americans came to realize that the differences between Irish-Americans and other groups were far less significant than previously thought, and also that these ethnic and religious divergences should be downgraded in the name of universal liberal principles.

2."Are Hispanics Following the Path of the Irish?"Jan. 1, 2024

This post comments on Noah Smith's insightful piece arguing that Hispanics are following the same path of assimilation as Irish-Americans did in earlier generations. I think Smith is largely right, but offer two major caveats.  Here is an excerpt:

Hispanics are by far the largest American immigrant group of the last several decades, and also the focus of the most extensive nativist concerns. Immigration restrictionists contend that Hispanic immigrants increase crime, undermine American political institutions, and cannot or will not assimilate. In a recent post, prominent economic policy commentator Noah Smith compiles evidence that these complaints are largely misplaced, and that Hispanics are in fact following a trajectory similar to that of Irish-Americans in the late-nineteenth and early-twentieth centuries….

Today's fears of supposedly violent and unassimilable Hispanics are remarkably similar to the nineteenth century stereotype of brutish, un-American Irishmen…

In [his]… article, Smith compiles evidence that the concerns about Hispanics are largely false: they are in fact rapidly assimilating, quickly increasing their wealth and income, and have significantly lower crime rates than native-born Americans (a point that applies even to undocumented immigrants). Most of this evidence is well-known to students of immigration policy. But Smith does a valuable service in compiling it in one relatively short and easily accessible piece….

I would, however, note a few relevant caveats to Smith's thesis. First, it is not entirely true that Irish and Hispanic immigrants "were mostly working-class folks who came for mainly economic reasons." In reality, many Hispanic immigrants were and are refugees from oppressive socialist regimes in Cuba, Nicaragua, and (most recently) Venezuela. Some others have fled repression at the hands of right-wing dictatorships….

A second caveat is that Hispanic migrants are a much more diverse lot than the Irish were. They come from a variety of different nations and ethnic groups. This makes generalizations about them more difficult….

Finally, while Irish immigrants arrived in an era when there were few restrictions on European immigration, many Hispanic migrants are undocumented. Today, there are an estimated 7 million or more undocumented Hispanic immigrants in the US, which accounts for some one-third of all foreign-born Hispanics, and over 70% of the total undocumented immigrant population.

For obvious reasons, lack of legal status reduces migrants' incomes and educational opportunities, and impedes assimilation. The existence of this anchor makes Hispanics' progress look even more impressive than it would be otherwise. But, unless immigration policy changes, it is likely to continue to slow down the assimilation process highlighted by Smith.

I've Won an Argument about Israel I Wish I Hadn't

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Over my 20+ years of blogging at Volokh, commenters have often questioned why I focused my attention on what I saw as unfair attacks on Israel, rather than on Israeli policies I disagreed with that might be obstacles to a future peace deal. My response was consistent: debates over specific Israeli policies were a sideshow. Israel's harshest critics simply wanted Israel to cease to exist, and given that this goal could likely be achieved only via genocide, I chose to focus my attention on that. My commenters were also pretty consistent, arguing that I was being paranoid, that the vast majority of critics, even the harshest ones, wanted a two-state solution, not to eliminate Israel.

We have had something of a test of this debate since 10/7. Hamas is a terrorist theocracy with explicitly genocidal goals. It carried out a taste of those goals on 10/7, and its leaders promised to repeat those atrocities again and again until the "Zionists" were driven from Israel.

So whatever one thinks of Israeli policy, or Israel's eventual response to 10/7, one would think, based on my interlocutors' position, that critics of Israeli policy would nevertheless agree on one thing: Hamas must be deposed, one way or another. There is no plausible two-state solution with Hamas in power; the harsh critics are almost all self-styled progressives, and there is nothing progressive about Hamas's policies toward freedom of religion, LGBTQ rights, women, militarism, antisemitism, and so on, nor its constant theft of humanitarian aid. Hamas's rule in Gaza is essentially every Progressive's worst nightmare.

Yet, ever since at least 10/10, when it became clear that Israel's reaction to Hamas's atrocities was not going to be to capitulate, the harsh critics have been all but unanimous in calling for Israel to essentially surrender ("immediate ceasefire") with Hamas still in power, and have almost to a person not called on Hamas to surrender and abdicate. (And self-styled human rights organizations have felt free to make up human rights law, including contradicting their own past public positions in other conflicts.)

I have to admit that I underestimated the mendacity of these people. As much as I knew that they hated Israel much more than they were concerned with the well-being of Palestinians, I didn't imagine that they would be willing to run interference for, if not outright support, Hamas, certainly not after Hamas put its brutality and genocidal intentions on display for all the world to see. I would have expected something more like "immediate ceasefire, but the world has to work on replacing Hamas with something else."

Of course, there are those who take the latter position, or the Biden position, which is to support Israel but be critical of specific wartime policies and the lack of a long-term plan. But the remarkable thing is that I have yet to see even this position among the harder left: "I wish Hamas would surrender and release the hostages, because that would be good for all sides, but since I don't think it's possible to get Hamas to surrender, I think Israel needs to desist for humanitarian reasons."

Indeed, if you ask prominent folks on X, people who are complaining the loudest about civilian suffering in Gaza, "would you prefer the war go on, or that Hamas release the hostages and surrender," basically no one is willing to say publicly that he or she would prefer Hamas to surrender. Israel losing is more important than ending civilian suffering in Gaza, than any sort of peaceful resolution of the conflict (which obviously requires an end to Hamas rule), than innocent hostages being released, or anything else. If you are a progressive and you find yourself carrying water for a truly reactionary, genocidal organization like Hamas, maybe it's time to do some soul-searching.

A Numbers Game: Who Would The Judicial Conference's New Policy Help And Who Would It Hurt?

It will be harder for conservative litigants in blue states and liberal litigants in red states to obtain statewide relief. It will be harder for conservative litigants in red states to obtain nationwide relief. Liberal litigants will have virtually unchanged odds to obtain nationwide relief.

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I have now had some time to digest the Judicial Conference's policy. So much of what was reported about the policy was not accurate. The Washington Post headline sums things up: "U.S. courts clarify policy limiting 'judge shopping'—On Tuesday, officials said a new policy would mean assigning certain cases randomly. Now they say it is just guidance." I still don't understand how this rollout could have been executed so poorly. 

The policy is only guidance, and is not binding. The policy does not single out single-judge divisions, but randomly assigns cases throughout the district. The policy does nothing at all to address bankruptcy or patent forum-shopping. The policy does not apply to all injunctive relief–only certain types of state or nationwide relief. Critically, cases that have "implications beyond the parties before the court" would be reassigned. There will have to be litigation about what that standard entails. Moreover, this standard is triggered whenever a new complaint or motion is filed. I can imagine some gamesmanship, as plaintiffs who get a bad draw can seek the requested relief as a guaranteed way to get the case reassigned–even after the initial judge may have invested time and effort into the case.

In short, the policy does nothing to directly reduce the number of nationwide and statewide injunctions. Instead, as Judge Sutton explained, the policy is, at best, an "an elegant solution" to reduce nationwide injunctions. What is that "elegant solution"? The policy deprives certain litigants of the venue of their choice, and reassigns it to a venue not-of-their-choosing, where the desired expansive relief is less likely. Will this policy even work?

It is important to unpack four different scenarios: (1) conservative litigants seeking nationwide relief in red states; (2) liberal litigants seeking nationwide relief in blue states; (3) conservative litigants seeking statewide relief in blue states; (4) liberal litigants seeking statewide relief in red states. Here is the upshot of the policy: it will be harder to obtain the desired relief in scenarios #1, #3, and #4, but the odds of obtaining the desired relief in scenario #2 will be virtually unchanged.

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Social and Economic Legislation and the Taft Court in the 1920s

I review the relevant chapters in Prof. Robert Post's forthcoming book

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[The material below was originally posted at the Balkinization blog, for the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).]

In this symposium, my designated task was to review and discuss Part V of Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024) This Part delves into social and economic legislation during the Taft Court era. This section is notably well-crafted, showcasing Professor Post's erudition and extensive research, and is a significant contribution to the relevant literature. However, I do not entirely agree with Post's interpretation of the cases he discusses.

Post's narrative heavily leans on the overarching theme that the Supreme Court in the 1920s participated in a society-wide desire for a "return to normalcy." This shift followed the substantial and unprecedented government intervention in civic and economic life accompanying the United States' entry into World War I. The experience with an expansive government during the war heightened American skepticism towards statist progressive ideas that had become dominant before the conflict.

Additionally, many Americans were repelled by the wholehearted support that numerous progressives had shown for the new federal wartime Leviathan and their desire to make it a permanent fixture. Post cites a letter from William Allen White as an illustration of the "innocent confidence of progressives."

I think the big thing to do now is quietly organize a hundred or so fellows who are dependable and who may take such steps as are necessary after the war to serve all the economic and social campaigns that the war brings to us. I think price fixing should be permanent, but not done by Wall Street. I think the government should tighten its control either into ownership or operation of the railroads. I think that labor arbitration should be a permanent thing, and that we should federalize education through universal training, making it a part of the system of education.

To many Americans in the post-war era, this attitude would not have appeared "innocent." Instead, it likely appeared as if enthusiastic supporters of a federal government exerting control over the economy, including regulating wages and prices nationwide, had revealed progressives' true intentions. Contrary to their pre-war claims of seeking significant reform within the existing system, it seemed they actually sought radical, even revolutionary, changes to the American economy and government system.

In the portion of the book I was tasked with reviewing and commenting on, Post overlooks the additional influence of events in Europe on this dynamic. The fact that European nations had become entangled in a brutal war without a clear purpose seemed to affirm America's superiority to Europe. Both in the past and today, many progressives looked to Europe as a model for their more interventionist and nationalist government policies. The emergence of the USSR, Communist revolutions in Germany and Hungary, and the sympathy expressed for Communism and anarchism in the US, especially among immigrants, heightened the apprehension of foreign ideas, including progressive concepts associated with Continental thinkers.

The theme of a "return to normalcy" provides a crucial perspective on the Taft Court era, especially considering President Harding's successful 1920 campaign on that very platform. Harding's victory reflected widespread dissatisfaction with the war and its impact on what we now call civil and economic liberties. Notably, it was Harding who appointed the Justices who steered the court in a more libertarian direction during the 1920s.

The inclination toward a "return to normalcy," seeking a shift back to pre-War levels of government regulation, is a key factor in understanding the overall approach of the pre-Depression Taft Court. This desire is particularly evident in the Court's skepticism toward novel or contentious applications of government regulatory power.

The apprehension of government overreach, intensified by the government's actions during the war, contributed to the Court's effort to systematize its jurisprudence on the liberty of contract. Previously perceived as somewhat arbitrary and inconsistent, the Court aimed to provide clarity. In the case of Adkins v. Children's Hospital (1923), Justice George Sutherland outlined acceptable infringements on liberty of contract beyond traditional police power concerns. These included regulations related to rates and charges for businesses with a public interest, contracts for public work, payment of wages, and hours of labor for health and safety reasons. Sutherland emphasized that, aside from these exceptions, "freedom of contract is the general rule, and restraint the exception," justifiable only in exceptional circumstances.

Looking more broadly, instances of perceived government overreach during World War I shed light on why the Supreme Court was willing to resurrect and broaden doctrines limiting government power that appeared to have been overshadowed by the progressive movement. Traditionalist conservative Justices advocating natural rights notions had no representation on the Taft Court after 1911. Law review commentary in the 1920s that advocated limits on government authority was philosophically incoherence.

As extensively detailed by Barry Cushman, the Taft Court Justices typically labeled as "conservative" a held a spectrum of generally moderate but progressive political views before joining the Court. Barry Cushman, The Secret Lives of the Four Horsemen, 83 Va. L. Rev. 559, 559-60 (1997); see also Logan E. Sawyer III, Creating Hammer v. Dagenhart, 21 Wm. & Mary Bill Rts. J. 67, 88 (2012). Despite this, and likely in part in response to the significant expansion of government authority during the war, these Justices aimed to uphold traditional limitations on government power while largely accommodating the growth of progressive regulation. Conversely, their counterparts, including Justice Louis Brandeis, were more radical Progressives reluctant to concede that the Constitution imposed significant and judicially enforceable constraints on the scope of government authority.

This analysis is at least consistent with Post's return to normalcy theme. His framework, however, is less useful in explaining the outcome of specific cases. As Post acknowledges, the Court continued to uphold some rather novel and intrusive exercises of the police power, while invalidating other exercises of government regulatory authority, some of which seemed rather anodyne.

Post's analysis improves significantly upon the once-robust literature that sought to explain the Court's rulings by reference to the Justices' alleged, but never documented, devotion to Social Darwinism.

Nevertheless, Post still clings to some mythology inherited from Progressive-era critics of Lochner. Quoting an article by Felix Frankfurter from 1916, and also citing Ernst Freund, Post states that Progressives had repudiated Lochner v. New York (1905) because "[t]he majority opinion was based upon 'a common understanding' as to the effect of work in bakeshops upon … those engaged in it. 'Common understanding' has ceased to be the reliance in matters calling for essentially scientific determination." Post believes that the Court's return to normalcy included a return to this "common understanding" vision of what constitutes appropriate regulatory action, and what is an undue and thus unconstitutional interference with normal ordinary economic activity.

The problem is that this is an incorrect, or at least incomplete, understanding of Lochner. Justice Peckham's opinion in Lochner indeed suggested that the Court should uphold the hours legislation at issue in that case if to the "common understanding" baking was an unhealthful occupation in need of special regulation. But the Court also would have upheld the law if scientific evidence before the Court had suggested that regulating bakers' hours served a legitimate health purpose.

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