The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

Writing About People Who Don't Want to Be Written About

How, if at all, should we try to be nice in a not inherently nice occupation?

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The discussion on the Doe v. Volokh threat struck me as quite interesting, and I was particularly intrigued by some commenters taking the view that, while I have the legal right to write about Doe, I shouldn't, because she's asked me not to. Here's one comment that I think captures this view particularly well:

So this woman contacts you and asks you to stop writing about her, and to remove your prior writings about her. You respond that you have a legal right to to write about her. She files suit against you, you prevail, and then you write about the whole affair, thus adding to your public writings on the woman who initially sought to have you not write about her.

You're such a classy person.

I don't think that's the right approach, but I think it's an important and difficult question, and one that is routinely faced by people who write about court cases, including newspaper reporters, magazine writers, academics, and bloggers. "Be classy" or "be kind" can't really capture the right analysis, I think, perhaps because news reporting (which I use broadly to cover also opinion and analysis related to news, litigation, and the like) is inherently an unkind phenomenon—or perhaps, in aiming to be good to people seeking information, it may necessarily be unkind to people seeking to conceal information. Still, it bears some deeper discussion.

The problem is that, for many court cases, one or both parties would very much prefer not to have the case be discussed. (I set aside the separate point that the case should be discussed accurately; I surely have no quarrel with that.) To give just the most obvious examples,

  • Criminal defendants would usually prefer not to have the allegations against them (whether true, false, or, as is often the case, a mix) publicized.
  • Civil defendants would often take the same view, for instance if they're accused of malpractice or embezzlement or assault (sexual or otherwise) or a wide range of other offenses.
  • Libel plaintiffs would often not want to have the allegedly libelous statements about them further publicized.
  • Other plaintiffs (e.g., ex-employees) would often not want the defendants' responses ("I fired him not because of his race, as he alleges, but because he was sexually harassing coworkers") publicized in association with the plaintiff's name.
  • Still other plaintiffs (again, such as ex-employees) would often not want future employers to know that they had sued someone, since they think many employers prefer not to hire litigious workers.

Often the concerns are about reputation and future employment prospects. But sometimes people might be worried that coverage of accusations against them (e.g., that they had raped someone, or that they had falsely accused someone, or that they had defrauded someone) might lead to harassing phone calls or e-mail, to threats, to vandalism, or even to physical attacks. Indeed, these risks are probably higher for mainstream newspaper articles than for blog posts (or certainly than for law review articles), just because such articles tend to have a higher readership.

What should a reporter, or a blogger, or an academic make of all this?

[1.] One possibility is to take the view that parties' names should be included only if it's "necessary." But in most situations, it's not actually strictly necessary to include the parties' names: We could just replace everyone's names with pseudonyms in our stories (even if the underlying cases aren't pseudonymized).

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Free Speech

Court Refuses to Order Me to Remove References to Frequent Litigant from Law Review Article

My argument: "Petitioner Jane Doe—a frequent unsuccessful litigant—is asking this Court to impose unconstitutional prior restraint to prevent a law professor from writing about important, publicly available cases about pseudonymity."

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I'm writing about this both because it strikes me as an interesting example of what litigants sometimes try to do (and occasionally succeed), and also because I thought our readers ought to see what the litigant accused me of—perhaps some of you may agree with her—and see my response. That's particularly so because some readers might view this as influencing my general views on harassment restraining order cases, which I'll doubtless blog about more in the future; I should note, though, that I've been writing and litigating about these matters extensively long before this petition was filed against me (see, e.g., this 2013 article and this 2021 article, plus too many blog posts and briefs to list here).

Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously. [UPDATE: I used this in part to illustrate the difficulty that courts and defendants might have in tracking potential vexatious litigants, given that counting an adversary's past unsuccessful lawsuits may be much harder if they were all pseudonymous.]

Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a "harassment restraining order" in California court. She stated in her declaration that,

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Free Speech

Laura Loomer Must Pay CAIR and CAIR Florida Nearly $125K in Attorney Fees

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From Illoominate Media, Inc. v. CAIR Florida, Inc., decided today by Judges Charles Wilson, Britt Grant, and R. Lanier Anderson III:

This suit over attorney's fees and costs stems from allegations that the CAIR Foundation and CAIR Florida, Inc. (CAIR) had a hand in convincing Twitter to ban Loomer's account. CAIR removed the first amended complaint to federal court on August 22, 2019. Counsel for Loomer and her corporation (Illoominate) moved for a remand to state court the next day. In its response two weeks later alleging fraudulent joinder of CAIR Florida, Inc., CAIR filed a sworn statement from Nathan Bernard. He explained that he pranked Illoominate by fabricating evidence to convince "Loomer that CAIR Foundation was the reason Twitter banned her account." In the interim, CAIR had filed a motion to dismiss in late August.

On October 2, 2019, CAIR sent Illoominate an "offer of judgment" proposing to settle the entire case for a nominal $1, including costs and attorney's fees. Illoominate had 30 days to respond. On October 22, the district court dismissed CAIR Florida from the suit and scheduled a hearing on CAIR's motion to dismiss for November 18. Nevertheless, Illoominate chose litigation over settlement. On October 31—shortly before the offer of judgment deadline—Illoominate filed a response to CAIR's motion to dismiss, where it voluntarily dismissed all its claims except Count II (for tortious interference with an advantageous business relationship). Once the deadline passed, the district judge dismissed the remaining claim at the November hearing, and this Court affirmed the dismissal in December 2020. On April 12, 2021, CAIR filed a motion seeking reimbursement from Illoominate pursuant to a Florida law requiring select parties who decline an offer of judgment to pay their opponent's reasonable costs and attorney's fees. Fla. Stat. § 768.79(1).

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Politics

Short Circuit: A Roundup of Recent Federal Court Decisions

Padded cells, hidden cash, and official duties.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: Anthony Novak was jailed for four days and prosecuted for making a fake Facebook page satirizing the Parma, Ohio police dept.—an obvious First Amendment violation! And yet the Sixth Circuit granted qualified immunity to the officers involved, so IJ is asking the Supreme Court to step in and settle a deep split among the circuits on what to do when probable cause rests on speech. Or, better yet, the Court could nuke the doctrine of qualified immunity into the sun. Read all about it at Cleveland.com.

  • In 2019, President Trump publicly denied a woman's accusation that he raped her in a department store changing room in the 90s. She sues him in his personal capacity for defamation, but the feds intervene, seeking to substitute the federal gov't as the defendant, which would mean the case is toast (since the feds have sovereign immunity in defamation cases). District court: No dice, feds. Second Circuit (over a dissent): Actually, we'd like to ask the D.C. Court of Appeals whether, under D.C. law, the president's comments to the press were within the scope of his official duties. (If so, this case is toast.)
  • Connecticut police wish to transfer a mentally disturbed inmate to a padded cell. The inmate gets mouthy and learns what happens when you bring words to a baton/K9/taser fight. Second Circuit: Qualified immunity. Dissent (Calabresi, J.): Not only shouldn't there be qualified immunity in this case, there shouldn't be qualified immunity in any case.
  • New Jersey highway cops find three plastic bags with heart-shaped candies and arrest the motorist—but do not test the candies for two months. Whoops! They are not drugs. And even knowing that, it takes an additional four months to drop the charges. District court: Could be false arrest and malicious prosecution. No qualified immunity. Third Circuit: And the officers can't appeal that just yet because the motorist subsequently amended his complaint (at the district court's invitation), and that's not interlocutorily appealable.
  • Fort Worth, Tex. officer shoots allegedly unarmed septuagenarian dead after going to wrong home to investigate burglar alarm. Plaintiffs: And the city is liable because of its policies: pairing rookie cops together on the midnight shift, not training officers that odd-numbered and even-numbered houses are on opposite sides of the street, and more. District court: Those things are all too attenuated from the actual shooting. The city is off the hook, but the excessive force claim against the officer can go to a jury. Fifth Circuit (unpublished): Sounds right to us.
  • Last year, Texas officials flagged over 11k registered voters as potential noncitizens. Must the state turn over info identifying these folks in response to a public records request from the ACLU and other groups? District court: Yup, turn over the records. Fifth Circuit: Reversed. The plaintiffs may be entitled to the info, but they haven't shown how they—as opposed to the public at large—would be injured if it's withheld. No standing. Judge Ho, concurring: But that should be pretty easy to get around in a subsequent suit and, unlike the rest of the panel, I don't think it's gratuitous to say so.
  • Allegation: Texas Justice of the Peace—a former Pentecostal preacher—opens court with a prayer delivered by a local faith leader. During the prayer, the judge scans the audience to see who is participating. Half-hearted participants can expect a surly reception when their case comes up for argument. Fifth Circuit: The evidence of bias is too speculative to support an Establishment Clause violation. Dissent: There's at least enough to go to a jury.
  • In which Kim Davis—of Kentucky-clerk-cum-marriage-license-denier fame—loses her second bid for qualified immunity in the Sixth Circuit (unpublished). Back the case goes to the district court for a trial on damages, after which Ms. Davis gets to appeal to the Sixth Circuit for a third time.
  • If law enforcement from eight different federal, state, and local agencies ever raid your home (with a warrant), search your place of business (without a warrant), and ignite a flashbang grenade near your sleeping 1-year-old, the Seventh Circuit has some (published and unpublished) advice on how and whether your suit for damages might proceed if, among other odds and ends, the roles and identities of the officers involved is a tad unclear—and irrespective of whether you are now serving a lengthy sentence for drug dealing. (Ethics query: Should the magistrate judge who signed the allegedly defective warrant recuse from these proceedings? Or is it okay because he isn't making dispositive rulings?)
  • In 1989, the director of the Oregon Dept. of Corrections, who'd been brought in to root out corruption, is murdered at work—stabbed through the heart. A parolee confesses to the murder several times on different days, giving details not publicly known and corroborated by physical evidence. Nevertheless, investigators shift their attention to another man who steadfastly maintains his innocence. No physical evidence ties him to the crime, but he's barred from introducing evidence of the parolee's admissions and is convicted on the basis of witness testimony. He's sentenced to life and spends nearly thirty years in prison before the district court grants habeas and orders him released. Ninth Circuit: Nearly all the witnesses have recanted, claiming they lied because of police misconduct, and it was super unconstitutional to exclude the parolee's confessions. No reasonable juror would've voted to convict with the recantations and other confessions. (Yes, there is a podcast and movie about the crime.)
  • Grants Pass, Ore. has more homeless residents than shelter beds, forcing some homeless to sleep in public spaces. Easy fix, says the town, we'll just make that illegal. Ninth Circuit: You can't ticket the involuntarily homeless just for being homeless. Dissent: Even if that's right, it has to be assessed person by person, not on a class basis.
  • Police seize cash hidden in Las Vegas armed robbery suspect's attic (in 2014) and then in his mattress (in 2017). But wait! Charges in first matter are thrown out due to prosecutorial misconduct, and he's never charged with anything to do with the second. (He is, however, convicted of a different armed robbery.) But the gov't just sits on the cash, a cool $65k, taking none of the steps necessary to civilly, criminally, or administratively forfeit it. Ninth Circuit: Neither the robber nor the gov't can have it.
  • Does federal law preempt California's attempt to regulate prisons run for the federal gov't by private contractors? Ninth Circuit (en banc): Have you read McCulloch v. Maryland? This is not too different from that.
  • Congress authorizes a California dam in 1954 and seems to say it shouldn't let water go downstream to help the local steelhead. Two decades later Congress passes the Endangered Species Act, which, once the steelhead is listed as endangered, seems to mean that perhaps the dam should do just that. Ninth Circuit: Some expansive language in the original act means it doesn't contradict the ESA, so back to the district court to work out maybe releasing some more water. Dissent: That's not what the language says. But if it does it's nondelegation doctrine time.
  • Without a warrant, Long Lake Twp., Mich. officials repeatedly fly a drone over family's home, curtilage, and five-acre wooded property, recording in HD. (They discover some old cars that can't be seen from a public vantage point.) Michigan Court of Appeals: Which is not a problem because the Fourth Amendment only protects against police searches, and this was code enforcement.
  • And in cert grant news, the Michigan Supreme Court will consider whether the state's civil forfeiture statute authorizes the forfeiture of a vehicle based on Detroit police's allegations that a nursing student transported—not drugs—but a person who bought and immediately consumed a small amount of drugs in her car. (Not for nothing, but the allegations are applesauce. This is an IJ case.)

In the nearly 10 years since Los Angeles entrepreneur Ryan Crownholm started MySitePlan.com, he's created over 40,000 informal maps, called site plans, to help people with a huge variety of projects—hotels looking to guide guests from the lobby to their rooms, homeowners and contractors showing local building departments where they'll build a fence or shed, and much more. Basically anytime someone needs a handy map, MySitePlan.com can make one using publicly available information. But California licensing officials are trying to shut Ryan down because they say he is illegally practicing land surveying. Which is madness. Ryan doesn't claim to be making the authoritative legal surveys necessary for bigger projects, and no one has ever been confused. Taken literally, the state's position would mean anytime someone hand-draws a map on a napkin, they'd risk criminal liability. So this week IJ and Ryan filed suit in federal court. Click here to learn more.

The Grey's Anatomy Writer Hoax

"For years, a Grey’s Anatomy writer told her personal traumas in online essays, and wove those details into the show’s plot—until a surprising email to Shondaland accused her of making it all up."

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I had missed this story by Evgenia Peretz when it came out in early May in Vanity Fair ("Scene Stealer: The True Lies of Elisabeth Finch," Part 1 and Part 2), and only saw it because of this MedPage Today (Emily Dwass) piece ("Was I Conned by a 'Grey's  Anatomy' Writer? — Her alleged duplicity could make things tougher for female patients"). It's fascinating and chilling, and a reminder of how even people we're predisposed to trust are sometimes untrustworthy.

One item, by the way, from the MedPage piece:

I get why no one doubted her cancer journey—who would lie about having a deadly disease? According to Peretz, Finch was given time off from work whenever she requested it to take part in treatments and clinical trials at the Mayo Clinic in Minnesota.

What I can't wrap my head around is why Finch's colleagues apparently didn't question the escalating and extreme crises that tormented her. Peretz writes about the string of calamities that afflicted Finch, "some of which she chronicled for the world, some of which she talked about in select company." There was a doomed pregnancy, a failing kidney, a friend murdered in the Tree of Life synagogue mass shooting (Finch claimed to help clean up the body parts), an abusive brother who attempted suicide. Peretz's article calls into question whether any of these things actually occurred.

How was it possible that no one at "Grey's Anatomy" saw these catastrophes as red flags that something was off, and that Finch needed some kind of mental health intervention?

It seems to me the answer is clear: It's naturally always hard to accuse someone of lying, especially about circumstances to which most people are normally inclined to react with sympathy. But when skepticism and failure to #Believe… is often condemned as a moral failing, who wants to "question"?

Ukraine War Music

Pig-Sticker, a Song of the PMC Wagner Mercenaries

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Readers of the blog know what side I support in the Russia-Ukraine war, so unsurprisingly most of the songs of the war that I've blogged have been pro-Ukrainian, since they're the ones that most struck me. (Here's an exception.) Still, my point in these posts is to pass along things that may offer some indirect insight into the sentiments of the people who are actually in this war, so I think it would be a mistake to omit the other side's perspective.

Here, then, is "Pig-Sticker" ("Свинорез"), which I believe refers to a knife in Russian as well as in English; it's billed as a song of the Private Military Company (PMC) Wagner (ЧВК Wagner), and I assume that it's an authorized recruiting video, which reflects what Wagner thinks its target audience wants to hear. In various copies it's amassed about 1.5M views in the last six days, so I take it that it's resonated with some people; again, these are not my sentiments, but I thought they were worth observing. (Naturally, the Russian lyrics are rhymed and metered, and from a technical perspective strikes me as quite effectively done.)

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How Do You Challenge A Student Loan Forgiveness Rule That Does Not Exist?

The Biden Administration keeps moving the goal posts to block legal challenges.

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To date, I have not written about President Biden's student loan forgiveness initiative. Why? Because the rule doesn't actually exist! There has been no notice in the Federal Register. Rather, we are left with a series of press releases, fact sheets, and the like. Government by blog post, as I've called it, is not new. The Obama Administration would often modify regulatory regimes, such as the Affordable Care Act, through FAQs and other subregulatory guidance documents. But as best as I can recall, the Obama Administration did not deliberately avoid publishing a new rule to frustrate legal challenges. Yet it seems that the Biden Administration is doing exactly that. Indeed, the Administration appears to be making changes to the policy on the fly for the express purpose of blocking law suits.

Consider the case brought by the Pacific Legal Foundation on September 27. What was the theory of standing? Frank Garrison (a lawyer for PLF) claimed he would face an increased tax burden if his debt was automatically cancelled. When the suit was filed, Garrison did not have to take any steps–the debt would be cancelled automatically. PLF obviously recognized that this policy could be changed. Steve Simpson of PLF told the New York Times:

If borrowers can opt out, Mr. Garrison's claim "will be a harder case for us," said Steve Simpson, a senior attorney at Pacific Legal, which is representing Mr. Garrison. "It would be harder to argue that he's harmed any more."

Lo and behold, the Biden Administration would make just that change. On September 28, the Department of Education filed a notice with the court:

In his motions for temporary restraining order and preliminary injunction, Plaintiff challenges a federal student loan cancellation policy announced by the U.S. Department of Education ("Department"), and claims that he will be harmed if the Department automatically cancels $20,000 of his federal student loan debt. Defendants submit this notice in advance of tomorrow's scheduled conference to inform the Court that the Department updated its website today to confirm that any borrower who qualifies for automatic debt relief—i.e., relief without filing an application—will be given an opportunity to opt out. See U.S. Dep't of Educ., Federal Student Aid, One-Time Student Debt Relief, https://perma.cc/Z6H5-2QYN (last visited Sept. 28, 2022) ("If you would like to opt out of debt relief for any reason, including because you are concerned about a state tax liability, you will be given an opportunity to opt out."). Upon receiving this lawsuit and reviewing Plaintiff's filings, the Department has already taken steps to effectuate Plaintiff's clearly stated desire to opt out of the program and not receive $20,000 in automatic cancellation of his federal student loan debt, and so notified Plaintiff's counsel today.

Within 24 hours, the Department updated its website, and opted Garrison out of cancellation, thus mooting the suit. This filing almost sounds giddy. You can't stop us! We're the government! And, by the way, you're stuck paying the $20,000 debt. Sorry, Frank. Emily Bremer flagged the change:

Because the Department has not yet published a notice of or rule governing the program (the final agency action everyone seems to be waiting for), the program remains malleable even as its implementation is already underway. Indeed, the Department's guidance to borrowers changed just this week (compare this snapshot from Monday, September 26 to this snapshot from today). "Nearly 8 million borrowers may be eligible to receive relief automatically," changed to "[n]early 8 million borrowers may be eligible to receive relief without applying–unless they choose to opt out."

Now you see it:

Now you don't.

The word "automatically" was simply airbrushed away, like a photo of Stalin.

And on September 29, the district court denied relief because of the change:

Following a change in the student loan debt relief plan at issue (Filing No. 13), the court, in view of the fact the Department of Education exempted Plaintiff from receiving debt relief, finds Plaintiff cannot be irreparably harmed as is required for preliminary relief. Pursuant to the parties' agreement, the motions for a temporary restraining order (Filing No. 4) and preliminary injunction (Filing No. 5) are DENIED without prejudice.

Notice that the court refers to a "student loan debt relief plan." Not a rule or regulation or anything of the sort. A "plan," whatever that is.

On September 29, we saw yet another attempt to block litigation. Missouri and several other states challenged the not-yet-released policy. Missouri's Higher Education Authority asserted standing based on servicing Federal Family Education Loans (FFELP):

104. The Mass Debt Cancellation has created an enormous incentive to consolidate FFELP loans not held by ED (which are not currently eligible for cancellation) into DLP loans (which are eligible for cancellation). The inevitable result is that FFELP loan borrowers will likely consolidate into DLP loans en masse.

105. The consolidation of MOHELA's FFELP loans harms the entity by depriving it of an asset (the FFELP loans themselves) that it currently owns.

106. The consolidation of MOHELA's FFELP loans harms the entity by depriving it of the ongoing interest payments that those loans generate.

This argument may have been valid when the complaint was filed. But sometime on September 29, the Education Department excluded the FFEL loans from the loan forgiveness policy. Poof! NPR described the reversal as "remarkable."

Today, according to federal data, more than 4 million borrowers still have commercially-held FFEL loans. Until Thursday, the department's own website advised these borrowers that they could consolidate these loans into federal Direct Loans and thereby qualify for relief under Biden's debt cancellation program.

On Thursday, though, the department iss. The guidance now says, "As of Sept. 29, 2022, borrowers with federal student loans not held by ED cannot obtain one-time debt relief by consolidating those loans into Direct Loans."

Now you see it!

Now you don't!

If only the Internet Archive was around to index the missing eighteen minutes from the Watergate Tapes!

The Department of Education excluded nearly 800,000 borrowers with FFEL loans. Why? It seems that the government is trying to block Missouri's suit. To be sure, Missouri has several other theories of standing. (I was impressed with how thorough the injury section was.) But the government's behavior here is clear as day: modify the policy on the fly to knock out any viable theories of standing, even if doing so excludes people from loan forgiveness.

Emily Bremer offers a more charitable take:

This change presumably was made in response to the lawsuit filed earlier this week challenging the program's legality, to defeat the plaintiff's standing (and prevent others from having such standing).

This raises a troubling possibility: that the Department of Education has not published a notice or rule establishing the loan forgiveness program (as § 1098bb requires) precisely because the absence of a final agency action makes a legal challenge more difficult. Maybe a notice or rule will be forthcoming–perhaps when the first borrowers receive the promised loan forgiveness. If so, millions of borrowers might be granted relief before a court could consider a challenge to the program's lawsuits. And perhaps that, too, is the goal.

How do you challenge a rule that doesn't exist, and that constantly changes with every new blog post? The Biden Administration keeps moving the goal posts to block legal challenges.

I have no doubt lawyers in DOJ planned each and every step here: they would wait till a suit was filed, then update the website with a "revision" to try to moot the litigation. (Congressional Republicans should exercise their oversight power here to investigate.) And, for all we know, the Department will finally publish the rule when it looks like things are getting risky in court–maybe hope for a remand without vacatur. (Recall the various iterations of the travel ban that were issued.) But by that point, millions of Americans will already benefit from the rule, and the Administration will have prevailed.

We should all think back to the census litigation. The Chief Justice, in particular, was incensed with how the Trump Administration played fast and loose with the rules, and modified explanations on the fly during the course of litigation. Here, we have an inchoate policy that is about to spend hundreds of billions of dollars, without an actual rule in print. And, the plan is being altered for the blatant purpose of blocking litigation. I suspect this gamesmanship will not be received well. If one or more circuits enjoin the policy, do not expect the Supreme Court to stay the injunction on the emergency docket.

Student Loans

Brief Update on the Pacific Legal Foundation Case Against Biden's Student Loan Cancellation Plan

A federal judge denied PLF's motion to block implementation of the policy. But denial is "without prejudice," and PLF can quickly refile the case.

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On Wednesday I wrote about the case challenging Biden's student loan debt cancellation program filed by the Pacific Legal Foundation (PLF) on behalf of attorney Frank Garrison, who is himself a PLF employee. For details about the case and its novel strategy for getting around the procedural constraint of "standing" see my earlier post.

Yesterday, federal district court Judge Richard Young issued an order denying the plaintiff's motion for a temporary restraining order and preliminary injunction blocking the policy. But the order is "without prejudice," which means Garrison and PLF can quickly refile the case. And, in fact, the judge's order gives them until October 10 to file an amended complaint, in which he urges them to consider the following two issues:

1. Whether [Garrison] (and any additional plaintiffs) have standing. Particularly, whether their injury is caused by and fairly traceable to the debt relief program or to the Indiana Tax Code. See Segovia v. United States, 880 F.3d 384, 388–89 (7th
Cir. 2018).

2. Whether the Department of Education has taken sufficient action for the case
to be ripe for adjudication. Plaintiff's allegations speculate about the terms of
the program. But as evidenced by the Government's recent addition of an opt-
out provision, the plan is still evolving.

The first question relates to "causation," which is one of the requirements of standing. As I see it, the cause of Garrison's injury is the combination of the Biden plan and the Indiana Tax Code's refusal to exempt this type of loan forgiveness from taxation (even as it does exempt the type of loan forgiveness he would get in the absence of the plan). But the fact that the Biden plan causes the injury in conjunction with actions by others doesn't necessarily defeat standing, so long as the injury would still be avoided in the absence of the administration's actions. There are previous cases where an injury  like this was enough to qualify for standing. Most famously, in Massachusetts v. EPA (2007), the Supreme Court ruled that Massachusetts and other states had standing to challenge the EPA's refusal to regulate to prevent global warming, despite the fact that the claimed injuries were not solely caused by the EPA's refusal to act, but by the combination of that and continuing emissions by various polluters.

As the judge notes, the administration has said that it plans to create an opt-out from its loan forgiveness plan that Garrison and others like him can take advantage of. Judge Young cites this change in the plan as the basis for denying the motion for an injunction, holding that there is—at least at the moment—no "irreparable harm" justifying such a measure. But whether the opt-out defeats standing may depend on how it works, and how costly it is to get one. If doing so has even a small cost, that in itself might qualify as an "injury" sufficient for standing, even if a small one (a very small injury can be enough).

I will leave the ripeness issue to others with greater relevant expertise on that subject. But I expect that problem will soon become irrelevant, because the administration plans to begin implementing the plan in the near future (probably in October).

In sum, the opt-out ploy could potentially derail this lawsuit. Whether it does or not depends in part on how the opt-out is structured. The causation issue is also one to watch, though it strikes me as a weaker argument for the government than the other.

Meanwhile, the significance of this lawsuit has diminished over the last 24 hours, because of the filing of another suit challenging the loan forgiveness plan, by six state governments. This one has a more conventional and stronger basis for standing, that seems likely to succeed.

NOTE: The Pacific Legal Foundation—the public interest firm litigating the Garrison case—is also my wife's employer (though she herself is not working on the case). My interest in this issue—and other similar separation of powers matters—long predates PLF's involvement.

 

Student Loans

Six States File Lawsuit Challenging Biden Student Debt Cancellation Program

The lawsuit has a more conventional - and stronger - basis for standing than that filed yesterday by the Pacific Legal Foundation.

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Demonstrators hold signs in favor of canceling student debt

Earlier today, six GOP-controlled state governments filed a lawsuit challenging the legality of President Biden's massive student loan forgiveness program. This development is notable because at least some of the states have a very strong argument for "standing," the biggest procedural obstacle to getting legality of the program considered in court.

The Congressional Budget Office estimates that the administration's plan will cost some $400 billion. Other estimates differ. But it's clearly a massive expenditure of federal funds regardless. The Justice Department claims that the loan forgiveness plan is authorized by a provision of the 2003 HEROES Act. For reasons discussed in a previous post, the Biden plan goes far beyond what the statute authorizes, and is also at odds with the "major questions" doctrine and nondelegation constraints on executive power. The loan forgiveness plan is a major executive usurpation of Congress' spending power, similar to Donald Trump's attempt to divert military funds to build his border wall.

The substantive legal arguments made in the states' lawsuit are similar to those I and other critics of the program have been making since it was announced, and also to those put forward in the Pacific Legal Foundation (PLF) lawsuit filed yesterday. But the biggest significance of the state case is that the plaintiffs have a particularly strong case for standing, one that is harder to counter than that advanced in the PLF case (filed on behalf of Frank Garrison, an attorney who would end up with a higher state tax liability as a result of the loan forgiveness policy).

As I explained in an earlier post, Supreme Court precedent requires plaintiffs in federal cases to prove "standing," which includes demonstrating that they have suffered or are likely to suffer an "injury" because of the law or policy they are challenging. That injury cannot be based merely on the plaintiff's status as a taxpayer who might have to bear a higher fiscal burden as a result of the challenged program's expenditure of government funds.

At least two of the state plaintiffs (Missouri and Arkansas) meet this burden because they have state government agencies that act as servicers for federally funded student loans of the type that would be forgiven under the administration plan. In my previous post on standing and student loans, I explained how such organizations qualify for standing to challenge the Biden plan:

[Loan servicers] collect student loan payments on behalf of the government, and the size of the fees they get depends in part on how much money is owed, whether the loan is delinquent, and how long the borrower takes to repay it. If loan forgiveness reduces delinquency rates, enables some borrowers to repay faster, or otherwise affects the amount servicing firms get paid, they pretty obviously suffer an injury in fact, and would have standing to sue.

The idea that loan servicers have standing to challenge the Biden plan is widely accepted by lawyers and legal scholars. Indeed, I have yet to see any serious argument to the contrary. It is obvious that the administration's plan to cancel loan debt owed by many millions of people will cost the Nebraska and Arkansas state student loan servicing agencies at least some money. And, under Supreme Court precedent, even a very small loss ($1 is enough!) qualifies as an injury sufficient for standing.

In a move likely intended to make it more difficult for opponents of the plan to find potential plaintiffs who can get standing, the Biden Administration has exempted loans held by private lenders—many of them contracted under the Federal Family Education Loan Program (FFELP)—from its debt cancellation policy. Administration officials may have thought that private lenders are more likely to sue than loan servicers who have ongoing relationships with the Department of Education, and therefore may be reluctant to bite the hand that feeds them.

The administration's decision to exempt the FFELP loans (thereby excluding some 770,000 potential beneficiaries of the loan forgiveness program) strikes me as a sign of weakness. If they were confident of prevailing on the merits, they would not be so eager to sacrifice hundreds of thousands of program beneficiaries merely to reduce the odds of facing a lawsuit by a plaintiff with standing.

Regardless, this move is unlikely to stop the state lawsuit. In addition to servicing FFELP loans,  the Higher Education Loan Authority of the State of Missouri (MOHELA) also (according to the states' complaint) services conventional Direct Loan Program (DLP) student debt. These DLP loans are enough to give Missouri standing, even if the FFELP loans it services are exempt.

As I noted in an update to my post about the PLF lawsuit, the administration plans to block standing in that case by allowing Garrison and others like him to opt out of the loan forgiveness plan. Whether this strategy succeeds may depend on how the opt-out is structured, and how difficult it is to get one.

But even if the opt-out defeats standing in the PLF case, the administration doesn't have a similar way to get around it in the state case. Exempting DLP loans from the the debt cancellation program would essentially gut the entire plan, as these are the vast majority of the loans potentially covered by it.

The Administration could potentially exempt only those DLP loans serviced by MOHELA or those held by state-controlled loan servicers generally. But such a move would only invite additional lawsuits by other loan servicers. If the latter see that filing a lawsuit is an easy path to getting exempted from the plan, that increases the potential benefit of suing, and reduces the risk. Loan servicers could even band together to file a class action lawsuit, thereby reducing the risk that the Department of Education will retaliate against them (it cannot easily refuse to deal with the entire industry).

The PLF lawsuit can also be attacked on standing grounds because the injury in that case is partly caused by the structure of state tax law (an issue on which the judge in that case has asked for additional briefing). That question does not arise in the case filed by the six states.

For these reasons, the filing of the state lawsuit significantly increases the likelihood that standing issues will not prevent courts from addressing the underlying legality of the Biden loan forgiveness plan. Standing problems may stymie some potential plaintiffs. But they probably won't block all of them.

Critics may justifiably attack the GOP politicians behind the state lawsuit as hypocrites. Where were these people when Trump similarly tried to use emergency powers to raid the treasury for his border wall? The same charge also applies to the many Democratic politicians who condemned Trump's border wall diversion, but cheer on Biden's loan forgiveness plan. Just as there are "fair weather federalists," there are also fair weather champions of separation of powers.

But the hypocrisy of many of the politicians involved doesn't undermine the legal validity of their case. Many important cases have been won by litigants with highly impure motives. So it may prove here.

But, for those who care, I take this opportunity to reiterate that I forcefully opposed Trump's border wall diversion, too (see, e.g., here, here, and here). Of course, consistency on such matters is easier to achieve if you're not a politician and have no desire to become one!

As with the PLF lawsuit, a victory for the plaintiffs may not automatically result in an injunction barring the program as a whole. How broad the resulting injunction would be is an issue that is itself likely to be fought in court, should the states prevail on the merits. Potential options include a nationwide injunction stopping the entire plan, an injunction limited to borrowers residing in the plaintiff states, and perhaps other possibilities, as well.

NOTE: The Pacific Legal Foundation—the public interest firm litigating the Garrison case—is also my wife's employer (though she herself is not working on the case). My interest in this issue—and other similar separation of powers matters—long predates PLF's involvement. I do not have any connection to the lawsuit filed by the six states.

As a university professor, I actually stand to benefit from Biden's plan, if courts uphold it, because loan forgiveness essentially subsidizes the consumption of the services universities and their faculty provide.

UPDATE: Oliver Dunford of the Pacific Legal Foundation has pointed out to me that PLF filed an amicus brief supporting one of the lawsuits challenging Trump's border wall diversion, and thus—to their credit—has taken a consistent position on these sorts of issues, regardless of the partisan valence of the particular program in question.

 

Boycotting Law Schools in Clerk Hiring As a Way to Influence Law School Culture

Thoughts in response to Judge Ho's recent announcement.

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Fifth Circuit Judge James Ho recently announced that he will be taking on cancel culture through his law clerk hiring practices. Judge Ho believes that the most significant cancel culture problems in legal education today are at Yale Law School.  He has therefore decided that, in his capacity as a United States judge, he will no longer hire any Yale Law graduates as law clerks. And he is encouraging other judges to join him.

As I understand things from David Lat's useful coverage, Judge Ho's goal is to change the culture of law schools.  By imposing a boycott, and by getting as many other conservative judges as he can to join him, he might discourage conservative applicants from enrolling at Yale Law School.  That might pressure Yale Law School to change its culture.  And that in turn might cause a shift in the culture at other schools.

This a bad idea, and I hope other judges do not adopt it.  Given our blog's traditional  readership among conservative judges and clerks, I thought I would take a minute here to say why.

First, some context.  I think it's fine if federal judges want to express their personal opinions about law school cultures.  Judges can give public talks in their personal capacity, and they can write op-eds in their personal capacity.  They can write books, go on podcasts, upload TikTok videos, or whatever.  We all have opinions, and judges do, too.  If they want to express them, I don't have a problem with that.

I also think it's fine for judges to decide not to hire graduates from a particular law school because they don't expect clerks from that school to work out well. Federal judges pretty much have their choice of clerks.  In choosing which applicants to hire, it's natural for judges to favor some schools, and to disfavor others, because the judges think they're likely to have better or worse experiences hiring clerks from there. That's all fine, too.

What Judge Ho is doing seems different, though. He is trying to use his position as a government official, and the accompanying power to direct taxpayer dollars to employ staff, in a way that maximizes his personal agenda outside of his government work.

Some will agree with that agenda, and others won't.  But whatever your views on that, I think this 'boycott' crosses an important line.  It's the line between judges expressing their personal views in an effort to persuade (which is fine), and judges harnessing their power as government officials to create pressure on private institutions to further their personal agendas (which is not fine, in my view).

Judge Ho has anticipated at least part of this objection.  David Lat reports:

To those who'd say he should "stay in his lane" and stop telling law schools (and law school deans) how to go about their business, [Judge Ho would] argue that judges are already expressing preferences of all sorts—e.g., judges who promise oral argument if litigants let younger lawyers do the arguing, judges who take race and sex into account when appointing class-action or multi-district litigation counsel, etc.

That doesn't seem like much of a justification to me. Two wrongs don't make a right. That is, Judge Ho presumably disagrees with those other judges who have tried to use their official powers to advance their personal agendas as it relates to law firm staffing.  I disagree with the decisions of those judges, too, for the same reason I disagree with Judge Ho's plan. But the fact that some judges are "already" doing something does not justify doing a lot more of it. Some judges wrongly crossing a line does not remove that line for everyone else.

Searches

District Court Rejects Claim That "FBI Misled Judge in Obtaining Warrant To Seize Hundreds of Safe Deposit Boxes"

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I posted Sunday about the post alleging that the FBI misled judge (and the L.A. Times story following up on that); just today, though, Judge Gary Klausner (C.D. Cal.) seems to have rejected that allegation, in Snitko v. U.S.:

Plaintiffs' other Fourth Amendment argument is that the Government misled Judge Kim in its warrant affidavit, thus breaching its duty of candor. Specifically, Plaintiffs note that the affidavit states only that the Government intended to inventory the box contents, while omitting the fact that investigators were making preparations to forfeit much of that property.

Naturally, law enforcement agents may not submit warrant affidavits that contain "material falsities or omissions." The test for determining whether a false statement or omission was material is whether an affidavit containing the omitted material would have provided a basis for a finding of probable cause." If probable cause would have remained even if the omitted facts were included in the affidavit, an omission is "immaterial." Further, an omission relating to "how the search would be conducted," rather than relating to "whether a warrant should issue" in the first place, is also immaterial.

Here, Plaintiffs do not argue that the purported omission—that the Government had made certain preparations to forfeit boxholder contents—had any effect on the existence of probable cause to search and seize USPV's property, including the nests of boxes. Rather, they base their argument on two Ninth Circuit cases that address alternative types of improper affidavit omissions.

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Torts

The Yaliest of All Torts: Wrongful Interference with Clerkship Opportunities

The Yale Law School DinnerPartyGate lawsuit (Stubbs v. Gerken) can go forward on an interference with prospective business relationships claim, based in large part on the law school's alleged interference with plaintiffs' clerkship opportunities, though the other claims are dismissed.

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From Stubbs v. Gerken, decided today by Judge Sarah Merriam (D. Conn.):

Plaintiffs Sierra Stubbs and Gavin Jackson …, each of whom was a student at Yale Law School, bring this action alleging, in sum, that two deans of the Yale Law School, along with the Law School's Director of Diversity, Equity and Inclusion, "worked together in an attempt to blackball" plaintiffs from the prestigious job opportunities that are often available to Yale Law School students and graduates….

For purposes of deciding the Motion to Dismiss, the Court presumes the following factual allegations set forth in the Second Amended Complaint to be true….

Events Leading to the "Dossier"

Stubbs and Jackson each first met Professor Amy Chua … when each was enrolled in Chua's International Business Transactions course. Chua "has served as an important mentor for her students, many of whom successfully obtain prestigious [judicial] clerkships." In September 2018, well before Stubbs and Jackson met Chua, Gerken, the current Dean of YLS, began "publicly criticizing Chua[.]"In "an email to all members of the [YLS] community[,]" Gerken expressed "'enormous concern'" about "'allegations of faculty misconduct' supposedly against Chua[.]" {The allegations against Chua included claims that she had "given advice on dress or appearance to [judicial] clerkship candidates preparing for interviews[.]"} It was "reported" that in 2019 "Chua had entered a 'no-socializing' agreement with  the University whereby she agreed not to socialize with students off-campus."

In February 2021, plaintiffs "separately attended Zoom 'office hours' with Chua to discuss their coursework." These conversations "would also cover career discussions and any concerns that [plaintiffs] voiced about the University." Such concerns included those of Jackson, who "struggled with what he felt was a lack of institutional support for students of color, which ended with his frustrated resignation from the board of the Yale Law Journal." Jackson's resignation "received media coverage[,]" which "caused" him "to face significant hostility at the school." Chua was "in a unique position to offer [Jackson] guidance on these issues[,]" having been subject to "race-based, online instigated hostility, as well as being one of the few faculty members of color at" YLS.

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Campus Free Speech

The AFA, FIRE, and AAUP on Idaho's Abortion-Related Speech Restrictions

The University of Idaho's guidance to faculty on classroom discussion makes plain a First Amendment problem

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The general counsel of the University of Idaho issued a guidance memo to university employees regarding the implications of the state's new abortion law for university operations. That memo told professors that they should maintain instructional neutrality in any classroom discussions relating to abortion if they wished to avoid the possibility of criminal prosecution. I wrote about the law and the memo in an earlier post. Eugene Volokh has likewise blogged about it.

The Foundation for Individual Rights and Expression and the Academic Freedom Alliance and the American Association of University Professors have now issued separate letters regarding the assault on academic freedom in Idaho. The FIRE letter can be found hereThe AAUP statement can be found here. The AFA letter can be found here.

From the AFA letter:

It is imperative that the University of Idaho not merely inform the faculty of the potential risks of teaching with such a law on the books but also strongly voice its objections to any such interpretation or application of the state law. The general counsel's guidance sends a chilling message to every member of the faculty who must discuss difficult and controversial material relating to abortion as part of their teaching duties. The statute itself might not recognize "academic freedom [as] a defense to violation of law," but the First Amendment is an overriding limitation on the power of the state legislature to impose such a restriction on classroom teaching in state universities.

Free Speech

"You're Nobody" and the Law: Removing Candidate's Ballotpedia Page Isn't Libelous

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From Magistrate Judge Phillip Green's Report & Recommendation Tuesday in Trouten v. Ballotpedia (W.D. Mich.):

Plaintiff alleges that Ballotpedia "has withdrew the 'Bryan Trouten for United States House of Representatives Campaign' on their website." Plaintiff alleges that this action constitutes libel and/or defamation under state law. Plaintiff seeks $5,000,000.00 in damages….

It must first be noted that Plaintiff does not allege that Defendant made any false or defamatory statement concerning him. Instead, Plaintiff alleges that Defendant merely removed information from its website concerning him. Defendant argues that Plaintiff's claim fails the first element. But Plaintiff further alleges that, by removing the information in question from its website, Defendant was falsely "claiming that [Plaintiff] withdrew his campaign." Thus, Plaintiff asserts that Defendant's actions implied, falsely, that Plaintiff had withdrawn his campaign.

Michigan recognizes a cause of action for defamation by implication. To prevail on such a claim, Plaintiff must establish that the defamatory implication is "materially false." Plaintiff alleges that he did not withdraw his candidacy for the U.S. House of Representatives and, moreover, that he timely submitted with the State of Michigan the paperwork necessary to be considered a write-in candidate. Thus, contrary to Defendant's arguments, Plaintiff's allegations satisfy the initial element of the analysis.

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Free Speech

Professor's Prior Restraint Lawsuit Against Collin College Can Go Forward

The professor, Joseph Michael Phillips, had spoken about Confederate memorials, race relations, a shooting, and masks.

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From Judge Amos Mazzant's decision Monday in Phillips v. Collin Community College Dist. (E.D. Tex.) (see also Keith Whittington's post on the underlying controversy, and my post from when the lawsuit was filed):

This case arises from a series of statements—a newspaper publication, an interview, class discussions, and social media posts—made by Phillips during the time he was a professor at Collin College. According to Phillips, Defendants "violat[ed] his constitutional rights by retaliating against him for speaking as a private citizen about public issues" in each of the enumerated instances. Specifically, Phillips complains that Defendants placed a prior restraint on his speech through a number of policies and directives, all of which Phillips claims were "attempt[s] to silence College faculty" from speaking "as private citizens on matters of public concern."

Phillips asserts that the conflict between Phillips and Defendants began in 2017 when Phillips co-authored an open letter published in the Dallas Morning News advocating for the removal of Confederate memorials. In the letter, Phillips identified himself as a professor at Collin College and listed his faculty email as a point of contact. According to Phillips, he co-authored the letter as a private citizen. Nonetheless, after the letter was published, two Collin College administrators met with Phillips and reminded him of Collin College's policy that requires faculty to "'exercise appropriate restraint, exhibit tolerance for differing opinions, and indicate clearly that they are not an official spokesperson for the College' when they speak or act as private citizens."

Later, in 2019, Phillips granted the Washington Post an interview wherein he discussed race relations and the then-recent shooting at an El Paso, Texas grocery store. The shooter was a former Collin College student but was not a former student of Phillips's. Prior to Phillips's interview, Collin College's President, H. Neil Matkin, sent out a directive via email to the Collin College campus:

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