Say that paying for sex is legal, and a sexual transaction is made with the expectation of payment but no prearranged fee. Then there might be a lawsuit on a sexual quantum meruit theory, which might also be called …
Tyreese Copper was convicted of murder and sentenced to life in prison. (This comes from Commonwealth v. Copper, which was decided in September 2018, but I just learned about it from a follow-up federal opinion filed early this month.) At trial, eyewitness Davina Sparks was called to testify; but she was a veil-wearing Muslim woman, and (to quote the government's brief),
[C]ounsel objected to Ms. Sparks testifying while wearing her Muslim garb that covered her face. Ms. Sparks refused to remove the garb, citing her religion as the reason for her refusal. Out of deference to Ms. Sparks's religious beliefs, the court decided to clear the courtroom for Ms. Sparks to testify without her face garb "so I can at least have her taking off her covering only in the presence of the people who are absolutely essential to being here," i.e. the jury, court staff, defense counsel, and defendant. Trial counsel did not object to the court's proposal. Ms. Sparks agreed to remove her face garb in a courtroom cleared of spectators.
Eventually, Copper sought to overturn his conviction on the grounds that his lawyer was ineffective for failing to object to a violation of Copper's Public Trial Clause rights. But a three-judge panel of the Pennsylvania Superior Court said no, concluding that the judge's decision didn't violate those rights:
"[T]he right to a public trial is not absolute; rather, it must be considered in relationship to other important interests…." Commonwealth v. Conde (Pa. Super. 2003). We have permitted exclusion orders for "the protection of a witness from embarrassment or emotional disturbance." Moreover, "an exclusion order which is designed to protect a witness from emotional trauma will not necessarily be constitutionally infirm if it excludes the entire public for a limited time."
Based upon the foregoing, we discern no abuse of discretion in excluding spectators from the courtroom while Ms. Sparks testified…. [I]n striking a balance between Appellant's right to a public trial and the need to respect the witness' religious beliefs, the trial court cleared the courtroom, but only for the duration of Ms. Sparks' testimony. The exclusion was limited in duration to protect the witness from emotional disturbance, as well as to protect Appellant's right to confront her and to allow the jury to make effective credibility determinations….
Note also that the First Amendment has been read as securing the public's right of access to court hearings (and court records), to much the same degree as the Public Trial Clause secures a criminal defendant's right to have the trial be public. The court's reasoning would thus suggest that the witness's felt religious obligation to have as few men as possible see her unveiled trumps this First Amendment right of access as well as the Public Trial Clause.
Is this right? The seemingly unlimited command of the Public Trial Clause suggests that it isn't, but there are indeed lower court cases that do allow that command to be trumped in some instances. Thus, for instance, Rovinsky v. McKaskle (5th Cir. 1984), stated,
The right to a public trial is not absolute: limitations on public attendance may be imposed so long as they are no more exclusive than necessary to protect a state interest that outweighs the defendant's interest in public scrutiny of the proceedings. Indeed, the protection of witnesses from embarrassment or intimidation so extreme that it would traumatize them or render them unable to testify is a state interest sufficiently weighty to justify partial or complete exclusion of the press and public.
Classic examples are (to borrow from a list in another case), "to protect dignity of witness in rape trial," "to protect witness with fear of testifying in public," "to protect witness afraid of testifying," "to protect witnesses from intimidation," to protect child witnesses in rape trial from embarrassment," "to protect witness and his family where safety threatened," "to preserve confidentiality of undercover agents in narcotics case," and
"to protect from disclosure of trade secrets."
So the question, under these cases, is whether a witness's reluctance to testify in public for religious reasons should be treated analogously to a witness's reluctance to testify for more commonly felt secular reasons (such as fear of retaliation or embarrassment related to testifying about sex crimes). Perhaps the closest analogy is the "fear of testifying in public" case (U.S. v. Eisner (6th Cir. 1976)), where the court approved of an exclusion based on the witness's relatively idiosyncratic apparent psychological condition (the judge "had apparently determined that the witness was afraid of any spectator being present in the courtroom"); but perhaps that case, too, went too far.
Since I'm not a Public Trial Clause expert, I asked a couple of people who were, and they graciously responded and allowed me to quote them. From Prof. Stephen Smith (Santa Clara Univ.):
It is certainly possible that the Mueller Report to be released on Thursday will constitute a blueprint for impeaching President Trump on obstruction of justice charges. My speculation is based mostly on the aggressiveness with which the lawyers on the Mueller team did their investigation and their keeping the Russia-Trump investigation open long after they had to know there was no collusion between the Trump campaign and Russia.
Andrew McCarthy has been particularly insightful on what was happening:
The collusion probe came to Mueller primarily as an obstruction case. Since it was obvious from a very early point that there had been no collusion, the question of whether there was a prosecutable obstruction case was really the only one Mueller had to answer. In the end, he defaulted.
It is almost certain that Mueller knew by autumn 2017 that there was no Trump–Russia conspiracy. Trump railed about the investigation for public consumption, but the White House and his lawyers (especially the first team, led by John Dowd) provided sweeping cooperation, including hours of interviews with White House counsel Don McGahn and well over a million documents (among them, contemporaneous notes of McGahn's meetings with the president). Though he could easily have claimed executive privilege to withhold this information from prosecutors, Trump never did. . . .
A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case? . . . Why did neither Mueller nor Rosenstein issue an interim report? That would have enabled Trump to govern without a cloud of suspicion that he might be a clandestine agent of Russia, yet permitted the overarching inquiry into Russia's operations and even the obstruction probe to continue. The country deserves an answer.
McCarthy gives some background about the likely reason that Mueller failed to decide whether to prosecute, ultimately punting the decision to Barr:
As for the obstruction inquiry, after 22 months of investigation, Mueller finally declined to make a prosecutorial judgment, dumping the matter in Barr's lap. . . .
There is no doubt that a president may be cited for obstruction based on corrupt acts that tamper with witnesses and evidence (recall the Clinton and Nixon precedents). But no patently illegal acts were alleged against Trump. In their absence, Mueller's team pursued a novel theory: An obstruction charge might be premised on lawful exercises of the president's Article II prerogatives (e.g., firing subordinate officials, weighing in on the merits of investigations, considering pardons) if a prosecutor — the president's subordinate — later deduced that the acts had been improperly motivated. . . .
As is not uncommon for former top officials, [Barr] had weighed in on important policy matters from time to time over the years.
So it was on obstruction.
In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein. Citing the legislative history of the obstruction statutes, leading case law, and longstanding Justice Department policy, he contended that Mueller's apparent theory of obstruction was legally untenable and practically unworkable. Putting the president aside, the theory would subject to possible prosecution any Justice Department supervisor who made a routine personnel decision during a case (say, reassigning a lawyer from one investigation to another) if some prosecutor later suspected an improper motive. Barr further made what should be an incontestable point: Given the damage such a prosecution can do to the nation's governance, a president should not be prosecuted in the absence of something all reasonable people can agree is a clear, serious violation of law.
Once Barr was confirmed, Mueller had to see the handwriting on the wall: The new AG was not going to approve a dubious obstruction charge. The special counsel thus had a choice: concede that Barr was right on the law, or fight for the controversial theory his staff had pursued — i.e., recommend an obstruction charge and dare the AG to nix it. But Mueller shrank from making the decision, choosing merely to summarize the evidence and leave the prosecutorial judgment to Barr.
In consultation with Rosenstein, Barr found no prosecutable case. . . .
In the meantime, [Mueller] let the president chafe under the yoke of suspicion long after it was manifest that there was no collusion case. All the while, the special counsel's staff considered an unsound reinterpretation of obstruction law in order to nail Trump — after the Justice Department had bent over backwards in order to avoid charging Hillary Clinton with mishandling classified information, a concrete criminal allegation that was supported by weighty evidence.
Although political predictions are wrong nearly as often as they are right, I would expect that the Mueller Report released on Thursday will give plenty of ammunition for Congressional Democrats who might want to impeach Trump for obstruction under a theory that the Mueller team thought plausible enough to have spent nearly two years pursuing.
I hope that the report will also reveal when the investigation of the Trump campaign began and on what basis, as well as which current and former foreign agents or governments were used by the Clinton campaign, the FBI, or the CIA to surveil or gather information on members of the Trump campaign, the transition team, or the administration.
Judge William Shubb, who was appointed by George H.W. Bush, does not mince words in his decision concerning the civil denaturalization process that the government initiated against Christian Oribello Eguilos. The opinion, available at 2019 WL 1643234, begins with a bang:
This court must once again dispel the commonly held misconception that all American citizens are afforded the same rights of citizenship. See United States v. Dang, No. 2:01-cv-1514 WBS DAD, 2004 WL 2731911, at *1 (E.D. Cal. Nov. 15, 2004). Through the denaturalization process, Congress has created two distinct classes of American citizens. The first class of citizens includes those whose mothers happened to be physically present in the United States, whether legally or illegally, at the moment they were born, and those whose parents were American citizens. See 8 U.S.C. § 1401 et seq. These citizens are forever secure in their citizenship. It can never be taken from them, no matter what they may have done in the past or what they may do in the future.
The second class of citizens, and the focus of this case, consists of those individuals who acquire their citizenship through naturalization. See 8 U.S.C. § 1421 et seq. To even qualify for naturalization, an individual must meet a long list of criteria. They must wait at least five years after establishing permanent residency, pass a citizenship test, truthfully answer questions posed by United States Citizenship and Immigration Services ("USCIS"), be a person of good moral character, and swear allegiance to the Constitution. These requirements, unique to those applying for naturalization, demonstrate only the beginning of the substantial burdens this country places on these second-class citizens.
Once a naturalized citizen completes this arduous process, their American citizenship still hangs in the balance, at the mercy of government officials.
And once the government starts the denaturalization process, these civil proceedings are replete with procedural shortcomings given the important right at stake. See Cassandra Robertson & Irina Manta, (Un)Civil Denaturalization, 94 N.Y.U. L. Rev. (forthcoming 2019) (manuscript at 49-54), https://bit.ly/2uMeBow (cataloguing the due process deficiencies of civil denaturalization). Defendants often do not have the right to a court-appointed attorney nor the money to hire one. It is within this unfortunate backdrop that this matter comes before the court as the defendant in this case, Christian Oribello Eguilos, is part of this second class of American citizens.
Eguilos's case concerns whether the government can denaturalize him for committing (allegedly both undisclosed and concealed) sexual abuse against minors–for which he later entered a no contest plea–before being naturalized. Judge Shubb denied most of the counts in the defendant's motion to dismiss, but one can see in the opinion his honest struggle to follow the law while condemning the unequal and insidious treatment of naturalized citizens.
Our beliefs in due process and its protections are virtually always tested the most when dealing with unsavory individuals such as Eguilos appears to be. The Constitution does not cease to apply, however, because someone is immoral or a criminal; indeed, that is usually when its applicability becomes relevant at all.
Middlebury College officials cancelled a forum Wednesday that would have featured conservative Polish politician and academic Ryszard Legutko, saying they were concerned that they could not guarantee people's safety as protestors organized.
Legutko was to speak on The Demon in Democracy: Totalitarian Temptations in Free Societies, and seems to be a pretty serious scholar:
Ryszard Legutko lived and suffered under communism for decades — and he fought with the Polish anti-communist movement to abolish it. But having now lived for three decades under a liberal democracy, he argues that western democracy has over time crept towards the same goals as communism, albeit without Soviet-style brutality. Both systems, says Legutko, reduce human nature to that of common man, who is led to believe himself liberated from the obligations of the past. Both the communist man and the liberal democratic man refuse to admit that there exists anything of value outside the political systems to which they pledged their loyalty. And both systems refuse to undertake any critical examination of their ideological prejudices.
Mr. Legutko is a Member of the European Parliament. He has served as the Republic of Poland's Minister of Education, Secretary of State, and Deputy Speaker of the Senate. As a Member of the European Parliament, he chairs the Parliamentary Group of European Conservatives and Reformists and serves on the Foreign Affairs Committee. He has been an active participant in recent debates over Brexit in the European Parliament.
Under communist rule, Legutko served as editor of the illegal samizdat publication, Arka. After the collapse of the communist regime, he co-founded the Centre for Political Thought in Kraków. One of Poland's foremost public intellectuals, Mr. Legutko is Professor of Philosophy at Jagiellonian University (Kraków, Poland). As a specialist in ancient philosophy and political theory, he has translated and written commentaries to Plato's Phaedo (1995), Euthyphro (1998), and Apology(2003). He is the author of several books, including Plato's Critique of Democracy (1990), Toleration (1997), A Treatise on Liberty (2007), An Essay on the Polish Soul (2008), and Socrates (2013).
He had been invited by the Alexander Hamilton Forum, a faculty-run program, and his talk had been cosponsored by the Department of Political Science and the Rohatyn Center for Global Affairs. But he drew opposition from faculty and students who argued that his views were "homophobic, racist, xenophobic, [and] misogynistic"; and the College administration canceled the lecture, writing (I quote here the Washington Free Beacon (Alex Griswold)):
In the interest of ensuring the safety of students, faculty, staff, and community members, the lecture by Ryszard Legutko scheduled for later today will not take place. This decision was not taken lightly. It was based on an assessment of our ability to respond effectively to potential security and safety risks for both the lecture and the event students had planned in response.
At least some of the organizers of the planned protest against Legutko say they weren't trying to prevent Legutko from talking:
"In light of the recent announcement by the Middlebury College administration to cancel the Legutko event this afternoon, we are reiterating that it was never our intention to shut this event down, nor prevent the speaker from speaking," Taite Shomo wrote.
But the administration did prevent it.
(Thanks to InstaPundit for the pointer.)
In this recent podcast, Harvard Kennedy School Professor Christopher Robichaud interviews me about a variety of burning issues related to the politics of Game of Thrones. The podcast is part of his This Week in Dystopia series. Among the many pressing issues covered are the institutional flaws of Westeros' political system, possible explanations for the continent's longstanding economic stagnation, why the politics of science fiction and fantasy worlds matters, and why Jon Snow is an absolutely terrible political and military leader (though he is undoubtedly a brave and decent man).
For those interested, this post has links to my previous writings on the politics of Game of Thrones.
From Judge Selya, in Havlik v. Johnson (1st Cir. 2007):
A qualified privilege is not a jujube that, like some magical charm, wards off liability for defamation, come what may. In Rhode Island, as elsewhere, such a privilege may be abrogated if the plaintiff proves that the privilege-holder published the offending statement out of spite, ill will, or malice.
And from the same judge in Trenkler v. U.S. (1st Cir. 2008):
Still, each attempted use of an extraordinary writ in connection with post-conviction relief must be judged on its own merits. The strictures of section 2255 cannot be sidestepped by the simple expedient of resorting to some more exotic writ. Put bluntly, the All Writs Act is not a jujube. At most, it constitutes "a residual source of authority to issue writs that are not otherwise covered by statute."
What does that mean? And how is it putting it "bluntly"? I know about the fruit and about the candy, but I just can't figure out how they fit here.
[You might also read my earlier posts on the subject, Anti-Libel Injunctions and the Criminal Libel Connection, The First Amendment and Criminal Libel Law, The First Amendment and the Catchall Permanent Injunction, The First Amendment and the Specific Preliminary Injunction, and How Specific Anti-Libel Injunctions Underprotect Speech; or you can read the whole article in PDF.]
A. The Hybrid Permanent Injunction
What if, instead of saying either "Don may not libel Paula" (as in the catchall injunction) or "Don may not accuse Paula of cheating him" (as in the specific injunction), the injunction instead says, "Don may not libelously accuse Paula of cheating him"? Like the specific injunction, the injunction has a narrow chilling effect. But like the catchall injunction, the injunction requires that Don not be punished for criminal contempt unless, at the contempt hearing, his speech is found to be libelous. Thus, we have this comparison:
|Catchall permanent injunction: "Don may not libel Paula"||Specific permanent injunction: "Don may not accuse Paula of cheating him"||Hybrid permanent injunction: "Don may not libelously accuse Paula of cheating him"|
|Deters derogatory speech only about the plaintiff||Same||Same|
|Deters derogatory speech only after the injunction is entered||Same||Same|
|Deters all derogatory speech about the plaintiff||Deters only particular derogatory statements about the plaintiff||Deters only particular derogatory statements about the plaintiff|
|Speech punished only if found to be false beyond a reasonable doubt||Speech punished based on finding of falsehood by preponderance of the evidence||Speech punished only if found to be false beyond a reasonable doubt|
|… at a criminal trial where an indigent defendant would have a court-appointed lawyer||… at a civil hearing where an indigent defendant would generally not have a lawyer||… at a criminal trial where an indigent defendant would have a court-appointed lawyer|
|… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury||… and where no jury would be present||… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury|
|… and prohibits only future statements that are libelous when spoken||… and prohibitions future statements even without a showing that they are libelous when spoken||… and prohibits only future statements that are libelous when spoken|
As with the catchall injunction, the hybrid injunction thus just opens the door to the possibility of criminal punishment for continued libels; it doesn't purport to authoritatively decide that a particular statement is libelous, but leaves the matter to the jury in any future criminal contempt prosecution. But unlike with the catchall injunction, the hybrid injunction only opens that door for particular statements, and thus has less of a chilling effect.
In a sense, then, the hybrid injunction is close to the opposite of a declaratory judgment. A declaratory judgment that a particular statement is false and defamatory, for instance, wouldn't be a court order, and thus wouldn't criminalize any repetition of the statements; but it would conclusively decide that the statement is false and defamatory, in a way that likely has a binding effect on future civil litigation.-A hybrid injunction does criminalize behavior—the repetition of a particular statement—but it doesn't conclusively decide that the statement is false and defamatory, at least in any way that would bind the jury in any future criminal contempt hearing.
Let's be a bit more specific about what the hybrid injunction should say.
First, it should ban only "libelous" repetition of certain statements. Any injunction that lacks this extra element should be seen as unenforceable—or, alternatively, courts could hold that such an element is necessarily implicit in any anti-libel injunction.
Second, it wouldn't hurt for the injunction to be explicit about the consequences of including this element; the injunction might expressly say something like,
If defendant is prosecuted for contempt of court for making statements that violate this injunction, at any contempt proceeding it must be proved beyond a reasonable doubt that those statements are indeed false, defamatory, and unprivileged, and that the defendant knew that they were false.
Third, the law of anti-libel injunctions should expressly provide that any criminal contempt prosecutions should be conducted with a jury, unless the defendant waives the jury trial at the time of the criminal contempt hearing. [Footnote: Without this provision, criminal contempt trials could be held without a jury, so long as the sentence is six months in jail or less.] As noted above, there is precedent for this in the Norris-LaGuardia Act, which provides for jury trial in criminal contempt prosecutions stemming from labor injunctions. The jury should be expressly instructed that it's not bound by any prior judicial finding that the speech is libelous—a finding that was in any event made only by a preponderance of the evidence— and that its task is to decide the question for itself, beyond a reasonable doubt.
Fourth, the law of anti-libel injunctions should provide that such injunctions cannot be enforced through the threat of jail for civil contempt. Civil contempt would otherwise be a common means of coercing speakers to take down past posts, if the injunctions order such takedowns. But when it comes to libel cases, courts should require that any remedy involving loss of liberty go through the criminal contempt process, so as to enforce the principle that speakers can only be jailed for their speech if the full protections of the criminal law are provided. (Fines as civil contempt penalties should be permissible, so long as the initial injunction was issued following a jury finding that the speech was libelous; just as monetary damages awards in libel cases may be issued without the protections of the criminal justice process, so monetary sanctions for violating anti-libel injunctions may be as well.)
With these protections, hybrid anti-libel injunctions would provide speakers with all the First Amendment protections that they would have in criminal libel prosecutions. Given that criminal libel prosecutions are constitutional, such anti-libel injunctions should be as well.
B. The Futility-or-Vagueness Objection
Yale Law School recently adopted a policy under which students cannot get school-subsidized grants to support public interest summer jobs, postgraduate fellowships, or targeted loan forgiveness for those working at relatively low-income jobs, if the job in question is with an employer that discriminates on the basis of race, religion, veteran status, marital status, veteran status, or—most controversially—sexual orientation. The policy change was in large part the result of student protests against a Federalist Society-sponsored speaker from the Alliance Defending Freedom, a Christian conservative public interest law firm that had successfully represented the plaintiff in the Masterpiece Cakeshop case. The owner of the bakery argued that the state of Colorado violated his freedom of speech and freedom of religion by requiring him to bake a cake for a same-sex wedding to which he objected on religious grounds.
In the aftermath of the policy shift, many on the right charged that it amounts to religious discrimination against theologically conservative Christian employers who refuse to hire gays and lesbians because homosexuality conflicts with their religious commitments. In a letter to Yale Law School Dean Heather Gerken, Republican Senator Ted Cruz claimed that the policy violates federal civil rights laws banning discrimination on the basis of religion, and announced his intention to have the Senate Judiciary Committee hold an investigation of the policy. Dean Gerken has issued a public statement denying Cruz's claims. Ironically, this is a case where supposedly pro-free market conservatives want to impose tighter regulations on a private organization, while the left—which normally favors expansive antidiscrimination laws—is defending Yale's freedom of association.
Who has the right of this dispute? When it comes to religious discrimination, Gerken is correct, and her critics on the right are wrong. But these sorts of antidiscrimination policies do raise other difficult questions.
I. Why Yale's Policy Does Not Discriminate on the Basis of Religion.
To see why Yale's policy does not discriminate on the basis of religion, it's worth considering the following hypothetical examples, both of which have real-world analogues:
Employer A refuses to hire gays and lesbians because doing so would violate her religious commitments.
Employer B also refuses to hire gays and lesbians. But in his case, it has nothing to do with religion, but is the result of his entirely secular belief that gays and lesbians violate proper gender roles. He thinks that gays are effeminate and don't qualify as true "manly men," while lesbians fail to live up to what he considers to be proper standards of femininity.
Under the Yale policy, law students who want to work for Employer A and those who want to work for Employer B are treated exactly the same. Both would be denied fellowship funding. This shows that the focus of the policy is discrimination on the basis of sexual orientation, not the religious (or secular) nature of the beliefs underlying that discrimination. The Yale policy is entirely neutral as between religious and secular employers.
Obviously, the policy is likely to disproportionately affect employers with religious objections to homosexuality, since those are likely to be a high percentage of those who discriminate against gays and lesbians. But, in virtually every other context, conservatives are the first to point out that a disproportionate effect on a particular group does not by itself make a policy discriminatory. For example, they rightly argue that the use of grades and test scores in academic admissions does not amount to discrimination against members of groups that are disproportionately likely to be excluded by the use of such criteria. The same principle applies here.
Sometimes, a seemingly neutral policy actually has a hidden discriminatory motive. That argument successfully prevailed in Masterpiece Cakeshop (where the Court ruled in favor of the baker because Colorado officials demonstrated hostility towards his religious beliefs). It should have prevailed in the Trump travel ban case as well (I am one of the relatively few people who believe the plaintiffs deserved to prevail in both of these cases).
The fact that the Yale policy was adopted in response to the protests against the ADF speaker might be seen as evidence of such a hidden motive. After all, both ADF and their client in the Masterpiece Cakeshop case object to homosexuality and same-sex marriage for primarily religious reasons.
It is hard to be certain about the true nature of Yale's motives. But the strong likelihood is that the religious nature of ADF's commitments was not a decisive factor. If the Federalist Society—or some other student group—had invited a high-profile speaker who opposes same-sex marriage for secular reasons, it would almost certainly have attracted the same sorts of student protests, and led to much the same policy change by the Law School.
The anti-ADF protests were troubling for a number of reasons well-stated by legal scholar Andrew Koppelman (himself a long-time advocate of same-sex marriage). Like Koppelman, I think the Yale Federalist Society was entirely justified in inviting the ADF representative, even though I am—to understate the point—no fan of their beliefs about homosexuality (though, unlike Koppelman, I largely agree with their legal position in the Masterpiece Cakeshop case).
Be that as it may, the protests and the resulting policy were about ADF's hostility to homosexuality and same-sex marriage, not the religious nature of that hostility. A secular organization with similar commitments would have aroused much the same anger.
In this case, and others like it, many conservatives' understanding of liberal motives has things backwards. The reason why many on the left so vehemently denounce groups like ADF is not because of their religiosity, but because of the policies they advocates towards homosexuality and same-sex marriage (among other issues). As a general rule, most gay rights advocates have no problem with religion as such, and are perfectly fine with theologically liberal religious groups that take positions that are more congenial to the political left.
Many argue that religiously motivated objectors to neutral policies deserve exemptions because of the special status of religious beliefs. That is the principle underlying the state and federal Religious Freedom Restoration Acts, for example. There are good arguments for such exemptions, and I myself support them in some situations. But refusal to grant a special exemption to religious objectors is not the same thing as discrimination against religion, even if it might be problematic on other grounds.
II. The Danger of Slippery Slopes.
The fact that the Yale policy does not discriminate on the basis of religion does not mean that its rules are above criticism. In my view, private organizations should have broad rights of freedom of association—and that goes double for situations like this one where the school is simply refusing to subsidize students who work for a particular employer, rather than attempting to bar them from taking such positions entirely. Senator Cruz and the federal government should leave Yale alone.
But even if the feds should stay out of the matter, it is still worth asking whether Yale's policy is entirely justified. There are, I think, cases where universities can legitimately choose to deny any financial support to groups with odious hiring practices and agendas. For example, few would object to the Yale policy if it was limited to refusing to fund students working for groups that discriminate on the basis of race, such as those who refuse to hire African-Americans because they believe blacks are inferior to whites. As I see it, employment discrimination on the basis of sex and sexual orientation is comparably odious, and has an almost equally sordid history.
The case for the Yale policy is further strengthened by the fact that Dean Gerken indicates that the school will create "an accommodation for religious organizations and a ministerial exception, consistent with antidiscrimination principles." This exemption could potentially satisfy many of the concerns of those who believe religious organizations deserve special exemptions from some generally applicable rules (though I suspect that the accommodation is likely to apply only to organizations whose primary purpose is religious, not merely those who have religious motives for various types of employment discrimination). Depending on what counts as a "religious organization," it is even possible that ADF itself would qualify for the exemption!
At the same time, it is also the case that antidiscrimination rules have a strong tendency to expand beyond the relatively easy cases to ones that are far more questionable. The Yale policy already covers some such cases, such as veteran status. There are often good reasons for employers to prefer veterans over non-veterans, or vice versa, that cannot be reduced to some kind of invidious prejudice.
Academic bureaucracies are, to understate the point, not notable for their self-restraint in such matters. There is therefore a danger that the YLS policy will expand over time, in various problematic ways. If Yale's policy for funding student employment becomes subject to a growing list of ideological constraints, it is likely to undermine ideological diversity at the school, and undercut the whole purpose of the funding policy—which is to enable students to work for a wide range of public interest employers.
Gerken emphasizes that the policy is strictly limited to cases of employment discrimination, and will have accommodations for religious groups. But these constraints could be eroded over time. It may be that the slippery slope risk so great, that it's not worth going down this route in the first place. As a practical matter, it is unlikely that more than a very small number of Yale law students will seek out subsidies to work for organizations that discriminate in the ways the current policy seeks to forbid. Letting those few slip through the cracks, as it were, may be a price worth paying to avoid slippery slopes. At the very least, Yale and other schools with similar policies should consider the risk, and establish institutional barriers to guard against overexpansion of these sorts of policies.
NOTE: I have more than the usual number of personal connections to the subject of this post. I am myself a Yale Law School graduate (Class of 2001). In the summer of 1999, I had a Yale-funded summer fellowship to work at the Institute for Justice, a libertarian public interest law firm. Current YLS Dean Heather Gerken is a friend and a professional mentor of mine. I am also a longtime member of the Federalist Society, and was a member of the Yale Law School student chapter during my time as a YLS student.
[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection, The First Amendment and Criminal Libel Law, The First Amendment and the Catchall Permanent Injunction, and The First Amendment and the Specific Preliminary Injunction; or you can read the whole article in PDF.]
Specific permanent injunctions, unlike specific preliminary injunctions, do follow a civil trial on the merits at which the speech has been found to be libelous. In fact, the trial might even be a jury trial. Perhaps for this reason, [courts in over 30 states] have treated permanent injunctions against libel as generally permissible, at least in certain classes of cases.
But while such specific injunctions are indubitably narrower than criminal libel laws, and even than catchall injunctions, they also fail to provide some of the key procedural protections that even criminal libel laws offer. Consider:
|Catchall permanent injunction||Specific permanent injunction|
|Deters derogatory speech only about the plaintiff||Same|
|Deters derogatory speech only after the injunction is entered||Same|
|Deters all derogatory speech about the plaintiff||Deters only particular derogatory statements about the plaintiff|
|Speech punished only if found to be false beyond a reasonable doubt||Speech punished based on finding of falsehood by preponderance of the evidence|
|… at a criminal trial where an indigent defendant would have a court-appointed lawyer||… at a civil hearing where an indigent defendant would generally not have a lawyer|
|… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury||… and where no jury would be present|
Because the injunction categorically forbids Don from repeating the cheating allegation (in our hypothetical), the criminal contempt hearing will determine only whether that allegation was repeated. The falsehood of the allegation was conclusively determined at the injunction hearing, where the judge only had to find the allegation to be false, defamatory, and unprivileged by a preponderance of the evidence. Under the "collateral bar" rule (applicable in most states, and in federal courts) the only question at the contempt trial would be whether Don violated the injunction by repeating the statements, not whether the injunction had been properly issued.
Likewise, while Don could get a lawyer at the criminal contempt hearing, that lawyer would be unable to argue to the factfinder that the statement was true, was opinion, was privileged, or was otherwise not libelous. And at the initial civil hearing, when truth, opinion, and privilege were debated, Don had no right to a court-appointed lawyer.
The specific injunction is also more speech-restrictive than the catchall injunction, because it makes repeating a statement a crime regardless of changed circumstances and context. Yet "[u]ntrue statements may later become true; unprivileged statements may later become privileged." Even if after Don's first false statement that Paula had cheated him, Paula did end up cheating him, he'd still be barred from repeating the statement despite its now being true. [Footnote: This is especially likely if the original injunction bans not just a specific, detailed accusation, but, for instance, any claim that plaintiff is "either directly or indirectly, engaged, affiliated or connected with, illegal activity," e.g., Irving v. Palmer, No. 18-cv-11617, at 3 (E.D. Mich. May 29, 2018).]
Relatedly, a statement may be libelous in one context, but hyperbole in another. Yet an injunction simply barring repetition of a statement will prohibit the statement regardless of context. The catchall injunction, which requires a jury finding of libelousness at the criminal contempt hearing, based on whether the statement was libelous at the time it was repeated (rather than at the time it was initially said), doesn't suffer from this problem.
- Proof Beyond a Reasonable Doubt
Before people go to jail for their speech, there should be proof beyond a reasonable doubt that their speech is indeed constitutionally unprotected. This is especially true because jail time not only deters speech, but incapacitates speakers, given that their speech rights are sharply limited when they're in jail. Criminal libel law provides this protection when threatening jail for allegedly false and defamatory statements; a civil injunction, which has the same effect, should embody the same protection.
Although federal courts have rejected the Trump Administration's effort to suspend operation of the Obama Administration's expansive WOTUS ("waters of the United States") rule, the Environmental Protection Agency and U.S. Army Corps of Engineers are moving ahead with their effort to adopt a narrower WOTUS rule that may survive judicial scrutiny.
The reason the WOTUS definition is important is because it defines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Historically, both the EPA and Army Corps have interpreted their jurisdiction quite broadly to reach any and all waters and wetlands, and even some not-so-wet-lands, throughout the country. The Supreme Court rejected the agencies' over-expansive interpretation of their own authority in 2001 and again in 2006, but neither agency was in a hurry to revisit the rules.
The Obama Administration finally went through with a new WOTUS definition in 2015, prompting significant litigation and a fair amount of skepticism from lower courts, some of which have enjoined the rule's enforcement. In February 2017, President Trump ordered the EPA and Army Corps to revisit the rule and promulgate a new WOTUS definition that is more restrained and observes traditional limits on the scope of federal power.
The agencies eventually put forward a proposed revision of WOTUS for notice and comment in February of this year. The comment period closed yesterday, but not before I submitted this public interest comment for the GW Regulatory Studies Center.
In the comment I note there are several good things about the proposed revision, including its recognition of the constitutional and statutory limits on federal regulatory jurisdiction and its concern for focusing federal regulatory efforts where federal intervention is likely to do the most good. I also (perhaps uncharacteristically) noted that the agencies may have gone a little bit overboard in their zeal to curtail federal jurisdiction by not asserting direct authority over interstate waters as part of the "waters of the United States." While most such waters may be captured by other parts of the revised WOTUS definition, I suggested that there are both legal and policy reasons to be skeptical of this omission.
The Oxford Handbook of Fiduciary Law is now in print. It is an unusually strong collection of papers. And six of them are by Notre Dame authors (Bray, Kelly, Mayer, Miller x 2, Velasco), which is one more indication of the increasing prominence of Notre Dame as a center of private law. Here's the TOC:
Introduction, Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff
Part I. The Doctrinal Canon
1. Fiduciary Principles in Fact-Based Fiduciary Relationships, Daniel B. Kelly
2. Fiduciary Principles in Agency Law, Deborah A. DeMott
3. Fiduciary Principles in Trust Law, Robert H. Sitkoff
4. Fiduciary Principles in Corporate Law, Julian Velasco
5. Fiduciary Principles in Unincorporated Entity Law, Mohsen Manesh
6. Fiduciary Principles in Charities and Other Nonprofits, Lloyd Hitoshi Mayer
7. Fiduciary Principles in Banking, Andrew F. Tuch
8. Fiduciary Principles in Investment Advice, Arthur B. Laby
9. Fiduciary Principles in Pension Law, Dana M. Muir
10. Fiduciary Principles in Employment Law, Aditi Bagchi
11. Fiduciary Principles in Bankruptcy and Insolvency, John A.E. Pottow
12. Fiduciary Principles in Family Law, Elizabeth S. Scott and Ben Chen
13. Elizabeth S. Scott and Ben Chen, Nina A. Kohn
14. Fiduciary Principles in Legal Representation, Richard W. Painter
15. Fiduciary Principles in Health Care, Mark A. Hall
16. Fiduciary Principles and Public Offices, Ethan J. Leib and Stephen R. Galoob
17. Fiduciary Principles and the State, D. Theodore Rave
18. Fiduciary Principles in International Law, Evan J. Criddle
Part II. A Conceptual Synthesis of Fiduciary Law
19. The Identification of Fiduciary Relationships, Paul B. Miller
20. The Fiduciary Duty of Loyalty, Andrew S. Gold
21. The Fiduciary Duty of Care, John C. P. Goldberg
22. Other Fiduciary Duties: Implementing Loyalty and Care, Robert H. Sitkoff
23. Mandatory and Default Rules in Fiduciary Law, Daniel Clarry
24. Fiduciary Remedies, Samuel L. Bray
Part III. Fiduciary Law across History and Legal Systems
25. Fiduciary Principles in English Common Law, Joshua Getzler
26. Fiduciary Principles in the Canon Law, Richard H. Helmholz
27. Fiduciary Principles in Roman Law, David Johnston
28. Fiduciary Principles in Classical Islamic Law Systems, Mohammad Fadel
29. Fiduciary Principles in Classical Jewish Law, Chaim N. Saiman
30. Fiduciary Principles in Contemporary Common Law Systems, Matthew Conaglen
31. Fiduciary Principles in European Civil Law Systems, Martin Gelter and Genevieve Helleringer
32. Fiduciary Principles in Chinese Law, Nicholas C. Howson
33. Fiduciary Principles in Indian Law, Vikramaditya S. Khanna
34. Fiduciary Principles in Japanese Law, J. Mark Ramseyer and Masayuki Tamaruya
Part IV. The Future of Fiduciary Law and Theory
35. The Economics of Fiduciary Law, Richard R.W. Brooks
36. The Philosophy of Fiduciary Law, Charlie Webb
37. Fiduciary Law and Psychology, Tess Wilkinson-Ryan
38. Empirical Analysis of Fiduciary Law, Jonathan Klick and Max M. Schanzenbach
39. Fiduciary Law and Equity, Henry E. Smith
40. Fiduciary Law, Good Faith, and Publicness, Hillary A. Sale
41. Fiduciary Law and Moral Norms, James E. Penner
42. Fiduciary Law and Social Norms, Matthew Harding
43. Fiduciary Law and Corruption, Sung Hui Kim
44. Fiduciary Law and Pluralism, Hanoch Dagan
45. Fiduciary Law and Financial Regulation, Howell E. Jackson and Talia B. Gillis
46. Delaware Corporate Fiduciary Law: Searching for the Optimal Balance, Lawrence A. Hamermesh and Leo E. Strine, Jr.
47. New Frontiers in Private Fiduciary Law, Paul B. Miller
48. New Frontiers in Public Fiduciary Law, Evan Fox-Decent
My own contribution is "Fiduciary Remedies" (a prepublication draft is here on SSRN). Three of the points that I think are more important are (1) fiduciary remedies arise out of, and indeed require the performance of, fiduciary duties; (2) monetary remedies for loss in fiduciary law aren't calculated the same way as legal damages; and (3) the remedies of fiduciary law (derived from trust law) are quite different from those of agency law.
On Friday, the Justice Department announced that it will not appeal a federal trial court decision ruling that the federal law banning female genital mutilation (FGM) is unconstitutional. This is likely to be an unpopular move. But it is right thing to do nonetheless. The federal FGM ban exceeds the scope of Congress' power under the Constitution. I summarized the reasons why in this post on the trial court decision:
Article I of the Constitution does not give Congress any general power to suppress crime or child abuse. Therefore, the federal government tried to shoehorn the FGM ban into the Commerce Clause, which gives Congress the power to regulate interstate commerce. On first principles, it is pretty obvious that, at least in most cases, FGM is not a form of interstate commerce. It is generally performed within one state and often isn't even a commercial transaction. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of "economic activity," even if it is only performed within a single state, and even some forms of "noneconomic" activity, so long as banning it is part of a broader "regulatory scheme" aimed at an interstate market. But… the FGM ban does not fit even these broad criteria, and is also at odds with previous Supreme Court decisions, including United States v. Morrison (2000), which make it clear that the Commerce Clause does not give Congress the power to ban local violent crime…
If Congress does not have a general power to forbid violence against women or other violent crime—such as rape and murder—it also does not have the power to ban FGM. Like other crime, FGM, of course, has some effect on interstate commerce. But if the Commerce Clause gave Congress the power to forbid any activity that affects interstate commerce in some way, it would have the power to ban virtually anything, as almost any type of human behavior has some effect on what people buy, sell, or transport in interstate trade.
As Judge Bernard Friedman explained in the trial court decision:
FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity. There is no suggestion that the procedure is done for money…. Nor is there any suggestion that this "service" is offered within anything approaching an established interstate market, as exists for illegal drugs and pornography. Committing FGM is comparable to possessing a gun at school, i.e., a criminal act that "has nothing to do with commerce or any sort of economic enterprise." [United States v.] Lopez, 514 U.S. at 561.
The federal government also claimed that the law is authorized by a combination of the treaty power and the Necessary and Proper Clause, as an exercise of Congress' authority to enforce US obligations under Article 3 of the International Covenant on Civil and Political Rights (ICCPR), which requires states to "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant," and Article 24, which states that "[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." These are stronger arguments than the Commerce Clause theory. But they still fall short for reasons explained in Judge Friedman's opinion and in my earlier post on the case.
Female genital mutilation is a terrible crime. But that does not mean it has to be dealt with by the federal government. As Judge Friedman explains, FGM is already illegal in every state. It is either banned by targeted anti-FGM laws, or by general laws against child abuse and assault. Just as there is no need for a federal law against murder or assault, so there is no need for a federal anti-FGM law.
Some experts who agree that the anti-FGM law is unconstitutional nonetheless condemn the Justice Department's decision not to appeal, because they believe DOJ has a duty to defend the constitutionality of any federal law for which a plausible defense can be offered. I disagree for reasons outlined here and here. The Justice Department's highest legal duty is to defend the Constitution, not federal laws that violate it.
For what it is worth, I have maintained that view under both the Obama administration (with respect to its decision not to defend the Defense of Marriage Act) and the Trump administration (respecting its refusal to defend Obamacare). My objection to elements of the latter policy was due to the fact that DOJ's position was wrong on the merits, not the idea that the Department has a duty to defend the constitutionality of all federal laws that have a plausible legal rationale.
DOJ's decision on the FGM case is a welcome departure from the Trump Justice Department's generally awful record on constitutional federalism, lowlighted by its policies targeting "sanctuary cities," which have been ruled unconstitutional in numerous court decisions by both Democratic and Republican-appointed federal judges. The Trump administration also supports passage of the Protect and Serve Act, which would make it a federal crime to assault a police officer. The proposed act is unconstitutional for much the same reasons as the federal anti-FGM law. The Protect and Serve Act failed to pass last year, because it was bottled up in the Senate, but was recently reintroduced in the House of Representatives.
It is, therefore, a mistake to conclude that the Trump DOJ is a consistent champion of federalism. Very far from it. That said, Friday's decision may be the result of the influence of the Attorney General William Barr, who appears to be more supportive of federalism than his predecessor, Jeff Sessions. Being better than Sessions in this respect is, of course, a pretty low bar for Barr to exceed. But a small measure of progress is much better than nothing.
[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection, The First Amendment and Criminal Libel Law, and The First Amendment and the Catchall Permanent Injunction; or you can read the whole article in PDF.]
Let's now shift from an anti-libel injunction that I argue is constitutionally permissible (even if perhaps unsound in other ways)—the catchall injunction—to one that is broadly understood to be unconstitutional: the specific preliminary injunction. Paula sues Don for libel, arguing that Don lied when he said that Paula had cheated him in business. She gets a preliminary injunction, just weeks after filing, or even a temporary restraining order (whether or not ex parte) just days after filing. That injunction says, "Don shall not accuse Paula of cheating him," and lasts until trial (which could be years or at least many months in the future). It is specific rather than catchall because it bans only the repetition of a specific allegation or set of allegations (here, of cheating).
Such specific preliminary injunctions have been sharply condemned by most appellate courts that have seriously considered them—even by courts that authorize specific permanent injunctions—because those injunctions suppress speech without a finding on the merits that the speech is unprotected. In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,
In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. "… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted…."
Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:
[T]he speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values.
The Nebraska Supreme Court took the same view:
A jury has yet to determine whether Sullivan's allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan's speech, constitute unconstitutional prior restraints in derogation of Sullivan's right to speak.
Or in the words of the Alaska Supreme Court, "Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected." And while the court went on to say that, "A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected," the injunction that it was authorizing this way isn't really so preliminary. The few cases that have upheld preliminary injunctions against libel have not squarely responded to this criticism.
More generally, the Supreme Court likewise held in Vance v. Universal Amusements, Inc. that alleged obscenity cannot be enjoined simply based on a pretrial showing that the speech was likely to be obscene—at least absent the procedural protections offered by Freedman v. Maryland—even though it could be enjoined after a finding of obscenity on the merits. Likewise, in Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, the Court upheld an injunction against an illegal advertisement only "because no interim relief was granted," so that "the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected."
The problem with the specific preliminary injunction, then, is that it doesn't just lead to punishment of speech that a jury has found libelous beyond a reasonable doubt (or even by a preponderance of the evidence). It leads to punishment of speech that a judge has found will likely be shown to be libelous, and this finding may have been based on a highly abbreviated (and sometimes even ex parte) adjudicative process.
 See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued "after only the most preliminary of determinations by the trial court"); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted "before an adequate determination that it is unprotected by the First Amendment"); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) ("We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although 'it has never been held that all injunctions against publication are impermissible,' such an injunction has been upheld only when it 'was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'"); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) ("[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected."); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) ("A preliminary injunction is a prior restraint."); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not "'entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'" (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only "after a final adjudication on the merits that the speech is unprotected").
 But see Gillespie v. Council, 2016 WL 5616589, *3 (Nev. Ct. App. Sept. 27) (reluctantly allowing preliminary injunction in libel case, because a 1974 Nevada Supreme Court had allowed such injunctions); San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233–39 (9th Cir. 1997) (concluding that a preliminary injunction in a labor union libel case was not a prior restraint because the statements were so misleading as to be fraudulent, and "[t]he First Amendment does not protect fraud"); Bingham v. Struve, 591 N.Y.S.2d 156, 158-59 (Sup. Ct. App. Div. 1992) (ordering a preliminary injunction against a libel on a matter of private concern, concluding that the libel was constitutionally unprotected but not considering the prior restraint problem); Parland v. Millennium Const. Servs., LLC, 623 S.E.2d 670, 673 (Ga. Ct. App. 2005) (allowing a preliminary injunction so long as there is a showing of irreparable harm); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. Ct. App. 2001) (allowing preliminary injunction as to speech on matters of "primarily private concern").
 445 U.S. 308 (1980); see also Blount v. Rizzi, 400 U.S. 410, 420 (1971) (holding that a determination by a judge of "probable cause" that speech is obscene is insufficient to justify a restriction); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 240 (1990) (reaffirming this principle as to "prior restraint[s] in advance of a final judicial determination on the merits"); State v. Book-Cellar, Inc., 679 P.2d 548, 553-55 (Ariz. Ct. App. 1984) (upholding a statute that authorized preliminary injunctions against the distribution of obscenity by requiring "that a final judicial determination [be] made by the end of 60 days from the issuance of a preliminary injunction," a safeguard compelled by Freedman v. Maryland, 380 U.S. 51 (1965)); City of Cadillac v. Cadillac News & Video, Inc., 562 N.W.2d 267, 270 (Mich. Ct. App. 1996) (overturning down a preliminary injunction of obscenity on the grounds that the injunction would permit "removal of allegedly obscene materials from circulation before a judicial determination whether the material is obscene, with none of the safeguards" established in Freedman v. Maryland, 380 U.S. 51, 59 (1965)).
A reader was confused by this at first, so it led me to think that some other readers might be, too.
From Doe v. East St. Louis Housing Authority, filed Thursday:
The parties stipulated to this following order enjoining Defendants from taking any action to enforce any provisions in the ESLHA Lease … [barring] residents who are permitted under Illinois [and local and federal] law to possess firearms, from possessing functional firearms that are legal in their jurisdiction for self-defense and defense of others in their residences ….
Among whatever else, the Second Amendment protects the right of a law-abiding individual to possess functional firearms in his or her home for lawful purposes, most notably for self-defense and defense of family. See District of Columbia v. Heller, 128 S.Ct. 2783, 2818 (2008). The Second Amendment is applicable to States through the Fourteenth Amendment. See McDonald v. City of Chicago, 130 S.Ct. 3020 (2010)…. The Court concludes that the Stipulation should be approved, and judgment should be entered in favor of Plaintiffs.
This isn't much of a legal precedent for other cases, because it's based on the parties' stipulation; but it might be a practical precedent, as other housing agencies conclude that, if East St. Louis, San Francisco, and Warren County (Illinois) have folded on this, they should, too.
The legal precedents in this field are surprisingly mixed:
A. Constitutional rights generally seem to apply to public housing, though there have been few cases on the subject. See, e.g., Pratt v. Chicago Hous. Auth., 848 F. Supp. 792 (N.D. Ill. 1994) (holding that the Fourth Amendment barred warrantless sweeps through public housing projects); Resident Action Council v. Seattle Hous. Auth., 174 P.3d 84 (Wash. 2008) (evaluating restriction on public housing residents' posting materials on the outside of their apartment doors the same way the U.S. Supreme Court had evaluated restriction on private residents' rights to post materials in their windows).
B. A 2014 Delaware Supreme Court decision held that public housing tenants have a right to bear arms under the Delaware Constitution's right to bear arms provision — "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use" — even in common areas of the building. (The court noted that the Delaware Constitution's language may justify broader protection than that given by the Second Amendment, and indeed a federal district court had upheld the ban on gun possession in common areas under the Second Amendment; but given the individual rights reading of the Second Amendment in D.C. v. Heller, I'd view the Delaware Supreme Court's reasoning as potentially influential in other states, too.)
Nonetheless, the main limitation of the case is that the government "conceded that after [McDonald v. City of Chicago], as a landlord it may not adopt a total ban of firearms." This meant that the Delaware court didn't focus on analyzing whether banning guns in people's public housing apartments was unconstitutional; instead, the court reasoned that, accepting that the inside-apartment ban would be unconstitutional, a ban on possession in common areas was, too.
C. A nonprecedential 2004 Michigan appellate court decision upheld a ban on gun possession in public housing against a challenge based on the Michigan Constitution's right to bear arms provision ("Every person has a right to bear arms for the defense of himself and the state"):
While the right to possess arms is acknowledged within the Michigan Constitution, this right is subject to limitation. Jurisprudence in this state has consistently maintained the right to keep and bear arms is not absolute. This Court has determined that "the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power." The state has a legitimate interest in limiting access to weapons.
It is recognized that public housing authorities have a legitimate interest in maintaining a safe environment for their tenants. Infringements on legitimate rights of tenants can be justified by regulations imposed to serve compelling state interests which cannot be achieved through less restrictive means. Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff's complex necessitating her possession of a weapon to defend herself.
But this can't be a sound argument, because it doesn't explain why governmental restrictions on guns in public housing projects are any different from governmental restrictions on guns in private housing. After all, the government has a "legitimate interest" in "maintaining a safe environment" for everyone; there are few "environment[s] and circumstances" in which guns lose their dangerousness; and the government's "police power" extends to private property as well as to government property. Yet the government can't just ban guns in private housing using the argument given above — and the Michigan opinion doesn't explain why the rules for guns in public housing should be any different.
(A Maine trial court took the same view in 1993, but its analysis was similarly weak.)
D. A 1988 Oregon Attorney General opinion, applying the Oregon Constitution's right to bear arms ("The people shall have the right to bear arms for the defence of themselves"), took the opposite view from the Michigan court:
It is well settled that the government may not condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action. The United States Supreme Court has repeatedly upheld that principle under the United States Constitution….
… Although the Oregon Supreme Court has not ruled on the issue directly, from [various state court] authorities we believe that, if faced squarely with the question, the court would hold that this "unconstitutional condition" principle applies under the Oregon Constitution….
Eligibility for low-income housing provided by a housing authority plainly is a public benefit or privilege. Subject to certain federal limitations, a housing authority lawfully may condition eligibility for low-income housing on satisfaction of income criteria and other factors designed to ensure that only responsible tenants reside in that housing. However, we conclude that a housing authority may not require an otherwise-eligible individual to surrender rights under article I, section 27 in order to obtain low-income housing.
The problem here is that, though all the cases cited by the Oregon Attorney General indeed rejected government demands that someone waive a constitutional right to get a benefit, many other cases uphold such demands. A plea bargain may be conditioned on a waiver of the right to trial. Welfare benefits, or membership on a high school sports team, may be conditioned on a waiver of some parts of the recipient's rights to be free from searches without probable cause. A government paycheck may be conditioned on a promise not to reveal certain things the employee learns in confidence.
More broadly, the government may sometimes refuse to allow the exercise of constitutional rights on its property, especially setting aside traditionally open places such as parks and sidewalks. It could, for instance, insist that abortions not be performed in government-owned hospitals. It could bar a wide range of speech in government buildings.
I'm inclined to think that the Oregon AG reached the right result: Public housing is a home as well as a government building, and government control over people's exercise of their constitutional rights in their homes — as a condition of getting a benefit that may often be economically necessary for them — is an especially serious burden. Indeed, even the case that allowed some restrictions of rights in the home as a condition of an economically necessary benefit, Wyman v. James (1971), stressed the narrowness of the intrusion: The case held that the Fourth Amendment did not bar a policy under which welfare recipients had to allow home visits by case workers; but the Court stressed that the nature of the "search" was quite limited, with the case worker limited to seeing what can be seen in plain view, rather than "snooping." I doubt that this could be properly extended to a categorical prohibition on the exercise of all of one's Second Amendment rights in one's home.
Nonetheless, the analysis has to be more careful than what the Oregon opinion offers, precisely because the precedents on whether "the government may … condition entitlement to public benefits, whether gratuitous or not, upon the waiver of constitutional rights that the government could not abridge by direct action" are so mixed.
E. Finally, I think a public housing authority could regulate guns that it sees as especially dangerous in its buildings, where apartments are separated by only a single wall, which increases the risk that a bullet would injure or kill a neighbor. But this concern has never been seen as justifying total bans on all gun possession in all apartment buildings. It would in any case not justify bans on shotguns, which fire small pellets that are highly unlikely to go through a wall or retain their lethality even if they do. And it wouldn't justify bans on handguns that are loaded with special frangible ammunition, which is designed to similarly not go through walls.
For citations to some of the sources mentioned above, see my Implementing the Right to Keep and Bear Arms article, pp. 1529-33.
Here, by the way, is an excerpt from the Complaint, which tells a pretty compelling story:
[2.] Plaintiff N. DOE, filing anonymously, is a resident of Auburn Terrace, a public housing facility in East St. Louis, Illinois, administered by the East St. Louis Housing Authority. She is a customer service representative for a medical supply distributor, who due to health issues of her family and herself, became in need of governmental assistance in the form of subsidized housing. She has a valid Illinois FOID card, and has trained and educated in the safe use of firearms. She wishes to possess a handgun in her residence for self-defense, and did at one point, but has been forced to refrain from doing so due to the threat of losing her subsidized housing. At the present time, she resides with her two teenage children in her residence….
[6.] N. DOE has an ex-husband who was incarcerated for murder. He was released on probation, and during that time was violently abusive to N. DOE on multiple occasions, including choking her to unconsciousness, and beating her so badly that she had internal bleeding. He threatened, on multiple occasions, to kill N. DOE and her two children if she ended her relationship with him. As a result of this violence, he was returned to prison with his probation revoked. He has since been released, and N. DOE has recently received word that he is still "very angry" with her and is looking for her.
[7.] Further, in January, 2017, N. DOE was beaten and raped in her home by a family acquaintance, who decided that since N. DOE was suffering from a hand injury, that she was unable to fight back. During the rape, N. DOE was able to call for help from her children, who stopped the attack by threatening to brandish the firearm, that at the time was in the residence, at the attacker and getting the attacker to leave N. DOE's residence.
[8.] On two occasions, N. DOE has to call the police due to shootings in nearby residences. Shootings are common enough to be called routine in the subject ESLHA property….
[17.] Section IX.(p) of the ESLHA Lease, entitled "RESIDENT'S OBLIGATIONS," requires that N. DOE is "[n]ot to display, use, or possess or allow members of [DOE's] household or guests to display, use, or possess any firearms, (operable or inoperable) … anywhere in the unit or elsewhere on the property of the Authority."
[18.] Section XI.E. of the ESLHA Lease, entitled "SPECIAL INSPECTIONS," states that "ESLHA staff may conduct a special inspection for any of the following reasons: … Suspected lease violation."
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Nashville prohibits people who run home businesses from allowing customers to visit. Want to teach piano lessons in your living room? Illegal. Have a soundproofed recording studio in your basement? No renting that out. Run a one-chair salon? Keep your clippers to yourself. Which is ridiculous—and also unconstitutional. Click here for some in-depth reporting on Nashville's client prohibition from Reason.com.
- Allegation: Man steps outside his home in Southeast D.C. to take some air. He's obstructing no one, but police officer in a passing patrol car yells at him to move along, arrests him when he declines. Weeks later and a few blocks away, the same officer arrests another man who stepped outside for a smoke (on Christmas Eve) and who was also not obstructing passersby. D.C. Circuit: A D.C. law that authorizes police to arrest (after a warning) people who obstruct pedestrian traffic is not unconstitutional in all its applications.
- Columbia law prof disappears from NYC subway in 1956, never to be found. Perhaps he was murdered by agents of Dominican dictator, whom he'd criticized. Alleged to be involved: a former FBI agent who worked for the dictator and was convicted (later reversed) of failing to register as an agent of a foreign government. May historian obtain the ex-agent's grand jury records? District court: Generally, courts can authorize grand jury records' disclosure if historically significant. D.C. Circuit (over a dissent): Not so. Grand jury secrecy is the rule, the only exceptions to which are expressly enumerated, and none provides a blanket exception for historically significant documents.
- In 2012, [REDACTED] sent a big chunk of money to a corporation, which sent a big chunk of money to a nonprofit, which sent a big chunk of money to a political action committee. That violates campaign finance law, and the Federal Election Commission ultimately settled the case with a fine of $350k on the corporation, the nonprofit, and the PAC, but not [REDACTED]. May the FEC now release documents that would disclose [REDACTED]'s identity, over [REDACTED]'s objections? D.C. Circuit: [REDACTED] loses. Dissent: [REDACTED] should win.
- Certain Dallas landlords refuse to accept "Section 8" vouchers, which are federal rent subsidies for low-income tenants. (Landlord participation in Section 8 is voluntary.) But the users of those vouchers are disproportionately members of racial minorities. And—since a 2015 Supreme Court case—the federal Fair Housing Act can prohibit housing policies that disproportionately affect minority groups. So does the refusal to accept Section 8 vouchers violate the Fair Housing Act? Fifth Circuit (2–1): It does not. The Supreme Court said to be careful of claims like this, which take disparate impact liability too far.
- Near the start of the 2013–14 school year, Mississippi truancy officer calls 6-year-old student's listed contact person to figure out why student is missing school. Beats me, says the contact, I'm his aunt; he doesn't live with me. The officer apologizes for the confusion. Fast-forward to the end of the school year: Student has 16 unexcused absences, so the truancy officer swears out an arrest warrant for … the aunt? She's handcuffed, taken to jail, and strip-searched before the mistake is discovered. Fifth Circuit: No qualified immunity for that.
- The great philosopher David Hume argued that if you see one billiard ball strike another, after which the first ball stops and the second ball acquires motion, you don't really see the first ball cause the second to move; you just see one event follow the other. A Humean district court judge might apply similar reasoning to this New Orleans waste disposal company, which made $20k in illegal campaign contributions through four shell corporations to former New Orleans Mayor Ray Nagin (who was sentenced to 10 years in prison for accepting (unrelated) bribes), after which Mayor Nagin canceled a competing waste disposal company's landfill contract. Fifth Circuit (over a Humean dissent): This RICO case by the aggrieved competitor should have gone to a jury.
- Georgetown, Ky. police officer shoots driver "at some unspecified point" after the driver hit a police cruiser with her car. The driver later pleads guilty to wantonly endangering the officer's life. Does this plea bar the driver's excessive force lawsuit? Sixth Circuit: It depends. If the officer shot because he was in danger, the claim is barred. If he shot after the threat had ended, it isn't. Remanded for limited discovery.
- Some cases deal with issues so earthshaking that they invoke "ordered liberty" itself. There's also this case, in which the Sixth Circuit holds that a particular cooperative of cherry growers was lawfully a member of the federal Cherry Industry Administrative Board—a regulatory body that we are not making up.
- "These appeals, unfortunately, are not Nora's first encounter with attorney discipline. See, e.g., [string cite]." You can probably tell from the opener that the Seventh Circuit upheld Ms. Nora's suspension from practice in the Western District of Wisconsin. But don't overlook the additional sanctions imposed for her conduct during the appeal.
- Woman is convicted of assault for slapping a fellow passenger on flight from Minneapolis to Los Angeles. (She's fined $760.) Ninth Circuit (creating a circuit split): Conviction reversed. The trial was held in federal district court in Los Angeles, but the assault happened before the plane reached that district's airspace. Dissent: Asking victims to pinpoint and the gov't to prove the precise moment an assault took place will make prosecutions (of crimes much more serious than this one) on board aircraft well-nigh impossible.
- Man spends over four years in jail awaiting trial. That's too long! Kansas court orders him released, and the Kansas Supreme Court affirms, holding that the Sixth Amendment's Speedy Trial Clause applies to civil commitment proceedings. Tenth Circuit: But he can't sue the state official in charge of civil commitments for not taking action sooner; some of the delay was on him for asking for new lawyers and judges.
- And in other news, the Second Circuit has withdrawn its decision holding that landlords can be liable for tenant-on-tenant harassment under the Fair Housing Act.
This week, IJ launched two new cases. Up in Pennsylvania, Lancaster and Berks County prosecutors are refusing to turn over to a local journalist records that detail how much property they take through civil forfeiture and how the proceeds are spent—despite a ruling from the state's Office of Open Records that those records should be available to the public. Click here to learn more. And in Indiana, IJ is challenging a law that bars patients from utilizing telemedicine to obtain prescriptions for eyeglasses or contacts. The tech is safe and effective, but it threatens some optometrists' profits, and they prevailed on the legislature to ban it. Click here for more.
A couple months ago, the Supreme Court lifted a stay of execution in Dunn v. Ray, allowing Alabama to execute a man despite the prison's refusal to let his imam attend to him in the execution chamber. While much of the controversy about the case was about the religious discrimination angle, the Court's opinion stressed an issue of timing—the Court claimed that he had raised the issue too late in the day, and that this was an independent reason to deny his claim for relief. Four Justices joined a very powerful dissent written by Justice Kagan. (I wrote about this here.)
Then in late March, the Supreme Court granted a stay of execution in Murphy v. Collier, a similar case out of Texas (this one involving a Buddhist). Two Justices, Thomas and Gorsuch, announced their dissent. Justice Kavanaugh, who had necessarily joined the majority in Dunn v. Ray, wrote an opinion explaining why he ruled in favor of the prisoner on the religious discrimination issue. He also included a footnote announcing that the case was different from Dunn v. Ray on the timing issue because "Murphy made his request to the state in a sufficiently timely manner, one month before his scheduled execution."
Many observers were not convinced that the timing was that different, since Ray had made his request to the state two weeks before his execution, and the difference between two weeks and a month seems somewhat arbitrary. Indeed, Ray actually filed his lawsuit sooner than Dunn. Ray sued ten days before his execution; Murphy sued in state court eight days before his execution and in federal court two days before his execution. But Ray died and Murphy lived.
Because both of these decisions were dealt with on the orders list (or the "shadow docket") rather than the merits docket, the Court provided only very brief explanations of its decision. Justices Gorsuch and Thomas did not explain their dissent in the Murphy case. We also do not know how Justice Alito or Chief Justice Roberts voted in Murphy. Unlike with merits opinions, it is possible for a Justice to dissent from an order without publicly noting it, so the decision might have been 7-2, 6-3, or 5-4. And if those justices voted with the majority in Murphy, we don't know whether they agreed with Justice Kavanaugh about how to distinguish Dunn. But the combination of the cases prompted various explanations, such as the possibility that different lawyering or different amicus participation made the difference, or that the Court had felt the blowback from its Dunn decision and was quietly beating a retreat.
Then the plot thickened. In Bucklew v. Precythe, a merits case about an Eighth Amendment challenge to an execution protocol, Justice Gorsuch's opinion for the Court included a 2-page section at the end of the opinion raising general concerns about litigation that delayed the death penalty. The Court reiterated that "federal courts can and should protect settled state jugments from undue interference by invoking their equitable powers to dismiss or curtail suits that are pursued in a dilatory fashion or based on speculative theories." And it doubled down on Dunn v. Ray, including a long footnote reiterating Ray's claim had involved undue delay. So it doesn't seem like there is a retreat.
Finally, last night in Dunn v. Price, the Supreme Court divided 5-4 over another request to lift a stay. The Court lifted a stay imposed by the Eleventh Circuit because Price's complaint was too late—but he had challenged his April execution in February (though he had also "submitted additional evidence … a few hours before his scheduled execution time") rather than electing that method of execution last June. Justice Breyer wrote a dissent joined by four Justices that began "Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way, let that person review the following circumstances as they have been presented to our Court this evening." He emphasized that he had just wanted to delay discussion until today, when the Justices could discuss the case in person, rather than dealing with it in the middle of the night. Ironically, the Court's own decision that Price's litigation came too late itself came too late. Apparently because the Court's decision didn't come out until after 1 am EDT, Alabama's death warrant expired and will have to be renewed in a month.
It seems clear to me that the Court is attempting to signal a significant shift in how it handles death-penalty litigation, but it is struggling over how to carry it out, and also likely divided over whether that shift is a good idea in any event. This problem is significantly exacerbated by two procedural features of the death penalty shadow docket. One is that these decisions are made with a modest amount of briefing, no oral argument, and without the Justices meeting in person to talk about them. The other is that these issues come up on a tight time frame, often in the middle of the night. Both the majority and the dissent are trying to respond to these features, but in different ways that each presuppose the correctness of their proposed solutions.
I say this as somebody with a great deal of sympathy for the Court, who thinks that the death penalty is justifiable and constitutional, but: this is no way to run a railroad. If the Court wants to regularize its death penalty procedures or stop the last-minute filings, it might be time to consider any of the following: promulgating a new Supreme Court rule setting out some deadlines or timeliness rules; adopting a general presumption of deference to the lower court in last-minute filings; adopting a general presumption of deference to the district court in last-minute filings; granting certiorari and oral argument in one of these shadow-docket cases so that some specific timeliness principles could be discussed, adjudicated, and adhered to; keeping all of the Justices in the building on execution night so that they can discuss controversial orders in the conference room. I'm sure somebody else can think of better ideas.
But I fear that muddling through these cases on the shadow docket will not produce the procedural regularity or early filing that the majority claims to want, and if it goes on much longer, it may also give Justice Breyer's accusations of arbitrariness the unfortunate appearance of truth.