The Volokh Conspiracy

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

The Volokh Conspiracy

Calling All Guamanians

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I'm investigating what seems to be an interesting and unconstitutional prior restraint on a media outlet imposed by a Guam Superior Court judge. Any of our readers Guam lawyers (or connected go Guam lawyers), Guam media folks, or otherwise Guam-linked? If you are, and are willing to chat with me briefly about this, please e-mail me at volokh at law.ucla.edu. Thanks!

Who Are You?

(Post bumped to the top.)

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Tell us a bit about yourselves.

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197 responses to “Who Are You?

  1. Retired liberal Democrat, 78 ex farm boy, ex bureaucrat.

    1. Public defender for of small county in Illinois. Libertarian-ish, sort of

  2. Why, so I can be doxxed?

    Seriously, even though, autobiographical stuff occasionally comes out in comments I am not going to put it here except to say that my academic background is in political science and the Law & Politics field. This blog is the best to follow what’s going on in the news from that perspective, specifically 2nd Amendment issues, avoiding much of the dreck that constitutes political science.

    I’ve been reading since it was an independent website, by the time I felt up to speed enough to comment, the site went to the WaPo and there was no way they were getting a red cent of mine, so I am happy that you’re at Reason.

  3. Retired (unwillingly) Millwright. Coolidge-Republican. 56 y/o. Serial refugee from two blue states: NJ and CA. Currently hiding out in Texas.

    1. I’m a former millwright. My steel mill closed down, so these days I’m a railcar repairman.

  4. Human resources desk jockey, living in Indianapolis suburb, divorced dad of aspiring youth hockey legend.

  5. Just a recent UVA Law grad reading the Volokh Conspiracy instead of studying for the Utah Bar like I should be.

  6. Retired chemist. Libertarian since 1974. Married, living on the Pacific coast in the redwoods.

  7. Former AUSA in EDNY, now an attorney in private practice in NY, NY. Been reading your blog for many years.

  8. Chief Justice of U. S., likes walks on the beach, casting swing votes on the Supreme Court, light bondage…oops, I think I’ve given too much information.

    1. Are you here through the weekend?

    2. I think not nearly enough! What’s your number?

  9. Practicing trial attorney for 27 years . Former Democrat, now Trumpish libertarian. Adjunct professor.

  10. I’m now a licensed attorney (passed the Georgia 2019 bar exam). Live near Augusta, Georgia. I read VC daily — it’s a been a valued resource for me for quite some time now.

    I just hung my own shingle but I haven’t quit my day job.

    1. Best of luck. A tough row to home, but potentially rewarding (perhaps not monetarily).

  11. Mechanical engineer approaching retirement. Formerly an activist in the LP, got out in the late 90’s when I figured out it was a dead end run by people who weren’t terribly serious.

    I’m a SC refugee from the 2008 crash in Michigan, my hobbies are robotics, (Used to compete in Battlebots.) carpentry, and homebrewing mead.

    1. My nephew just started in computer engineering/robotics at U of Michigan.

    2. Battlebots aren’t robots. They’re RC.

      1. So, it’s your mission in life to come here and piss on people’s comments? Seems that way.

      2. James Pollock, why don’t you tell us who you are? Here’s a starter for you: “I’m James Pollock and I’m a dickhead and a troll.”

        1. Your description of youself doesn’t fit me.

      3. Most battlebots aren’t robots, there was an autonomous division at the time. But yeah, my battlebot was just a tough RC car. I was just starting out then.

        Doesn’t stop me from being in hobby robotics, though. Battlebots is good experience for a hobby roboticist, in terms of motor control, drive trains, and so forth. Add some processing power and sensors, and you’ve got a robot.

        1. I’m was a long-time volunteer in robotics competitions for children… Coach, judge, referee. Then my daughter got involved in the same organization, and married a student engineer who was president of the university robotics club.

          1. Ended up donating my robotics equipment to a local First Robotics team when I moved down South, due to lack of shop space. I’m now having to rebuild from scratch, but I don’t regret it. I didn’t want all that stuff just gathering dust in a storage room.

            At the time I was interested in “remote autonomous” robotics, so the fact that my ‘bot’ was RC controlled didn’t bother me, I could have connected the IFI system to a desktop computer for serious computing, and it did have local processing power. Today, of course, it wouldn’t make sense to go that route, given how much processing power you can put in a mobile platform.

            In fact, my summer project with my son is going to be a balancing robot, and it’s going to double as his personal computer.

            1. One of the First levels of competition uses a cell phone for processing. I mostly worked with the Lego robots, which have a dedicated processor.

              1. They’re pretty cool, but I thought they were remarkably pricey. Besides, as a mechanical engineer, I enjoy the metal bending end of the hobby.

                1. You should see the creative ways the kids engineer things. FLL robots are cheaper to build than FTC, and WAY cheaper to build than FRC. Largely because of not having to bend any metal.

  12. 65 year-old semi-retired attorney, I’ve been practicing law for 37 years, primarily in commercial bankruptcy, commercial real estate and commercial litigation. Admitted to practice in the U.S. Supreme Court. A Supreme Court geek, faithful follower of Scotusblog. Passionate about law, economics, science and math, Scuba Diving, and food, especially Mexican, Italian, and Thai. Member of Mensa and Triple Nine Society, confirmed libertarian. Hoping to retire to Cozumel, Mexico soon.

  13. Mostly retired several-time entrepreneur/small businessman. Some hits, some misses.

    Graduate work – no dissertation – in finance and economics. Bad at teaching, too little sitzfleisch for research.

    Serious tournament bridge player.

    1. A bridge player. Cool.

      I haven’t played in >30 years, but one of my proudest accomplishments was a passing unnamed mention in this NY Times bridge column.

      See if you can figure out who’s me.

    2. I also had occasion once to hire Jill Meyers in her capacity as a music consultant for a legal project. I never even mentioned that I knew and was in awe of her as a bridge player, much less that I had ever played.

      1. Hard to follow the column hand, Leo, given the way the deal is presented.

        Jill is a great player, though she and I had a bit of a run-in at the recent NABC.

        I think she will be representing the US in the world mixed teams championships.

        1. Yeah, the hands in the Times’ pre-digital archives are gibberish. Suffice it to say, the play was brilliant. (Here’s a Times column featuring Larry’s bidding. The gist of that one’s pretty clear even without seeing the cards.) Anyway, the hand is superfluous to my moment of glory, which is in the commentary:

          “[Larry] made his mark as a brilliant teen-ager but failed to rise high in the tournament world because his partners were rarely his equal in skill.”

          That’s me! I was one of his partners, and I really did suck! Larry, on the other hand was barely out of high school IIRC when he won the Blue Ribbon Pairs. He had no business playing with a hack like me, but he knew his time was short, and he preferred spending it with friends to striving to realize his potential.

          That was 1985 and he was my first friend to die of AIDS. I’m grateful for the memories.

    3. When I bid and made 7NT, I knew my Bridge life was complete.

      1. Dave, these threads could benefit from more of your contribution.

        1. I’ve made it, but I certainly did not bid it. Alas. I have no business talking bridge with serious players, though I do regularly play with a 97 year old woman who has played since she was five. She talks about playing with Bobby Wolff.

  14. New attorney and public defender. I’ve always been interested in the First Amendment, and I used your book in a First Amendment class in law school (that’s how I found the blog back when it was on WaPo).

  15. Mathematician, ex-academic (they offered me tenure, I thought about what I was putting up with in departmental politics, said “Hell, NO!”, gave two weeks notice and left); software engineer for environmental modeling for the last 30 years (wrote the programs that did the world’s first numerical air quality forecasting, as well as 1.200,000+ lines of production code), semi-retired. Needless to say, I have a deep interest in copyright and IP in general…

    1. Does you bio actually say that you wrote 1.2 lines of code?

  16. Retired military, retired corrections officer, now the treasurer for the county Libertarian Party.

  17. I work at a college as a janitor even though I’m smarter
    than most of the people there.

    Sometimes I see an equation written on a blackboard
    like half an equation, and I’ll just figure it out.

  18. Chicks dig me, because I rarely wear underwear and when I do it’s usually something unusual. But now I know why I have always lost women to guys like you. I mean, it’s not just the uniform. It’s the stories that you tell. So much fun and imagination. Sarcastro, you are a madman. When you stole that cow, and your friend tried to make it with the cow. I want to party with you, cowboy. But the two of us together? Forget it! I’m gonna go out on a limb here. I’m gonna volunteer my leadership to this platoon. An army without leaders is like a foot without a big toe. And Prof. Volokh isn’t always gonna be there to be that big toe for us. I think that we owe a big round of applause to our newest, bestest buddy, and big toe… Prof. Volokh.

    1. Bravo, not as good as Bill Murray’s delivery though.

      1. Bill Murray is Bill Murray, and everyone else is not Bill Murray.

        1. Which is to his advantage as an actor, since all he has to do in any movie is play Bill Murray.

    2. I met Bill Murray at The Palms in London, my then girlfriend’s best friend worked on Fantastic Mr. Fox. He chatted nicely, took some selfies, smoked a joint on the edge of the outdoor bar with a friend, and was off to catch a helicopter. He’s great, but he’s no Sarcastr0.

  19. Civil trial attorney in NM; 32 years in practice.

  20. Recently retired appellate specialist & adjunct law prof in New York City; a non-doctrinaire, lower-case “l” libertarian.

  21. Just a college student interested in pursuing a Juris Doctorate degree.

  22. 60-something real estate attorney at Amlaw 100 law firm, Yale and Boalt graduate, evangelical Christian, white, pseudo Anglo-Saxon (actually a somewhat mongrel mixture of British, Scandinavian, Polish and Jewish), sort of Republican but I don’t like very many politicians of either party.

  23. “Mr. Dove was a gentleman who spent a very great portion of his life in this somewhat gloomy abode of learning. It was not now term time, and most of his brethren were absent from London, recruiting their strength among the Alps, or drinking in vigour for fresh campaigns with the salt sea breezes off Kent and Sussex, or perhaps shooting deer in Scotland, or catching fish in Connemara. But Mr. Dove was a man of iron, who wanted no such recreation. To be absent from his law-books and the black, littered, ink-stained old table on which he was wont to write his opinions, was, to him, to be wretched. The only exercise necessary to him was that of putting on his wig and going into one of the courts that were close to his chambers; but even that was almost distasteful to him. He preferred sitting in his old arm-chair, turning over his old books in search of old cases, and producing opinions which he would be prepared to back against all the world of Lincoln’s Inn.”

    (A. Trollope, The Eustace Diamonds, Chapter 28)

  24. Retired. Degrees in Computer Science, career in systems software development as individual contributor, team lead, and manager – mostly at startup companies. Detail oriented.

    Always had an interest in the law. Considered going to law school in my 30’s but decided against it. One factor in not doing so was because of the cost (money and opportunity loss) and reduced income potential (just as I’m more of a small company guy than a big company guy, I’m pretty sure I’m not “big law firm” material where the big bucks are for a select few who play politics well). Another factor was that, frankly, too many practicing lawyers are slimy and often not all that smart. I was actually put off by the LSAT tests – I took some of the sample tests and got 100% correct on some sections and very near 100% correct on the rest (with self-imposed time pressure, but not “performance pressure” as, of course, my self-test scores would never be reported) and realized I’d be working with other lawyers (either on the same side of the table or the other side) that got only modest scores.

    General fairly strong libertarian bent – esp. at the higher levels of government. Much less concerned about libertarianism at the local level than the state level and less concerned about it at the state level than at the national level. It’s relatively easy to vote with your feet to escape local authoritarians – not so much at the national level.

    Love a good argument. Often bored by discussions with those I agree with unless they provide new and original insight/data or by discussions with those with opposing views who are hesitant to challenge me responsibly.

    Definitely not “PC”.

    1. Oh, and an atheist but will only preach it if someone tries to preach their faith to me or justify taxation or loss of individual rights using scripture.

      I suspect there are parts of the brain that cater to fantasy and religion. I can see that in the process of evolution, these parts may have been selected for as humans lived in groups with limited communications and education and needed direction from an alleged “higher authority” (to avoid killing others in the same tribe too often) and to offer hope (belief that the drought will, eventually, end because a deity has their back may make one work harder to survive rather than give up).

      However, that part of my brain seems to be very limited!

      1. “will only preach it if someone tries to preach their faith to me or justify taxation or loss of individual rights using scripture.”

        Apparently not, preacher. (See your next paragraph.)

        1. There’s, um, no atheism in that next paragraph.

          1. There’s preaching about atheism:

            “I suspect there are parts of the brain that cater to fantasy and religion. I can see that in the process of evolution, these parts may have been selected for as humans lived in groups with limited communications and education and needed direction from an alleged “higher authority” (to avoid killing others in the same tribe too often) and to offer hope (belief that the drought will, eventually, end because a deity has their back may make one work harder to survive rather than give up).”

            1. There’s discussion in that paragraph. Only those who want to be offended will see it as preaching.

            2. There’s no atheism in the passage you quoted, either.

  25. 39 year old financial planner and father of two. I love learning about the Constitution. I am also a founding-era history nerd, so I’m always looking for good books on the Constitution and/or the founding fathers.

  26. Age 49, attorney, mother of 2. I enjoy walks on the beach, sunsets and puppies.

  27. Recovering BigLaw attorney. Prognosis grim.

    Was superficially acquainted with Eugene professionally for a very brief time approximately 25-30 years ago.

    That would have been the end of it, but a few years after I knew him I heard Eugene debating gun control on a local NPR station. I was traumatized by how well-informed, persuasive, and courteous he was in the face of a detestable woman arguing my side, who was none of those things. (Little did I imagine which of them was showcasing a formula for winning the White House in 2016.)

    That left a mark, so when I heard Eugene had a blog 12 or 13 years ago, I sought it out. I’ve been reading regularly and commenting somewhat less so ever since.

    In every respect except the quality of the blogging, the VC experience peaked early, and has been declining steadily since. I regret to say the current iteration of the VC comment section is worthy of Eugene’s radio debate opponent from way back when.

    Now get off my lawn.

  28. Middle aged. I work in the internet backbone engineering industry. I’ve been reading Volokh Conspiracy daily since 2004. My brother is best buds with Gary L who a bunch of conspirators went to school with and/or are friends with.

  29. Retired, single, advertising executive, 3 “kids”, 6 perfect grand children. Restorer of old British sports cars (Triumph TR3B). NRA Certified Pistol/Rifle/Shotgun instructor. Illinois Certified Concealed Carry Instructor. High Power Rife Competitor. Foster parent of rescue dogs. Started following and enjoying VC during the Heller and McDonald cases.

    1. Your hobbies might be more enjoyable one state to your east.

  30. Former State Deputy Attorney General. Started reading when it was a standalone website. Used to comment regularly when I had lots of free time as a government employee. Much harder in private practice.

    Massive death penalty experience.

    According to one researcher, I can claim credit for inadvertently launching “Birtherism” on these very pages

  31. When I bid and made 7NT, I knew my Bridge life was complete.

  32. Late 50’s, former community organizer.
    Told the admissions people at Columbia and Harvard Law that I was born in Indonesia, hoping it might give me a leg up, as my grades weren’t all that hot at Occidental.
    Well-known for the sharp crease in my pants, and for being clean and articulate.

  33. Mid 30s, studied the biological sciences in college, but ultimately wound up doing computer programming and some IT work, which I had picked up as hobby. Always been strongly socially libertarian, so that led me to sites like Reason then here, as my interest in the constitutional law aspects of my policy concerns grew over the years (though I wasn’t entirely uninterested in law when I was younger, a course in basic business/contract law was one of my favorite undergrad classes, and I loved the mock trial thing before that). Have enjoyed reading in depth legal commentary, articles, and court decisions a long time now.

  34. Dumbass sportswriter, early 40s.

    1. “Dumbass sportswriter” – That’s a bit redundant.

      1. Watch it, guys. The proprietor has indicated he does not condone that type of language, or the disparaging tone.

  35. Middle aged survivor of the tech industry, analytical and passionate about American ideals. Leaning libertarian on pragmatic grounds most of the time with major exceptions for some progressive interventions. I appreciate analytical thinking and therefore it’s fun to hang out in lawyers’s spaces even though I have no law background.

    1. It’s OK. It’s amazing how comfortable the lawyers will make themselves in tech spaces despite having little to no understanding of tech.

      1. If there’s a common trait to lawyers, it’s a comfort in asserting competence in any area that catches their eye. I’m a historian and have never met a lawyer who wasn’t quick to assert their historical expertise if they’ve skimmed a couple books or articles on a subject. Lord grant me the confidence of a lawyer.

  36. Currently a software developer living in Texas with my wife, son and three Shih Tzus. I got interested in law working with IP lawyers in California and started following VC in the years leading up to Heller.

  37. Dropped out of my physics PhD program with a masters, from there to law school. Worked as a lawyer long enough to pay down my loans, and then went back to school in science policy.

    Now I do that, and it is good.

    1. What does it mean to do science policy? Are you at a think tank? Lobbying shop? Bot farm?

      1. Bureaucrat. I am the Deep State.
        😛

        1. Now there’s a shocker: a government bureaucrat lounging around in a tracksuit and posting comments on a blog.

          1. There’s no shortage of bureaucrats in private industry.

            1. True, but private industry bureaucrats are financed by private industry.

      2. I was so awful a lawyer that my services were much sought after by firms eager to establish losses for tax purposes. My prices were high, for failure often did not come easily. I had to start at the top and work his way down, and with sympathetic friends in Washington, losing money was no simple matter. It took months of hard work and careful misplanning. A person misplaced, disorganized, miscalculated, overlooked everything and open every loophole, and just when he thought he had it made, the government gave him a lake or a forest or an oilfield and spoiled everything. Even with such handicaps, I could be relied on to run the most prosperous enterprise into the ground.

        I am a self-made man who owe my lack of success to nobody.

        1. What was the catch?

        2. “Even with such handicaps, I could be relied on to run the most prosperous enterprise into the ground.”

          So you are ideally suited for government work. If, that is, there are any government programs that haven’t yet failed miserably.

  38. Seventy year old retired federal Navy nuclear engineer technician living rural isolated Lake Michigan island bicyclist Second Amendment activist distrusting of government and cops and education establishment and strangers pierced tattooed hoodied. Extreme IQ +4σ Follow Alexander Meiklejohn curriculum. Eschew mass media infotainment, two decades TV-free. ~1 Mbps net access.

    Current reading interest; The Science of Conjecture: Evidence and Probability before Pascal (JHU 2001) by James Franklin

  39. Professor of computer science who has been enjoying the reasoning here since 2001.

  40. Born 1946, varied employment history.
    – Public schools through HS. Graduate training in history. No PhD.
    – Photo journalism. Reporting, editing, newspaper publishing.
    – Steel fabrication. Built heavy machinery and pressure vessels. Previous member in 3 unions.
    – Typography. Developed and patented software system to coordinate non-linear, letter-pair dependent type kerning changes with font size changes.
    – Photography and graphic design. Annual reports, packaging designs, logo development.
    – Fine art photography.

    Volokh-related special interests: libertarianism, originalism and history, political philosophy, speech freedom, publishing law, changing publishing practices, environmental issues and law, 2A, anything from Orin Kerr.

    Long-time Volokh follower and commenter. I join others who preferred the independent version of the blog. I miss Mark Field, Loki, and others.

  41. US Air Force, AFOSI special agent retiree.
    Lived OCONUS for 24 years.
    Worked/traveled throughout Europe and Africa (secret tip for international travelers: Namibia).
    Currently a government contractor.
    Amateur foodie.
    We can disagree on many things but I do appreciate the insight and education.

    1. Good call on Namibia. Tons of different active things to do, in addition to the dunes, wild animals, etc..

      1. South African Airways serve the best airline food in the world. Mugabe was a monster but Zimbabwe raises some tasty cattle.
        Mark Field and Loki are indeed missed.

    2. The one and only time (AFAIK) I interacted with an AFOSI agent was a computer security conference, where he explained how the AFOSI tracks down child porn on AF computer systems. He spent the first ten minutes explaining just how much effort the AFOSI has to spend on tracking down CP on AF computers.

  42. 47 year old dad of two boys, married. Work as a data mgr for the govt. Long time Reason reader and small l libertarian.

  43. In-house counsel with strong avocational interest in 1A law; been reading VC since the very beginning (2001 or 2002?)

  44. Left biochemist work for law school, 31 years of practice, starting with commercial litigation and appellate firm, followed by 20 years in-house counsel for large academic medical center, and am now an Assistant Dean helping to birth a new medical school (our first class is finishing its first year). Equestrian. 2nd Amendment activist. Married, with a 16 and an 18 year old. Vicariously met Professor Volokh when my husband attended a 2nd Amendment advocacy conference in Orlando. Read the Conspiracy for years before the move to wapo.

  45. 40 year old very recent law school grad, studying for the bar. Before that I taught school for a year, worked in biotech, and traveled extensively in Asia. The impetus for me going to law school was in fact the VC – stumbled across it when I read a balanced article on Justice Thomas written by Professor Volokh back in 2003, which led me to look for other things he had written.

  46. 43 years old, Russian-Jewish immigrant, non-practicing attorney.

  47. Husband, father, retired lawyer, former Marine, native Texan, and past president of my local Tea Party.

  48. Architect, 59, divorced, bibliophile, hiker (did the AT while unemployed during the Great Recession), diver (shipwrecks), art collector (Japanese woodblock prints), veteran (Army NG)

    1. I did approximately 100 yards of the trail, where it crosses I-40, this month. Not quite the same accomplishment, granted, but I wanted to go west, not north or south, so I got back on the Interstate.
      And, as long as I am VERY careful of how I phrase it, I can truthfully say I hiked on the Appalachian Trail. And then toss off the fact that I did it “both ways”.

      1. A lot of people do the Trail in sections until they finish its entire length. At 100 yards per month you’ll be done in about 3,200 years. I recommend the experience to everyone as something uniquely positive – at least in the people you meet, hikers and non-hikers alike. One of the extremely rare murders on AT recently occurred, so all the usual suspects shrilly insisted everybody should be armed. Well, I was on the Trail for eight months (being very, very, slow) and met only a single handful of people with negative attitudes, and usually only slightly negative at that. Try finding that statistic in the real world. Of course, at the time I was (1) long-term unemployed, (2) stressed financially, and (3) in the midst of a divorce. The woods seemed like just the place to be.

        1. I’m afraid I’m likely to remain limited to sections of the trail readily acdessible by an Interstate I already happen to be on. At that rate, it’s going to take me more than 3200 years to finish.

  49. Senior Economics undergrad at Hampden-Sydney College- love this blog!

  50. 25 y/o, work in finance, BA in business and economics, PA resident for most of my life, extreme weeaboo, politically and economically unorthodox.

    I appreciate Reason and every contributor, in spite of my frequent political differences, for highlighting the ever present and increasingly frequent intrusions of the State into our lives. As our national politics become increasingly Marxist in every sense of the word, we need as many strong voices as possible explaining that the flaw of the administrative State is not who runs it, but the mechanism itself.

  51. Late middle age in-house real estate lawyer. Graduate of public university and law school. Jew by conversion. Started reading VC back in 2002 or 2003, not long after it started.

  52. Late 40s practicing litigator. Have been reading the VC since the pre-comment days of the mid-2000s. Small l-libertarian. Very stable genius.

    1. Both “stable” and “genius” are things that, if you are these things, you don’t have to tell people that you are these things. As a result, when people say they are these things, it’s an almost certain sign that they are not.
      (Yes, I know you knew that. But that other guy doesn’t seem to know that.)

      1. Huh. I thought he just knows a lot about horses.

  53. Politically, libertarian and Libertarian for 40 plus years. I don’t agree with many, or most, people, who call themselves libertarians, but I disagree with them less often than those who call themselves dems or repubs.

    Educationally, graduate degree in English literature. Vocationally, retired. Spent my working years about equally between the private and public sector, with stints in private business and non-profits. Careers? Everything from truck-driving to driving tractors to college instruction.

    1. “I don’t agree with many, or most, people, who call themselves libertarians”

      No two libertarians agree about much of anything, including specifically just what it means to be “libertarian”.

      1. This is true. My favorite way of explaining “libertarians” includes the following video, which can be said to illustrate why there will perhaps never be a viable “libertarian” political party:

        https://www.youtube.com/watch?v=PZ0ur5GKC0w

        1. A very neat video indeed.

  54. 55 yo economics professor at Wright State University. Interested in legal developments. Ph.D. In economics at UCLA. Gary Schwartz and Richard Sander were the external professors on my dissertation committee.

  55. Small town Midwest private-practice lawyer, mostly civil. BS (Agriculture) from Big Ten school, JD from another state school. Late middle age.

  56. 30-something network engineer, former Republican, current Libertarian, just got married and now shopping for a house

  57. Just an average Joe with an interest in the law, especially civil rights issues. Soft atheist (I don’t feel a need to rebut others’ beliefs) and lowercase “l” libertarian. Addicted to sports cars, old and new.

    I appreciate the thoughtful nature of (most of) the posts here. Those keep me coming back.

  58. Eastern Orthodox deacon, 65 this year, lifelong Coloradoan, degrees in mathematics and theology, interested in lots of things prominent among which are languages, history, and Constitutional law. Always Conservative, sometimes Republican.

  59. 50s, Software Engineer working in IP litigation in Silicon Valley, National Greatness Libertarian (a party of 1, as near as I can tell).

  60. 60-ish corporate lawyer in midwest, rational and secular on public policy matters. Far to the left by 2019 standards, but not by 1968 standards. No party.

  61. Who, who? Who, who?

    1. Cuz I really wanna know…

      1. Just get up and walk away, dude.

        But as long as we’re on the subject, who put the ram in the rama lama ding dong?

  62. Retired economist/investment analyst. Trends (economic, political, and societal trends over past 20 years) have pushed me into the “rabid libertarian” camp. Over my 35 year private sector career I watched Accounting and Law move from principals-based to rules-based so I discovered this site as part of my knowledge base improvement program. I learned in college Econ history how and why all empires have failed – losing foundational principals that earlier had controlled government excesses is one core reason.

    1. “I watched Accounting and Law move from principals-based to rules-based”

      Elaborate? Any concrete examples?

    2. I don’t see it as much of a pivot to go from principals-based to rules-based. The principals who ran every school I attended were always rules-based.

  63. Prophet. Soul rebel. Rastaman.

    Oh, no, wait — that’s Bob Marley … I always get us confused.

    Retired in the SC — Navy/Banking

    I identify as a sage.

  64. I am a retired academic economist with a PhD in physics who spent the final twenty-three years of my career as a law professor. I also write, both fiction and non-fiction, cook from medieval cookbooks, and argue with people online.

    1. Winner

      1. Well, he didn’t say he won the arguments….

  65. I am a retired atmospheric scientist with a PhD in mechanical engineering (heat transfer and fluid mechanics). I discovered that I didn’t like working in the aerospace industry, so I did a post doc at the National Center for Atmospheric Research. I have been director of atmospheric and climate research at a DOE national lab, manager of an international government/industry research consortium, and I have done stints as a staffer at EPA and DOE headquarters. Nowadays, I pursue my life-long interests in American and ancient (Greco-Roman) history. But I am also influenced by my environment, which includes a daughter who is a state-level appellate court judge and a wife who was a public school superintendent.

  66. 69 year old CPA. I have a strong dislike of both Democrat and Republican parties. Please can someone start a viable third party. I read VC to aggravate myself when I read terms like qualified immunity, absolute immunity, third party doctrine, etc etc etc.

    1. A brief description of the basic platform?

  67. Retired law professor–been reading VC for about dozen years. Somewhat lower case libertarian in outlook.

  68. 49 y/o pastor in southeast Minnesota who has always been fascinated with constitutional law, specifically the First Amendment. Tend to be rather libertarian so I’m not your stereotypical dyed-in-the-wool evangelical Republican.

  69. Retired aerospace engineer, former Marine officer, active Libertarian in the ‘80s, less active libertarian now. See y’all at Juplaya ‘19!

  70. I’m the Dude, man. So that’s what you call me. That or his Dudeness, or Duder, or el Duderino, if you’re not into the whole brevity thing.

    1. That rug tied the whole room together.

    2. Or are you a dude playing a dude, disguised as another dude?

  71. Did someone wake up in Soho doorway?

  72. 39. Social worker. Social libertarian. Traditional skinhead. Proud Zionist. Not a fan of capitalism’s excess but don’t see any system working better.

  73. Disgruntled engineering professor.

  74. Former computer engineer, current software engineer. Two children. Interested in law, colonial history, science fiction, various technical subjects. Not conservative and not very libertarian, but I started reading Volokh Conspiracy around when it started allowing comments, and have continued following it since.

  75. Middle-aged anesthesiologist from Missouri. I lean in to the stereotype that doctors see themselves as Experts on Everything.

  76. Practicing civil-litigation attorney in Minneapolis. Started reading the blog in 2003, when I was in law school. Followed to WaPo and now to Reason. Not commenting under my real name.

  77. Emeritus professor of criminal justice and Information & decision sciences, just entering my ninth decade. Very cynical about libertarians, who feel they got there based on their own merits alone. Show me one who has his own well and latrine instead of using socialized water and sewers, who schooled himself (they are mostly male), and then I’ll consider it a possibility.

  78. Software engineer turned lawyer. Despite suggestions from nearly everyone that I should be in IP practice, I chose to do court-appointed criminal appeals, and I have never been sorry about the choice.

  79. In all seriousness, I found Eugene’s 2A writing during my State’s push for shall-issue CCW licenses. Unfortunately that was while I was still working on my Ph.D. in physical chemistry, so I couldn’t do so much politicking. Got that and went straight into the renewable energy industry. I managed to stay in the lab since then, got a few patents, until last year. Medical/neurological issues have stopped me from carrying or shooting, and made it a Bad Idea to keep working in a high-voltage lab, so I’m driving a desk now.

    1. Oh, BTW, a few years into my career I thought about going into law, but never did – that was a good thing, because it would have been Cooley.

  80. I am a noncontingent human being. My personality is sketchy and unformed, my heartlessness goes deep and is persistent. My conscience, my pity, my hopes disappeared a long time ago (probably at Harvard) if they ever did exist. There are no more barriers to cross. All I have in common with the uncontrollable and the insane, the vicious and the evil, all the mayhem I have caused and my utter indifference toward it, I have now surpassed. I still, though, hold on to one single bleak truth: no one is safe, nothing is redeemed. Yet I am blameless. Each model of human behavior must be assumed to have some validity. Is evil something you are? Or is it something you do? My pain is constant and sharp and I do not hope for a better world for anyone. In fact, I want my pain to be inflicted on others. I want no one to escape. But even after admitting this—and I have countless times, in just about every act I’ve committed—and coming face-to-face with these truths, there is no catharsis. I gain no deeper knowledge about myself, no new understanding can be extracted from my telling. There has been no reason for me to tell you any of this.

  81. 2008 J.D. who has worked exclusively for small firms since graduating Law School. I like being a “mutt” when it comes to what areas I practice. Don’t do Federal work, but always had an interest in the Supreme Court (which I think drove me to Law School in the first place in addition to working on a local level political campaign as basically the only staff of a lawyer who was running for local office and after that campaign encouraged me to go to Law School). Been following this site over multiple platforms because I appreciate that Eugene and Co. do try to neutrally presents all sides of major issues, are willing to accept feedback from the peanut gallarey, and a sibling of mine had Eugene as a 1L!

  82. Young engineering PhD student with a family.

  83. 70, soon to be 71, retiree from manufacturing career, now semi-gainfully employed as a substitute teacher. In many ways, living the dream! And an avid student of law and government.

  84. Gov’t lawyer, open gov’t advocate, former democrat turned Ron Paul libertarian and 1A true believer

  85. Environmental Engineer from Houston. Heavily involved in regulatory compliance.

  86. Still a family law attorney; now doing nothing but pro bono work. Still a left wing contrarian. Still married to my former law partner, who’s now a sitting state court judge. I’ve been annoying folks on Volokh Conspiracy at least as far back as 2005….

  87. Practiced law for about 50 years, not so much now, but still hoping I can get it right.

  88. OK, I’ll bite.

    I started reading Reason in the ’80’s when I was living in Santa Barbara and reading a USENET newsgroup, polisci @ Rutgers, whose editor, ‘JoSH’, had waxed eloquently about the magazine. Later, when I noticed in the local telephone book the Reason office was actually in Santa Barbara, I wandered over there during lunch and interrupted Robert Poole’s day with a check for a subscription and a few back issues that were laying around.

    I’m a retired computer engineer with degrees in physics and electrical engineering. Was at the reception for Ron Paul hosted by Dr. and Mrs. Timothy Leary during the 1988 campaign for President at their home in the hills above Beverly Hills.

    I’ve been a registered and sometimes card carrying Libertarian Party member since the Ed Clark (he was also at the Leary reception) campaign when I decided one term of Jimmy Carter was enough and couldn’t be a Republican even as I quit being a Democrat.

    I’ve been following the Volokh Conspiracy for a few years and was overjoyed when it landed at Reason from its uneasy seat at the WaPo table. I hope it is as good a fit as it appears from the outside looking in.

  89. I’m the husband of Eugene’s UCLA Law classmate, Bridget Clarke. If we were all on Jeopardy!, I’m pretty sure he’d win, she’d finish second, and I’d be booted with a negative score going into Final Jeopardy.

  90. A guy that’s been reading Volokh Conspiracy since at least 2004-10-29. I save all my email, and that’s the first time I forwarded a link to someone, which was:

    http://volokh.com/2003_10_26_volokh_archive.html#106735624982648257

    (sent to a zork fan)

    1. Does the friend live near the granola mines of coastal Antharia? Does the friend sent majestic postcards of Flood Control Dam #3? Does the friend have any genuine zorkmid coins, the ones with King Dimwit Flathead on them?

  91. 36 years old, male, married with one child. BS in CS, BS in Mathematics, MS in CS, MS in Mathematics, phD in Mathematics. Work as a Data Engineer/Data Scientist/Machine Learning Engineer. Attended one semester of law school, and then realized that I would not enjoy being a lawyer, though I enjoy learning about and theorizing about law. In my spare time, I like to study (history, philosophy, economics), read novels, play tabletop and strategy games, and train in self-defense (both hand to hand and weaponry).

    1. That’s a lot of mathematics. What is the graduate school experience in math like? Is that where you learn the math that people still haven’t found a useful purpose for? Or does it all still turn out to be useful in the real world?

  92. I am a physician in my late 60s. Practice in NYC but born and grew up in Canada. Started as a New Republic liberal circa 1985, but became more conservative following Sept 11. Ambushed by reality and better arguments and policies on the moderate right. Have always admired the US and especially the Constitution. I enjoy reading many of the posts. Despite the excellence of the writing, I don’t always completely understand them but I do love following legal arguments the best I can.

  93. 52-year-old prosecutor from Northern California, bridge player, decent quantitative skills for a prosecutor, occasional writer of things. Drifted away from Volokh in the WaPo years, and miss the insanely good commentariat at the original site. But this is a good home.

    Reason readers will be interested in this case: https://www.courts.ca.gov/opinions/documents/D075106.PDF

  94. Retired PH. D. in economics, spent one third career in academia, published well, two third of career in private sector (banking, manufacturing, tax and consulting)

    Socially liberal, fiscally conservative, love the integrity of this Forum except for stance on guns. The pro-freedom position is just great. Believe modern conservatism has betrayed real conservatism.

    1. ” Believe modern conservatism has betrayed real conservatism.”

      The view I’ve developed is that a lot of “conservatives” just want to see consternation on the faces of the hated liberals; they wanted the R Congress to oppose Obama no matter what. and they delivered; they like Mr. Trump not because he achieves anything, because he’s never achieved anything, except for pissing off liberals and people who want the government to work.

      1. Sounds about right. Obama is a disgusting, treasonous piece of excrement.

  95. Reader of Volokh Conspiracy for a few years. Big fan on Eugene’s First and Second Amendment write-ups on the blog and elsewhere. Mostly a hobbyist in law: mathematics is my primary domain, having done undergraduate and graduate work at UCLA.
    Not a libertarian in full, as I am closer to Trump’s perspective on tariffs of China and his immigration stances (though not on EU tariffs). Otherwise I seek to dissolve the Fed, place First Amendment protections on our youth of public schools, and apply nation-wide constitutional carry. Also look to up the voting age to 25 and hope to see the courts give the commerce clause back its true restricted interpretation.
    A bit surprised to see so few younger folk, being 19 myself.

  96. Full Professor of law and business at a community college in the north east. Maintain my license to practice in PA, but use it rarely.

    And I’m a lesser well known blogger who has been around for a while.

  97. Practicing lawyer for nearly 20 years. Former AUSA in two districts, now senior partner in BIGLAW. Military service before law school. Libertarian and have been reading this site since shortly after it was created (eg in the Juan non-Volokh era). Thanks for creating/ producing so much interesting content.

  98. I’m a defense contractor in the D.C area. I’m Michigan native but left when I enlisted in 2005. I’m fairly libertarian on most issues other than environmental protections, that’s where I tend to lean left. I have a BS in criminal justice and maybe one day I’ll attempt to get into GMU’s Antonin Scalia Law School so I can learn from the likes of Ilya Somin. I occasionally write about criminal justice, military spending, and foreign policy for the Libertarian Institute.
    https://libertarianinstitute.org/author/rfaust/

  99. I would like to direct this to the distinguished members of the panel: You lousy cork-soakers. You have violated my farging rights. Dis somanumbatching country was founded so that the liberties of common patriotic citizens like me could not be taken away by a bunch of fargin iceholes… like yourselves.

    1. This reminded me that Johnny Dangerously’s mother was my neighbor for about 15 years. No bullshtein. Thanks, icehole.

  100. Programmer, 40. King County, WA resident. Little-l libertarian, private pilot (but I repeat myself). Legal-curious for a couple decades. I found Volokh through Overlawyered ages ago, been an RSS subscriber for years and a Reason reader off and on for about the same amount of time.

  101. EV,
    I’m a former colleague of yours from Physics & Astronomy.

  102. I’ve seen things you people wouldn’t believe. Attack ships on fire off the shoulder of Orion. I watched C-beams glitter in the dark near the Tannhäuser Gate. All those moments will be lost in time, like tears in rain. Time to die.

    1. Tell me about your mother.

  103. Attorney (and CPA) in private solo law practice. Not enough time to study many of the high quality blog posts. Been reading this blog for 15 years. Really enjoyed the high quality comments during the early Bush years. Currently no fan of the Bushes or the chamber of commerce globalist GOP establishment RINOs. Got sold on Trump since 2015 and his identification of illegal and legal immigration needing substantial reform. Sold on his use of Tariffs to negotiate with. Love his waving the magic wand around that Obama never had and said didn’t exist. Really hope Trump wins again in 2020. The country so needs the saving he is providing. Gotta love his strength of will to fight the GOPe, Democrats, and deep state to a draw, and now with Barr turning the tables on them hopefully.

  104. XX former journalist and retired lawyer, Hoosier-born but live in TX after stints in CA and NV. Politically conservative, not Republican. Went to a central high school and state university and thus resent being called a Russian troll. Love horse racing; hence, my screen name.

  105. I’m a computer-science professor at Loyola Chicago who teaches a course on computers and the law. I think it was first drawn to the Conspiracy reading about Universal v Reimerdes, and stayed for the 4th Amendment. But we have the most fun in class with §230. I’m a liberal in the English sense, mostly. I take a dim view of politicians who have trouble with math.

  106. Recently retired non-bureaucratic federal employee now baking in the Outer Banks of North Carolina. Started and continue reading VC to challenge my libtard tendencies. Also recently began enjoying not entering the fetid hyper-partisan ad hominem cesspool that the comments section of this blog has become.

  107. Recently retired soldier (National Guard), former millwright, now a railcar repairman.

  108. Millennial (begrudgingly) and a lawyer. A combination of two most despised demographics.

  109. Former right wing absolutist. Read Anarchy, State and Utopia and haven’t cut my hair since. Been in the litigation support industry for the last 10 years. One year from full SSA payments.

  110. Libertarian gadfly. Woodchippers are my lame claim to fame.

  111. Software engineer and lawyer. A combination of two most despised demographics.

  112. Computer programmer until I retired about a year ago. Now I live in my cabin off the grid in the summer, and SE Asia in the winter.

  113. I enjoy riding shirtless on by horse, as we travel past my dacha and spoof GPS satellites. Whoops, I mean…

  114. Mid-30s civil litigation attorney. libretarian-ish anti-statist, small “a” anarchist.

    Turn-ons: Summary Judgement, rules of appellate procedure, constructive notice, statutes of limitation.

    Turn-offs: Tinker/Morse vs Fredrick, qualified immunity, discovery.

Please to post comments

Free Speech

Vermont Supreme Court Reads Revenge Porn Law Narrowly

Alice sends nude picture to her ex, Bob. Bob's new girlfriend (or maybe would-be girlfriend) Carol gets it and posts it online. Carol wouldn't be guilty under the state revenge porn statute, the court rules.

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In State v. VanBuren (2018), the Vermont Supreme Court held that the state's ban on distributing nonconsensual pornography was facially constitutional, despite the First Amendment; but just last week, it concluded that the statute didn't apply to someone sharing a photo that the subject had "sexted" to someone with whom she had no present romantic relationship, First, the facts:

Complainant sent nude pictures of herself to Anthony Coon via Facebook Messenger, Facebook's private messaging service. Her sworn statement reflects that on October 8, 2015, multiple people contacted her to report that the nude photos of her had been publicly posted on Mr. Coon's Facebook page and she had been tagged in them. Complainant initially tried to untag herself but was unable to. She eventually deleted her account. She left Mr. Coon a telephone message asking that he delete the pictures from Facebook.

Complainant then received a call from Mr. Coon's phone number. The caller was defendant [Rebekah VanBuren]. Defendant called complainant a pig and said she was going to tell complainant's employer, a child-care facility, about "what kind of person work[ed] there." Defendant said that she had left her "ex" for Mr. Coon. Complainant asked defendant to remove the pictures from Facebook, and defendant replied that she was going to "ruin" complainant and "get revenge." After that call ended, complainant contacted the police.

The investigating officer spoke with defendant over the phone. Defendant admitted that she saw the nude pictures of complainant through Mr. Coon's Facebook account and that she posted the pictures on Facebook through Mr. Coon's account. Defendant stated to the officer, "you think she [complainant] learned her lesson." …

The parties … stipulated that "complainant was not in a relationship with Mr. Coon at the time the photographs were sent to Mr. Coon." Finally, they stipulated that defendant did not have permission to access Mr. Coon's Facebook account, and Mr. Coon believes defendant gained access to his account through her phone, which had his Facebook password saved on it.

Now, the legal analysis:

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33 responses to “Vermont Supreme Court Reads Revenge Porn Law Narrowly

  1. This ruling scuttles a criminal proceeding.

    Is there still a civil suit remedy available?

  2. “Under this analysis, by the way, it wouldn’t have been a crime for Mr. Coon to post the material himself, so long as he and the complainant were no longer in a ‘sufficiently intimate or confidential’ relationship when complainant had sent him the material (and there was no promise to keep the material confidential). Indeed, the same would presumably apply if complainant and Mr. Coon had never been in a relationship, and the sexting was a means of flirting.”

    I think the act of sending nude images implies at least a request to keep them confidential, absent specific language between the parties otherwise. I think the Court rushes to dispense with expectation of privacy a little too much here.

    1. Of course you’re correct re sending implying at least a request for confidentiality. But unless the law changes, I think the legal standard is: Is there a reasonable **expectation** of privacy. The court is, I think, correct in saying, “Well, if there’s no special relationship between the two of you, then why on earth would anyone expect dirty pix to be kept confidential?” Hence the famous Latin warning, “Caveat Spanktor” (Let the sender of porn beware.)

      We all agree that receiving these photos and then passing them on (other than, perhaps, to law enforcement in some situations) is repulsive and bad behavior. But illegal? I have my doubts.

      1. Some women receive entirely unsolicited dick pics from guys. I really don’t think these guys have a *reasonable expectation* of privacy. The man clearly can’t think the picture is entirely “private” if he just decides to send it out when it has not been requested. I don’t think his adding “please don’t share” makes any difference to my assessemnt of whether this is a “private” picture.

        Under these circumstances, I think the woman should be well within her legal rights to post the picture, comment on the man’s behavior and perhaps on the merits of the dick in the picture. Whether that’s what she ought to do is another matter, but sharing these shouldn’t be illegal nor should it be considered invading the man’s privacy.

        If the guys don’t have a reasonable expectation of privacy for sending dick pics to women who have in not requested them and who are not in any sort of relationship with the guy, it seems to me women also don’t have a reasonable expectation of privacy for sending their pictures to a man. I agree with the court.

        1. “If the guys don’t have a reasonable expectation of privacy for sending dick pics to women who have in not requested them and who are not in any sort of relationship with the guy, it seems to me women also don’t have a reasonable expectation of privacy for sending their pictures to a man.”

          If you start by assuming your conclusion is true, nobody should be surprised when you “prove” you conclusion. Here, I’ll do it the other way.
          If naked pictures are inherently private, then anyone who access them by whatever method and then further distributes them has violated someone’s privacy.

          Under your logic, the massive release of celebrities’ nude photos dubbed the fappening weren’t an invasion of privacy, because the hacker(s) didn’t have a personal relationship with the celebrities.

          1. James
            >If naked pictures are inherently private
            So, if I understand you correctly, you are going to start by assuming your conclusion that pictures are inherently private to conclude they are private.
            In fact: naked picture are not inherently private. Moreover, neither society nor the courts treat them as such. If they were inherently private, magazines like Playboy and Penthouse wouldn’t exist.
            Context and behavior of the person pictured affects whether the pictures are private or not.

            >Under your logic
            Nonesense. That is not what happens under my logic. Under my logic if the celebrities *sent the pictures* to someone who didn’t solicit them, then the celebrities weren’t treating them as private and they weren’t. The celebrities did not send the pictures to hackers either accidentally or on purpose. The hackers obtained them by hacking.

            BTW: Yes. I do assume that people who voluntarily disseminate their pictures, confessions, or deep dark secrets to others who don’t wish to receive the pictures, confessions or deep dark secrets have no reasonable expectation that the others will keep these things private. The picture senders and so on may have expectations, but those are delusional.

            1. “So, if I understand you correctly, you are going to start by assuming your conclusion that pictures are inherently private to conclude they are private.”

              You managed to figure out what that was an example of? Brilliant! And all I had to do was explicitly say that’s what it was.

              “Nonesense. That is not what happens under my logic. Under my logic if the celebrities *sent the pictures* to someone who didn’t solicit them”

              Good lord. I have to explain YOUR logic to you, as well as mine? Fine. Start by getting your facts straight. For example, stop insisting on inserting “people sent photos” when the facts don’t happen to include that one. Get it? The celebrities didn’t *sent the pictures* to the person who published them. But, since they also don’t have a personal relationship with the hacker, your logic says it’s OK to publish them.

              “If they were inherently private, magazines like Playboy and Penthouse wouldn’t exist.”

              You’re also apparently unaware of what “waiver” means. Hint: Before magazines like Playboy and Penthouse (do either of these still exist?) publish photos, they obtain waivers.

      2. Consider the case where person A intends to send their naughty photos to person B, but actually sends them to person C by mistake. Person C hasn’t done anything wrong by receiving them, but they have if they further distribute the images to the public.

        Nekkid pictures, by their nature, are by default expected to be private. Now, that expectation can be expressly waived, but that’s the way I’d have decided the case.

        1. Again, the issue is reasonable expectation of privacy rather than a mere expectation. If you send pictures to your significant other, yes, you can reasonably expect that they will keep them secret. But if you send unsolicited pictures, you can’t reasonably expect that, even if you do expect it.

          1. “But if you send unsolicited pictures, you can’t reasonably expect that”

            Yes, you can. Most people treat nude images as if they were confidential. They do this because if you don’t, nobody will send you any. That’s why “revenge porn” is a crime in the first place.

            Nude images are sent using technologies that themselves have an expectation of privacy… SMS and email. (I’ll concede the Facebook offers no such assumption.)

            1. > They do this because if you don’t, nobody will send you any.

              Women who are sent dick pick by near strangers don’t want them. The idea that the near stranger has a “reasonable expectation” of privacy based on the theory that otherwise the woman wouldn’t be sent any more is pretty silly.

              >sent using technologies that themselves have an expectation of privacy
              The technology by which these are sent is irrelevant. If the unsolicited pictures being sent to people who don’t even want them are sent by mail, carrier pigeon or SMS, I don’t think the method by which the pictures are sent can confer an expectation of privacy.

              1. “Women who are sent dick pick by near strangers don’t want them.”

                OK. And? This is a case of a woman who got not-dick-pics and had to go looking for them.

                ” The idea that the near stranger has a “reasonable expectation” of privacy based on the theory that otherwise the woman wouldn’t be sent any more is pretty silly. ”

                That is silly. Where did you get it?

                “The technology by which these are sent is irrelevant.”

                Speaking of silly.
                You’re willing to toss aside the wiretap act?

                1. “That is silly. Where did you get it?”
                  Uhmmm… You provided this as the reason people treat nude images as confidential:
                  “Most people treat nude images as if they were confidential. They do this because if you don’t, nobody will send you any. ”
                  The corollary would be that women who don’t wish to be sent dick pictures would have absolutely no reason to treat those sent to them as confidential. The man sending them to someone who did not request them certainly can’t reasonably expect that person wants them, and therefor might be motivated to keep them confidential. The receiver has every motive to blab and show them to others– if only to prevent getting further ones!

                  “>Speaking of silly.
                  You’re willing to toss aside the wiretap act?”

                  You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?

                  1. “You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?”

                    AFIK, You are correct as to federal law. State laws vary. Some states allow one participant to consent to recording a conversation, but some states require that all parties consent. So what you describe, could well be illegal under the state wiretap law depending on where you are.

                    1. Yes. I was referring to the federal wiretap act. But one party consent recording is more common than all party consent. So, yes, I am willing to toss all party consent just as many states and the feds have done.

                      FWIW: I live in Illinois, which recording can require 2 party consent with exceptions to comport with the 1st amendment. Among other things, to make it compliant with the 1st amendment a party can record as long as the recording is not “surreptitious”. There is also language about consent. But presumably, the consent is implied the moment a party says they are recording or makes it obvious they are recording and the other party continues in the conversation.

                      (The law also has provisions permitting surrepticious recording with 1 party consent.)

                      It’s also worth noting that I was responding to Pollock who wrote

                      Nude images are sent using technologies that themselves have an expectation of privacy… SMS and email. (I’ll concede the Facebook offers no such assumption.)

                      This seems to claims that merely sending by SMS or something would transform the final delivered product into something “private”. That’s just not true. Obviously, when sent by email, the sender has consented to the contents of message being “recorded” by the receiver.

                      I think my larger point that that the technology for communicating isn’t what makes a conversation or image private is true. Sending a message by email doesn’t render a spam message from the Nigerian scammer “private” in the sense that I can’t re-post it!

                  2. “You do know that if you phone me and talks to me, the wiretap doesn’t make it illegal for me to tape the conversation I am taking part in. Right?”

                    No, but I DO know that you’re flatly incorrect in fifteen states, including the one I happen to be sitting in at present.

                    1. Yes. And as I told Mathew above, I am willing to throw the two party consent laws out or drastically narrow them, just as many courts periodically do.

          2. ” If you send pictures to your significant other, yes, you can reasonably expect that they will keep them secret. But if you send unsolicited pictures, you can’t reasonably expect that, even if you do expect it.”

            So if you get nude images sent to you by mistake, your inclination is to publish them?

            1. The question is what is legal, not what a person is inclined to do. Lots of people will be disinclined to publish the pictures or secrets or other things not intended for them. But there are two problems with your conclusion based on your analogy.

              With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t “accidentally” sent to the ex boyfriend. They were sent on purpose. So the person who received them didn’t want them, and certainly wouldn’t be “expected” to indulge the sender in the hope of getting more pictures. (The desire for more pictures seems to be your theory about why the sender might “expect” the receiver to keep them private.)

              But even if the accident had occurred, the ‘reasonable expectation’ still wouldn’t exist, which we can see if we change what is sent. Suppose Person Joe sends his fiance Jane a note discussing the recent murder he committed at her behest. (Perhaps he committed it to inherent funds so he and Jane can run off to the Bahamas and live in splendor.) The note is misaddressed and accidentally is sent to Sally. Joe might have expected his fiance Jane to keep mum. But that hardly binds Sally to keep the contents of this private communication a secret. Most people would expect Sally to trot over to the police and turn Joe in.

              1. “The question is what is legal”

                No, it isn’t. The question is what should be legal. See how that’s not the same thing? Take your condescension and shove it under the mattress, ‘K?

                “With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t ‘accidentally’ sent to the ex boyfriend.”

                Duh? Did somebody say they were?

                “Suppose Person Joe sends his fiance Jane a note discussing the recent murder he committed at her behest”

                With respect to the specific case of dirty pictures: in this case the unsolicited pictures weren’t actually a confession of murder. Or, put non-condescendingly, confessions of murder aren’t inherently private. Try again with something that is: Suppose the nekkid pictures aren’t amourous in nature, but rather medical. If the doctor leaves such pictures out, is the after-hours cleaning crew allowed to publish them? Your doctor has a special relationship with you that confers a duty of confidentiality, but the janitor has no such relationship with you. The logic of this ruling says “go right ahead!”
                If your accountant forgets to shred your tax documents, and some dumpster-diver retrieves them, are they free to publish?
                Private photos are, by definition, private. Until now, pictures of people in the altogether have been considered private per se.

                Here’s another type of case where the outcome probably isn’t what the Court anticipates: naked photos are on a computer or device. The device gets hacked. Since there’s no relationship between the hacker and the hackee, the hacker is free to publish away. On photos that were not intentionally transmitted to anyone… because no expectation of privacy?!?!?!

                1. >No, it isn’t. The question is what should be legal.
                  Uhmm… The court rule is on what is legal or illegal. So yes, the question is what is legal.
                  But I happen to think this is the way it ought to be.

                  > Or, put non-condescendingly, confessions of murder aren’t inherently private.
                  Nude pictures aren’t inherently private either.
                  > If the doctor leaves such pictures out, is the after-hours cleaning crew allowed to publish them?
                  Once again your conclusion about what my logic dictates is incorrect.
                  The doctor is the one who hasbreeched his duty of confidentiality. The cleaning crew employed by the medical establishment almost certainly also has a duty their employer which will include not sharing confidential information the employer accidentally revealed at the office. So, the doctor-patient context and the employment context creates an expectation of privacy with respect to the janitors actions.

                  In contrast, the woman who is sent dick pictures she quite likely doesn’t want to receive has no such duty toward the person who sent them to her.

                  If your accountant forgets to shred your tax documents, and some dumpster-diver retrieves them, are they free to publish?

                  I might not think highly of people who fish around dumpsters to find confidential information, but I think they are free to publish the information. You may very well be able to take legal action against your accountant for his slip-shod methods.

                  Private photos are, by definition, private. Until now, pictures of people in the altogether have been considered private per se.

                  You keep wanting to assume your conclusion. But your assumption is incorrect. Nudie pictures can become non-private through the actions of the person pictures. They are routinely published in magazines like Playboy and Penthouse.

                  The device gets hacked. Since there’s no relationship between the hacker and the hackee, the hacker is free to publish away.

                  You keep missing the distinction between someone stealing photos (by hacking) and a person voluntarily disseminating their photos. It’s perfectly possible for the law to distinguish between publication of an item obtained by theft (i.e. hacking) and an item given away by the owner (i.e. the man sending a dick pick to an unwilling person.)

                  It’s also perfectly clear that in the latter, the man himself is not treating the his naked pictures as “private”. It is the man’s own behavior that is relevant to the issue of whether his privacy is invaded.

                  1. “Uhmm… The court rule is on what is legal or illegal.”

                    I’m not on the court, and obviously neither are you.

                    Go the fuck away.

    2. Where is the “expectation of privacy” in this case?

      Did they have a prior agreement?

      Did the sender write, “Do not post or forward,” and if they did, does that impose some legal obligation on the receiver?

      I’m with the court on this one.

      And a warning to everyone that once you post something on line, then you lose physical control of it.

      You may have some legal control of it (e.g. copyright, proprietary, etc.), but that can’t physically stop someone from using it.

      And once it’s out in the Interuniverse, then tough cookies getting it removed.

  3. “Complainant sent nude pictures of herself to Anthony Coon[CASE DISMISSED!]”

  4. It strikes me that this sort of republication might be a copyright violation.

    If the picture was a nude self-portrait, it seems likely to me that the recipient would have a right to look at the photo or show it to whoever (implied license), but republication (or a public performance?) would require a license, either express or implied, and I don’t think that is present here.

    If the copyright was owned by a third party, that might implicate expectation of privacy but could also be a violation of that person’s rights to publication, etc.

    If the picture had been taken by the boyfriend, things get significantly more complex. If the new girlfriend’s publication was not authorized by the boyfriend, she could be violating his rights, though he might well not be interested in pursuing the issue. If the publication was authorized, that could implicate explicit or implicit agreements between the photographer and model at the time of the photo. In that case, it’s unclear to me how such agreements might be affected by her re-sending the photo back to the photographer.

    But any of those would be a case for a different venue. Probably one without the “victim” friendly features of the state revenge porn law.

    1. Yes, it is a violation of copyright. It is also arguably extortion and blackmail as they threatened to get her fired. Revenge porn cases have been settled civilly on all these counts before. However, the purpose of these laws was expressly to prevent that from being necessary.

      1. It looks like the complainant could file a civil suit:

        he State failed to show that there were no less restrictive alternatives available, or to address why civil penalties, such as those set out in 13 V.S.A. § 2606(e), were not reasonable and effective alternatives. It thus concluded the statute did not survive strict scrutiny and dismissed the State’s charges.

        The provision permitting a civil suit is here:
        https://legislature.vermont.gov/statutes/section/13/059/02606

    2. The copyright idea is interesting. I admit my understanding of copyright is ‘internet search level’ (e.g. https://copyrightalliance.org/ca_faq_post/statutory-damages-why-do-they-matter/ )

      It sounds like filing a DMCA notice with Facebook would be sort a shot. The accused violator would probably take it down, but might also push back and send Facebook a response claiming it was fair use. But I bet it would get taken down.

      If it wasn’t the complainant could then go to copyright court. Getting damages under copyright might be difficult. The image needs to be registered to sue; she can register now. I think actual damages must be financial, and she probably lost $0 as a result of publication. So she would presumably want statutory damages. To get statutory damages you need to register within 3 months of first publication or before the infringement starts. She probably didn’t register the image before sending it to Mr. Coons or before VanBuren posted.

      Still, if her main concern is privacy the copyright claim could backfire. The entire incident could potentially become fodder for discussing the legal claim; those discussions might be able to discuss the photo under fair use! Also, currently, the case is “State vs. VanBuren” and the complainant is unnamed. I assume the complainant would need to reveal her identity in a copyright suit. (And possibly attach the photos as evidence!?)

      I also don’t know much about blackmail. But to be blackmail doesn’t a person demand something like money in exchange for not causing the harm to another? VanBuren threatened to do something to harm the complainant, but doesn’t seem to have made any demand of the complainant. So perhaps that won’t fly.

  5. This defines revenge porn so narrowly as to effectively delete the statute. This whole thing hinges on the fact that she was no longer in a relationship. The motivation for sending the pictures appears to be an attempt to restart that relationship. This is a completely different scenario than a random picture from a stranger. She was treating him as a lover, and should be able to expect a modicum of privacy.

    From my impression, the judge is creating law whole stop as a moral judgement against attempting to “steal” another woman’s man. I do not find any reasonable “Homewrecker” exemption in the statute. This goes beyond being clearly wrong, and I am inclined to think the judge should be officially censured.

    1. Ben,

      Isn’t the relationship requirement precisely what most people – other than James Pollock here – think is wrong about revenge porn? Two people have a relationship, and in the course of that relationship exchange intimate visual images. One doesn’t need a law degree to understand that such exchanges have an implied promise of confidentiality. How robust that promise is may be open to question, but I think most would distinguish between showing an image on your phone to a friend (to make him envious?) and transmitting it indiscriminately to hundreds or millions.

      The odd situation in this case isn’t like that. I agree that it’s not exactly the scenario Lucia above describes, either. If the question was, “Which is the more gentlemanly course of action?” – well, that wouldn’t exactly help since the new GF found them, but I bet we would agree that disclosure would be wrongful. But given that we are tiptoeing around the First Amendment, making hopefully-informed conjectures about what the average sexter thinks about digital privacy, this counsels caution in applying criminal law to a situation not specifically contemplated.

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Short Circuit: A Roundup of Recent Federal Court Decisions

Prison brunch, gaslighting, and nonconsensual neonatal blood samples.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Last week, Texas put an end to one of the state's most bafflingly counterproductive policies: suspending residents' occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans' finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ's Nick Sibilla has more.

  • In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can't do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
  • Consignment business that sells kids' clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent "volunteers," who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should've called 'em independent contractors.
  • According to legitimate locksmiths, "scam" locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn't mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
  • Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn't violate the Due Process Clause, though, because the official's harassment hasn't completely driven the plaintiff out of business.
  • Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he "does not like homosexuals, so he punched" the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
  • Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he's fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn't waived sovereign immunity, so his state law claim can't go in federal court.
  • Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn't waived sovereign immunity.
  • Timothy Ivory Carpenter—winner of last year's Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter's cell phone location data, they acted in good faith. So Carpenter's conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
  • Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents' consent, tests them, then transfers them to a nonprofit corporation, "where they are stored for future use by the state." Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan's ongoing storage of the blood samples may violate the kids' Fourth Amendment rights and the parents' Fourteenth Amendment right to direct their offspring's medical care.
  • Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn't tell us apart. So we should get summary judgment because "she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc." Sixth Circuit: That is absolutely not how this works.
  • Illinois corrections officials institute a "brunch" program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program's designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
  • "If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?" Despite the lede, the Eighth Circuit immediately answers "no." Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
  • If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you're black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver's side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it's also "unusual and may be indicative of guilty conduct." Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
  • Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can't use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
  • Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov't: That's "armed bank robbery"! Ninth Circuit: Hardly. Armed bank robbery requires "active employment" of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber's guilty plea.
  • Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.

Forfeiture doesn't help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics' charge that forfeiture is used to police for profit. That's why IJ teamed up with Seattle University's Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade's worth of data from the nation's largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

45 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. [m]emorious

    Thanks, that was a new one for me.

  2. Brunch at the Pinckneyville Correctional Center: you’ll come for the mimosas, but you’ll stay for the S.O.S.

  3. “The purpose of a system is what it does”.
    Including trapping people in poverty by preventing them from earning money.

  4. While I agree with the IJ taking on the counterproductive policy of taking away licences for unpaid student loan debt, I really think the write up in this blog post of it being done “simply for unpaid student debt” is very disingenuous. Absconding on your debts is a serious matter, and human capital, the kind you earn from student loan debt, is in your head. It can’t be seized like a car or a house if one doesn’t pay the tab.

    1. But you can garnish wages. There’s no point in destroying the capital.

      1. Repossess his brain, he can still serve in Congress.

        1. …or coach the (insert name of unpopular sports team here).

          1. Or write comments on the Internet.

            1. Stop talking about yourself like that.

              1. Sounds like the shoe fit, and you don’t wanna wear it?

                1. Sounds like you need more joy in your life. Here, open wide and experience the joy:

                  https://www.youtube.com/watch?v=YYOKMUTTDdA

                  1. Sounds like yours is the joyless life, friend.

                    1. Paraphrased Pollock: “Nuh-uh, *you’re* a humorless dolt!”

                    2. I guess if that’s all you got, that’s all you got.

                      You’re still the one who got all pissy about a joke. Maybe we justlet THAT fact decide who’s the humorless dolt, and walk away.

                    3. “You’re still the one who got all pissy about a joke.”

                      Glass houses.

                  2. Anyway, what’s “pissy” about the link I posted?

                    Everyone around, love them, love them
                    Put it in your hands, take it, take it
                    There’s no time to cry, happy, happy
                    Put it in your heart where tomorrow shines
                    Gold and silver shine
                    Shiny happy people holding hands
                    Shiny happy people holding hands
                    Shiny happy people laughing

    2. human capital, the kind you earn from student loan debt, is in your head. It can’t be seized like a car or a house if one doesn’t pay the tab.

      No, but your car or a house can be.

      1. If one HAS a car or a house to seize.

        1. Blood. Turnip/stone.

  5. Can anyone enlighten me – if federal law doesn’t allow a Bivins suit for some federal official’s misconduct, then can state law fill the resulting gap? Or is the misbehaving official immune from both state-law and federal-law suits?

    1. I haven’t read the case yet, but here is my general understanding.
      1. Bivens is for federal law enforcement (so on the summary I don’t even know why it was brought up).
      2. Section 1983 is for state law enforcement
      3. The Court only allows a Bivens claim if there is no adequate state remedy; if there is then they must go to state court (It also hasn’t been recognized for all constitutional violations)
      4. Qualified immunity is generally available in both types of actions
      5. A state can waive the immunity of it’s officers
      6. I don’t believe qualified immunity applies to state law (that is that SCOTUS doesn’t decide that and there is no constitutional requirement. A state, I presume, can create a qualified immunity defense to its laws if it wishes)

      1. OK, so my more specific question is – are state-law suits against federal officials *always* precluded based on federal supremacy?

        Or could state law step in if there’s no federal cause of action?

        1. Just to be clear, I’m not trying to sue any federal agents, I’m just interested in federalism.

  6. “Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn’t tell us apart. So we should get summary judgment because “she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc.” Sixth Circuit: That is absolutely not how this works.”

    1. I’ve been active in prison reform work and have researched more than one or two procedure manuals.
      For one thing, strip searches are strictly no-touch. Cavity searches have to be authorized at a high level and conducted only by medical personnel.
      For another, cross-gender searches are forbidden except for “exigent circumstances”. It’s hard to imagine what that would consist of, in an environment where there is zero cost to making an inmate wait.

      1. Yeah, it’s well-established that groping the prisoners is bad form. But can you prove that all of them did it? If you can prove that one of them did it, can you prove which one it was? Or is this one of those crimes that everybody present is guilty of, whether they had a hand in the commission of the crime or not?

        I think it has to be some variation of that last one… just like the lookout and the getaway driver are guilty of bank robbery, even if they didn’t carry a gun into the bank.

  7. “Last week, Texas put an end to one of the state’s most bafflingly counterproductive policies: suspending residents’ occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans’ finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed.”

    Making people believe that they will lose occupational licenses provides some motivation to repay, for those that could be paying, and does nothing at all for people who cannot pay, because motivation isn’t a factor if people cannot rather than will not pay up.
    So actually pulling occupational licenses isn’t bafflingly counterproductive. It’s working on the people who can pay, but refuse to do so even as it isn’t working on the people who can’t pay.

    1. I think a lot of us on this site would argue that, on balance, the harms from this policy greatly outweigh the benefits. But you are making a real point, and you’re right…it definitely does work some of the time. I really had not thought about that before, so thanks for posting.

      1. I am not arguing that the approach isn’t counterproductive. I think it probably is. But it sure as hell isn’t baffling to anyone of at least normal intelligence.

  8. a bougie euphemism

    This is “How do you do, fellow kids” stuff. Do not ever say that again.

    worker at Amazon shipping facility punches coworker in the face repeatedly… Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.

    This is an excellent example of overreach of the Commerce Clause. The justification given by the court is that because the action between two private individuals that involved no interstate anything took place at a facility where interstate commerce took place, it impacted interstate commerce, and thus the Federal Government can get involved – even though the Court itself admitted expert testimony that there was no impact to the performance of the facility that day. The Court also admits no other court has concluded that an assault like this at a workplace is interstate commerce before, but blows off all of that in their conclusion.

    The entire ruling reads like the judges simply wanted to say “Virginia couldn’t prosecute him for a Hate Crime, so we found someone that could, law be damned”.

    1. Toranth,
      Yup. I just don’t get the logic of this. Does shoplifting a candy bar from a highway-adjacent gas station implicate interstate commerce? Heck, does shoplifting a tyre from your local Pep Boys implicate interstate commerce? (After all, it’s certainly reasonable to assume that this tyre will, at some point, move from state to state.) The exception is really swallowing the rule here.

      1. The answer to both of your examples is pretty clearly yes under current doctrine. See, e.g., US v. Baker, 517 F.3d 899 (6th Cir. 2008) (robbery of pizza restaurant affected interstate commerce because three ingredients were manufactured in other states).

        1. The first casualty of actually scaling back commerce-clause authority is the Controlled Substances Act, which limits the drug trade in substances that have no lawful commerce in any of the states because interstate commerce.

            1. YOU may like this, but it scares the hell out of mainline politicians.

  9. There should be a constitutional amendment that every time a judge uses interstate commerce for a crime that is only secondarily or less connected to interstate commerce (Rube Golberg-style) they have to humanely sacrifice a finger or toe.

    Make sure they truly believe it.

    Also, can this asterisking web site please turn off the fumble finger “go to next story because you touched two different fingers to the screen simultaneously” feature? When 99.9% of the time that’s what the user didn’t want to do, there’s a design flaw.

    1. Just one of many annoying things. Except for the slightly nicer formatting of the main page and indenting comments, pretty much everything related to the new web design is worse than the old one. Yet whoever is in charge of it seems impervious to the universal “your new website sucks” from users.

  10. “Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.”

    Sigh. Sometimes I think our entire judicial system is broken.

    Today, 146 years after the Slaughterhouse Cases, the courts still have not finished incorporation of privilieges and immunities into the 14th amendment.

    Now with the need for courts to “clearly establish” each and every form of outrageous official conduct before it is removed from qualified immunity protection, we face a few more centuries of waiting.

    IMO, our judicial system is more than 100x too slow to protect rights to my satisfaction. Congress is no better; it prefers to leave all the tough stuff for courts to handle. The executive just loves overreaching. Our principle of separation of powers to protect us from abuse, has been turned into a system where no branch has accountability. But if I express sympathy for overthrow of our government so that we can start over from scratch, it is I who am the crazy person.

    1. The reason QI litigation is such a morass is because it’s an attempt to pin liability on an individual, and our default position is that individuals can do anything unless it’s clearly established that they can’t. It’s the same default rule we like (for individuals who don’t work for the government), because it provides the best freedom.

      1. Show some examples where any non-government entity gets a free pass because a court hasn’t clearly established that objectively heinous behavior is wrong. There are many QI examples of that. If you search, you’ll even find examples where the LEOs get a free pass for some bad behavior while any non-governmental people involved see legal liability (start by looking for cops dragging people to hospitals for invasive drug searches).

        1. If you’re unaware of any cases where a non-government entity got a free pass because what they did isn’t clearly covered by the statute that the prosecutors tried to apply, it’s because you never looked. Try googling “got off on a technicality”.

          How about the case where a defendant was cleared of taking indecent photographs of a minor because the court interpreted the case to only apply in places that were private, and the guy did it in the aisles of a store. Cleared because although he rather clearly exceeded societal bounds by putting his camera up her dress, he “only” got photos of her panties, and the statute didn’t apply to people with clothing on.

  11. Ninth Circuit: You can’t use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.

    This is simply a misstatement of federal law. The current state of the law absolutely allows this sort of “pretense.” The only reason the 9th decided against this was because it involved illegal immigration.

    Suppose instead of illegal immigration this was a seizure of illegal (or given the circuit’s politics, legal) weapons manufacture. I doubt the 9th would so casually dismiss this case.

  12. […] Short Circuit: A Roundup of Recent Federal Court Decisions Prison brunch, gaslighting, and nonconsensual neonatal blood samples. […]

  13. “The reason QI litigation is such a morass is because it’s an attempt to pin liability on an individual, and our default position is that individuals can do anything unless it’s clearly established that they can’t. It’s the same default rule we like (for individuals who don’t work for the government), because it provides the best freedom.”

    For example, there was a recent post here on Volokh a week or two ago saying that it had not yet been clearly established that police can not steal money from citizens. It has the effect that we take the entire body of criminal laws and say that each one doesn’t apply to government unless it is clearly established. Rape? Pillage? Burn? Sorry but those have not been clearly established that government employees may not do that.

    The default should be that all laws apply to government employees except for enumerated exceptions. But as this blog post and others point out, when it comes to QI, that has been inverted. The default is that no criminal laws apply to government employees until each law is individually determined by a court to be “clearly established.”

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Free Speech

No Take-Backs, No Do-Overs, No Data Replevin

A lawyer caught on tape criticizing his client (a judge), in the making of a documentary about the prosecution of rapper Meek Mill.

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From Peruto v. ROC Nation, a federal district court case decided yesterday by Judge Gerald Austin McHugh (E.D. Pa.):

[1.] In common parlance, when someone regrets words spoken in haste, the speaker of such words often follows up by saying: "I take that back." This is a case that tries to give legal force to that expression, as Plaintiff here seeks to replevy the contents of a recorded interview to keep embarrassing statements he made from being included in a film documentary. Courts have been virtually unanimous in limiting the remedy of replevin to physically tangible property. Putting to one side the profound First Amendment implications of Plaintiff's proposed relief—in the nature of a prior restraint—I conclude on technical legal grounds that replevin is not an available remedy for a dispute of this nature….

This dispute arises out of an interview Plaintiff gave in May 2018 for a documentary series entitled #FreeMeek. Defendants Roc Nation, Amazon Alternative, IPC Television, Josh Miller, Patrick Reardon, Eli Holzman, and Janet Kim are all involved in the production of the documentary. The focus of the series is rapper Robert Rihmeek Williams, better known as Meek Mill. It intends to address, at least in part, Meek Mill's experience with the criminal justice system, including his interactions with Judge Genece Brinkley of the Philadelphia County Court of Common Pleas. Judge Brinkley has overseen Mill's criminal case for more than a decade and became the subject of some controversy when she re-imprisoned him for probation violations. Facing public criticism, Judge Brinkley retained Plaintiff A. Charles Peruto, Jr. as her counsel.

On May 30, 2018, Mr. Peruto sat for an interview related to the #FreeMeek documentary series, which is the source of this dispute. The interview concluded with Peruto explaining why he believes Meek Mill does not represent an example of the problems in the criminal justice system. When Peruto finished, the interviewer and one of his colleagues indicated that they had no further questions. Peruto then said, "Let me tell you something," at which point the camera turned off. The audio, however, continued recording as Peruto went on to say, "That was hard to do because defending this judge is now becoming—why doesn't she just grant this fucking thing?" A conversation ensued—caught on the still-operating lavalier microphone—in which Peruto said critical things about his client and her handling of the Meek Mill case.

The audio recording reflects that, despite his assertions to the contrary in both the Second Amended Replevin Complaint and the Second Amended Wiretap Complaint, Mr. Peruto never instructed anyone to go "off the record," nor did anyone present state that they had stopped the audio recording.

After Mr. Peruto was given the opportunity to hear the full recording as a part of this litigation, he alleged that it had been edited and did not accurately portray the interaction. Accordingly, I ordered the parties to agree upon an expert who could evaluate the authenticity of the recording. A team of two experts, Catalin Grigoras and Jeff Smith, has since confirmed that the recording is authentic. At oral argument, no party disputed its authenticity….

Mr. Peruto obviously did not intend for his disparaging statements to be shared widely, let alone become part of the #FreeMeek documentary series. Unfortunately for Mr. Peruto, his comments were leaked to the press along with portions of the recording….

[2.] Plaintiff brings a novel replevin claim seeking sole possession of the digital version of his oral communications…. Peruto's replevin claim does not seek possession of the equipment originally used to record him or the device on which the recording is stored, but rather possession of the data and files that contain the recordings of his voice…. Plaintiff [cannot establish] a viable claim for replevin by showing [as is required] that (1) the recording constituted a property interest subject to replevin, and (2) he had title and exclusive right to possess the property….

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12 responses to “No Take-Backs, No Do-Overs, No Data Replevin

  1. I would not have ruled so broadly. The judge could easily have said that even if replevin might apply, the consent to be recorded precludes a claim of sole ownership of the recording. I would have left for another day the question of whether some class of electronic data intangibles (Bitcoin comes to mind) might be subject to replevin.

    1. Why not? Using replevin to seek possession of something that legally is incapable of being possessed is clearly bonkers. Whether Bitcoin can be possessed is a different question, which different jurisdictions might well answer differently. In any event, I don’t see how this case prejudges that issue.

    2. I would have left for another day the question of whether some class of electronic data intangibles (Bitcoin comes to mind) might be subject to replevin.

      I respectfully disagree.

      This opinion doesn’t mention Bitcoin; it doesn’t purport to be a sweeping new ruling on all types of electronic data intangibles. Nor does purport to create a precedent for any types of electronic data intangibles that were not at issue and that thus were not before the court. Even if it had so claimed, that would have been obvious dicta.

      If someone in a future case cited this opinion as if it were controlling or persuasive precedent applicable to all, or some other, electronic data intangibles (e.g., Bitcoin), it would be easy to distinguish this case.

  2. One hopes Mr. Peruto has kept his malpractice insurance up-to-date.

  3. This dude is kinda stupid.

  4. “Plaintiff here seeks to replevy the contents of a recorded interview to keep embarrassing statements he made from being included in a film documentary. Courts have been virtually unanimous in limiting the remedy of replevin to physically tangible property. Putting to one side the profound First Amendment implications of Plaintiff’s proposed relief—in the nature of a prior restraint—I conclude on technical legal grounds that replevin is not an available remedy for a dispute of this nature”

    What if plaintiff had requested all physical copies of the medium on which the interview had been recorded?
    Or is it the case that interviewees should present a boilerplate contract to interviewer granting themselves a right to edit or delete the recording after it has been made, or reserve the right to decline to permit the interview to be used for any particular purpose or for any purpose, period. Would courts enforce such a contract in light of a first-amendment challenge?

  5. What a delightfully droll opinion! And what a maroon!

    Pro tip for fellow lawyers: “Let me tell you something” ≠ “Let’s go off the record.”

    All-Pro Tip for fellow lawyers: Remember who generally conducts in camera review to consider privilege claims: the judge (or a subordinate). Therefore, my standing and invariable practice over the last 40 years has been never to commit anything critical of any sitting judge to writing, even in a privileged communication.

    If obliged to give my candid impressions and advice to a client about a judge — which indeed trial lawyers are commonly obliged to do — I do so verbally, with an instruction to my client not to take notes about it.

  6. Court squirrels out of it by arguing contract — he gave permission. This seems to make a weak point in the facts load-bearing, though — if he can establish that the recording was unfairly surreptitious, you’re back to square one. Perhaps easier to say that Replevin doesn’t lie for an infinitely reproducible object. (And rely on the fact that either the secret prime or the post hoc work in modifying the blockchain string can sufficiently distinguish cryptocurrency, perhaps.)

    Trover, perhaps. Seems to test the facts more cleanly. (Was the appropriation wrongful? Did the plaintiff exercise due care?)

    This comment is not legal advice. Or a ham sandwich.

    1. … if he can establish that the recording was unfairly surreptitious, you’re back to square one.

      From the opinion:

      A conversation ensued—caught on the still-operating lavalier microphone—in which Peruto said critical things about his client and her handling of the Meek Mill case.

      He didn’t notice when they literally clipped a microphone to his collar, d’ya think?

      1. “He didn’t notice when they literally clipped a microphone to his collar, d’ya think?”

        Clipping a microphone on your collar doesn’t cause a recording to be made. If they clipped on the microphone on and then said “we’ll do this hand gesture when the recording starts, OK?”, but started recording immediately without doing the hand gesture, that’s a surreptitious recording. is it not? If they told him he could go off-the-record just by signaling a desire to do so, but the recorded throughout, that might be surreptitious, too, no?
        Or even if they suggested that they’d let him cut out stuff after the interview, but they didn’t, that might be unfairly surreptitious. So the fact that he knew he was wired for sound doesn’t rule out the possibility that he was surreptitiously recorded.

  7. Having spent a few years of my youth subsidising my acting habit by working as a theatre electrician, I can vouch for the fact that people forget that they’re there. If the sound tech doesn’t take the slider down during tech rehearsals, you’ll be hearing conversations and the usual noises associated with human beings from the offstage folks. Industry rumor has it that a high-profile star broadcast some trailer shenanigans to the entire set, as he was still wired (and patched into the PA by a trickster tech).

    The tort claim would test the attenuation of the wiring-up to determine fault. Possession of the IP of the voice was never really acquired by conversion or asportation — which is why I think the trover/quasi-trover calculus might be right. It’s discovered in possession subject to a sort of quasi-bailment logic, and the techno-paterfamilias who has it does something with it that they shouldn’t do. That goes beyond their rights in the object, however acquired.

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"Photoshop the Change You Want to See in the World"

A funny line from an interesting story about a photoshopped photograph in GQ, "more a cheapfake than a deepfake."

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From Ryan Mac (BuzzFeed):

Last week, men's lifestyle magazine GQ published this photo of Silicon Valley executives including LinkedIn founder Reid Hoffman and Dropbox CEO Drew Houston from their pilgrimage to a small village in Italy to visit Brunello Cucinelli, a luxury designer famous for his $1,000 sweatpants.

But if you think something looks a little off in this photo, you're right: A BuzzFeed News "investigation" reveals that two women CEOs, Lynn Jurich and Ruzwana Bashir, were photoshopped into what was originally a photo featuring 15 men.

Obviously not a big deal by itself, but a reminder not to believe everything we're shown, whether it's in GQ, on CBS, in a documentary, or shared by your Facebook friends.

Thanks to InstaPundit for the pointer.

Flag Day (June 14) Puzzle

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Prof. Walter Effross points out that there's an English adjective (still in use today) that has been variously used to indicate that something is reddish, or whitish, or bluish. What is that?

No Product Liability for Risk Assessment Tool Used in Deciding Whether to Release Arrestees Before Trial

So a federal district court held Tuesday.

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From Judge Joseph Rodriguez, writing in Rodgers v. Laura & John Arnold Found. (D.N.J. June 11, 2019):

New Jersey's Criminal Justice Reform Act … moved pretrial release decisions away from a resource-based model heavily reliant on monetary bail to a risk-based model. Consistent with [a] constitutional amendment [passed by the voters], the statute expressly requires courts, when making pretrial release decisions, to impose pretrial conditions that will reasonably assure: (1) the defendant's appearance in court when required, (2) the protection of the safety of any person or community, and (3) that the defendant will not obstruct or attempt to obstruct the criminal justice process. The CJRA provides a hierarchy of pretrial release conditions and requires courts to utilize the least restrictive options necessary to achieve the three goals noted above. The major difference between the new system and the old system is that judges must first consider the use of non-monetary pretrial release conditions, which has resulted in a significant reduction in the use of monetary bail.

In order to assess risk, the CJRA utilizes a Public Safety Assessment ("PSA"). In particular, the State adopted a PSA developed by Defendant the Laura and John Arnold Foundation. The PSA is a data-based method that helps courts assess the risk that the criminal defendant will fail to appear for future court appearances or commit additional crimes and/or violent crimes if released pending trial. After scores are assessed, a decision-making framework proposes pretrial conditions to manage the risk. Although the trial judge must consider the PSA scores and pretrial conditions recommendations, the court makes the ultimate decision on conditions of release or detention after considering a variety of factors besides the PSA.

The Complaint alleges that in the first six months of 2017, New Jersey courts granted 3,307 motions for pretrial detention and approximately 18,000 individuals were released on non-monetary conditions…. Plaintiff claims that on April 5, 2017, Jules Black was arrested by the New Jersey State Police and charged for being a felon in possession of a firearm. Plaintiff alleges that Black was released on non-monetary conditions the following day because he had a low PSA score. Three days later, Black allegedly murdered Christian Rodgers. At the time of his death, Rodgers was 26 years old and is survived by his mother, Plaintiff June Rodgers, who brings this lawsuit both individually and on behalf of her son….

The New Jersey Products Liability Act (PLA) requires plaintiffs suing under the PLA to prove "by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it[:]

"a. deviated from the design specifications, formulae, or performance standards of the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or

"b. failed to contain adequate warnings or instructions, or

"c. was designed in a defective manner."

The Restatement (Third) of Torts includes in the definition of product non-tangible items such as "other items":

"For purposes of this Restatement: (a) A product is tangible personal property distributed commercially for use or consumption. Other items, such as real property and electricity, are products when the context of their distribution and use is sufficiently analogous to the distribution and use of tangible personal property that it is appropriate to apply the rules stated in this Restatement. (b) Services, even when provided commercially, are not products. (c) Human blood and human tissue, even when provided commercially, are not subject to the rules of this Restatement."

The Court finds that the PSA is not a product as defined by the PLA. It is neither a tangible product or a non-tangible "other item" as contemplated by section 19 of the Restatement of Torts and it is not distributed commercially. The Court has considered Plaintiff's argument that the PSA, as a matter of policy, should be considered a product analogous to approaches of the First and Fifth United States Court of Appeals, which are "moving toward liability of technological systems." Plaintiff's arguments are misplaced, however. Plaintiff cites Lone Star Nat. Bank, N.A. v. Heartland Payment Systems, Inc., 729 F.3d 421 (5th Cir. 2013) (whether economic loss doctrine barred negligence claims against a bank that had its security software breached by computer hackers), and Patco Constr. Co. v. People's United Bank, 684 F.3d 197 (1st Cir. 2012) (whether a bank's security procedure was commercially reasonable under the UCC), neither of which are products liability cases.

Rather, the PSA constitutes information, guidance, ideas, and recommendations as to how to consider the risk a given criminal defendant presents. The PSA essentially is a nine-factor rubric that uses "information gathered from [an eligible defendant's] electronic court records" to "measure the risk [he or she] will fail to appear in court and the risk he or she will engage in new criminal activity while on release," in an effort to provide New Jersey judges with objective and relevant information that they can use as one factor—among several—in making decisions about pretrial-release conditions. As such, the PSA does not "thwart" the role of judges and prosecutors, as Plaintiff contends.

Under the First Amendment, information and guidance such as that reflected in the PSA are not subject to tort liability because they are properly treated as speech, rather than product. See Restatement (Third) of Torts § 19 cmt. d (noting that courts "express[ ] concern that imposing strict liability for the dissemination of … information would significantly impinge on free speech"). Accordingly, Plaintiff's claims of products liability fail at the outset.

While the Court need go no further, Plaintiff also has failed to plausibly allege proximate causation required for products liability claims. Importantly, the discretionary decision of a judge on whether or not to detain an accused individual, in every case, creates an obstacle for finding proximate cause. By New Jersey statute, the judge is required to consider many different pieces of information in addition to the PSA score; the judge then has complete discretion to reject the recommendation to which the PSA contributes. That is, the PSA does not supplant judicial decision making but merely informs a judge's decision of whether to release or detain a defendant pending trial. This obviates Plaintiff's argument that the PSA was defective in that it omitted risk indicators of firearm possession and sex-crimes….

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37 responses to “No Product Liability for Risk Assessment Tool Used in Deciding Whether to Release Arrestees Before Trial

  1. I suspect as these types of algorithms proliferate in the criminal justice system, they will consistently peg black Americans as a higher risk if that input is allowed, which makes the outcome of this case interesting from the perspective of what would happen if someone sued about racial discrimination with regards to a PSA score.

    1. I wonder what these programs report. Is it just some numerical score? Does it explain its reasoning, what factors went into the recommendation, show how they added and multiplied and so on?

      1. Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf is asking the right question. Some of the commercial ones are, I gather, black boxes. I would not consider their use to be due process.

    2. That can sneak in the back door even with race out of the explicit calculations. If you live in a neighborhood that the police sweep regularly, the “objective” data on how often you’ve been arrested will make you look like a higher risk. Details matter.
      The results in real life are mixed. Some algorithms spit out higher risk scores for marginalized groups. On the other hand there’s been a jurisdiction where the result was fewer lockups for the marginalized.

      1. An algorithm is created based upon a data set in which:
        -People with X skip bail more often than people without X.
        -But, because X is forbidden knowledge, algorithm is not provided with X, and works with all other data provided.

        If this outcome were to occur:
        -People with X are are denied bail more often.
        -Yet, of those offered bail, people with X have the same rate of skipping bail as those without X.

        Question:
        -Was the algorithm fair for the above result?
        Both the positive and negative predictive values were the same for the X and non-X group.
        Would it somehow be more fair if people without X were denied bail even with low risk in order to compensate for holding high risk people with X?

        1. That was a good exercise in logic, and tough questions. To your final question, I would say no, at least from a moral perspective.

        2. I think most people who are unfamiliar with the criminal justice system will say that X should or shouldn’t be considered based on whether (a) they associate X with immoral behavior; and (b) whether they believe X is under the perpetrator’s control.

          Even if X were a perfect predictor of a person’s likelihood of skipping bail if it doesn’t satisfy (a) and (b) above then it would be viewed as improper.

          1. It would be fun to apply that to male/female differences, i.e. sex discrimination.

            Males are more violent. Is that immoral? Can the male defendant claim that his violence was not under his control because of his sex?

            1. >Males are more violent. Is that immoral?

              No.

              >Can the male defendant claim that his violence was not under his control >because of his sex?

              No.

              But good questions, in that if a PSA score would ever allow a racial component of a score, it would also have to include one for sex.

            2. about like “black rage”

            3. Males are more violent. Is that immoral?

              I think people generally associate masculinity with immoral behavior.

              There’s an outcry against punishing blacks at a higher rate than whites, but no outcry against punishing men at a much higher rate than women.

        3. 1. We don’t know.

          Say we have 100 white defendants and 100 black ones. (Let’s not be coy). The algorithm, which doesn’t know the race of the defendants, releases 50 blacks and 60 whites. Twenty percent of each group of released individuals, 10 blacks, 12 whites, skip out. I don’t see that this tells us much about what would have happened had sixty blacks been released.

          Those who skip are false positives – they shouldn’t have been released. Those who are not released are negatives – no release – and some of them are probably false negatives – they could safely have been released. So the false positive rate is the same for whites and blacks. But that doesn’t mean the false negative rate is the same.

          2. No. It wouldn’t be fair at all.

    3. “they will consistently peg black Americans as a higher risk if that input is allowed”

      Well, if we want to use this type of empirical analysis to predict someone’s risk level, why shouldn’t race be allowed if it results in a more accurate prediction?

      1. Think of it like a credit score, where one race has a consistently lower credit rating, even though race isn’t used to determine credit ratings, and you’ll have your answer if you know how society reacts to that piece of information.

    4. they will consistently peg black Americans as a higher risk if that input is allowed

      Not sure I understand what you are saying. Is the fact that someone is black part of the input assessed? That, IMO, could be a serious Constitutional problem.

      Or are you saying that the output will be skewed disfavorably to blacks? In essence, a disparate impact argument. (Less problematic, IMO.)

  2. This risk assessment tool was from a charitable foundation. Others are sold. They are software packages that travel in commerce and by non-legal standards would be considered “products”.

    1. Yeah, that part of the opinion didn’t make sense.

      Just because the market is small (judiciaries), doesn’t make it not a product.

  3. Given the large number of cases it ought to be possible to determine how the algorithm’s results differ from those made by judges before it was used.

    For starters, compare crimes committed by those released under the two systems. Then consider detention costs, impact on those detained, and probably a few other things.

    I’m not sure the algorithm ought to be a black box. I guess there is a conflict between protecting IP and a desirable level of transparency, but given that there are competitive products how does a jurisdiction decide which to choose?

    1. From what I can tell from the article, before the algorithm was used judges relied primarily on monetary bail – the broken and unfair system that the constitutional amendment was designed to address. I suspect that there is no database of comparitor cases under the “alternative” system – that is, risk-based/non-monetary but without this rating engine’s use.

      Well, other than the database of cases that were presumably used to train the rating engine, that is. But the training database can’t be used as a comparitor. Absent major programming error, it will always show a match. It’s no good for validation.

  4. Why are we waiting until people are accused of crimes before we use these wonderful tools? Think of how much crime we could prevent if we ran everybody’s PSA score! People with scores above a certain level could be required to wear a badge or something, kept out of universities, and maybe restricted to certain neighborhoods. Maybe we could even send them to institutions to try to correct their criminal tendencies. Imagine how much safer the children would be!

    1. The Chinese are already ahead of you on that.

    2. Now there’s a satirical way of putting an objection I’ve been struggling to make. Denial of bail, and denial of release under this substitute for bail, are being used as a legal loophole to impose preventative detention when doing so would otherwise be plainly unconstitutional and unjust.

      It’s a very human temptation to say “Screw justice! I want my safety against those scary Bad ‘Uns!” Especially when people can deny to themselves that they are actually screwing justice. And in fact this lawsuit isn’t over the risk assessment system letting the accused guy flee from justice, but over the system not “properly” imposing preventative detention against a crime-yet-to-be-committed.

  5. The implications of this opinion are huge. It’s not that current product liability law doesn’t cover information systems because information systems don’t meet the the legal definition of a product in New Jersey. It’s a much broader claim – that informations are speech and hence constitutionally protected from liability.

    But if information systems are constitutionally inherently immune from liability because they are speech, how can drawings, and an architect or engineer who produces drawings, not be immune from liability because drawings are art? After all, architecture also communicates ideas.

    What makes an architect liable for ideas that result in buildings collapsing on people is that the architect’s ideas are not treated as pure ideas. They are translated into specific, concrete action. And instructions to commit a specific, concrete action, like solicitation to commit a specific, concrete action, are not protected by the First Amendment.

    Thus the developer of an autopilot system that results in a plane crashing should not be shielded from liability because an autopilot system constitutes speech.

    This is not, for constitutional purposes, any different. A system that determines a specific concrete action is action, not speech.

    There may well be good policy reasons why an information system of this nature should be shielded from liability, or why the threshold for liability shouldn’t permit finding liability in this case. Human behavior, even more so than the weather, is notoriously unpredictable, and character hard to judge. Judges have absolute immunity in no small part because they often make incorrect predictions in deciding who will and who won’t repeat offend.

    But these are policy considerations, not policy ones. If an information directs a specific concrete action, what it directs is conduct, not speech. The proper analogy is solicitation, not abstract advocacy. It is not protected by the first amendment.

    1. I’m not sure your analysis is entirely complete here, nor do I agree with the court’s analysis.

      An architect isn’t liable because he designs a bad building, he’s liable because the people who built the building relied on his design. Architects can design all sorts of awful buildings without liability; it is only once those bad designs actually get built that liability attaches.

      The builder is liable because of his conduct – he built a bad building. The architect is liable because of his conduct – he designed a bad building for the builder to build. The architect’s liability is contingent on the builder’s liability. If the building is sound then there’s no liability.

      The problem here is not that the product is itself not speech (as you argue). The problem is the state doesn’t bear any liability for making bad decisions on granting bail.

      1. The issue I was addressing wasn’t why he is or should be liable. I think there are good policy grounds to suggest he shouldn’t. My point was why what he did isn’t protected by the First Amendment.

        When an architect instructs people to carry out plans, as distinct from writing them in the abstract, what he does is more like solicitation than advocacy. At that point, it doesn’t matter to the First Amendment analysis if the building is actually built. If a flaw is spotted at an earlier stage, he might still be be liable for something (or at least what he did isn’t protected by the First Amendment) even if the building isn’t built.

        1. Why isn’t the result reached by the software advocacy? The court has no obligation to rely on the result, it can ignore the result if it wants to.

          It certainly seems to toe the line between protected and unprotected speech.

          1. The Carleonne family consigliere advises Michael Carleone to kill Moeg Green. Advocacy, right? Since Michael Carleome can disagree and decide not to, it’s simply information and advice, protected but he First Amendment. Right?

            Wrong. Once there is a nexus between speech and a specific, concrete course of action, if that course of action can be made illegal, so can speech advising or counseling to do it, not just speech ordering it.

            In the Palladin Press case over the book Hit Man, the book on how to perform a contract murder was entirely Advice. Nobody was being required to follow it.

            Of course the underlying course of action here is different from a mafia consigliere or a contract murder manual. You could argue that in the specific context, advice to a judge whether to jail or release someone shouldn’t be illegal. But my point is that the judge made a very broad claim – information systems are inherently immune from product liability because what they do is speech by its nature. And that’s just not so.

      2. I’m not arguing the information system in the case is speech. The judge said that. I’m explaining why I think the judge was wrong. My argument is exactly that for First Amendment purposes it’s conduct, not speech.

    2. Just because your comment reminded me of a question I asked myself after watching the news not long ago. Why are the Boeing code writers not being being held responsible for the bad code that led to the two most recent crashes of their aircraft?

      1. Who knows? Maybe the aircraft was designed with inherently unstable aerodynamics, making aerodynamics designers the leaders in the liability race. Maybe the imperfect code makes the imperfect aerodynamics better, but not perfect. Then what?

        1. Well, the accidents happened to foreign airlines overseas, but I suppose had it happened in the U.S. we’d see a lawsuit or three, and maybe a criminal prosecution.

          1. As to it happening in the US, US Pilots that fly this specific aircraft get training specific to that aircraft including what to do if the stall prevention system fails. From what I’ve seen elsewhere, A lot of the foreign pilots aren’t getting that extra training.

        2. Because it’s a hardware issue not a software issue. There is no redundancy in the actual sensor that provides the data the software uses, so no opportunity for the software to detect hardware failures resulting in false readings.

          By the way, if the pilot is not paying attention, and doesn’t know that particular aircraft well enough, a false negative from the sensor can be just as dangerous as a false positive.

      2. One reason might be that Boeing outsourced/offshored much the code writing to India (they started moving some of that work back to the US a little over year ago). I’ll guess suing some bottom-level people in India isn’t a very profitable legal endeavor.

        Another is that the code writers very likely wrote the code to the specifications of someone else. If the coders suggested “hey, maybe if the sensors disagree, we should do something else besides believing only one of the sensors” they likely would be simply ignored as non-experts on safety features.

        1. “If the coders suggested “hey, maybe if the sensors disagree, we should do something else besides believing only one of the sensors” they likely would be simply ignored as non-experts on safety features.”

          From what I’ve read, there are only 1 or two sensors on the aircraft. With just 1, there is no possibility of false reading detection at the software level and even with 2, it’s not really possible, because there is no way to tell which sensor gives the false reading.

          1. All 737s have two angle of attack sensors (the ones that appear to be the problem). The 737max8 system only used one of them at a time. It did not check if they disagreed. So if the sensor was giving bad readings (but had not failed completely), the software still used it.
            As someone who actually worked on fault-tolerant systems, to me that seems surprising, but that was one of the two basic problems – the other was allowing the automatic override to tilt the stabilizers a much larger amount than the original design.

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Free Speech

Someone Yet Again Trying to Vanish Post Criticizing New Britain (Conn.) Volunteer Commissioner Ken Haas

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In 2017, I wrote about an attempt to use a forged court order to deindex New Britain Independent articles critical of New Britain (Connecticut) volunteer Conservation Commissioner Ken Haas (a mayoral appointee). Then someone tried to get Google to deindex my post about the forgery and a Techdirt post about the same forgery, arguing:

In 1979, the U.S. Supreme Court recognized an individual interest in the "practical obscurity" of certain personal information. The case was DOJ v. Reporters Committee for a Free Press. As well, this information is harmful to me as it concerns unfounded information which never resulted in prosecution. Not only has the dissemination of this information never been legitimate, but its internet referencing is clearly harmful to my reputation as my professional and personal surroundings can access it by typing my first and last names on the Internet.

A few months ago, it turns out, there was another attempt to deindex one of the original New Britain Independent articles, this time on a copyright infringement theory; the deindexing request was submitted under Ken Haas's name (though the deindexing request process doesn't verify whether the submitter name is accurate):

Copyright claim #1
KIND OF WORK: Unspecified
DESCRIPTION Text from a post that was on a private and personal Facebook profile stating, "You do know I have access to ALL city records. Including criminal and civil, right???".
ORIGINAL URLS: No copyrighted URLs were submitted.
ALLEGEDLY INFRINGING URLS:
https://newbritainindependent.com/blog/2016/10/14/stewart-conservation-commissioner-accused-abuse-power/

The article had said, among other things,

At 9:21 PM Monday September 19th, 2016 Mr. Haas, in an exchange on Facebook, on a thread in which he was not originally included, tagged in, or involved with, injected himself.  Members of the community were having a conversation about the Tilcon deal that the Stewart Administration is pushing, regardless of community sentiment.  Hass interjected in this facebook conversation, threatening to embarrass one of the participants, who is a member of New Britain's community, using government resource's.  Hass said, "You do know I have access to ALL city records. Including criminal and civil, right???".

And of course that's "fair use" under copyright law, and not an infringement at all; criticizing a government official (even a volunteer) for this kind of short public comment, by quoting the comment, is fully legal—indeed, newspapers do it all the time. Google naturally didn't act on the deindexing request; but I though it worth noting that 08someone seems to be pretty insistent about trying to vanish criticism of Commissioner Haas.

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20 responses to “Someone Yet Again Trying to Vanish Post Criticizing New Britain (Conn.) Volunteer Commissioner Ken Haas

  1. Does anyone really believe it isn’t Haas himself, or somebody in his employ?

    1. Yeah, especially since the Lumen link shows that “Ken Haas” is the actual requester.

  2. And the “Streisand effect” is now activated. There is/was little local or statewide notice of this issue. And now?

    1. Wouldn’t it be hilarious if the fraudulent takedown orders were actually being arranged by Haas’ foes, to intentionally exploit the Streisand effect?

      1. No, it would be insane. If someone is choosing to cover his tracks with manure, don’t assume you can improve the scent.

  3. Instead of making fun of him (again, and some more), the obvious step is to ask if anyone licensed in Connecticut is willing to give Mr. Haas a few pro-bono hours to explain this to him in depth.

    1. Couldn’t we instead just have him register for free on this site?

      He could read for himself why he’s such a dumbass and maybe he could even provide some insight why he’s a wilting snowflake.

      1. Can’t imagine why he might not want to read the commentary here.

  4. The remedy is more speech. Even speech which IMO seeks to misinform or to undermine our institutions or our laws, to insult, offend, or even spread hate.

    But government must not accede to efforts to suppress speech. Imagine if Donald Trump had that power.

    1. Anorlunda, leaving this case aside, it is worth remembering that “more speech” is a useful remedy on questions of politics. On questions related to damaging publications, saying, “more speech” is just an inappropriate way to taunt victims (as in cases of defamation), or to dodge responsibility for policy breakdowns (as with damage to the electoral process).

      Previously, the laws and norms of publishing encouraged the use of a screen of private editing to keep unjustifiably damaging publications from ever appearing. And it mostly worked, with the result that the law of defamation was crafted around the expectation that a private editing screen would be in place.

      Now, because of Section 230, internet publishing assures that every instance of privately damaging or publicly hurtful content will get published, do its damage, and then be controlled only after the fact, if at all. As a practical matter, mostly not at all. On the internet, the private editing screen is gone, and the legal structures designed to depend on it have become all but useless.

      EV’s advocacy, in a long list of posts on this topic, seems to amount to a perverse insistence that under this new regime of publish-first-check-later, the process of checking and correcting should be made complicated, costly, and as ineffective as possible. I think he does that with a notion in mind that his advocacy is on behalf of speech freedom.

      EV’s comments draw almost universally favorable, and remarkably uncritical responses, from people who also suppose speech freedom is being advanced. It seems true that a majority of Americans for now suppose the internet is inherently and infallibly a speech-protective, freedom-advancing technology.

      I suggest the opposite. I suggest that broad public support for speech freedom will not indefinitely abide a new regime which seems to the people unaccountably to cherish damage and destruction, and which offers no practical remedy to correct damage and destruction after the fact—let alone prevent them beforehand. To accomplish that pre-internet, private editing was the method and custom society relied upon for centuries.

      Unfortunately, that reliance came mostly without day-to-day social cognizance of the public benefits it delivered. Ironically, the nation now pays a price in confusion for the loss of an institutional amenity that went mostly unnoticed because it worked so well. Hopefully, the nation can get its attention focused anew—before, under this new, more destructive regime the people decide that if this is speech freedom, they want no part of it.

      You can take the incipient avalanche of demands for government regulation of internet publishers as a good first indicator that the people’s patience has already worn thin. The most important issue for speech freedom now is to prevent government from regulating publishing. To do that, bring back private editing. Repeal Section 230.

      1. Anorlunda, leaving this case aside,

        LOL.

        I was reading this piece, and I was thinking of posting, “See, Lathrop? Your argument that defamation lawsuits prove that § 230 is causing the erosion of support for free speech are wrong; after all, even when neither § 230 nor defamation are at issue, people still try to suppress speech they don’t like.”

        Lo and behold, you solve the problem by simply ignoring the facts and repeating the same inane fact-free rant.

        The most important issue for speech freedom now is to prevent government from regulating publishing. To do that, bring back private editing. Repeal Section 230.

        No, Lathrop. We will not pass the “Former newspaper editor who doesn’t understand the law whines that people like him have lost the power to censor” law.

        1. Best response for you, Nieporent, is to quote myself:

          It seems true that a majority of Americans for now suppose the internet is inherently and infallibly a speech-protective, freedom-advancing technology.

          That’s utopian, and that’s you.

          Compared to ink-on-paper, internet publishing can advance speech freedom, broaden access, and diversify the range of published opinion. It can’t make publishing perfectly accessible, nor should it.

          People who want to use publishing to inflict unjustifiable damage on others for no legitimate purpose—and they are legion—should find no easier path to do so on the internet than they did previously with traditional publishing. To enable that, and bless it, cannot promote speech freedom, but only tear speech freedom down and discredit it.

          Your commentary is far outside the norm. The majority of Americans are inconsistent. They agree with you, in your utopianism. They agree with me, in wanting the newly-empowered destructive side of internet technology reined in. They also disagree with you and me, about how to rein it in. Neither of us wants government censorship.

          The majority of Americans want actual censorship, by government. If you want the power to censor restrained, instead of advanced, you ought to get rid of your utopianism, and start agreeing with me. What, for heaven’s sake, is wrong with using the unique advantages of internet technology to strengthen, diversify, and further advance a system—publishing using private editing—which has already shown a centuries-long run of success?

          1. People who want to use publishing to inflict unjustifiable damage on others for no legitimate purpose—and they are legion—should find no easier path to do so on the internet than they did previously with traditional publishing

            Of course they should. Just as people who want to make getaways from bank robberies should find an easier path to do so via automobiles on highways than they did previously with horses. That’s not because we want it to be easier to rob banks, but because we want better transportation overall, and to get that we need to enable better transportation for bad purposes as well as for good ones. We want communication to be easier, and to get that we need to enable better communication for bad purposes as well as for good ones.

            They agree with me, in wanting the newly-empowered destructive side of internet technology reined in.

            I find it safer to speak for myself, rather than trying to speak for the majority of Americans.

            Neither of us wants government censorship.

            That is not true; you still fail to grasp after all this time that defamation law is government censorship. And your plan is to use the threat of defamation liability imposed by the state to force private actors to censor.

            If you want the power to censor restrained, instead of advanced, you ought to get rid of your utopianism, and start agreeing with me.

            You favor advancing censorship.

        2. By the way Nieporent, you assert that someone who founds a publication, creates an audience for it, mobilizes the free market to provide the resources to sustain it, and opens it to the opinions and commentary of diverse contributors past counting, is thereby establishing himself as a would-be censor? That is petulance taken to an astounding extreme.

  5. Democrats. What do you expect?

    1. While I don’t know for sure which mayor appointed Mr. Haas, the current mayor is a Republican woman.

    2. Where are you getting the Democrats part?

      1. You would think as one of the founders of this page that you would know that 75% of the people who comment here blame Democrats for everything. Including their divorce, dead puppies, etc.

  6. Dear Google,

    In the name of habeas corpus, ex post facto, post hoc, and e pluribus unum, you are commanded to post more naked pictures of the actresses listed in the attached schedule. Herein fail not, forasmuch as this court is getting horny.

    Sincerely
    Sir Matthew Hale, Judge of Judgitude

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"Biden Rips Off Avenatti with 'Let's Make America America Again' Slogan"

Except that the phrase isn't originally Avenatti's -- it had been used by Ted Kennedy, Anita Hill, Rick Santorum, and (as "Let America be America again") by Langston Hughes in 1935.

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The headline I quote in this post's title is from Fox News; here's more from the body of the article:

The Trump campaign on Tuesday mocked Biden over his use of the phrase. Both Trump and Biden are in Iowa Tuesday holding dueling political events.

"No word yet on whether Biden will start borrowing 'Basta!' as well," Trump campaign deputy communications director Matt Wolking said Tuesday, referring to the hashtag Avenatti often used on Twitter.

Fox News has requested comment from the Biden campaign.

Biden last week faced criticism after it was revealed that his campaign lifted passages from numerous other sources in the initial version of its climate change plan. Citations were later added, with the campaign describing the initial version as a mistake.

Matt Margolis (PJ Media) labels this outright "plagiariz[ing]."

But the phrase wasn't Avenatti's to "rip off," nor is there anything wrong with "lift[ing]" a short line like that. As with many pithy phrases, they have been reused and likely reinvented for decades (if not more), and their original sources are often not remembered. A quick Lexis search revealed that Sen. Ted Kennedy used it on Mar. 11, 2005, in a speech on cutting child poverty; Anita Hill was quoted on Nov. 14, 1992 as having used it shortly before; Sen. Rick Santorum's campaign used it in 2011; novelist Joe Klein (author of Primary Colors) used it in a 2001 novel; and Langston Hughes had used it in a 1935 poem called "Let America Be America again," which Sen. John Kerry used in his 2004 campaign. Novelist Joe Kl

Plagiarism can be a serious offense, for instance when journalists or academics copy others' work without attribution—both because journalists and academics are supposed to be original, and because the copying is usually of a material amount.

But politicians aren't supposed to be original; they are supposed to adapt good ideas from others. I'm not terribly upset by Biden's past copying from other sources, whether as to his campaign's borrowing material for his climate plan, or even as to the copying of parts of Neil Kinnock's speech back in his 1988 Presidential campaign. (The real problem there, as I recall, was that that his use of Kinnock's words as his own end up misrepresenting aspects of his own background.)

Indeed, to the extent the Biden campaign was faulted for copying material from activists, I would think the activists should be pleased: The whole point of advocacy is to get decisionmakers to adopt your ideas, and if they even use your words, all the better. That's why lawyers don't get upset about judges' borrowing their words (with some exceptions not relevant here).

But when we're talking about a five word phrase, the claims of improper borrowing (whether labeled as "plagiariz[ing]" or as "rip[ping] off") by a politician strike me as completely unsound. It's a phrase that comes easily to people's minds, especially in the wake of President Trump's "Make America Great Again"; it wasn't original when Avenatti used it, or when Kennedy used it, or likely even when Langston Hughes used it.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

20 responses to “"Biden Rips Off Avenatti with 'Let's Make America America Again' Slogan"

  1. And in a speech to gay activists, Biden said, “four score and seven years ago, my four fathers…”

  2. The slogan doesn’t even make sense for a progressive candidate. I mean, sure, let’s go back to the way things were, thats what all libs are for right?

    1. Well, it’s better than Bernie Sanders’ motto – “Let’s make America Venezuela!”

  3. Why, when there is SO, SO, SO MUCH of actual substance for which Joe Biden can quite rightfully be criticized, so many completely idiotic policy positions he has taken, so many times he has demonstrated an appalling ignorance of the Constitution, would anyone waste time and effort on a triviality such as this?

  4. You’re missing the point. Copying a few words is okay and maybe even laudable. But Biden has a history of plagarism dating all the way back to his academic days in 1965.

    People have been finding excuses for him ever since – and his opponents have been calling them out on it with varying degrees of subtlety. This is just another in the long pattern.

  5. I don’t really care about the plagiarism. What I worry about is what Biden means when he says “Let’s make America America again”:

    Time Magazine: America Shouldn’t Tolerate ‘Biden Being Biden’


    Quote:
    The only reason Joe Biden gets away with getting handsy with women is because he has a (D) after his name…

    What can be said of people, today, looking the other way as the vice president of the United States paws woman after woman in public, with cameras flashing and their husband or parent three feet away?

  6. ” the claims of improper borrowing (whether labeled as ‘plagiariz[ing]’ or as ‘rip[ping] off’) by a politician strike me as completely unsound. It’s a phrase that comes easily to people’s minds, especially in the wake of President Trump’s ‘Make America Great Again’; it wasn’t original when Avenatti used it, or when Kennedy used it, or likely even when Langston Hughes used it.”

    How about the saying “America is great now, you unpatriotic asshole.”? Does ending with an exclamation point instead of a period make a difference?

    1. Or do we take Mr. Trump at his word, that he actually intends to make America great again, of which the first stage is to make it not great? Because he’s working hard on that part, at least.

  7. ‘Let’s Make America America Again’

    A pre-industrial, agrarian, slave owning nation where only white men can vote? Like it was in Biden’s youth.

  8. Talk about the “Bottom Story of the Day”.
    Who cares?

    1. “Worthwhile Canadian Initiative”

      (Michael Kinsley’s idea of the boringest headline ever)

  9. Did Trump originate “Make America Great Again!”? No. (A quick Google told me that.) I know that Trump was accused of using dog-whistles when he used that phrase. But I do not recall him being accused of plagiarism. Giving him a (quite justifiable) pass in that regard made total sense, as outlined by EV in the OP. Bizarre to think that people are trying for a double-standard re Biden.

    On the other hand, Biden does have a well-documented history of appropriating other’s words. So, I do understand not giving him the benefit of the doubt in this area. But this particular example strikes me as rather silly . . . our first official example of Biden Derangement Syndrome???

    1. You missed the point of the article completely. EV is arguing that there is little basis for accusing politicians of plagiarism and none at all when it comes to shortish quotes. It doesn’t matter if it’s Obama, Trump or Biden. They are supposed to adopt other people’s good ideas.

      1. I didn’t misread at all. I completely agree with EV, as I stated in my original comment. I also pointed out the hypocrisy (IMO) of those who are whining about Biden in this case but were silent when Trump did much the same thing. And I ended by pointing out that, in situations where one might or might not get the benefit of the doubt, someone with a long history of bad behavior would cut against giving that person the benefit of the doubt. And I’m not just picking on Biden here . . . when Trump says something that could be interpreted as truthful or not, his decades-long history of lying cuts against giving him the benefit of the doubt. I think I made it clear (at least, I hope I did) that this situation is *not* one where Biden needs the benefit of the doubt–he did nothing wrong here at all.

        1. There’s nothing wrong with using someone else’s slogan. Now, there might be if you’re using someone else’s slogan, AND claiming that it’s original with you, but absent the claim, you’re just quoting a good idea, whether or not you remember to put quote marks around it.

          1. Yup. Agreed.

    2. ” Bizarre to think that people are trying for a double-standard re Biden.”

      Nothing bizarre about it.
      To partisans, distinguishing between the same thing done by OUR guy and done by THEIR guy is easy. When OUR guy does it, it’s OK, but not when THEIR guy does it.

  10. The media are more likely the tolerate such plagiarism from Dems, as Trump pointed out:

    “I really have to say, the media is even more biased this year than ever before. Ever. You want the proof? Michelle Obama gives a speech and everyone loves it. It’s fantastic. They think she’s absolutely great. My wife, Melania, gives the exact same speech, and people get on her case!”

    1. It was one of the genuinely funny comments Trump made in the campaign. Totally diffused his wife’s plagiarism. I don’t know the name of the man/woman who thought of that joke and wrote it; but that person deserved a huge raise.

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Free Speech

Why the Arkansas Law Aimed at Boycotts of Israel Is Generally Constitutional, Part II

Prof. Michael Dorf, who co-signed an amicus brief with me on this subject, adds more in response to an exchange with a law professor on the other side.

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Here's Michael's post, from Dorf on Law:

In Arkansas Times v. Waldrip, the U.S. Court of Appeals for the Fourth Circuit will decide whether an Arkansas law requiring public entities (including contractors with the state) to certify that they do not boycott Israel or companies that do business with Israel violates the First Amendment. The district court held that it does not. Various champions of free speech have filed briefs arguing that political boycotts are protected free speech. Three scholars who also fashion ourselves champions of free speech—Professors Andrew Koppelman, Eugene Volokh, and I—take the opposite view. You can read our brief here. You can read a summary of our argument in a blog post by Prof Volokh here. His blog post also contains links to the briefs on the other side. Here I'll add a few words that go beyond what I wrote on this topic back in February and what we say in the brief.

Some substantial portion of the argument is doctrinal. We cite Rumsfeld v. FAIR for the proposition that a boycott—as opposed to speech accompanying a boycott—is not speech. The other side cites NAACP v. Claiborne Hardwarefor the proposition that political boycotts are protected speech even apart from the speech that accompanies them. For the reasons we lay out in our brief and that Prof. Volokh summarizes in his blog post, I think we have the better doctrinal case. That said, I'll concede for the sake of argument that there is sufficient wiggle room in this and other constitutional doctrines, that one could say that it is an open question whether boycotts themselves—in contrast to speech accompanying boycotts—should be deemed protected speech.

So the question then becomes this: Should boycotts be treated as speech? Answering that question requires both conceptual analysis (more about that below) and some sense of the consequences of treating boycotts as speech. One apparent consequence—as we highlight in our brief—would be the gutting of public accommodations laws. If refusal to buy goods from Israel is speech because one's motive is opposition to Israeli policy (or Israel's existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.

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82 responses to “Why the Arkansas Law Aimed at Boycotts of Israel Is Generally Constitutional, Part II

  1. “If refusal to buy goods from Israel is speech because one’s motive is opposition to Israeli policy (or Israel’s existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.”

    WRONG.

    Israel is a sovereign national and does not fall under U.S. jurisdiction or sovereignty, and therefore does NOT enjoy any U.S. constitutional protections.

    1. …sovereign nation…
      PLEASE ADD AN EDIT FUNCTION.

    2. So whether something flying out of your mouth is speech depends on who the listener is, and their rights?

      That’s not how that works.

      1. apedad, you’ve bungled it. This is about activity of people in the U.S. The question is whether the activity is speech. Protection doesn’t depend on whether the target of activity/speech is outside U.S. jurisdiction. Otherwise we could pass laws forbidding criticism of Putin. The issue, again, is whether a boycott (or a wedding service) is speech. If a mere boycott were speech, then any decision to not sell for [Reason] would be protected. Still, one might differentiate a custom artistic creation (eg cake, flowers) from construction services or selling of various mass-produced objects.

        1. But their theory is about who needs protection not who is taking an action.

          The law is “protecting” Israel which has no constitutional right to protection.

          1. Who has advanced the theory that the constitutional issues in this case are based on who needs protection? Can you provide a citation that includes this argument?

            1. Read the quote in my original comment.

              1. Where in the quote is it saying that Israel has constitutional rights?

              2. That quote does not in any way raise the issue you are claiming.

                It’s about the in ability to distinguish seller side boycotts from purchaser side boycotts on any consistent logical basis. In either case it’s about the boycotter and whether or not the boycott is speach and the rights of the boycotter, it has exactly squat about the rights/ need for protection of the entity being boycotted.

          2. What difference would this make? Israel may not have any constitutional rights to protect, but the issue is whether Arkansas has the power to protect Israel. It may have that power, even if Israel has no constitutional rights.

            1. But Prof. Volokh, et al, are indeed making the argument that Israel is entitled to constitutional protection.

                1. Here, I’ll let Prof. Volokh answer you.
                  “One apparent consequence—as we highlight in our brief—would be the gutting of public accommodations laws. If refusal to buy goods from Israel is speech because one’s motive is opposition to Israeli policy (or Israel’s existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.”
                  He is CLEARLY saying (and I have no idea why you guys are being blind about this) that IF refusal to sell goods to LGBT customers or for same-sex weddings is speech then refusal to buy goods from Israel is ALSO speech.
                  In other words, if a business is allowed to boycott Israel on ideological grounds then businesses should be able to refuse to sell goods to LGBT customers if they’re ideologically opposed to gays, etc. – which would gut public accommodation laws (this is Prof. Volokh’s argument).
                  I’m only addressing this specific, particular argument (not boycotts, free speech, etc.).
                  Prof. Volokh is attempting to inflate the constitutional protections in place for people under U.S. jurisdiction to cover Israel – an argument which simply has no basis.

                  1. But the focus of this analysis is the scope of the constitutional rights of the business owner — not the rights of either Israel or the LGBT customers. So the point you’re making would appear to be wrong.

                    1. OH MY FREAKING GOD.

                      VOLOKH RAISED THIS POINT – NOT ME.

                      I’M TRYING TO SHOW HOW THIS PARTICULAR POINT THAT HE MADE IS WRONG.

                    2. And everyone else is pointing out, quite patiently, that it is you who is wrong. Yet you are the one devolving into histrionics.

                      You’ve repeatedly demonstrated that you don’t understand Eugene Volokh’s point, civil rights laws, the Constitution, or really much of anything having to do with this issue. Why don’t you just bow out of this one? It’s too late to do so gracefully, but it’s still better than continuing to make an ass out of yourself.

                  2. I see what you misunderstand. Public accommodation laws are not based on the constitutional rights of LGBT customers. They’re statutory rights. LGBT customers do not have a constitutional right to be served by private parties. Black people don’t have that right, either. The state of Arkansas is not constitutionally required to refuse to do business with business entities that discriminate against LGBT or black customers.

          3. Many anti-discrimination laws are not based on constitutional rights.

            1. The Supreme Court disagrees with you.

              1. 1964 civil rights act. Enacted explicitly on the basis of the commerce clause, NOT the enabling legislation clause of the 14th amendment.

                This was critical because the latter only applies to governmental action. As, yes, stated by the Supreme court.

      2. Another way to address it, under current jurisprudence, is that they’re both speech but public accommodation laws protecting classes of American citizens satisfy strict scrutiny, whereas Arkansas’s anti-Israel boycott law does not.

        The better remedy is for the people of Arkansas to not enact stupid fucking laws.

        1. Yeah, the old compelling governmental interest in ensuring that people have access to wedding cakes. Sounds like a excuse for judges to uphold unconstitutional laws that they like.

          1. Under Roberts v. US Jaycees, “eradicating discrimination” can be a compelling interest. There would be serious issues with other prongs of strict scrutiny, though.

            1. I have no doubt that that is the precedent. But as a non-lawyer, I lack the training to distinguish between a finding of a compelling governmental interest and a naked policy choice.

              1. Don’t “naked policy choice[s]” and “compelling government interest” have some overlap?

                1. Well, in theory, “compelling” suggests that there is no choice. But in practice, “compelling” seems to mean that the interest aligns with the policy preferences with judges. Governments are in no sense compelled to force bakers to bake wedding cakes.

  2. In an economic sense, there is no real difference between a purchase and a sale.

    States themselves point this out with laws that trading things for things, such as what farmers do, are sales and they owe the cash equivalent’s taxes on. And also that neither side is special in the transaction, sales taxes are owed on the transaction, though usually it’s the retail who has to send in the money.

    1. I agree that the two are economically similar, but the reason people treat them differently is because they are different in other ways. Consumers (purchasers) are generally pickier than sellers. Starbucks doesn’t care who its consumers are (except to the extent its consumers care and want Starbucks to care). They want cash. Hobby Lobby can say it cares who its consumers are, but it sells to murderers and rapists, too. At the end of the day, Hobby Lobby wants cash, too. If a murderer walks into Hobby Lobby and buys garbage, Hobby Lobby isn’t harmed. But if I have to walk into Murderers, Inc., run by murderers, because the government compels that purchase, that’s a much bigger infringement on my personal liberty than anything Hobby Lobby (or Starbucks) suffers by engaging in a transaction they fundamentally exist to secure.

      1. This becomes a closer question the more personalized the goods (and especially services) that the seller is offering. A piano teacher is probably pickier than Starbucks about customers, because of the nature of the good/service being sold.

      2. I agree, but I’m not even sure they are economically identical, whatever that might mean, which is not clear to me.

        There are differences in addition to the points you mention. For one thing, you might refuse to barter with me for the simple reason that you don’t want the item I’m offering in trade. (That’s one thing that makes money such a useful convention.)

    2. Under the civil rights regime, it is unlawful to refuse to sell one’s home on the basis of race. Is it unlawful to refuse to purchase a home on the same basis?

      1. As a practical matter, no. It’s not really unconstitutional for you (as a private person) to refuse to sell your house on the basis of race. But the federal courts are not going to enforce race-based restrictions on housing covenants, either. In the case of refusing to purchase a house on the basis of race, there’s nothing for the court to get enmeshed in, since there isn’t a sale in the first place.

        1. I realize I didn’t read your comment carefully enough. You were talking about “civil rights regime” and not the Constitution. My bad. Disregard.

  3. “So the question then becomes this: Should boycotts be treated as speech? ”

    Shouldn’t the question be, “Is freedom of speech the only constitutional right anybody enjoys?”

    Don’t you get the impression that the 1st amendment is doing a lot of the heavy lifting the 9th amendment was expected to handle, due to the courts refusing to give the 9th any application?

    1. As the anti-Federalists predicted.

    2. They did pack a lot into the 1A. It protects religion, speech, and…

  4. A question for those who argue that boycotting Israel is protected speech.

    I represent multiple New Jersey municipalities. Under New Jersey law, in order to do business with a New Jersey municipality, I must certify under oath that I do no business with Iran. (For the record, I don’t and have never be asked to do business with Iran). If being required by law to not boycott a country as a condition of receiving a public contract unlawfully infringes the public contractor’s free speech rights, doesn’t it follow that requiring a public contractor by law to boycott a country is a form of compelled speech – also a First Amendment violation? If so, why has the ACLU not sued New Jersey over this First Amendment violation?

    1. I’m going to guess that it’s because Iran is under an official US embargo, which means what you’re really certifying is that you’re in compliance with the law.

      1. Was that true when Obama’s agreement with Iran was in effect?

        1. You mean, the last few months of the Obama administration? (Since he waited until 2016?) No.

      2. No, you are correct, even under the JCPOA, U.S. firms would have remained prohibited from doing business with Iran, with limited exceptions. But again: if the decision whether or not to do business with a country is a form of speech, even the imposition of sanctions at the federal level could be deemed a First Amendment violation and be subject to “strict scrutiny” review.

          1. So you should be able to send Iran high quality aluminum tubes so they can refine uranium because free speech?

            Okey dokey.

            1. I think the government will be able to show that they have a compelling governmental interest in preventing Iran from refining uranium.

            2. Because no rational human being could possibly draw a distinction between uranium refining equipment and, say, a shipment of New Jersey tomatoes. Or do you consider tomatoes to be weapon grade material?

              1. “Or do you consider tomatoes to be weapon grade material?”

                Some people like to throw them at other people, particularly public figures as a sign of disapproval, so yes, tomatoes are weapons grade material. 🙂

            3. “So you should be able to send Iran high quality aluminum tubes so they can refine uranium because free speech?”

              The FEDERAL government has a role in regulating trade with foreign nations. But the states don’t.

        1. I don’t think the decision whether or not to do business with a country IS a form of speech. Which isn’t to say I don’t think an argument can’t be made that boycotting isn’t a right, I just don’t think it’s a right that ought to be shoehorned into the 1st amendment.

          As for why the ACLU makes the distinction, who knows? It isn’t as though they’re still attempting to be principled about these things, maybe they just dislike Israel enough to object to anti-BDS laws, but don’t like Iran enough to find the sanctions objectionable.

          1. And that, ultimately, is my point, together with questioning whether boycotting or not boycotting a nations‘s businesses is a form of speech.

            1. By definition, it is economic arm twisting because speech isn’t enough. It is an attempt to create harm. That is why it works.

              Keep in mind these are the same people who try to define speech as action so that it can be regulated.

              Their underpants aren’t just on display, they are on display and ripped and soiled.

              1. I don’t think a boycott is necessarily an attempt to cause harm. I boycott PayPal because I don’t like their policy of restricting what legal products I can pay for using them. They got into “deplatforming” quite early. I’m not trying to harm them, I just don’t want to have anything to do with them.

                Now, BDS? Absolutely trying to cause harm. But I don’t think you can generalize that to all boycotts.

      3. Yes, but if the government can impose sanctions against Iran without infringing free speech, then the government can choose not to impose sanctions against Israel without infringing free speech. I thought that was the point of the anti-BDS laws, at least at the federal level. The government, in conducting foreign policy, does not want to sanction Israel nor does it want to allow private interests to override the government’s foreign policy decision by privately imposing sanctions. Since imposing (or not imposing) economic sanctions “merely” infringes “economic freedom” and not “fundamental freedom” like free speech, the government faces a low hurdle in enforcing its sanctions policies. Once one views economic activity as speech though, then the government would be precluded from both compelling people to participate and preventing people from participating in sanctions against Iran or Israel.

        The government may not be able to compel you to buy broccoli but, if you are going to buy broccoli, then the government can prevent you from deliberately avoiding buying broccoli from Israel.

  5. Professors Volokh and Dorf, I appreciate that continue to engage with criticism.

    Professor Dorf criticizes a distinction between purchaser boycotts and seller boycotts, saying there are unworkable elements. Fair enough. Perhaps that isn’t the right place to draw the lines. I’ve pondered a slightly different distinction between public and private transactions, and Professor Volokh has pointed out that this distinction is in tension with current doctrine. Perhaps a third option is business transactions versus end-consumer transactions.

    But maybe the more honest way for me to respond is that I have a particular fact scenario in mind. Imagine that a private bus company has imposed racially segregated seating. It seems like (1) it should be constitutional to ban that practice, and (2) it should be unconstitutional to ban private citizens from boycotting the bus company until it changes its practices. Now, I don’t know exactly what kind of line needs to be drawn to permit this — i.e. seller-purchaser, etc. But my strong prior is that it must be possible to draw some principled line here. And I am going to retain that prior unless defenders of the Israel-boycott law start forthrightly saying “no, if you want the anti-segregation law to be constitutional, then the law forbidding the anti-segregation boycott has to be constitutional too.”

    Its very hard to give up on the feeling that Claiborne supports the intuition that the anti-segregation boycott is constitutionally protected. I know that Professor Volokh has argued that Claiborne protects only the speech adjacent to the boycott. But Claiborne is littered with the word “conspiracy.” Where else in the law do we say that an underlying act can be criminalized, but that a conspiracy to commit that same act cannot? Cf. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973) (quoted by New York v. Ferber, 458 U.S. 747, 761, (1982)); see also Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949). It seems like a necessary implication of Claiborne that the boycott itself had some protected status — whether that was under the First Amendment or (more likely) as a matter of substantive due process.

    1. Let’s take a slightly different fact scenario. The bus company welcomes all races in every seat, but a white supremacist group organizes a boycott of the company because of this policy. I’m guessing you think a law which bans that particular boycott passes constitutional muster.

      Assuming I am right, how do you distinguish between the two boycott laws?

      1. I see no material distinction whatsoever between my hypothetical and yours. Same exact law. Same facial challenge. Only the viewpoint is changed, and that isn’t legally relevant. (The fact that viewpoint is irrelevant is why I have made no effort, one way or the other, to talk about whether an anti-segregation boycotter is morally equivalent to an anti-Israel BDS boycotter.)

  6. Answering that question requires both conceptual analysis (more about that below) and some sense of the consequences of treating boycotts as speech. One apparent consequence—as we highlight in our brief—would be the gutting of public accommodations laws.

    One of the great summaries in literature: “There is all the difference in the world between paying and being paid.” — Melville, Moby Dick.

  7. What, exactly, is the state’s interest in suppressing boycotts of foreign nations? Is there an answer to this question yet? (It went unanswered in part I)…

    1. Still no answer?

      What is my position with regards to a boycott of Israel if my position is “buy American, and only American”? Is this an unAmerican position to take in Arkansas?

  8. “If refusal to buy goods from Israel is speech because one’s motive is opposition to Israeli policy (or Israel’s existence), then ideologically motivated refusal to sell goods to LGBT customers or for same-sex weddings is also speech.”

    This strikes me as silly, since ‘the state of Israel’ isn’t a suspect class. If they refused to deal with Jewish-owned businesses in general, that ought to violate public accommodation law, but that’s not the case.

    1. What does whether something is a suspect class — an element of equal protection law, not first amendment law — have to do with whether an act related to it is speech?

      1. Refusing to deal for expressive reasons could be presumptively protected under the First Amendment, but fall under “compelling government interest” impression if harm to a protected class is involved.

    2. I don’t see how you can refuse to deal with a Jewish ethnostate and NOT consider it the same as not dealing with Jewish-owned businesses.

      1. If somebody refuses to do business with Iran, you think that’s the same as them not doing business with all Muslim-owned businesses?

        Israel is a separate entity from Jewish-owned businesses. Some Israeli companies are Jewish-owned. But not all Jewish-owned businesses are Israeli companies. I assume there are even some Israeli companies that are not Jewish-owned businesses.

        1. Iran, while being an Islamic republic, is one of many. That’s why the “Muslim” ban was a silly label too. Banning ~5% of people from a group isn’t motivated by bigotry towards their faith and if it is, it’s rather ineffective.

          Israel is the sole Jewish state. If Iran were the sole Muslim state, I’d have an issue with Iranian boycotts too. We don’t need to get stuck on the issue of ownership. Boycotts negatively affect all business participants and Israel is the only state in the world that is majority Jewish.

          Saying a boycott has nothing to do with their Judaism is like saying UN resolutions against Israel have nothing to do with their Judaism when they’re passed by the 75 or so Muslim member states that couch their anti-Semitism in a semi-legitimate international government.

          1. So, Israel has no other qualities other than being Jewish, then?

            1. All I’m saying is that when people single out the sole Jewish state with a boycott, you can’t divorce “making their country fail/violating their sovereignty” from “destroying the Jewish people.” That’s the fundamental difference between BDS and the millions of American Jews who criticize Israeli policy.

  9. “In an economic sense, there is no real difference between a purchase and a sale. ”

    This is objectively true, but like any truth in life, if enough people believe it to be false, it is effectively false. Most people consider economics to be political now. Sellers (mostly, but this is changing too) still don’t care who buys their products, bar parties that would put them out of compliance with law. Buyers care a lot now about who they buy from. A purchase isn’t just a revealed preference based on price or quality, but an endorsement of said company and its values. Look at the Chick fil A protests; because its products are so highly regarded, the business is still profitable and people shop their despite public outrage. However, it is 100% undeniable that we now have an entrenched class of people who would be shopping at Chick fil A were it not for the controversy and values of ownership. If these people were insignificant in number, we wouldn’t see repeat municipality-wide bans of Chick fil A.

    The fact is that economics is entering a really scary era where the objective facts don’t matter and our feelings about the people operating a business do. I am deeply concerned about such a future because politicized ownership leads to politicized employees which, in turn, ultimately creates a politically segregated society where it becomes impossible to live and transact in a town/state/country without the proper morality that satisfies the Inquisition.

    1. I agree with you, though one can argue that the increasing cost of a-holish behavior is a result of honest market forces, whereas the Arkansas regulation is not.

      1. This might seem like a random tangent, but what is the libertarian answer to a society that very clearly votes to create an authoritarian government?

        I ask this because a free market could very well decide to increase costs for behavior they don’t like and that cost could eventually reach the point where a business will not employ people that don’t fit their customers’ morality. If that were to occur, business could be politically segregated to the point that a Republican would have to work for a Republican company in a Republican state that sells to fellow Republicans. Born in that state and don’t share their politics? Even if they don’t forcibly remove you, how will you be employable if the market operates this way? How will you be able to subsist if nobody will sell to you?

        I know market restrictions typically don’t bode well, but I worry that if we were going towards such an outcome, I don’t see how we could prevent it without restrictions. Or as some people here might say, destroying the Constitution to save the Constitution.

        1. “what is the libertarian answer to a society that very clearly votes to create an authoritarian government?”

          Don’t move there.

          1. And what if you already live there? I hope there’s a more satisfying answer than running with your tail between your legs. I for one don’t see a problem with un-libertarian tactics being used to maintain an otherwise libertarian society.

            1. “And what if you already live there?”

              Start packing.

              ” I for one don’t see a problem with un-libertarian tactics being used to maintain an otherwise libertarian society.”

              because you are no better than they are.

              1. So Jews should have just fled Nazi Germany and I’m no better than the Nazis are for wanting to use the necessary tactics to stop them.

                Yep, this is why Libertarians will always be a joke. At some point you have to start operating in reality.

                1. Oh wait, we’re talking about authoritarian regimes, so they use their rules to stop people from migrating and then genocide problematic populations who don’t like their “democratic” outcome.

                  Honestly, fuck off for that one. Dumbest thing I’ve ever read on this site.

    2. “In an economic sense, there is no real difference between a purchase and a sale. ”

      I think I disagree with this, but am not sure, because I don’t quite know what it means.

      In a barter transaction it’s true, but I don’t think it is where the sale is for cash. In barter, both buyer and seller receive some tangible object, or maybe an actual service. The nature of what the buyer and the seller receive is different in a cash transaction. The buyer gets the good, or the service, and the seller gets a claim on other goods other goods or services, which he may use lots of places, or save for future use, etc.

    3. “Look at the Chick fil A protests; because its products are so highly regarded, the business is still profitable and people shop their despite public outrage.”

      Mainly because the outrage is “public” only in the sense that it’s not secret, not in the sense that the public are outraged.

      ” However, it is 100% undeniable that we now have an entrenched class of people who would be shopping at Chick fil A were it not for the controversy and values of ownership. If these people were insignificant in number, we wouldn’t see repeat municipality-wide bans of Chick fil A.”

      Numerically, they ARE insignificant. The problem isn’t their numbers, it’s their positions. They are indeed “entrenched”, in positions of power.

      This is the problem of the day, all throughout the West: Almost all Western democracies have developed entrenched political classes, who have learned to game the system to keep people from outside their class out of power, and who have systematically different values from the general populace on a growing number of topics.

      1. I don’t know if you’ve been in these leftist pockets, but they’re pretty large. Right out of high school, I initially went to Northeastern and dropped out after my first year. While I was there, the student body voted not to allow Chick Fil A to establish a stand in the cafeteria because of Dan Cathy. Fun fact: same school AoC went to. Considering she’s a communist despite being an econ major, I sure dodged a bullet dropping out (I was an IB major at the time).

        https://www.huffpost.com/entry/chick-fil-a-franchise-northeastern-university-scrapped_n_1311755

        1. I have no idea what the relevance of anything you said is, but AOC went to BU, not Northeastern.

          1. Sorry, I always mix the two up. BU is right down the street.

            Anyways, the point was that the number of people who use the democratic process to politicize trade is much greater than I think some people realize. Our student senate voting 31-5 was a pretty wide margin. They didn’t get in there (student body was around 40k ppl when I attended) by just being an entrenched political class that isn’t supported by the majority.

      2. Of course, there used to be entire states without Chick-fil-A establishments in them. Do people who live in states with no Chick-fil-A stores engage in boycotts of Chick-fil-A stores, or is Chick-fil-A boycotting the state’s people?
        Since I left Oregon, they have opened several locations there, so maybe the question is moot.

  10. Your brief describes the boycotts as “refusing to deal with such companies based on the owners’ nationality”. But nobody’s boycotting a New York coffee shop because it’s owned by an Israeli. At issue are boycotts of companies that do business in Israel, even if company owners are French.

    Arguably, a boycott of voting-eligible Israeli citizens would be fine, too. Israel stresses that it’s a democracy; so who, if not its voting citizens, may be held to answer for its acts? Boycotts by _national origin_ (those simply born in Israel, regardless of current citizenship) are a different matter, but no one proposes that.

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New article, "Justice Kennedy and the Counter-Majoritarian Difficulty"

A symposium piece on the event of the Justice's retirement.

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I recently posted to SSRN a short essay, Justice Kennedy and the Counter-Majoritarian Difficulty.  The essay was published in the Hastings Law Journal as part of its recent symposium about Justice Kennedy's work on the Supreme Court.

Here's the Introduction:

Justice Kennedy is known for his vigorous view of the judiciary's role. The statistics bear that out. In a study of how often Justices voted to strike down legislation from 1994 to 2005, Justice Kennedy voted at the highest rate of the Justices on the Court  A quick recall of Justice Kennedy's most famous decisions naturally brings to mind decisions that invalidated legislative action. Think of Lawrence v. Texas, Obergefell v. Hodges, and Citizens United v. Federal Election Commission, just to name a few.

Some believe that Justice Kennedy lacked a consistent jurisprudential philosophy that guided his best-known work. I disagree. It's true that Justice Kennedy's opinions don't fit the standard narratives that guide so much analysis of Supreme Court decisions. These days, a judicial philosophy tends to be evaluated either using theories of interpretation such as originalism or by considering whether a Justice's opinions tend to favor consistently liberal or conservative outcomes. From those perspectives, Justice Kennedy's opinions don't seem to trace a straight line.

But I think Justice Kennedy's opinions do reflect a consistent view of the Supreme Court's role. It's a judicial philosophy rooted in a particular answer to the famous problem of constitutional law known as the counter-majoritarian difficulty. As you know, that phrase is generally attributed to Alexander Bickel and his famous book The Least Dangerous Branch. The puzzle is this: judges exercising judicial review invalidate legislation. But how is it democratically legitimate for judges, who are not elected, to strike down laws that the people's elected branches have enacted?

This brief Essay makes two points. First, it argues that Justice Kennedy's jurisprudence was rooted in a particular answer to the counter-majoritarian difficulty. According to this view, a vigorous judiciary is not necessarily counter-majoritarian because the public, over time, wants the Supreme Court to take that role. A strong Supreme Court that invalidates legislative action can be popular and even beloved among the public over time. I think Justice Kennedy's opinions are generally consistent with that theme.

Second, the Essay scrutinizes the assumptions of Justice Kennedy's view. It argues that what we might call the "popular support" solution to the countermajoritarian difficulty can be expressed in four different ways. It then explores each of the four arguments and considers whether they are persuasive. The persuasiveness of the approaches depends on your background assumptions about constitutional structure and the broader role of constitutions.

I confess at the outset that I am not persuaded by Justice Kennedy's view. I have some significant priors here: I'm a longtime fan of stare decisis, judicial restraint, and a modest view of the judicial role. Given that, my skepticism should be no surprise. But my interest in this Essay is not in the views of a single wayward former clerk like me. Instead, my goal is to try to contribute, in some small way, to understanding the assumptions on which Justice Kennedy's jurisprudence rests.

 

 

 

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25 responses to “New article, "Justice Kennedy and the Counter-Majoritarian Difficulty"

  1. What throws people off about Kennedy is Obergefell. But the reality of Obergefell is that it helped Republicans by taking a divisive issue out of the public discourse…and unlike abortion same sex marriage is innocuous and impacts very few people. You know what isn’t an innocuous law? Obamacare. And according to Biskupic’s book about Roberts Kennedy was prepared to find the ACA individual mandate unconstitutional and NOT severable!?! Bottom line—the guy was a partisan concerned with the success of the Republican Party.

    1. “helped Republicans”

      With friends like him, we don’t need enemies.

      1. Conservatives lost the culture war with him. They would have lost the culture war without him.

    2. It doesn’t impact a lot of people directly, but it poisons society. When marriage is no longer about the traditional nuclear family and rearing children and instead making two deviants happy that society has given them its stamp of approval on their gross bedroom behavior, marriage as an institution is damaged.

      1. “Traditional nuclear family” is an oxymoron. Up until the last 70 years the nuclear family rarely existed because early death was so prevalent. So just take the first 7 presidents and you would see how rare a nuclear family was with widows and step parents and children growing up without parents and parents giving children to other family members to raise. If the nuclear family was so important humans would have died out long ago.

        1. And if we want to be traditional, then a family has traditionally consisted of a patriarch and matriarch managing a large compound housing all male descendants, their families, and unwed daughters, typically working in the family business, whether it’s farming or craftsmanship.

          1. It’s almost like conservatives have never seen a Jane Austen movie?? Oh, and with more immigrants the nuclear family is breaking down and WASPs will suffer as Asians raise children in a multigenerational households with more people to share the joy/burden of raising children. In fact from what I can surmise both Obama and the Trump White House feature grandparents helping with children!

  2. The question, concisely stated:
    “But how is it democratically legitimate for judges, who are not elected, to strike down laws that the people’s elected branches have enacted?”

    Short version of the answer:
    “Because the Bill of Rights is an explicitly counter-majoritarian document.”

    We don’t have a democracy; we have a republic which has as a primary (unstated) principle valuing each individual, even over the “good” of “the whole”. The Bill of Rights states principles that people don’t necessarily “like” or “respect” until the majority turns on them and/or their interests. Enforcing the Bill of Rights in favor of the minority (of whatever flavor) against whom the majority aims their power is arguably central to the judicial role, particularly when sitting on the Supreme Court.

    There it is, in short. I’m not getting paid by the word.

      1. I’ll add my thanks. And …

        As a co-equal branch, the judiciary is the only defense from the abuse of our rights by the executive and legislative branches.

        Downright scary is the increasing excuse of “a duly elected President” which would apply only to an absolute dictatorship. “He wa

        1. …”He was elected” seems to assume voters approved absolutely everything about the man, and overlooked every single negative … and who won by a handful of voters, 39,000 in three states combined, well within the possibilities of such massive Russian interference, Wikileaks and Comey’s Hillary assault.

          These are dangerous times for our Constitution and for the rights it defends. Democrats are now competing to see who can be the most extreme in assaulting individual liberty, Republicans are already there. And libertarians are babbling anti-government slogans, to “promote libertarian ideas,” People are now open to even radical libertarian solutions, but we have not a single one.

          The judiciary was our last defense of the Constitution … until the 2/3 majority to approve Justices was breached. We must restore that by Amendment.

          1. ”He was elected” seems to assume voters approved absolutely everything about the man, and overlooked every single negative

            As does, “This was litigated in 2016.”

          2. “until the 2/3 majority to approve Justices was breached.”

            There has never been a 2/3rds majority requirement to confirm Justices.

            There used to be a 2/3rds majority requirement for cloture in order to even hold a confirmation vote. However, it should be noted that there are several cases for Supreme Court Justice nominees where a cloture vote to end a filibuster was required and passed and then the actual confirmation vote was a bare minimum 51%

            Do not confuse cloture for ending filibusters with the actual confirmation vote. Again as state above there are cases where Senators voted for cloture while intending to vote against confirmation.

    1. But several of Kennedy’s most famous opinions (Lawrence v. Texas, Obergefell v. Hodges) involved the 14A, not the Bill of Rights. The 14A is not an expressly counter-majoritarian document. It has an expressly majoritarian remedy, at Section 5. And since the Bill of Rights were never intended to limit the states in the first place, how can it be said that they were “explicitly . . . counter-majoritarian” with respect to state action?

      1. Arguably Section 5 of 14A gives no role to the Courts except for interpreting Congressional passed legislation.

        No legislation, no judicial power.

        1. That seems like a logical reading of the 14A, especially in context. Judicial review had not ramped up by the time of the 14A, which itself was enacted in part in response to legislative concerns about SCOTUS over-exerting itself in Dredd Scott, more specifically fears that either the President or SCOTUS would declared the 1866 Civil Rights Act unconstitutional.

          Given that history, your interpretation is certainly better than Kennedy’s insane power grab in City of Boerne. I think the main issue is that SCOTUS should have interpreted the 14A as a direct rebuke of the “traditional separation of powers between Congress and the Judiciary”, rather than doubling-down on their power.

          Raises some interesting issues re: counter-majoritarianism too. The RFRA is itself a counter-majoritarian law, since it purports to limit the majority. When Kennedy narrowed the RFRA by limiting Congressional power, was it counter-majoritarian of him to do so?

          1. When enacted the RFRA had enormous support. It would have been counter-(local!)majoritarian, but not globally so.

  3. Someone said of Justice Kennedy that he was not, as was so often said, a moderate; rather, he was an extremist with an unusual collection of extreme views.

    1. That, indeed, is very well put.

      1. Agreed, it fits Tony K.

    2. Pretty much. Only an extremist could find that prohibiting gay sex/marriage is an affront to human dignity.

  4. For deciding where counter-majoritarianism should apply, I suggest the following taxonomy. Counter-majoritarianism:

    1. Is right and required for the defense of enumerated rights of natural persons. And likewise is applicable to the enumerated rights of corporations, insofar as each such corporate right is also explicitly supported by statute—except that the constitutional prohibition against taking property without just compensation will always apply.

    2. Is applicable, but complicated, when used to defend property rights which are explicitly stated in the Constitution. The complications being mutual interactions among rival property rights claims—with some claimants being political majorities, and others being individual natural persons, or corporations.

    3. Is at a low ebb when defending so-called natural rights, and other vaguely-founded claims by individuals seeking to be personally empowered to stay the hand of government.

    4. Is right out as a backstop against unwise policy, or on questions of fact upon which policy is based, or on contested theoretical questions—including almost every assertion made about economics.

    5. Can be applied against arbitrary and capricious actions by political majorities, but only insofar as the actions ruled upon are explicitly barred by statute from being exercised arbitrarily or capriciously.

    6. Cannot, except in cases mentioned above, reach choices made by majorities based only on political will—including those based on apparently arbitrary choice, or without supporting evidence.

    No doubt you lawyers will have fun taking that apart. Please don’t bother telling me I am wrong because what I suggest is not the way the law works now. I know that. It’s part of my point. Instead, tell me why proposed changes you don’t like are no good. Please try to be sure you don’t end up arguing in favor of judicial supremacy by accident. If you want to make that case on purpose, have at it.

  5. How was Justice Kennedy any different from some fancy-dress, bemedalled colonel claiming to embody the General Will of the people against the corrupt and decadent parliamentarians and politicians? Except he had a robe not a military uniform.

  6. My basic difficulty with Justice Kennedy is that he treated his personal opinions on various issues as if they were objective and incontrovertible reality. What Potter Stewart did with obscenity – “I know it when I see it” – Anthony Kennedy did with morality generally. What was right to him personally was inherently, universally right; what was wrong to him personally was inherently, universally wrong. He consulted his conscious to decide his cases.

    There are situations where there may be nothing better to consult. But when a judge is purporting to interpret a written constitution in what purports to be a democracy, there has to be some other basis for completely discounting what others, through their elected representative, have chosen.

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Yemen

Legal Scholars' Letter on Initiating a Congressional Lawsuit to End Illegal US Role in the Yemen War

A letter signed by a wide range of scholars with different political and jurisprudential views urges Congress to sue to end illegal US involvement in the Yemen conflict.

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Children walk through a badly damaged neighborhood in Aden, Yemen.

A cross-ideological group of constitutional and national security law scholars recently submitted a letter to Speaker of the House Nancy Pelosi urging her and the House of Representatives to initiate a lawsuit to halt the illegal US role supporting Saudi Arabia and its allies in the war in Yemen. The letter was drafted by Yale Law School Professor Bruce Ackerman, with assistance from the other participants. Signatories include Ackerman, Richard Albert (University of Texas), Rosa Brooks (Georgetown), Erwin Chemerinsky (dean of the law school at UC Berkeley), Mary Dudziak (Emory), Michael Glennon (Tufts), Jon Michaels (UCLA), Mary Ellen O'Connell (Notre Dame), Michael Ramsey (Univ. of San Diego, and one of the authors of the Originalism Blog), Aziz Rana (Cornell), Scott Shapiro (Yale), Ruti Teitel (New York Law School), and myself, among others (institutional affiliations listed for identification purposes only).

Here is an excerpt:

In vetoing Congress' joint resolution on Yemen, President Trump has defied fundamental principles of constitutional law laid down by the Supreme Court's landmark decision in the [1953] Steel Seizure Case. The Court's decision involved a genuine emergency. A steelworkers' strike had halted production, and this led to a dramatic reduction of crucial war materiel required by American troops fighting in Korea. Faced with a clear and present danger to the war effort, President Truman seized the steel mills in his capacity as Commander-in-Chief and ordered the workers back to work. In taking this step, Truman refused to follow specific provisions of the Taft-Hartley Act that Congress had laid out to deal with strikes in national emergencies. He instead declared that, as Commander-in-Chief, he had the power to act independently of the law laid down by Congress. The Supreme Court rejected Truman's assertion of unilateral power as unconstitutional in the Steel Seizure Case…

We call upon you, as Speaker of the House, to initiate a law-suit which calls upon the judiciary to vindicate Steel Seizure in the case of President Trump's military support of the Saudi war against Yemen. President Trump raises the very same constitutional question decided by Youngstown – only this time, it is the War Powers Resolution, not the Taft-Hartley Act, which explicitly prohibits the president from using his power as commander-in-chief to engage in unilateral war-making.

President Trump's decision to support the war in Yemen represents a clear violation of the [1973] War Power Resolution's reaffirmation of the Founder's grant to Congress over the ultimate question of war and peace. Section 8(a)(c) not only grants Congress power to forbid American troops from engaging in "hostilities" involving direct acts of violence. It explicitly defines "hostilities" very broadly to enable the House and Senate to prohibit American armed forces from engaging in actions which "coordinate" or "accompany" the "regular or irregular military forces of any foreign country." Congress was acting well within its constitutional authority in insisting on this broad definition of "hostilities." Given the ease with which military "coordination" with foreign powers can escalate into full-blown war under modern conditions, the Constitution's "necessary and proper" clause gave Congress ample authority to include these indirect forms of military support in order to preserve its ultimate authority "to declare war."

I offered some additional analysis of the illegality of US intervention in the Yemen War here (in a post that reflects solely my own views, and not necessarily those of other signers of the letter):

[In April], President Donald Trump vetoed a congressional resolution that would have terminated US military aid to Saudi Arabia and its allies in the Yemen conflict….

But Trump's veto of the resolution is not enough to make the US role in this conflict legal. It is still in violation of the 1973 War Powers Resolution…  That legislation forbids the "introduction" of US forces into "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances," for a period of more than 90 days without congressional authorization…. Significantly, the WPR defines "introduction" into hostilities to include  "the assignment of member[s] of [the US] armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that such forces will become engaged, in hostilities."

While US forces are not directly engaged in combat in Yemen, the Trump Administration itself admits that they have provided intelligence, logistical support, and—at times—even in-flight refueling of Saudi aircraft. As Utah Republican Sen. Mike Lee…, puts it, "We're literally telling the Saudis what to bomb, what to hit, and what and who to take out." That pretty clearly amounts to US involvement in the command, coordination, and "movement" of Saudi forces—exactly the sort of thing that the WPR forbids, absent congressional authorization.

US involvement in the Yemen War dates back to the Obama administration, and has long since passed the 90 day WPR deadline. Congress has never voted to authorize that involvement. Thus, it is illegal.

There is widespread bipartisan concern in Congress about the illegality of this conflict and the very dangerous precedent it sets. That is why the Yemen resolution passed in the first place, with support ranging from conservatives such as Senator Lee, to libertarians like Justin Amash, and virtually all Democrats. Rep. Ro Khanna, Vice-Chair of the House Progressive Caucus likewise supported the Yemen resolution, and now has also endorsed the lawsuit plan.

Unfortunately, widespread concern cannot stop the intervention by traditional legislative means alone, because the president can veto any congressional resolution he opposes, and the veto can only be overriden by an overwhelming two-thirds majority in both houses of Congress. By circumventing the War Powers Act Trump (like Obama before him) has shifted authority away from Congress to himself, ensuring that the default position is that he can continue the intervention, rather than that he must stop it unless Congress gives its affirmative consent. That makes a hash of the Founding Fathers' scheme to ensure that the president cannot enter into new international conflicts without getting advance congressional approval.

A lawsuit could help redress this imbalance by enabling Congress to stop the illegal legislation without having to through a process in which the president can use the veto to shield his power grab. Even though success is far from certain, it is a strategy that deserves to be tried.

Some will likely condemn this strategy because the courts may dismiss such a lawsuit for lack of "standing." That could happen. But, in my view, Congress has a strong basis for standing in cases where the president has appropriated a core congressional power for himself.

In order to get standing to sue, a plaintiff, must prove that it has 1) suffered an "injury in fact" that is "concrete" and "particularized," 2) that there is a causal link between the injury and the defendant's supposedly illegal conduct, and 3) that the injury can be redressed by a judicial ruling. Presidential circumvention of the War Powers Act  inflicts a "concrete" and "particularized" injury on Congress by depriving it of its share of control over the deployment of US military forces—an extremely important national asset. In addition, there is no doubt there is a causal link between the president's actions and Congress' injury. And a court can redress the injury by ordering a halt to unauthorized US military assistance to the Saudis and their allies.

Presidential usurpation of congressional war powers is not a new problem. Along with others, Bruce Ackerman and I spoke out against it during the Obama years. The time has come to consider new strategies for reining in the executive in order to ensure that no one person has the power to take the nation to war. As James Madison put it, "[i]n no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department…. [T]he trust and the temptation would be too great for any one man…"

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68 responses to “Legal Scholars' Letter on Initiating a Congressional Lawsuit to End Illegal US Role in the Yemen War

  1. Wouldn’t waging an illegal war be impeachable?

    But to put this in context, there are so many Presidents who could have been impeached under such a nitpicking interpretation of the Constitution, so I guess it’s unfair to single out Trump.

    1. It would be, if the US was actually waging war in Yemen. It’s not. It’s a bad example for the War Powers Act.

  2. In vetoing Congress’ joint resolution on Yemen, President Trump has defied fundamental principles of constitutional law

    I expect better analysis based on the professional bylines of the signing law professors.

    The President’s veto can never be a violation of Constitutional Law. Either the President is required to act (and therefore has no option to exercise his veto) or he is not required to act (and therefore does not violate the constitution).

    Of course, the truth is that this is a political call to arms by people who are comfortable enough to abuse their position for political ends. But we, as lawyers, should expect those who represent our profession to engage in a modicum of analysis.

    1. Actually, the President’s veto power is NOT all-inclusive. Yes, a President can veto legislation passed by both houses of Congress. BUT a President has no constitutional role to play with respect to certain acts of Congress. For example, proposed Amendments to the Constitution are approved only by the House and the Senate under Article V of the Constitution; no action by the President is even necessary. It is true that Article I, Section 7, Clause 3 allows the President to either approve or disapprove (i.e., veto) every Resolution to which the concurrence of the House and Senate may be “necessary”, there is a legitimate question whether the Joint Resolution under the War Powers Resolution in this case was subject to that veto power. Under Section 1544(c) of the War Powers Resolution, which was passed over Nixon’s veto, a Joint Resolution of Congress, even without the consent of the President, is sufficient to command the President to cease all hostilities not supported by a declaration of war or authorization for use of military force. There is a question whether or not that violates the presentment requirement of Article I, Section 7, but that issue has never been resolved.

      1. It’s true that there are Congressional actions a President can’t veto. But for any action subject to the presentiment clause, and that’s most of them with any legal significance at all, Presidents can veto, and a veto in those cases can NEVER be unconstitutional.

        In other cases, the veto isn’t so much unconstitutional as it is irrelevant.

      2. Yes, I agree completely. But the point is the President’s veto is always a discretionary exercise of his executive authority. The President’s veto cannot, as a matter of law, be a constitutional violation as asserted by the signatories of this political manifesto.

        His veto might signal a disregard for Congress’ authority, it might be a bad political decision, it might be dangerous for the country, it could even be irrelevant. But it’s not a constitutional violation.

        I would expect professors of major law schools to be more precise with what purports to be a legal analysis.

        1. Yeah, “purports” is the key point here.

        2. ” But the point is the President’s veto is always a discretionary exercise of his executive authority.”

          But it isn’t.

          If, say, the President offers a treaty to the Senate, and the Senate votes not to ratify, and the President vetoes the Senate vote and announces that the treaty will go into effect…
          That’s not a constitutional use of the veto power.

          1. That’s just idiotic, and not a veto period.

            A veto is for legislation passed by Congress. It’s not for things that “aren’t” passed. The president can’t present a bill or planned appropriation to Congress, have Congress not pass it and then say “I’m going to veto what you didn’t pass, it goes into effect!”.

      3. “Joint Resolution of Congress, even without the consent of the President, is sufficient to command the President”

        The Act does say that but it violates the Presentment Clause based on the Supreme Court’s decision in the line item veto case

  3. Oh, boy. More government by litigation.

    1. I have no objection to government by litigation when the President acts contrary to the Constitution. I had no objection to the lawsuit seeking to stop the Obama Administration from making payments to health insurance companies when there had been no appropriations for such payments, and I have no objection to this litigation, as I see Trump’s action as a usurpation of Congressional control over the power to declare war. I only wish that the Federal courts were truly impartial in deciding these cases. It seems that far too many judges are willing to find that whatever Trump does is either unlawful or unconstitutional (as in the DACA litigation or the Census case), when the same judges bend over backwards to find a legal justification for whatever Obama might have done.

  4. “US involvement in the Yemen War dates back to the Obama administration, and has long since passed the 90 day WPR deadline. Congress has never voted to authorize that involvement. Thus, it is illegal.”

    It was equally illegal during the Obama administration. Did they write a letter then? If no, then this isn’t really about the law.

    1. Does not follow.

      Nonetheless, I agree with Somin and the signatories. Congress needs to approve these adventures, and individual members, of whatever party, need to be accountable to the voters for their support or opposition.

      One of the great flaws of our system as it has evolved is the myriad ways members of Congress can avoid having to vote on important matters. I suspect that many like the situation wrt wars just fine, for that very reason.

      Ultimately, we elect these people to vote, not to make speeches or appear on television, or raise money. Make them do their job.

    2. If it was illegal then, it’s still illegal now. The fact that nobody objected when Obama was in office reveals the corruption and hypocrisy of the Democratic Party, but it doesn’t excuse Trump’s continuing the illegal conduct.

      1. Well, I agree, it would be a fallacy to say, “They are hypocrites, therefore Trump is innocent.”

        But it would be a fallacy in the same sense as, “They are reading words randomly selected from a dictionary by throwing dice, therefore Trump is innocent.”

        I’m not arguing their obvious hypocrisy proves Trump innocent, merely that it deprives their claims of any presumption to be taken seriously on the basis of their being “legal scholars”, since it it obvious their claims aren’t motivated by legal scholarship.

        They may have, out of purely political motives, stumbled upon valid claims. I just wouldn’t presume it.

        1. To be clear… these sorts of “letters” seek to trade on the reputation of a group of presumed experts to provide political claims with a gloss of legitimacy. I’ve never been impressed with the genre.

          1. “Presumed” sounds a little pejorative here.

            Are there other experts you’d prefer to hear from?

            1. Ones that complained about Obama’s identical actions?

              Presumed was meant to be pejorative. In the context of these “letters”, they’re generally not acting as experts, but as political partisans.

              Again, I’m not saying they’re wrong, just that their arguments have to be evaluated without any benefit accruing from their status as “legal scholars”.

    3. “It was equally illegal during the Obama administration. Did they write a letter then? If no, then this isn’t really about the law.”

      It depends if the 90 days passed after the prior administration initiated action under the War Powers Act. I’m not sure what the answer to that is.

      1. I recall quite well, because I DID complain at the time. 90 days certainly passed.

        White House Defends Continuing U.S. Role in Libya Operation

        1. We were talking about Yemen. If you’re talking about Libya, yes, many people complained on the same grounds, so your selective enforcement argument is weakened.

          1. “It” was military actions without Congressional approval”, I thought, not “This specific military action without Congressional approval.”

            1. The attack on Libya was by NATO. According to the Constitution, treaties are law. So if one took action under the terms of a treaty, and the other took action without a treaty, then the two cases aren’t similar.

              1. Which part of the NATO treaty specifically overrules the War Powers Act in regards to military attacks in Libya?

                1. OK, I’ll defend the general concept: Treaties do actually override statutes, though not the Constitution itself.

                  But that doesn’t really get you anywhere, because overriding a law delegating to the President Congress’s power to declare war would just leave the President with less power, not more.

  5. If this “cross-ideological” group of law professors had previously written a similar letter regarding Obama’s use of force in Libya, Prof. Somin and his comrades would have some credibility. But they didn’t, and they don’t.

    The plain fact is, the Obama administration established the precedent that bombing other countries is not “hostilities,” and the honorable men like Ackerman and Chemerinsky concurred, and now they don’t like being taken at their word. Maybe they’ll learn the meaning of integrity before they die, although time is running short for some of them.

    1. If this “cross-ideological” group of law professors had previously written a similar letter regarding Obama’s use of force in Libya, Prof. Somin and his comrades would have some credibility. But they didn’t, and they don’t.

      I have no idea what if anything Ackerman or Chemerinsky wrote about the American use of force in Libya. Do you?

      What I do recall is that Ilya criticized it on the same basis (violation of the War Powers Act) that he now criticizes American military intervention in Yemen. And that several regular liberal VC commenters, myself included, agreed with him.

      Would you like any help climbing down from that high horse now?

    2. I agree that this cry de coeur of these self-styled experts is simply more Trump derangement. But it certainly not Obama who established any “precedent” in this area. Bush the Elder invaded Panama and dragged their Presidente, Noriega, kicking and screaming to the hoosegow. He also established and enforced a “no-fly” zone over northern Iraq. Bill Clinton extensively bombed Yugoslavia and later Serbia (including taking out the Chinese Embassy in Belgrade with a cruise missile; bombed Iraq (Operation Desert Thunder, IIRC) over Saddam’s biological weapons programs; bombed Afghanistan more than once; bombed an aspirin factory in the Sudan. Obama of course overthrew whatever government there was in Libya and left behind the mess that is there now. I could go back further, to Reagan, Ike, even FDR. None of these military actions had any prior or even ex post facto Congressional approval. Now comes Trump who has some special forces ops going in Yemen and Mali and so forth who is deemed to be shredding the Constitution and violating established norms. do the writers of these transparent partisan screeds really expect to be taking seriously?

      1. “bombed an aspirin factory in the Sudan.”

        I keep having to point this out: It wasn’t an aspirin factory. It hasn’t even been established that they ever made aspirin at that plant.

        It was a pharmaceutical factory, primarily producing anti-parasitic drugs for the African market. A lot of people likely died, and unpleasantly, due to the shortages that bombing caused.

        It was called an “aspirin factory” in an effort to downplay just how serious what he’d done really was.

  6. I love that the War Power’s Act is being treated as valid law, when it is clearly unconstitutional.

    Congress can declare war, and the President executes it.
    If Congress has not declared war, then the President cannot fight a war.

    The War Power’s Act tries to pretend there is some intermediate state where Congress has not declared a foreign war, but it is OK for the President to fight one anyway, for a little while.

    1. Alternatively, the War Powers Act already is Congressional authorization for any war the President chooses, at least for the first 90 days.

      What Congress should have done here, however, was NOT submit it to the President. As a revocation of a declaration of war under the WPA, no executive assent was needed.

      1. How can Congress declare war, but only for 90 days?

        Foreign relations – such as treaties used to end a war – are the province of the Executive. How can Congress preemptively produce a peace treaty with foreign powers, without the Executive submitting it to Congress or the Senate ratifying it?

        1. Congress can condition the war. You have war for 90 days. War doesn’t have to end with a peace treaty. It can end with retreat. Surely you agree Congress can unilaterally revoke declarations of war?

          1. I certainly do not agree that Congress can condition war, or “revoke” a declaration of war.

            Nor do I agree that a war can end through other than a treaty. A retreat is just an end to fighting, not a change in the state of international relations.

            Allowing Congress to put restrictions or conditions on the conduct of the war allows them to take over the Executive’s command of the military.

            1. Ok, well, cool. We disagree.

              “Allowing Congress to put restrictions or conditions on the conduct of the war allows them to take over the Executive’s command of the military.”

              Yes, that’s the point. That’s why the Constitution gave Congress a bunch of power over how the President commands the military, like the power of the purse, declaration, etc.

              1. Yes, Congress has certain specified powers they can use to try to influence the President’s conduct of the war they declared. Those powers are spelled out in the constitution, and “revoking” war declarations isn’t one of them.

                It doesn’t even make sense. Why would there be a need for Senate ratification of peace treaties if the war declaration could just be “revoked” or written to end upon Congress’s whim, with a simple majority vote?

                1. “It doesn’t even make sense. Why would there be a need for Senate ratification of peace treaties if the war declaration could just be ‘revoked’ or written to end upon Congress’s whim”

                  Not being at war and being bound by a treaty are not the same thing, so it’s not a surprise that they would be treated differently.

                  1. A peace treaty is most certainly a binding treaty. Ending a war requires a peace treaty; otherwise there is simply a lull in the fighting that can resume at any time.

                    Playing silly word games with “war” is what got the US into this situation with “police actions” and “AUMF”s. Adding in word games about “peace” doesn’t improve the situation.

            2. “Allowing Congress to put restrictions or conditions on the conduct of the war allows them to take over the Executive’s command of the military.”

              Then the President should veto it if the limitations are too severe, and ask for authorization more to his liking.

    2. “pretend there is some intermediate state where Congress has not declared a foreign war, but it is OK for the President to fight one anyway”

      Its not “pretend” to think that there is a range of use of the military.

      Use of military force is not “war” per se. We have been using force without a declaration of war since the undeclared naval war with France.

      Did Congress declare war each time the cavalry went out to fight sovereign Indian tribes?

      1. That’s a terrible example, considering the Constitution allows the Executive to defend the country. Or for the states to defend themselves.

        However, I do agree that not everything is a war, although the “police action” and “Authorization for the Use of Military Force” equivalents are war in everything but the name.
        Single actions probably aren’t “war”. Multi-year operations almost certainly are.

        If Congress disagrees with what the President is doing, then they have tools that do not require overstepping their constitutional limits. They can defund, they can refuse to approve officials that support the President’s policies, and so on. In the extreme case, Congress can impeach.

    3. “The War Power’s Act tries to pretend there is some intermediate state where Congress has not declared a foreign war, but it is OK for the President to fight one anyway, for a little while.”

      Such a state exists. It’s that “emergency” state that people were complaining that Mr. Trump declared even though there isn’t actually one at present.

      Here’s an example:
      A foreign nation is beset by violent revolution. The American embassy is overrun, and prisoners taken. The President authorizes military action to retrieve the hostages. That part’s OK, the President has the authority to command the armed forces, to defend American citizens.
      Alas, the initial mission is only partially successful. So the President expands operations, now actively fighting the revolutionaries. There’s no declaration of war, because there’s nobody to declare war on… the revolutionaries are not yet a recognized nation. At some point, the President IS waging war, but IS NOT doing so pursuant to a declaration of war by Congress. The emergency is over, the quagmire is begun.
      Now, since you don’t believe that there’s any intermediary step between lawful Presidential military engagement and illegal, overstepping of Constitutional bounds… where, exactly, did the switch get flipped?

      1. Easy: The minute prolonged operations began (“now actively fighting the revolutionaries”).
        I would also accept an argument that defending the US government’s embassy is defending the country, although that’s a bit weak. I would also accept a reasonable argument that the President’s initial action was unconstitutional in the first place – I don’t see anything in the Constitution about emergency foreign military operations without Congressional approval.

        Incidentally, there is no need for something to be a recognized foreign state in order to declare war on it. It is quite easy to declare war on any non-state group (such as a rebel movement). Not to mention many such groups would be de facto states (See: ISIL).

  7. Lets make a deal Somin, we’ll stop trying to solve their problems over there if you and them agree not to bring these problems over here. Sound fair?

  8. It seems that the Constitution provides a very clear mechanism to resolve this dispute: the Congress does not appropriate the money to fund these operations. If the President vetoes the appropriation bill, then nothing can take place. My guess is that the Supreme Court would say that the Congress has the means to resolve this themselves, they just chose not to do so and as a result the Supreme Court will refuse to become involved.

    1. Allow me to read ahead in the script. The President declares an emergency, and diverts funds appropriated for other things to spend on whatever it is he feels like doing.

      1. Pursuant to a law Congress itself had stupidly enacted, and now cannot repeal without overcoming a Presidential veto. But, still, pursuant to a law Congress itself enacted.

      2. “Diverts funds already appropriated for other things”

        Subject to the limitations in the law, which are numerous.

        1. Why would you assume that President Trump would act subject to the limitations of the law? I certainly didn’t make that assumption.

          1. You may not like how the law is interpreted, but it’s still the law, and it’s still listened to.

            1. In what way are how I like the law interpreted, and Mr. Trump’s intention to follow, or not follow, the law related?

  9. If they want to get Trump’s attention, Congress (or just the House) should simply refuse to fund any travel by White House staff, including specifically the Secret Service. 0 jet fuel for Air Force One. No hundreds of staffers being put into hotel rooms at taxpayer expense. (Coincidentally, all of them staying in properties Mr. Trump takes profits from).

    Make Trump stay in Washington, with no more jaunts to golf courses, or rallies, or anything but D.C. He clearly hates being in D.C., and it’s not like he’s going to spend any of HIS money to do anything.

    1. They ought to try. Such pettiness always is effective.

  10. 3) that the injury can be redressed by a judicial ruling.

    In Trump’s case, isn’t that predicate very much in question?

    Even if the case were won in the Supreme Court, what if Trump just goes ahead anyway? Potential answers to some questions make them too dangerous to ask.

    Trump’s reign of recklessness is a political problem, not a judicial problem. Political problems require political solutions. Given the Senate majority’s abiding unwillingness to participate, any political solution to Trump’s defiance will require the House to strain to the utmost its own political power—which will require willingness to create and manage a crisis that transforms the politics of impeachment, and makes it realistic.

    Henceforth, Trump should have appropriations for nothing that conveniences his executive power. He should be struggling under explicit threat of impeachment, with ongoing investigations demanding accountability from his staff. His deputies and enablers in the administration should be so beset with subpoenas and contempt citations that they fear going to work, and fear supporting Trump more than they fear being fired.

    Accomplishing that would create the right kind of crisis. It would be the kind based on a clash of countervailing political powers—the kind the constitution and the federalist papers assured the American people they could use to check executive power gone out of control.

    Alas, there is political failure in the House. It is a failure different in its particulars, but not in its consequences, from that in the Senate. The leadership of the House quails. Whether through timidity, misguided political calculation, or because of a desire to block events which would empower leadership rivals within her own party—Pelosi has turned herself into a Trump appeaser.

    That means the necessary first step toward resolving the Trump crisis is not going to court, but revolt in the House, against its present leadership. Going to court invites protracting the crisis indefinitely. Even if obeyed, no single judgment will deter Trump of his method to transgress and be judged, again and again, and govern that way. But if court judgments go against Trump, and he chooses defiance, continued appeasement risks taking a step over the edge into actual tyranny.

    While Trump enjoys the full power of the executive office, his actual and implicit threats of defiance and retaliation remain too imposing. Thus, the first step must be to use countervailing political power to clarify for voters the particulars of Trump’s abuses, strip Trump of his uncritical political support, and weaken him sufficiently in the Senate to make removal from office realistic.

    Only action by the House can accomplish that. It is not certain that it will, but the effort must be made. Revolt in the House cannot start too soon.

    1. Even if the case were won in the Supreme Court, what if Trump just goes ahead anyway?

      What actions by the President suggest that he would disregard the Supreme Court’s final decision on the merits?

      If we were still in the previous administration you may have a point.

      1. What actions by the President suggest that he would disregard the Supreme Court’s final decision on the merits?

        If we were still in the previous administration you may have a point.

        Exactly correct. Our HEROIC & NOBLE PRESIDENT DONALD J. TRUMP is the most law-abiding President ever. He has obeyed clearly lawless 44*-judge rulings, even though they are meritless and motivated solely by a tantrum refusal to abide by the result of the election.

      2. What actions by the President suggest that he would disregard the Supreme Court’s final decision on the merits?

        It’s not all actions by the president. One point of my comment was that weakness from Democrats encourages misbehavior by Trump. And conversely, but perhaps even more relevant, I suggest a large plurality of Trump’s base would be happy with anything—including Court defiance—if it frustrated Democrats.

        Trump governs with no thought except pleasing the base, and using that base support as a firewall against an impeachment trial in the Senate. A president who thinks he is not impeachable is not a president who needs to knuckle under to a court.

        That does not mean there are not bad signs from Trump himself. There are too many to recite. You can probably name them as well as I can. But here are four you might leave off, that stand out as threatening:

        1. Trump’s constant efforts to de-legitimize the press.

        2. Trump’s “tough guys” remarks, where he threatened political opponents that he could direct mob violence against them.

        3. Trump’s many instances of expressed contempt for the judiciary.

        4. Trump’s defiance of checks and balances in his dealings with the House. Only the House has relevant power to enforce a court ruling against Trump.

        Perhaps you don’t think as I do that Trumpism shows historical earmarks of an incipient tyranny. I suggest anyway that there is enough there that even a Trump apologist should not be taken seriously if his principle response to others’ alarm is mere whataboutery.

        1. I am not afraid of incipient tyranny on the part of Trump. Not because I don’t think he’d like being a tyrant… he clearly longs for it… but because he’s so clearly incapable of doing anything. He needs to have other people around who can actually DO things, so that things get done and Trump can take credit for the things getting done.
          A real tyrant can get things done themselves, which leaves them free to liquidate anyone else nearby who might ALSO be able to get things done, because they might be a threat.
          From my point of view, Trump is an anti-tyrant… not that that’s a compliment. But for sheer ineffectiveness, it’s hard to beat Trump’s record. He managed to lose money operating a casino, whose very business model is that people come, hand over their money for nothing in return, and then leave.

  11. From a legal point of view, I could see how a court could reject a congressional lawsuit because Congress has the authority to override the President’s veto.

    I could see the court saying, “Hey, do this yourself.”

    Just because Congress can’t override the veto because there’s not enough votes shouldn’t make it ripe for a lawsuit.

  12. Congress regularly does, and the courts approve, cast off their legislative powers to the executive branch under the sophistry it’s executing a (meta) law.

    So why not cast off their power to declare war? Who cares? Why should this generation be bound to what dead generations said?

  13. This is a bad case for the war powers act.

    The primary issue here is, the US armed forces are not involved in hostilities. They are not bombing anyone. They have no armed forces in Yemen. It’s intelligence support and logistical back end support, at most.

    If this is a “violation” of the war powers act, what else is? Current US support for Ukraine? US support for Afghanistan in the 1980s? US support for the UK and France in 1915? US support for Nationalist China in 1939?

    Leave the War Powers Act for actual cases involving US forces in combat. If Congress wants to stop any US support for Saudi Arabia, they can do so via the normal channels.

  14. Every war is always called “illegal”, as if nation states obeyed laws. Does anyone still think calling a war “illegal” is persuasive in any way? Why continue with this particular pretense?

    1. When we’re talking about our involvement in a war, our involvement may have followed lawful practices, or it might not have. If it didn’t, pointing out that it didn’t doesn’t magically get us out of it, but it does illustrate the leadership choices of whoever got us into the war.

      When you talk about war in general, the conduct of the war by methods proscribed by treaty affects actions after the war is over.

      Finally, sometimes it affects moral judgment. Japan dragged the U.S. into the shooting war in 1941. They also got on the receiving end of 100% of all the atomic weapons ever used in war. They wanted us in the war, and they got us into the war. Turns out, they would have rather not had us in the war.

  15. If you want to sue over this, why not find a plaintiff who has standing?

    And even if one did, the political question doctrine might apply. After all, it’s not like Congress thinks the President has done anything seriously wrong. After all, if they did, they would do something they have the power to do, like impeach the guy, rather than doing useless gestures like making speeches, filing lawsuits, and other behavior that pretends someone else is responsible.

    1. Impeachment without conviction is rather meaningless.

      In much the same way prosecutors don’t indict until they’re sure they have enough evidence to convict, but that doesn’t mean they don’t know whodunnit and why.

  16. After Chatha, Congress went through every statute with a legislative veto and turned it into a requirement for a full Act of Congress. This was giving away the store. The President was given unilateral power to act unless a veto-proof majority override. Congress needs to place limits on Presidential authority unless Congress affirmatively ratifies.

  17. Actions such as this are why I give the libertarians with a capital L a break once in a while.

Please to post comments

Knife Ban and Vagueness Case at Supreme Court Conference

New York City continues to prosecute people for ordinary folding knives

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On Thursday, the U.S. Supreme Court conference will consider whether to hear an important case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York State. This post provides some background about the case.

Types of knives. A switchblade or automatic is a knife that has a "bias towards open." When the blade is folded into the handle, the blade is under constant pressure (from a spring) towards opening. The only reason that the blade stays closed in the handle is that the blade is held in place by a lock. When the user presses a switch or button, the lock is released, and the blade is propelled by the spring into the open position.

Common folding knife (CFK). A common folding knife has a bias towards closure. The closed blade stays in the handle until the user applies force to move the blade to the open position. For example, the blade might have a small hole or a tang that can be engaged by the user's thumb, so the user can move the blade the full distance into the open position.

Gravity knife. Technically speaking, a gravity knife is one with no bias towards open or closed. Being neutral, the knife can be opened by gravity. So if the knife is held in a certain position, gravity will take over, and the blade will slide out of the handle. Gravity knives are best-known as paratrooper arms from World War II. Easy one-handed opening was helpful for paratroopers who were entangled in a tree.

New York's odd definition. In the late 1950s, the New York legislature enacted a law that, among other things, banned gravity knives. But the legislature wrote an unusual definition, backed by a confusing legislative history. At least arguably, the definition is broad enough to encompass a common folding knife that can be flicked open when the user snaps his wrist.

The vagueness of the "flick test." Some people are very adept at flicking knives, and most are not. While New York City police officers teach each other knife-flicking, most other New Yorkers are not mentored in the skill. As the gravity knife law has been enforced in New York City, any common folding knife is an illegal "gravity knife" if someone can flick it open.

Owners and vendors of common folding knives can never tell whether their folding knives are illegal. Suppose the user tests his knife regularly to make sure it can't flick; or suppose the user shows the knife to a police officer, and the police officer cannot flick it either. But later, some other officer is able to flick the knife. The user is then a criminal. As the record in Copeland demonstrates, New York City criminally prosecutes cases such as this. Indeed, gravity knife prosecutions in New York City consist almost exclusively of flick cases, and virtually never involve real gravity knives.

Effect of repeal of part of the State "gravity knife" statute. Recently, the New York legislature passed and Governor Cuomo signed a bill repealing the State's gravity knife ban. Amending the statute that prohibited possession of certain weapons, the bill simply removed every occurrence of the words "gravity knife." However, the bill did not remove the definition of "gravity knife" from a separate statute in the New York Penal Law.

Unhappy with the repeal, the administration of New York City Mayor Bill de Blasio has pointed out that the NYC Municipal Code contains a provision against carrying a "gravity knife" on the subway or busses. He has announced that the City will prosecute people who violate this law (that is, people with a common folding knife that at a single police officer has been able to flick open). According to the New York Police Department, the  folding knives that tradesmen buy at Home Depot are actually "rapidly-deployable combat knives."

Is the case moot? So argue defendants New York City and NY District Attorney Cyrus Vance. But their letter to the Court mentions only the state law repeal statute. As petitioners pointed out in their own letter, the defendants failed to inform the Court about their own plans to prosecute persons who live, work, or travel in the City, based on the city ordinance–an ordinance whose definition of "gravity knife" is parasitic on the still-existing state definition–the definition that has always been the heart of the constitutional challenge in Copeland v. Vance.

Additionally, the state repeal of the gravity knife prohibition was not retroactive. Given the two-year statute of limitations, New York retailers, including one of the plaintiffs, are still subject to prosecution for their sales in the last two years–such as if some officer can flick an individual's knife that was purchased in the past two years.

Constitutional issues. Copeland was not brought as a Second Amendment case. Given the Second Circuit's hostility to the Second Amendment (see, e.g., my recent amicus brief on the NYC handgun transport ban, which will be argued next term), the plaintiffs were probably correct to worry that mentioning the Second Amendment would inflame the Second Circuit. This is too bad, since knives are certainly among the "arms" protected by the Second Amendment, as I argued in the law view article Knives and the Second Amendment. [Cited in Seattle v. Evans, 366 P.3d 906, 914 n.10, 919, 926, (Wash. 2015); State v. Herrmann, 873 N.W.2d 257, 262 (Wisc. App. 2015), State v. DeCiccio, 105 A.3d 165, 193, 197 n.34, 200 (Conn. 2014); People of the State of New York v. Anthony Trowells, No. 3015/2013 (Aug. 4, 2014; Sup. Ct., Bronx Cty., Part 92) (Justice Troy Webber); People v. Genel, 2018 WL 1919053 (Cal. App. Apr. 24, 2018).]

Copeland v. Vance, at the Supreme Court stage, involves only a single and very important issue of criminal law. In a facial vagueness challenge to a statute, does the challenger have to prove that the statute is vague in all possible applications? The Supreme Court so indicated in the 1987 U.S. v. Salerno. But more recent cases, namely Johnson v. U.S. (2015) and Sessions v. Dimaya (2018), have taken a different approach. Four federal circuits have followed the newer rules while the Second Circuit clings to the old Salerno standard.

The circuit split is central to Copeland, since all parties agree that the New York statutory definition is not vague as applied to real gravity knives (that is, knives with no bias, such as paratrooper knives).

An amicus brief by law professors, including Eugene Volokh, urges the Court to clarify its rules on facial and as-applied challenges. Another brief from more law professors, plus the Cato Institute, elaborates on the vagueness problem, pointing out that literally millions of people are criminalized under a strict liability statute with no mens rea, and no means of determining whether their conduct is lawful. Finally, a Legal Aid Society brief details the atrocious record of enforcement of the "gravity knife" ban in New York City, where  85% of persons arrested are Black or Hispanic, and 96% are men. As the brief details, some such defendants have been sent to prison for years for peaceably possessing small utility knives that are sold at hardware stores throughout the City. The brief's photos of some of these knives belie the de Blasio administration's preposterous rhetoric about "combat knives."

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19 responses to “Knife Ban and Vagueness Case at Supreme Court Conference

  1. Obviously if a state requires militia members to keep a knife then the knife is covered by the 2A. And pursuant Cruikshank a knife is covered under the right to keep arms in one’s home for self defense which is a natural right that existed prior to the BoR. (Heller’s underlying rationale is nonsense so you just ignore it while the outcome is the correct outcome)

    The issue here is knives outside the home and so we look to tradition to inform the scope of our RKBA. Traditionally concealed weapons have been subject to strict regulations even in pro-2A states like Texas, so because these knives are generally used as concealed weapons a ban would withstand constitutional scrutiny.

    1. Sebastian Cremmington – It’s as if you didn’t read the article at all. The claim is vagueness, not the Second Amendment. SCOTUS is not going to grant a cert petition on a non-existent Second Amendment claim.

      1. The post mentions the 2A and the RKBA outside the home has yet to be addressed by the Supreme Court. I will tell you exactly how it will play out—you have no right to concealed weapons but we have a right to open carry that is subject to regulations. So if these knives are intended to be concealed weapons then a ban is permissible pursuant the constitution.

        1. They’re not intended to be weapons, concealed or otherwise. Just like a butter knife isn’t a weapon.

          And on that note, I’d rather have a large, old fashioned, butter knife with a point on it that a utility knife with a 1 inch blade. At least I could stab with the butter knife, while you’d need to get a really precise cut with a utility knife to do much damage.

          You may not be aware of the context, but the “knives” in question are razor blade holders that fold, so that instead of carrying a large sliding utility razor, workmen can carry folding razors instead. These are also called box cutters, and have a ~1 inch usable blade when in the utility knife, and are designed to be disposable – when the blade gets dull, you flip to the other side, and when both get dull you throw the blade away and insert a new one. Blades are $4 for 50 at Walmart (in Arizona, last weekend).

          1. A few dudes with box cutters changed the world for the worse…much worse.

            1. Yes and no. Had they not been able to exploit a very rare situation where those “weapons” were the most advanced tools available, they would have had next to no effect.

              And even without other tools, the deliberate training of airline staff and passengers to be passive and “wait for the authorities” rather than reacting actively in their own defense was a major contributor to the disaster. Flight 93 was still a tragic sacrifice but if all the crews had reacted like that, I do not believe the world would have been changed, as you say, for the worse.

              1. “Flight 93 was still a tragic sacrifice but if all the crews had reacted like that…”

                My understanding is that the Flight 93 crew surrendered the cockpit (SOP at the time), and the subsequent crash was when the passengers (and crew?) tried to take the cockpit back.

                We had a relative who was an airline pilot at the time. By the time flights resumed a couple of days later he and his colleagues had already decided that any attempt to storm the cockpit would result in them flying a +1G, -1G sine curve until flaring for landing at the nearest airfield, and then do various things on the rollout that would render the plane unflyable w/o maintenance.

                Which would be terribly unfortunate for any innocents, e.g. stewardii, who weren’t belted in, but makes attacking the cockpit pretty unfeasible. With that change in ROE, you could let passengers all carry Uzis and hijacking still doesn’t work (bombs are another issue, of course).

            2. So thousands of people owning and carrying box cutters for openng boxes should be shanghaied and sent to the gulag to show you’re doing something over 9/11?

              It was the bad actors with evil motive and intent, exploiting opportunity, utilizing a means, who “changed the world for the worse” who are to blame, not everyone who owns or uses the same means with other motive and intent in other circumstances.

            3. There’s not actually a lot of evidence for that.

        2. Sebastian Cremmington – Once again. This case has nothing to do with the Second Amendment. There is no Second Amendment claim and so it does not matter whether or not knives (or any weapon) can be banned because the weapon is easily or ordinarily carried concealed.

          A law can otherwise be constitutional but be unconstitutionally vague, either facially or as-applied.

          The Supreme Court’s citation to Nunn as perfectly capturing the meaning of the “right to keep and bear arms shall not be infringed” belies your Second Amendment conclusion even if this were a Second Amendment case. Georgia did not ban all handguns, it exempted certain handguns which were too large to easily conceal and yet the Georgia court felt that was irrelevant, the question was whether or not the handgun had been carried concealed or openly, Open Carry being the right.

          And then there is this bit from Heller regarding why all handguns cannot be banned, “[handguns are] easier to use for those without the upper-body strength to lift and aim a long gun…”

          Anyone who lacks the upper-body strength to wield a long gun isn’t going to be able to wield large handguns which are not easily and ordinarily carried concealed, such as today’s equivalents of the .44 cal Colt Walker or horse pistols.

    2. “… these knives are generally used as concealed weapons …”
      No. Millions of people have traditionally and lawfully carried knives and never used them as weapons. Your assumption needlessly criminalizes millions.

      I have always carried a knife as a tool, starting with my Boy Scout knife and my fishing knife (two tools: a fillet blade and a blade that served as a scaler and hook remover). I also have bayonets for my M1 carbine, M70AB2, and Mosin 91/30 military rifles as collector’s curios, not as weapons.

      If I want to carry a weapon for self-defense I’ll carry my .38 snub or my .40 S&W H&K.

      1. Point is, I do not carry my pocket knives with intent to use them as weapons of defense or offense and I resent the idea that I would have to justify them as arms protected by the second amendment as weapons.

  2. The “Vagueness” of the law is an essential component of the law. Vague laws are preferred because they can be interpreted so broadly as to ensnare anyone the police want to arrest. If the law was overly specific, then all those filthy subjects would be able to weasel their way out of going to prison on a ‘technicality’.

  3. “… shall not be infringed.” Very simple.

  4. Regarding the people “sent to prison for years for peaceably possessing small utility knives”, are you speaking of parole violations or are people sent to prison for years just for the knife?

    1. Possessing a gravity knife is a felony if you have been previously convicted of any crime (regardless if you are still under probation or parole, or if the crime was related to knives or weapons) This appears to be the case with Richard Gonzalez, who was convicted of possessing a simple utility knife but due to prior convictions he ended up in prison for 4 years

  5. Will Crocodile Dundee be called as an expert witness?

  6. I have represented some of the victims of this atrocious law. The “wrist test” is so subjective and unpredictable. The police would hold the knife BY THE BLADE and swing it open, thus meeting the definition of opening by centrifugal force. The last person I represented was a college student and Eagle Scout stopped in a city park under suspicion of being there for drugs (not true) and admitted to having a “weapon” on him. (2″ lock back knife). 40 hours of community service, $500 fine, $2,000 in attorney’s fees, and another couple of hundred in court costs. Over a pen knife.

  7. […] Knife Ban and Vagueness Case at Supreme Court Conference […]

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Freedom of Religion

Does Letting Witness Testify Wearing Partial Veil Violate the Confrontation Clause?

Depends on how much of the face it covers, the California Court of Appeal seems to suggest.

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From Friday's nonprecedential decision in People v. Ketchens (Cal. Ct. App.), an appeal by defendants who had been convicted of voluntary manslaughter and weapons charges, the facts:

Defendants contend that their rights under the Sixth Amendment's confrontation clause were violated when the court allowed [Salome] Stephenson to testify while wearing a head scarf covering part of her face….

When Stephenson appeared in court to testify during trial, she wore a garment the court described as a white "scarf that cover[ed] her entire face"; her right eye was "visible slightly, a portion of her nose, and a little bit of her left eye; otherwise, her head and face [were] fully covered." … Outside the presence of the jury, the court asked Stephenson why she was wearing "a head garment." Stephenson responded, "I'm Muslim." The court then inquired, "Is that part of the Muslim faith that requires you to have the head scarf in the manner that you have [it]?" Stephenson answered, "Yes."

The court then allowed the prosecutor to begin his direct examination of Stephenson without instructing Stephenson to remove her scarf. After approximately 10 minutes of questioning, the court recessed for the day and informed counsel that it would "take up the issue of the witness and the head scarf " the next morning.

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7 responses to “Does Letting Witness Testify Wearing Partial Veil Violate the Confrontation Clause?

  1. Given SCOTUS “reliability” framework at what point does a court finally take notice of all the research saying we as humans are terrible at judging truth through analyzing body and facial expressions? This would seem to lead towards allowing non-face-to-face whenever a witness can provide a plausible reason as to why they wish to cover it.

    1. Clauses of the Constitution continue to have legal force even if the theoretical basis for them has been demonstrated to be invalid, until they are actually repealed.

      And this is necessary, because otherwise the government could escape the Constitution by merely asserting that its basis was invalid.

      IOW, I don’t think this is something the courts should, legally, take notice of, even if true.

      Also, it’s totally blowing off a component of confrontation, which is the presumed reluctance of a witness to falsely accuse somebody to their face.

      1. Sounds ridiculous.
        Where is that stated as a “component of” the confrontation clause?
        The defendant can’t get up in the W’s face and all them names.
        The W is there; testifying in person, subject to cross.
        That’s enough. Anything else is a license to bully.

      2. How is it not saying something to someone’s face? That merely implies you are in the person’s presence, not that they can literally see your face as you accuse them to their face. It also derives from the concept of looking someone in the eyes when you speak, which doesn’t appear to be at issue in this case.

        The fact that the witness is present in court, stating her name under oath, and subject to cross examination IMO satisfies all components of the confrontation clause

    2. “take notice of all the research saying we as humans are terrible at judging truth through analyzing body and facial expressions?”

      Is there any research showing that we are significantly better at judging truth without those clues? Because that’s what’s important, and that’s a different question.

      Plus, I’m willing to bet that most of those studies have problems with not being able to be replicated in a consistent manner.

  2. the second day began with the prosecutor and Stephenson effectively reviewing and reproducing Stephenson’s testimony from the day before

    Does this really cure any violation of the right to cross-examine a witness?

    If there’s a more substantial initial violation of this right, would “reviewing and reproducing” that testimony at a subsequent hearing before a jury cure the violation?

    1. As a general rule I wouldn’t trust it, but for this particular case where they reviewed about ten minutes of prior testimony and went on to talk for the entire morning and into the afternoon I’d say it’s ok. I think it depends on the relative length and substance of the two segments, which in this case were weighted so heavily towards the constitutionally acceptible segment as to render the prior portion barely relevant. To put it another way, if the testimony had all taken place in one day, but the defense had needed ten-ish minutes to decide that the witness was not being properly confronted and object, and then the defect was cured, that would seem fine to me.

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Parental Rights

State May Vaccinate Children in Its Custody, Even Over Parents' Objection

So a New Jersey appellate court held today.

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From N.J. Div. of Child Protection & Permanency v. J.B. (N.J. Super. Ct. App. Div.):

The age appropriate immunizations required by N.J.A.C. 3A:51-7.1(a)(2) are a reasonable means of ensuring the health and safety of the children in the care and custody of the Division, especially during a measles outbreak. Parental rights must yield to the safety and well-being of Son and Daughter under these circumstances. See, e.g., Sadlock, 137 N.J.L. at 88 ("[T]he police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety." (quoting Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905))). Requiring immunization is an appropriate use of the State's police power. Providing age-appropriate vaccinations to Son and Daughter will protect them from needlessly contracting diseases that would subject them to potentially serious complications. Children in the care and custody of the Division deserve nothing less.

The children have been in the continuous care and custody of the Division since October 2017. {Father is a Megan's Law offender subject to community supervision for life. As such, Father is prohibited from "initiating, establishing, or maintaining" or "attempting to initiate, establish, or maintain contact with any minor" and from "residing with any minor," which includes "[s]taying overnight at a location where a minor is present" without prior approval from the District parole Supervisor. [The children were removed from mother's custody because, despite that prohibition,] Father was living with the children and Mother was allowing Father to have unsupervised contact with them.} While parents do not lose all of their parental rights when their children are placed under the care, custody, and supervision of the Division as a result of substantiated abuse and neglect, they are situated differently than parents who retain legal and physical custody.

When children are removed from parents under Title 9, the Division is charged with the duty to provide appropriate medical care and treatment. We view this duty as encompassing the authority to administer age-appropriate immunizations over the religious objections of the parents. See In the Interest of C.R., 570 S.E.2d 609 (Ga. Ct. App. 2002); In re Deng, 887 N.W.2d 445 (Mich. Ct. App. 2016); In re Stratton, 571 S.E.2d 234 (N.C. Ct. App. 2002); Dep't of Human Servs. v. S.M. (In re M.M.), 323 P.3d 947 (Or. 2014). To rule otherwise would needlessly jeopardize the health and safety of children in placement and undermine the discharge of the Division's duty to provide care, particularly when a known risk of exposure to a disease preventable by vaccination is present.

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15 responses to “State May Vaccinate Children in Its Custody, Even Over Parents' Objection

  1. Sigh….

    Standard disclaimer. Vaccines are good and proper. That being said.

    1. From a reading of the facts of the case, realistically it appears that the state should work to terminate the mother and father’s parental obligations, and give guardianship to a different couple. That couple could then make vaccine decisions for the children.

    2. If the state doesn’t do this however, I don’t agree with overruling the parents religious objections, and forcing vaccination upon the children. If the parents still have parental rights and obligations, then it is their decision to make.

    3. I also don’t like what else this may lead. If religious or moral obligations to vaccines are overridden, what else may be? Other medical decisions? Gender reassignments? Do parents have “any” rights as to how their raise their children?

    1. Constitutionally parental rights are dubious since they aren’t found anywhere. Obviously there is caselaw saying they do but the contours of it are far from settled. And freedom of religion being a personal right doesn’t necessarily transfer to a child. This why parents who don’t believe in medicine, but only faith healing, can be charged with child endangerment, neglect, etc. if one of their children gets extremely sick or dies from an otherwise treatable disease.

      So the question is where is the line between parent gets to make the decision and state can force it (by doing it if in their custody or taking custody or criminally prosecuting). That line really becomes more set by the state itself politically rather than through courts.

      1. “Constitutionally parental rights are dubious since they aren’t found anywhere.”

        9th amendment. Parental rights are actually prior to the Constitution, and among those rights that were considered too obvious to bother enumerating.

    2. There is also the separate complicating factor with vaccination that it affects not just your child but the public health. This is different for instance than determining whether a child with some ailment should be treated with medication or surgery. Or whether to do a more risky procedure that has potentially greater benefits than another option.

      I really struggle with where I stand on mandatory vaccinations because of these complicating factors. That is since the general rule of your rights stopping at my nose.

    3. “Do parents have “any” rights as to how their raise their children?”

      In practice, probably not. Remember the case where Boston Children’s Hospital took a girl from her parents because the parents credited the diagnosis of the girl’s own doctor over the doctors at Boston Children’s? I suspect that that happens more often than we realize.

    4. Armchair:
      On (1), there is an issue of timeliness. The measles outbreak is happening right now while the kids are in state custody. Prompt vaccination can protect them; vaccination in the future cannot prevent infection right now. Delaying the decision to permit time for court actions to terminate the mother and fathers parental obligations and granting it to someone else means the kids remain at risk.

      With respect to any slippery slope argument: It’s worth noting these aren’t generic parents. They are parents who already have lost *some* of their parental rights as a result of their behavior toward the children. They lost custody and presumably aren’t making daily decisions about meals, choice of clothing, supervising friendships, selecting schools and so on. They obviously can’t decided to do something like quarantine their unvaccinated child to avoid measles. It’s not clear to me they should have absolutely veto power over something like vaccinations during an actual outbreak merely because that belief happens to fall under a “religion” umbrella.

  2. Children should be vaccinated unless a medical reason (I understand chemotherapy is an example) makes vaccination dangerous for the child. Parents should not be entitled to endanger their children, and other children, by refraining from ensuring that children are not vaccinated. Belligerent failure to arrange vaccination probably should generate a rebuttable presumption that the interests of a child incline a change in custody.

    1. Agree fully, Arthur. The tribe has the obligation to protect the herd https://www.vaccinestoday.eu/stories/what-is-herd-immunity/

    2. So much for medical decisions being between a woman and her doctor.

  3. Let’s just say I have a real hard time with the government deciding what they can inject into people without permission.

    That hasn’t turned out well in the past.

    1. It’s certainly been a slippery slope, as well:

      “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.”

  4. […] Click here to view original story: State May Vaccinate Children in Its Custody, Even Over Parents&#8… […]

  5. Good. Nobody has a right not to vaccinate because doing so violates the NAP and risks infecting myself and others. If consenting adults want to violate the NAP, they can feel free to do so in exile.

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Interesting Vagueness Case That the Court Is Being Asked to Hear

The underlying subject matter in Copeland v. Vance is knives, and a New York law banning "gravity knives," but the legal issue is what must be shown for a facial vagueness challenge to a criminal statute.

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From the cert. petition:

In United States v. Salerno, 481 U.S. 739, 745 (1987), this Court held that to maintain a facial challenge, a plaintiff must establish that "no set of circumstances exists under which the Act would be valid." The federal courts of appeals are starkly split on the question of whether this rule was relaxed by the Court in the context of vagueness cases in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

The Fourth and Eighth Circuits have answered in the affirmative. See Kolbe v. Hogan, 849 F.3d 114, 148 fn.19 (4th Cir. 2017); United States v. Bramer, 832 F.3d 908 (8th Cir. 2016). By contrast, the Second Circuit expressly insisted below that no such relaxation has taken place. Copeland v. Vance, 893 F.3d 101, 113 fn.3 (2d Cir. 2018).

The question presented is: Whether a plaintiff need show that a law is vague in all of its applications to succeed in a facial vagueness challenge.

You can read the government's response, the reply, and the amicus briefs here. (I signed one, though did not write it.) You can also see the debate about whether the case is moot—10 days ago, the New York Legislature repealed the underlying statute, but people could still be prosecuted for their pre-repeal conduct (yes, that's the legal rule in most jurisdictions with regard to statutory repeals), and gravity knives (defined using the same definition that is being challenged as vague) remain forbidden on New York City subways and buses. Very interesting stuff.

The Court will be considering the case at its conference Thursday.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

8 responses to “Interesting Vagueness Case That the Court Is Being Asked to Hear

  1. This is serious stuff. You are to be commended for noting the seriousness of it without resorting to the serious pun which is soooo seriously begging to be used.

  2. First reaction: Say you have three knives of varying levels of resistance. So long as there is at least one police officer capable of flicking open the toughest one and one incapable of opening even the easiest one, the circumstances of the deft’s conduct aren’t implicated at all, and the ambiguity doesn’t impede the deft’s following (or breaking) the law in any given doubtful case.

    So, pace the QP, the real question seems to be whether the state legislature acts unconstitutionally when it clearly vests the police with the ability to ratchet up the restriction without any meaningful standard. (“Any knives the police dislike are banned.”) Nothing the deft does or doesn’t do (other than not carrying a knife at all) can change things. The grant of authority isn’t vague — it’s a clear mandate, but without an intelligible standard. Contrast the archetype of vagueness: a law saying “you can’t do bad things.” There, the deft has a chance to conform in the doubtful case, and is impeded in attempting to do so by the ambiguity.

    As for facial challenge, the “no set of circumstances” refers to circumstances of the criminal act, not to the enforcement. (More precisely, the circumstances of the act as a function of the circumstances of enforcement.) Here, the crime is agnostic to the conduct of the deft within the range of the ambiguity. Assuming there’s no reasonable-flick standard implied or judicially construed, there’s no given circumstance in a doubtful case that the law clearly allows or disallows, so holding that the state can save the law by demonstrating a fair use of it isn’t enough, because there’s no circumstance clearly within the law.

    It’s an interesting question, but focusing only on arbitrary authority to the total exclusion of the fair-notice considerations usually associated with void-for-vagueness would make this an odd vehicle for the stated QP.

    1. Mulling this more, takeaways from the initial musing above:

      1. Given a scenario in which at least one officer can flick every flickable knife, and at least one one can’t open any, there’s no one set of circumstances in the res of the offense that would always be a crime, so the state doesn’t even have the theoretical possibility of saving the law against a facial challenge by citing one set of circumstances.

      2. The question might be whether a de facto “strongest officer” standard (one that can’t always be enforced, as she’s a busy officer) that everyone knows in advance offends the federal constitution. And, in the same line, whether the fact that it’s a physical test of strength sufficiently minimizes the chance that the officers will flick harder for folks they don’t like.

      3. Thought experiment: A potential thief is standing in front of a safe that has money in it. The money belongs to the state. A police officer is standing next to him. In one world, the law says that it’s not a crime for the thief to take the money if it’s basically fair for him to do so. Clearly vague, yes. In the second world, it’s not a crime for the thief to take the money if he can successfully arm-wrestle the nearest policeman. Stupid, yes, but unconstitutional?

      Just off the top of my head in the free time. Certainly not advice of any kind.

  3. […] case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York […]

  4. Isn’t the very nature of vagueness that we don’t know what it applies to and what it doesn’t? How can you then say that it is vague in all its applications. Has there ever been a statue so vague that there is no conduct clearly prohibited? I doubt that.

    1. The difficulty is that it specifies the test, rather than describing the prohibited thing. If, hypothetically, there’s a police officer too weak to flick open the easiest one, it’s at least arguable that there’s nothing proscribed.

  5. […] case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York […]

  6. […] an important case on vagueness, Copeland v. Vance (docket page, with links to all briefs). As an earlier post by Eugene noted, the case arises from unusual knife control laws in New York City and New York […]

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"Call me a fascist again and I'll have you censored all over the world."

Episode 267 of the Cyberlaw Podcast

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We kick off Episode 267 with Gus Hurwitz reading the runes to see whether the 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we're seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh's Qualcomm decision is another straw in the wind, triggering criticism from Gus ("an undue extension of Aspen Skiing") and me ("the FTC needs a national security minder when it ventures into privacy and competition law"). But Matthew Heiman thinks I'm on the wrong page when I suggest that Silicon Valley's suppression of conservative speech is the kind of detriment to consumer welfare that the antitrust laws should take into account, even in a Borkian world.

I mock Austrian Greens for suing to censor those who called it a "fascist party" – stopping their mouths not just in Austria but around the world. Yeah, guys, that'll show 'em who the fascists are. Less funny is the European Court of Justice's advocate general, who more or less buys the Greens' argument. And thereby reminds us why we miss Tom Wolfe, who famously said, "The dark night of fascism is always descending in the United States and yet lands only in Europe."

Nate Jones answers the question, "Were the Russians much better at social media than we thought?" All the adjustments to that story, he notes, have increased our assessment of the sophistication in Russia's social media attacks. And in This Week in Host Self-Promotion, I take advantage of Nate's remarks to urge my own solution to the utterly unsolved problem of hack-and-dox attacks by foreign governments on US candidates they don't like: Ban the distribution of data troves stolen from candidates and officials. Nate agrees that First Amendment doctrine here is a lot friendlier to my proposal than most people think, but he cautions that the details get messy fast.

Matthew comments on Baltimore's tragedy of errors in handling its ransomware attack. The New York Times' effort to pin the blame on NSA's EternalBlue, which always looked tendentious and agenda-driven, now has another problem: It's almost certainly dead wrong. EternalBlue doesn't seem to have been used in the ransomware attack. Baltimore's best case now is that its cybersecurity sucked so bad that other, completely unrelated hackers were using EternalBlue to wander through the city's system at the same time as the ransom bandits.

Speaking of cybersecurity, Matthew reminds us of two increasingly common and dangerous hacker tactics: (1) putting the "P" in APT by hanging around the system so long that you've downloaded all the manuals, taken all the online training, and know exactly when and how to scam the system; and (2) finding someone with lousy network security who's connected to a harder target and breaking in through the third party.

Finally, Gary Goldsholle helps us make sense of the litigation between the SEC and Kik, which first launched a cryptotoken that it insisted wasn't a security offering and then crowdfunded a lawsuit to that effect against the SEC. So, finally: good news for lawyers if nothing else, and perhaps for future Initial Popcorn Offerings.

Download the 267th Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

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