Free Minds & Free Markets


Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

"Doctors Saved Man's Life by Pumping 15 Cans of Beer Into His Body"

Apparently he was suffering from methanol poisoning his liver, and administering ethanol seems to make the methanol less harmful.

Or so it appears from the story in Newsweek (Aristos Geogriou), which gives more details. I did not know things worked that way.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer. [UPDATE: Newsweek link fixed, thanks to reader Jonathan Doyle for pointing out the problem.]

Appellate Court Rejects Cartoonist Ted Rall's Libel and Employment Claims Against L.A. Times

The claim stemmed from the Times' published statements "questioning the accuracy of a blog post plaintiff wrote for The Times," and the Times' decision not to publish more work from Rall.

From yesterday's California Court of Appeal decision in Rall v. Tribune 365 LLC:

Plaintiff Frederick Theodore Rall III, a political cartoonist and blogger, sued [The Los Angeles Times] after it published a "note to readers" and a later more detailed report questioning the accuracy of a blog post plaintiff wrote for The Times. The Times told its readers that it had serious questions about the accuracy of the blog post; that the piece should not have been published; and that plaintiff's future work would not appear in The Times. Plaintiff sued ... alleging causes of action for defamation and for wrongful termination in violation of public policy, among other claims....

In May 2015, the LAPD was enforcing the city's laws against jaywalking, and The Times reported on the effects of costly jaywalking fines on poor and working class Angelenos. After that report, plaintiff submitted and The Times published a cartoon mocking the LAPD for its jaywalking policy ("LAPD's Crosswalk Crackdown; Don't Police Have Something Better to Do?"), along with a May 11, 2015 blog post that described plaintiff's own arrest for jaywalking in 2001.

In the blog post, plaintiff wrote that he had crossed the street properly ("I was innocent of even jaywalking") when a motorcycle officer "zoomed over, threw me up against the wall, slapped on the cuffs, roughed me up and wrote me a ticket. It was an ugly scene, and in broad daylight it must have looked like one, because within minutes there were a couple of dozen passersby shouting at the cop. [¶] Another motorcycle officer appeared, asked the colleague what the heck he was thinking and ordered him to let me go, which he did. But not before he threw my driver's license into the sewer." Plaintiff's blog also stated he had filed a formal complaint with the LAPD, and when he called a few months later, he was told the complaint had been dismissed, and "[t]hey had never notified me." ...

On July 28, 2015, The Times published, in its opinion section, an "Editor's Note[:] A note to readers." The note to readers described plaintiff's May 11, 2015 blog post, and then described records that the LAPD provided to The Times about the incident plaintiff had recounted in his blog post. These included the complaint plaintiff filed at the time, and "[a]n audiotape of the encounter recorded by the police officer."

The note to readers stated the audiotape "does not back up [plaintiff's] assertions; it gives no indication that there was physical violence of any sort by the policeman or that [plaintiff's] license was thrown into the sewer or that he was handcuffed. Nor is there any evidence on the recording of a crowd of shouting onlookers." The note to readers continued:

"In [plaintiff's] initial complaint to the LAPD, he describes the incident without mentioning any physical violence or handcuffing but says that the police officer was 'belligerent and hostile' and that he threw [plaintiff's] license into the 'gutter.' The tape depicts a polite interaction. [¶] In addition, [plaintiff] wrote in his blog post that the LAPD dismissed his complaint without ever contacting him. Department records show that internal affairs investigators made repeated attempts to contact [plaintiff], without success. [¶] Asked to explain these inconsistencies, [plaintiff] said he stands by his blog post. [¶] As to why he didn't mention any physical abuse in his letter to the LAPD in 2001, [plaintiff] said he didn't want to make an enemy of the department, in part because he hosted a local radio talk show at the time. After listening to the tape, [plaintiff] noted that it was of poor quality and contained inaudible segments."

The note to readers concluded: "However, the recording and other evidence provided by the LAPD raise serious questions about the accuracy of [plaintiff's] blog post. Based on this, the piece should not have been published. [¶] [Plaintiff's] future work will not appear in The Times. [¶] The Los Angeles Times is a trusted source of news because of the quality and integrity of the work its journalists do. This is a reminder of the need to remain vigilant about what we publish." ...

On August 19, 2015, in response to questions from readers, The Times published a piece that provided "a detailed look at the matter by Times editors" (the Times report). After describing the blog post and its note to readers, the Times report stated that plaintiff had "complained that The Times acted unjustly, based on flawed evidence," and "demanded that the paper retract its note to readers and reinstate him as a contributor. [¶] In response, The Times has reexamined the evidence and found no basis to change its decision."

The decision is long, but basically concludes:

[1.] Rall's libel claim loses, because of the "fair report" defense—under that defense, fair and accurate reports of official proceedings, including police investigations, are categorically immune from libel liability. (This is a state-law defense, though in one form or another it exists in all the states; the California version is especially broad.) Any additional statements by the Times beyond their account of the police report were either closely linked to the report, or couldn't be libelous because they did not "imply a provably false factual assertion":

The allegedly false statements not directly related to the LAPD investigation, along with plaintiff's assertions about them, are: (1) "[t]hat the Times interviewed [plaintiff] about discrepancies between the LAPD records, the tape and his blog post." (Plaintiff says this is false because there were no discrepancies, but clearly there were.) (2) "That Officer Durr had never handcuffed anyone for jaywalking." (Plaintiff asserts Officer Durr has handcuffed a suspect for illegal street racing.) (3) "That the LAPD told the Times that the audio has no indication that the tape was spliced or altered." (Plaintiff says there was no way to determine that because the audio was digital and not the original tape.) (4) "That Rall has offered changing versions of the 2001 detention over time and those changes are 'significant.' " (Plaintiff says there are no changing versions, just "different levels of detail.") (5) "That no version of the recording of the 2001 detention ... supports the allegation that Durr was violent, hostile, rude and belligerent." (Plaintiff cites as evidence of falsity his declaration describing what he heard a radio talk show host say (which is inadmissible hearsay), and what he heard on his enhanced recording. Both plaintiff's and The Times's statements are subjective conclusions about what could and could not be heard.)

[2.] Rall's "blacklisting" statutory claim, brought under a California statute bans any employer from "by any misrepresentation prevent[ing] or attempt[ing] to prevent [a discharged] employee from obtaining employment," loses for the same reason as his libel claim. "[A]side from any other defects, plaintiff's blacklisting claim arises from the same source as his defamation claims—the Times articles—and is subject to the same limitations. (See Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1043 ["the various limitations rooted in the First Amendment are applicable to all injurious falsehood claims and not solely to those labeled 'defamation' "].) As we have found, the Times articles were absolutely privileged. This eliminates plaintiff's blacklisting claims along with his defamation claims."

[3.] Rall's wrongful discharge claim loses, because there's no law forbidding a newspaper from firing employees (or contractors) based on things they say in their published material, or even based on their having offended government officials. "[E]ven if The Times had fired plaintiff 'in retaliation for offending the police chief'—a claim that is belied by plaintiff's own evidence that The Times published many of plaintiff's cartoons criticizing the LAPD and Chief Beck—plaintiff has identified no constitutional, statutory or regulatory provision that would have been violated."

Short Circuit: A Roundup of Recent Federal Court Decisions

Desperate circumstances, deceptive edits, and the rule of orderliness.

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

New on the Short Circuit podcast: No Fly List games and a pair of sovereign immunity cases. Click here for iTunes.

  • The D.C. Circuit continues to rule on a bevy of motions to pause proceedings while federal agencies lack funding thanks to the government shutdown. In one, the court will indeed hear arguments next week regarding whether the USDA violated open records law when, a few weeks after the most recent presidential inauguration, it pulled from its website a trove of documents concerning its inspection and licensing of animal research facilities. And in another, the parties must still brief whether Portland, Ore.'s use of airport revenue to pay the city's sewer, stormwater, and water bill (even though some of the costs are not incurred on the airport's behalf and do not directly benefit the airport) violates federal law. (A dissent is frustrated by the circuit's failure to settle on a principled way to decide the stay motions and believes this case should indeed be stayed.)
  • Man makes false statement on mortgage application, application for hunting license. But that was in the '90s; his troubles with the law are well behind him. Now he runs a successful business, and the bank he once attempted to deceive issues him credit. Nevertheless, as a convicted felon, he is banned by federal law from owning a firearm. A Second Amendment violation? The D.C. Circuit says no.
  • Banning people from using the internet is tantamount to exiling them from society, says the Second Circuit. So if the district court is going to impose that (as well as a ban on viewing legal porn) as a condition of supervised release, the court needs to explain how such a drastic measure is necessary to meet the goals of sentencing. Which it wasn't in the case at hand, even for a sex offender.
  • In August, the Third Circuit released a 142-page opinion that partially upheld the conviction of a Philadelphia politician (a former U.S. congressman) on corruption charges. (The decision also vacated some counts while reversing acquittals on others.) This week, the court released an amended opinion that comes in at 165 pages. The Short Circuit staff regrets it has no idea what's changed. (CA3blog notes the typeface is now larger.)
  • Many local governments use the FBI's background check system to carry out certain of their obligations under state law (like processing applications for firearm licenses). Yikes! Though federal law requires it, the Department of Defense consistently fails to provide data to the system. NYC, Philadelphia, and San Francisco: DOD, you must comply. Fourth Circuit: Alas, while the cities may use the system, they may not use the courts to compel the gov't to make that system more useful.
  • Pro-life activists pose as reps from fetal tissue company, surreptitiously record videos at Planned Parenthood. Texas officials: The videos revealed "numerous violations of generally accepted standards of medical practice," so no more Medicaid funds for Planned Parenthood. District court: Can't do that. Fifth Circuit (including a picture of what seems to be fetal tissue): The district court needs to take a second look with more deference to Texas officials' findings. (Moreover, contra the district court, the videos were not deceptively edited. See footnote six.)
  • Allegation: Attorney suffered workplace harassment, retaliation, and discrimination at the hands of the Dallas, Tex. city attorney's office. Texas state courts kicked her case out for being untimely; normally this means that her federal case cannot continue, but a 38-year-old Fifth Circuit decision says that it can. What gives? Fifth Circuit: The rule of orderliness does not oblige us to esteem an old, "legally anomalous" case over decades of contrary precedent. "[D]isregarding on-point precedent in favor of an aberrational decision flouting that precedent is the antithesis of orderliness."
  • Law school grad does not take repeated bar rejections well, begins "a history of personally attacking decisionmakers whose decisions he does not like." That includes calling their employers, sending letters to their clients and friends, and picketing their offices. Sixth Circuit: And thus the Western District of Michigan didn't have to let the guy practice there. It's not what he was saying—it's how he said it.
  • Man is held for 58 days in Grant County, Ky. jail on a warrant for failure to pay child support. But call up Maury—he is not the father! So can he sue the officer who was holding him? Sixth Circuit: He cannot. The officer wasn't indifferent to the possibility of having the wrong guy.
  • Short-term rental hosts in Chicago must register with the city, acquire a business license, and comply with a host of other requirements and restrictions (including geographic eligibility; caps on the number of rentable units in a building; and health, safety, and reporting requirements). A nonprofit and individuals interested in renting (from or to others) sues, alleging the ordinance violates the First Amendment and 14th Amendment. Seventh Circuit: Dunno, but you'll have to go back to the district court to sort out whether the plaintiffs even have standing to bring this suit. We have grave doubts.
  • Allegation: Indianapolis detective arrests man for bludgeoning man's own octogenarian mother to death. But the detective's warrant application contains misstatements, omissions, and perhaps outright lies. (For instance, it states the son placed a call from his mother's house one hour before he says he found her. But he didn't; the call had been routed through a cell tower one time zone away.) Charges are dropped. The man sues the detective. Detective: Ah, but I get qualified immunity since the lies were not clearly material. Seventh Circuit: Absolutely not. To trial the case must go.
  • Wisconsin jury convicts man of threatening two state judges. Due to clerical error, man gets jurors' names and addresses. Yikes! After serving his time, man sends the jurors unsettling letters asking for their support in getting him a pardon. Double yikes. Another jury convicts him of multiple counts of stalking. And we will not disturb those convictions, says the Seventh Circuit, rejecting a battery of First, Sixth, and 14th Amendment arguments.
  • Allegation: City of Helena-West Helena, Ark. woman pays fines, but instead of documenting the payment, the Phillips County District Court clerk's office issues an arrest warrant against her for unpaid fines. She is arrested and her car towed before the mistake is discovered. She sues the city, alleging an unconstitutional policy of not documenting fine payments. District court: Aha! But the clerk is a state official, not a city official, so you shouldn't have sued the city. Eighth Circuit: Double aha! The law making Arkansas district courts part of state government wasn't fully implemented in Phillips County until 2017—after the alleged constitutional violations. So maybe the clerk was a city official after all. The case can proceed.
  • Allegation: Pretrial detainee was denied bed, slept on floor for his three-and-a-half-day stay at Los Angeles County jail facility. Can he sue the now-former sheriff? Nope, says the Ninth Circuit: exigent circumstances. Hundreds of inmates at facilities across the county were rioting at the time; jail staff had their hands full.
  • Pascua Yaqui, Ariz. cop pulls over car for speeding. Driver provides identification but front-seat passenger refuses demands for ID. And that refusal was not a constitutional basis for prolonging the traffic stop, says Ninth Circuit, so the six bullets later found in the passenger's pockets (giving rise to a felon-in-possession charge) should have been suppressed.
  • Fire breaks out at Tucson, Ariz. hotel in 1972, killing 29 people. A 16-year-old who was nearby is convicted "on the basis of little more than that proximity and trial evidence that 'black boys' like to set fires." Much later, evidence emerges suggesting that the fire was not caused by arson. (Prosecutors also allegedly withheld evidence of the same.) After 42 years of imprisonment, prosecutors offer him immediate release if he pleads guilty to the original charges. He accepts. Can he sue about the original prosecution? Ninth Circuit: No, he just pleaded guilty. Dissent: "Far from being the product of a new, constitutionally conducted second trial, [the man's] second conviction was the product of his desperate circumstances. In his 60's, he faced acceptance of the plea offer or waiting years for a habeas petition to work its way through the courts."

On Wednesday, the Supreme Court held a spirited oral argument for Tennessee Wine & Spirits Retailers Association v. Blair, a case that offers the court the rare opportunity to scrutinize the 21st Amendment. In what could set a major precedent for how states can regulate wine and liquor, many of the justices sharply critiqued state laws that do little more than protect in-state businesses from outside competitors in the alcohol industry. Click here to read more.

Audio of Recent Federalist Society Teleforum on Sanctuary Cities

The event features Ilya Shapiro of the Cato Institute, and myself.

The Federalist Society has posted the audio of last week's teleforum on the sanctuary city/sanctuary state litigation of the last two years. The event featured presentations and rebuttals by Ilya Shapiro of the Cato Institute and myself. We covered all of the major sanctuary cases of the last two years, including challenges to President Trump's January 2017 executive order seeking to deny federal funds to sanctuary jurisdictions, cases involving then-Attorney General Jeff Sessions' efforts to force jurisdictions that receive federal law enforcement grants to assist in deportation efforts, and the legal battle over California's sanctuary state laws. I wrote about the big-picture issues for federalism at stake in the sanctuary cases here.

In the Teleforum, Ilya Shapiro agree on most of the questions at issue in the Trump executive order and Sessions law enforcement grant conditions cases, but differ on two of the three issues raised by the California sanctuary state case.

Because this event included both Ilya Shapiro and myself, there is a risk that it will exacerbate the already serious problem of #IlyaConfusion. Fortunately, I have created this definitive guide to telling the two libertarian Ilyas apart.

UPDATE: Unfortunately the audio at the Federalist Society website seems to include only first 2 minutes or so of the event. I have contacted the organizers and hope to have this fixed soon. In the meantime, I apologize for the annoyance.

UPDATE #2: The issue noted in the previous update has been resolved! The full audio is now available here, and also at the link in the text above.

Washington Lt. Gov. Skips Governor's Speech Because People with Concealed Carry Permits Could Attend

Shouldn't he be avoiding most of the whole state of Washington?

The Everett Daily Herald (Jerry Cornfield) reports (see also this AP story):

Lt. Gov. Cyrus Habib did not preside at the governor's address to a joint session of the Legislature on Tuesday because he felt vulnerable in the House chamber, where people can carry concealed weapons in the public galleries.

"There is no specific threat to me. There is no specific threat we know of, period," he said before the governor's speech. "It's about the policy."

But, wait: Washington lets people who have concealed carry licenses carry in most public places, such as sidewalks, parks, and the like. That's the policy in about 40 states (including the several that don't even require a license to carry in public). Indeed, Washington has apparently had this "shall-issue" policy since 1961, well before most states shifted to it. Maybe the Lieutenant Governor should continue his political career in a state where he will feel less "vulnerable."

The Shutdown and the First Amendment

What happens if a commercial speech licensing scheme is on hold -- and thus the speakers can't speak -- because of the federal government shutdown?

Federal law requires brewers to get pre-approval for their beer bottle labels, apparently in order to avoid "various false, misleading, obscene, or misleading statements, and the disparagement of competitors' products." But though the pre-approval generally comes within three weeks, it's now on hold because of the government shutdown. The motion for a preliminary injunction in Atlas Brew Works, LLC v. Whitaker (D.D.C. filed Jan. 15, 2019) argues that this violates the First Amendment. (The case is being litigated by Alan Gura, who is famous mostly for his Second Amendment cases, but who handles many First Amendment ones as well.) An excerpt:

Americans' fundamental right to free speech requires no Congressional authorization. The government can shut down speech regulators. It cannot shut down the First Amendment. The lack of political will to operate what might be a valid restriction on protected speech is the government's problem, not a speaker's. The Framers would have recoiled at the notion that anyone would fear criminal prosecution for speaking, merely because Congress has not enacted a bill funding the operation of a content-based prior restraint on their speech.

Yet such is the predicament facing Washington, D.C.'s Atlas Brew Works. Atlas, a neighborhood production craft brewer, sits on forty barrels of The Precious One—a perishable, seasonal apricot-infused India pale ale that Atlas cannot label for interstate shipment. The federal government stands ready to prosecute Atlas should it ship The Precious One, because it has not approved the content of that beer's keg label. On the other hand, for lack of Congressional appropriation, the government cannot review Atlas's application for label approval. And this is not Atlas's only label pending approval. Atlas must be able to continue publishing new labels to remain in business. As the government would have it, however, prosecuting Atlas for speaking without a license is "essential." The processing of Atlas's request for permission to speak, not so much.

The situation is unacceptable. This Court may be unable to solve the political branches' budgetary standoff, but it remains in the business of securing fundamental rights. The bottom line is that Atlas suffers a categorical prohibition of its constitutionally-protected speech, as well as an indefinite content-based prior restraint on that speech. The Court should immediately enjoin the government from requiring that Atlas obtain a legally-unavailable license to exercise fundamental First Amendment speech rights....

The First Amendment secures the right to publish beer labels. At least in part, beer labels come within the First Amendment's protection because "information on beer labels constitutes commercial speech." Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995). "The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish ... even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment." Edenfield v. Fane, 507 U.S. 761, 767 (1993).

Atlas's consumers share the brewer's First Amendment interest in its beer labels. "If there is a right to advertise, there is a reciprocal right to receive the advertising ...." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 757 (1976) (footnote omitted). "[That] interest is substantial: the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue." Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977). Doubtless many consumers would prefer using Atlas's beer labels than listening to federal budget debates. The two activities might even have a symbiotic relationship.

This is not to suggest that the government may not regulate beer labels. But as precedent condemning beer label censorship attests, such regulations must meet First Amendment standards. See Rubin, supra, 514 U.S. 476; Bad Frog Brewery, Inc. v. New York State Liquor Authority, 134 F.3d 87 (2d Cir. 1998); Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm'n, 597 Fed. Appx. 342 (6th Cir. 2015); Hornell Brewing Co. v. Brady, 819 F. Supp. 1227 (E.D.N.Y. 1993).

At least for now and for the foreseeable future, the COLA requirement's application to Atlas's beer labels cannot survive First Amendment scrutiny.... TTB's now-conceptual, inoperative licensing mechanism is irrelevant. Indeed, the licensing of Atlas's speech is itself a constitutional impossibility .... When an administrative process exists by which people may obtain relief from a prohibition, but Congress has not appropriated money to fund that process, the underlying prohibition is subject to constitutional challenge. See Schrader v. Holder, 704 F.3d 980, 992 (D.C. Cir. 2013) ("[w]ithout the relief authorized by [18 U.S.C. §] 925(c), the federal firearms ban will remain vulnerable to a properly raised as-applied constitutional challenge")....

"Traditionally, First Amendment questions arising in the arena of 'commercial speech' have occasioned scrutiny under the standard of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980)." "Under Central Hudson, protected speech may be regulated if the governmental interest is 'substantial.' Any such regulation must 'directly advance[] the governmental interest asserted.' When analyzing this requirement, the Supreme Court 'has commonly required evidence of a measure's effectiveness.' Finally, any regulation cannot be 'more extensive than is necessary to serve that interest,' a standard the government cannot satisfy 'if it presents no evidence that less restrictive means would fail.'" ...

The government cannot argue that the current state of affairs reflects considered legislative judgment to advance any regulatory interest. When Congress enacted the FAA Act in 1935, it apparently assumed that someone would administer it. The FAA Act's licensing guidelines, and those found in the TTB's regulations, reflect the government's position in weighing the interests at stake. These do not prescribe a categorical prohibition, which went into effect as an unintended consequence of a political dispute wholly unrelated to beer labels. Atlas suffers from a prohibition of its protected First Amendment speech unsupported by any regulatory concerns about that speech....

Whatever the government's concerns with beer labels, those concerns led it to regulate, not to prohibit. No "careful calculation" supports the current prohibition on the publication of Atlas's beer labels in interstate commerce. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), is instructive. In that case, the Supreme Court accepted that the government has a substantial interest in preventing underage tobacco use, "but it is no less true that the sale and use of tobacco products by adults is a legal activity." In considering the constitutionality of restrictions on outdoor tobacco advertising, the Court offered, "[w]e must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." Id. The state lost. "The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved." Id. at 562.

Even if government were permitted to conjure an interest in support of the present prohibition on beer label speech, that prohibition would only be "another case of 'burn[ing] the house to roast the pig.'" Sable Commc's of Cal., Inc. v. FCC, 492 U.S. 115, 131(1989) (quoting Butler v. Michigan, 352 U.S. 380, 383 (1957)). "[A] speech regulation cannot unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products." Lorillard, 533 U.S. at 565. The current prohibition bars Atlas from offering The Precious One on tap outside the District of Columbia, makes it impossible for Atlas to sell any of its planned new beers, and prevents Atlas from updating the labels for existing products. Regardless of the government's supposed regulatory interest, this prohibition goes too far....

Central Hudson left open the question of whether traditional prior restraint doctrine applies to commercial speech, suggesting in dicta that it "may not apply." Central Hudson, 447 U.S. at 571 n.13. The D.C. Circuit has held the question open as well, Pearson v. Shalala, 164 F.3d 650, 660 (D.C. Cir. 1999), but courts tend to apply the prior restraint doctrine to commercial speech. "[T]he prior restraint doctrine does play a role in evaluating the regulation of commercial speech." Nutritional Health Alliance v. Shalala, 144 F.3d 220, 227 (2d Cir. 1998); Desert Outdoor Advertising v. City of Moreno Valley, 103 F.3d 814, 818-19 (9th Cir. 1996) (striking down prior restraint on commercial billboards); In re Search of Kitty's East, 905 F.2d 1367, 1371 (10th Cir. 1990); but see Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 532-33 (6th Cir. 2012). The Fourth Circuit recently upheld a prior restraint on commercial speech not because the speech was commercial in nature, but because it was "likely false or misleading." Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., 700 Fed. Appx. 251, 264 (4th Cir. 2017).

The government cannot require Atlas to obtain a license in order to speak—a license aggressively reviewed for content under rules mandating some statements and forbidding others, as interpreted by the licensing authority—and then shutter the licensing office indefinitely. No one knows when the TTB will reopen. That question that can only be answered by reference to the stubbornness of the President and Congressional leaders in sticking to their respective positions regarding the construction of a wall on the Mexican border. The delay is not "specified," nor has it been "brief." If TTB opens tomorrow, Atlas would still have to wait perhaps another three weeks for a decision—or more, considering what would be TTB's substantial backlog. The commercial aspects of Atlas's speech should make no difference in the analysis. "Although the interests of the commercial speech at issue here may not equate with those of political speech, we agree that the special protections of the First Amendment justified the exercise of equitable jurisdiction in this case." Kitty's East, 905 F.2d at 1371 (footnote omitted). The Court cannot force the TTB to review Atlas's label, but it should lift the prior restraint....

Thoughts on the Second Oral Argument in Knick v. Township of Scott

The much-anticipated reargument of this important property rights case did not make clear what the Court will do, but overall did not go as well for the property rights side as the first argument did. It is still unclear, however, which way potentially crucial swing voter Justice Kavanaugh will lean.

Earlier today, the Supreme Court heard an unusual second oral argument (transcript here) in Knick v. Township of Scott, an important Takings Clause property rights case. The Court previously heard argument in the case back in October, during the week when Justice Brett Kavanaugh had not yet been confirmed by the Senate, due to the ongoing investigation into allegations of possible sexual assault against him. When the Court ordered a reargument in November, Many observers speculated that it was because the eight justices present for the original argument were equally divided in a 4-4 split on the case, and they needed Kavanaugh to participate in order to break the tie. Another possibility (not necessarily mutually exclusive with the first) is that the Court wanted greater consideration of various issues that had not gotten much attention in the initial argument. Prominent among those was the federal government's strange "Klingon forehead" argument, which in some respects could split the difference between the two sides in the case.

To briefly recap, the main point at issue in Knick is whether the Court should overrule or limit Williamson County Regional Planning Commission v. Hamilton Bank, a 1985 decision that makes it virtually impossible to bring many types of takings cases in federal court. Under Williamson County, a property owner who contends that the government has taken his property and therefores owes "just compensation" under the Fifth Amendment, cannot file a case in federal court until he or she has first secured a "final decision" from the relevant state regulatory agency and has "exhausted" all possible remedies in state court. Even then, it is still often impossible to bring a federal claim, because various procedural rules preclude federal courts from reviewing final decisions in cases that were initially brought in state court. I discussed the issues at stake in the case in a Wall Street Journal op ed, and more fully here, and in an amicus brief I coauthored on behalf of the Cato Institute, the National Federation of Independent Business, the Southeastern Legal Foundation, the Beacon Center of Tennessee, the Reason Foundation (which publishes Reason magazine and this website), and myself.

Because of the significant likelihood of a 4-4 split after the initial argument, all expert observers' eyes were on Justice Kavanaugh today, as he might be the decisive swing vote. Kavanaugh asked only a few questions and certainly did not decisively tip his hand. But the few things he did say were not particularly comforting for the property owner's side.

In one exchange, he queried Solicitor General Noel Francisco on the idea that "An implicit premise of your argument and Petitioner's argument for overruling Williamson County, I think, is that the state courts aren't as good as the federal courts. Why is that in your view?"

The answer, as Francisco tried to explain, but not as well as he perhaps could have, is that a big part of the purpose making the Bill of Rights (including the Takings) applicable against state governments through the Fourteenth Amendment was to ensure that people whose rights were violated by states could go to federal court to vindicate them. That is important to ensure uniform nationwide protection of federal constitutional rights, and to give victims a way to get around state judges who (especially if elected) sometimes have close ties to the state and local government officials who violated the rights in the first place. The issue is not that state courts are inherently worse than federal ones, but that those situations where they might be require a federal court backstop to ensure effective protection of federal constitutional rights. That is generally accepted for other rights protected by the Bill of Rights, and there is no reason why regulatory takings claims under the Fifth Amendment should continue to be an arbitrary exception.

In a later question directed at counsel for the Township of Scott, Kavanaugh hinted his possible recognition of some of this, when he asked her whether "the municipalities get a home court advantage in state court as compared to federal court." She, of course, answered no.

Still, Kavanaugh's framing of the issue is a bit troubling from the property owners' point of view, as it implies that the case for overruling Williamson County should only prevail if state courts generally "aren't as good as the federal courts," as opposed to merely that the latter are a necessary backstop for the former, as with other constitutional rights.

Justice Neil Gorsuch made the latter point well, when he emphasized that "that there is no exhaustion requirement in [Section] 1983 [the federal statute that allows litigants to bring federal constitutional claims against state governments in federal court]? Now maybe there should be. And if there is, maybe there should be for Fourth Amendment claims and Fourteenth Amendment claims too because there are wonderful state courts capable of adjudicating the deprivation of Fourth Amendment rights, capable of adjudicating fully and fairly. I think we'd all agree the deprivation of Fourteenth Amendment rights. But we don't generally require that."

In other parts of the oral argument, Kavanaugh was virtually the only justice to show significant interest in the Solicitor General's strange "Klingon forehead" argument, under which Williamson County could be reinterpreted to bar bringing takings claims in federal court under Section 1983, but still allow them, in some cases, to be brought under 28 U.S.C. § 1331, which gives federal courts jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." The problem with this theory is that Williamson County did not actually distinguish between these two statutes, and that the same logic under which its reasoning precludes bringing regulatory takings claims under Section 1983 also applies to Section 1331. Section 1331 gives federal courts jurisdiction over "civil actions arising under the Constitution, laws, or treaties of the United States." The whole point of Williamson County is that there is no action "arising under" the Takings Clause of the Fifth Amendment, until the government has made a final decision refusing to pay compensation, and there is no sufficiently definitive refusal until the property owner has "exhausted" all possible state court remedies. For reasons I summarized here, here and in my amicus brief in Knick, I think this theory is seriously flawed. But if it's correct, it covers Section 1331 cases no less than Section 1983 cases.

At one point during the argument, Kavanaugh also appeared to suggest that the case turned on "statutory stare decisis" about the meaning of Section 1983 and noted that overturning a statutory precedent requires a higher burden of proof than overturning a constitutional decision. This part of the oral argument was very fragmented (Kavanaugh's remarks were interrupted, at times), so it's far from clear exactly what his view is. But if Williamson County is framed as a purely statutory decision, it is indeed less likely that the Court will overrule it.

Relative to the initial argument, not only Kavanaugh, but also many of the other justices focused much more on Section 1983 and much less on the Takings Clause and the Constitution. It's possible that's because the justices already explored the latter issues at some length in the earlier argument. But if they are indeed now viewing this is a primarily a statutory issue, that is not a good sign for the property owners.

Neil Gorsuch, however, did emphasize that "Williamson [County] purported to interpret the Constitution," not just Section 1983. Indeed, the interpretation of the latter is inevitably linked to the former. Section 1983 gives access to federal courts to litigants whom state or local governments have subjected to "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." If that does not cover takings cases like the one in Knick, ot can only be because there hasn't been a "deprivation" of constitutional rights because the state government has not yet made a final determination that they refuse to pay compensation. Thus, there is no real way to separate out the constitutional and statutory issues here.

Overall, I am somewhat less optimistic after today's argument than I was after the initial argument in October. If Kavanaugh ends up saving Williamson County by casting the decisive vote in a 5-4 decision, it will mean the retirement of Justice Anthony Kennedy was a bad break for property rights advocates, because Kennedy was one of four justices who joined a 2005 concurring opinion forcefully criticizing Williamson County and urging the Court to consider overruling it.

That said, a wide range of outcomes are still possible, and it is by no means clear which side Kavanaugh will ultimately come down on. The same is true of Justice Elena Kagan, who I suggested might be inclined to join with the conservative justices in overruling Williamson because she is unwilling to accept the "Catch 22" situation under which takings plaintiffs are required to first exhaust all possible state court remedies before they can get into federal court, but then that very action prevents them from getting into federal court later. She reiterated that concern today, though she also suggested there might be some way to address it without overruling Williamson County. As other justices pointed out in response, it is unlikely that the Catch 22 problem can actually be solved in any other way.

UPDATE: I should note that after studying the federal government's position in the case more carefully, I think it is actually more favorable to the property owners than I suggested was the case here and especially here. I may expand on that point in a future post, if time permits.

Survey Shows Most Extreme Opponents of GMO Foods Know the Least - Yet Think They Know the Most

The result is consistent with lots of other evidence of widespread ignorance and bias influencing public opinion on political and scientific issues.

A recent study finds that the most extreme opponents of GMO food have the lowest levels of relevant scientific knowledge, but also tend to believe they know much more than they actually do. The Guardian has a helpful summary of the results:

The most extreme opponents of genetically modified foods know the least about science but believe they know the most, researchers have found.

The findings from public surveys in the US, France and Germany suggest that rather than being a barrier to the possession of strongly held views, ignorance of the matter at hand might better be described as a fuel.

"This is part and parcel of the psychology of extremism," said Philip Fernbach, a researcher at the University of Colorado and co-author of the 2017 book The Knowledge Illusion. "To maintain these strong counter-scientific consensus views, you kind of have to have a lack of knowledge."

Fernbach and others analysed surveys completed by nationally representative samples of the US, French and German public. Those who took part were asked about their attitudes to GM foods and given instructions on how to judge their understanding of the topic. Next, they completed a scientific literacy test. Among the statements the participants had to wrestle with were: "Ordinary tomatoes do not have genes, whereas genetically modified tomatoes do" (false), and "the oxygen we breathe comes from plants" (true).

The results from more than 2,500 respondents revealed the curious trend. "What we found is that as the extremity of opposition increased, objective knowledge went down, but self-assessed knowledge went up," Fernbach said.

The study itself is available here. As the authors point out, scientists overwhelmingly conclude that GMO foods are no more risky than "natural" ones, yet many in the general public continue to believe they should be severely restricted or even banned.

This is far from the first study to show widespread public ignorance about either GMO foods specifically or scientific and public policy issues, generally. For example, surveys conducted in the US in 2014-15 and 2016 found that some 80% of Americans say there should be mandatory labeling of foods containing DNA (despite the fact that DNA is the basic building block of all life on Earth, and nearly all our food contains it).

Some of this is simply the result of what scholars call "rational ignorance": Most people have little incentive to spend much time learning about government, public policy, and policy-relevant science, because the chance that their votes will make a different to policy outcomes is infinitesimally small. Many people don't have time to study the science of GMOs. Thus, they simply do not know that GMO foods are no more dangerous than "organic" ones, and that most organic foods are themselves the result of centuries of genetic manipulation by humans.

But that does not, by itself, explain why people who most oppose GMOs are not only the most likely to be ignorant, but also unusually confident about the extent of their knowledge. That has to do with bias, not simply ignorance. Studies repeatedly show that many people - especially those with strong views - are highly biased in their evaluation of political information, often acting as "political fans" cheering on their preferred party or ideology rather than evaluating information objectively. That is true of ordinary voters, activists, and even government officials. The most committed partisans and ideologues also tend to have the strongest biases, and thus are probably the most likely to overestimate the extent of their knowledge and understanding.

While such biases occur in many areas of life, they are particularly strong when it comes to political disputes. Both politicians and ordinary citizens are much more biased in evaluating information on political issues than otherwise similar data on nonpolitical ones. A big part of the reason why is that we have stronger incentives to try to keep our biases in check when we make decisions in the private sector than when we vote or otherwise influence government policy. In the latter situations, our actions either have very little chance of making a difference (if we are voters) or are likely to have their biggest impact on other people with whom we have few ties (if we are policymakers). That may help explain why many people hold ill-informed and foolish views on policy issues related to GMO foods, yet also continue to happily eat them.

One possible solution to these sorts of problems is for voters to defer more to scientific experts, at least on technical issues such as the risks posed by GMO foods. Such deference may often be useful. But it is also often difficult to figure out when it is appropriate, and when not. Figuring out who is a real expert and where the limits of their expertise are may itself require considerable knowledge and insight. Moreover, the same flawed incentives that lead voters to make biased assessments of evidence may also cause them to dismiss the views of experts whose findings cut against the voters' own preconceptions.

Another standard strategy for overcoming public ignorance about science is for government to disseminate accurate information about risks (or, in the case, of GMO foods, the lack thereof). Such government warnings can be useful, as in the famous case of the Surgeon General's warning on smoking. But they also have risks of their own. Governments have a long history of spreading inaccurate information about various types of risks, and their incentives to do so are often exacerbated by the very same public ignorance that government-produced information is supposed to cure. While it is unlikely that the US government will start mandating warning labels on food containing DNA, they do have a track record of requiring other misleading warnings, that often impose real costs on society.

In sum, we have good reason to be wary of the influence of public ignorance on government policy - especially when it comes to scientific issues. But there is also good reason for skepticism about the standard solutions usually proposed to fix that problem.

Alabama Judge Strikes Down State Law Protecting Confederate Monuments

But the decision seems wrong as a matter of federal constitutional law, because the law regulates only local governments -- and local governments lack any federal constitutional rights against their states.

The Alabama Monument Protection Act, enacted in 2017, basically barred local governments from removing and otherwise interfering with (mainly) Confederate war memorials. Last night, an Alabama state judge struck down the statute, on the grounds that it violated the local governments' federal rights of free speech and due process. (Thanks to reader Ramer for the pointer.)

I think the judge was pretty clearly wrong, and I expect the decision to be reversed on appeal, at least as to the federal constitutional claims. Cities and counties have no federal constitutional rights against the states that created them.

The Supreme Court has made this clear in many decisions, most recently in Ysursa v. Pocatello Educ. Ass'n (2009):

"Political subdivisions of States—counties, cities, or whatever—never were and never have been considered as sovereign entities." They are instead "subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions." State political subdivisions are "merely ... department[s] of the State, and the State may withhold, grant or withdraw powers and privileges as it sees fit." Trenton v. N.J. (1923)....

[Any] analogy [between private corporations, which have constitutional rights against state governments, and municipal corporations] is misguided. A private corporation is subject to the government's legal authority to regulate its conduct. A political subdivision, on the other hand, is a subordinate unit of government created by the State to carry out delegated governmental functions. A private corporation enjoys constitutional protections, but a political subdivision, "created by a state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." Williams v. Mayor of Baltimore (1933); Trenton v. N.J. (municipality, as successor to a private water company, does not enjoy against the State the same constitutional rights as the water company: "The relations existing between the State and the water company were not the same as those between the State and the City").

So if Alabama sought to require private landowners, whether individuals, nonprofit corporations, or for-profit corporations, to mantain existing monuments (Confederate or otherwise) on their property, that likely would violate the landowners' First Amendment rights. But just as the Alabama Legislature has the power -- at least from the perspective of the federal Constitution -- to restrict speech by Alabama state agencies, so it has the power to restrict speech by Alabama city and county entities, which are treated under the federal Constitution as a form of state agency.

And this is so regardless of the references in various Supreme Court decisions to the government's power to engage in "government speech," e.g., in choosing which monuments to put up (Pleasant Grove City v. Summum (2009)) or what designs to place on license plates (Walker v. Sons of Confederate Veterans (2015)). That doctrine states that the First Amendment doesn't stop governments (including local ones) from discriminating based on viewpoint in selecting their own speech. But it doesn't protect them from rules imposed by their higher-ups in the state government structure. So a state may ban cities from putting up Confederate monuments, or may ban them from removing such monuments, without violating the cities' First Amendment rights.

Now state constitutions might, if the drafters so chose, give cities or counties or both some autonomy with respect to the state legislature. Indeed, they may give branches of the state government some such autonomy. But that's a matter of state constitutional law, not of cities' or counties' First Amendment rights. (The decision doesn't seem to discuss any state constitutional claims, but I'm not sure whether some might have been brought or might still be raised on appeal.)

Finally, note that there's a much more serious, and unsettled, question whether the federal government may restrict state and local entities' rights. But that's because state governments are indeed separate sovereigns, and not just "political subdivision[s]" "created by [the federal government] for the better ordering of government."

N.Y. Bill Would Violate Gun Rights, Free Speech Rights, and Privacy

Among other things, it would call for investigators to review three years' worth of a would-be gun buyer's social media postings for "excessive discriminatory content."

S1413, introduced yesterday by Sen. Kevin Parker (the former state Senate minority whip, before the Democrats took over the majority in the last election), would require that anyone who wants to get a handgun, rifle, or shotgun

consent to have his or her social media accounts reviewed and investigated pursuant to subdivision four of this section ....

Under subdivision 4, "[i]n order to ascertain whether any social media account" of the would-be buyer "presents any good cause for the denial" of the right to buy a gun, the government shall review the would-be buyer's "social media accounts for the previous three years" and

investigate [the would-be buyer's] posts related to

(i) excessive discriminatory content; or

(ii) content that is likely to incite or produce a violent action in or towards others.

For the purposes of this subdivision, "social media accounts" shall only include Facebook, Youtube, Gab, Twitter and Instagram and "excessive" shall mean more than one hundred posts.

"Discriminatory content" isn't defined, here or elsewhere, but presumably refers to speech that expresses negative views about various groups (or what else would it mean?). Presumably more than 100 posts in 3 years that criticize Muslims, or oppose bans on discrimination based on transgender status, or contain sexist jokes would qualify. What about "discriminatory content" towards Republicans? Towards Israel? Not clear.

It's also not clear what qualifies as "content that is likely to incite or produce a violent action in or towards others" (for which there's no 100-post "excessiveness" standard). Does this have to be a 51% likelihood, a threshold which would almost never be satisfied? Some possibility, which could be satisfied for a vast range of rhetoric? Again, not clear.

It is clear, of course, that such speech is generally constitutionally protected, whether it's "discriminatory content" ("excessive" or not) or speech that is "likely to incite" "violent action"; recall that the very narrow incitement exception to the First Amendment is satisfied only if the speech is (1) intended to produce (2) imminent illegal conduct, and (3) likely to produce such imminent legal conduct -- item (ii) above doesn't include the intent or imminence requirements.

But remember: No-one is trying to take away your guns, or your freedom of speech.

The Supreme Court's First Divided Opinion of the Term

A 5-4 decision, but not along the lines we usually expect.

The Supreme Court has issued seven signed opinions in argued cases thus far this term. Six of these opinions were unanimous. The seventh, issued this morning, was a 5-4 decision, but not along the lines many would expect.

Justice Thomas wrote the opinion for the Court in Stokeling v United States, holding that a robbery offense that requires the defendant to overcome a victim's resistance is an offense that requires the use of "physical force," and can thus qualify as a "violent felony" under the Armed Career Criminal Act (ACCA). He was joined by Justices Breyer, Alito, Gorsuch and Kavanaugh. Justice Sotomayor dissented, joined by Justices Ginsburg and Kagan, and the Chief Justice.

That Justice Breyer joined the majority in a criminal law case like this is not particularly surprising. He has the occasional tendency to cross over in some criminal law cases. That the Chief Justice joined the dissent, however, is a bit more surprising.

Not only is this the first divided opinion of the term, it is also the first "second" opinion of the term. That is, Justice Thomas is the first justice to author a second opinion in an argued case. Justices Ginsburg, Kavanaugh, Gorsuch, and Breyer have authored one signed majority opinion each thus far this term, as has the Chief Justice. Justice Sotomayor is also the first to author a dissent. Justice Alito and Kagan have yet to issue an opinion in an argued case. [Update: I neglected to note that Justice Ginsburg has also written a concurrence, in addition to writing the first opinion of the term. So she has authored two opinions in argued cases, but only one for the Court.]

[Note that the above refers to "signed" opinions. This is because the Court has issued two per curiam opinions thus far this term. Whichever justice was responsible for those opinions, they were not signed, so cannot be credited to any particular chambers. The above also does not account for opinions respecting orders, of which there have been several thus far this term, including eight by Justice Sotomayor and three by Justice Gorsuch.]

At Least One Cheer for Law Reviews

Law reviews as venue for scholarship come under a lot of justified criticism, but at least the editors check the footnotes

Any well-published law professor can recite a litany of complaints about law reviews, the generally student-edited journals where most legal scholarship is published. For example, the students require citations for opinions, or for well-known facts; students get to select the articles they publish, but don't have the expertise to do so; and the bluebook citation system most law reviews follow is much too cumbersome, and requires way too many explantory parentheticals.

One advantage law reviews do have, however, is that the editors are meticulous about checking footnotes to ensure that citations actually support the authors' contentions, and that quotations are accurate. This has its limitations; a Holocaust denier citing to books by Holocaust deniers would pass such screening. But it does at least prevent authors from either just making things up or being incredibly sloppy, and then sticking in footnotes to make the invention or sloppiness look scholarly.

I've been involved off and on over the past year and a half in the ongoing debate over Nancy MacLean's book Democracy in Chains. My interest in the book was piqued when some of my Facebook friends were criticizing it for a variety of scholarly sins. I got hold of the book, and immediately turned to MacLean's brief discussion of my law school and its former dean, Henry Manne. I found that what MacLean wrote did not mesh with the facts. I thought perhaps that she was led astray by sources she thought to be reliable, so I checked her footnotes. Nope. She just made things up. For example, she asserted that Manne only hired white male faculty, which was not remotely true. Not only did the source she cited in the relevant footnote not assert this, it specifically mentioned my colleague Bruce Kobayashi, who has a very common Japanese surname and is in fact of Japanese descent.

MacLean is not the only recent perpetrator. Quinn Slobodian has emerged as leading historian and critic of the free-market oriented "neoliberal" (whatever that means) economists who emerged as leading critics of economic statism after World War II. Here's what economist Richard Ebeling found after reviewing a recent article by Slobodian on economist Ludwig von Mises:

Professor Slobodian has 93 footnotes in his article. Over 50 of them reference Mises's writings or correspondence. Looking them up, I found many instances in which the page reference to a paraphrase of a passage or a quote in one of Mises's works was not to be found where Professor Slobodian indicated it to be.

In some instances, this was not simply being off a page or two; the page referenced turned out to be in a portion of one of Mises's works that had nothing to do with the theme or idea that Professor Slobodian was referring to in the text of his own article. Hence, the paraphrase or quote literally had to be taken on good faith as being accurate or even there in one of Mises's writings.

In addition, there are instances in which Professor Slobodian asserts or implies views or states of mind held by Mises at some point in time. But the footnoted reference sometimes refers to some other scholar's work that when looked up did not refer to or imply anything about Ludwig von Mises.

One might be inclined to be more generous about these errors if they always didn't point in the same direction, to make historical figures that the authors object to on ideological grounds look bad. As in the case with MacLean, one suspects that some historians first construct their narrative, then look for citations to support it. If citations don't support the preconceived narrative, they abandon sound scholarly citation practices rather than abandoning the narrative.

Again, law reviews are far from perfect. But if you read a law review article, at least one published in a reasonably respectable journal, you can at least be pretty confident that the assertions made by the author are supported by the sources the author cites. One might think that we could trust professional historians to be meticulous about their sources without having third parties review them. Unfortunately, we cannot.

Many Foreign Tourists -- and Most Foreign Students -- Are Barred from Going to Shooting Ranges

Come from England or Japan for a short visit? Feel free to shoot at a range! Return on a student visa? Federal felony for you (and friends who take you) if you go shooting. Unless, of course, you've gotten a hunting license -- even if the range visit is completely unrelated to the hunting.

I just learned about this in researching Rehaif v. U.S., the new Supreme Court guns/illegal aliens/mens rea case, so I thought I'd pass it along. This is especially important, I think, if you tend to take classmates, coworkers, or other acquaintances to shooting ranges (as I've done myself).

[1.] Federal law, 18 U.S.C. § 922(g), bans gun and ammunition possession not just by felons, illegal aliens, illegal drug users, and the like, but also by aliens who have been perfectly legally "admitted to the United States under a nonimmigrant visa."

[2.] "Possess[ing]" and "receiv[ing]" has been viewed as including temporary rental of a gun at a shooting range; indeed, that was one of the bases for prosecution in Rehaif. Rehaif was illegally present, but the statutory definition of possession and receipt would apply equally to all the categories of forbidden possessors and recipients, including people legally admitted under a nonimmigrant visa. Likewise, see U.S. v. Moussaoui (11th Cir. 2010), in which the defendant was indeed a legal visitor prosecuted for possession at a shooting range.

[3.] But who is covered as having been admitted under a "nonimmigrant visa"? According to the Bureau of Alcohol, Tobacco, Firearms, and Explosives,

Generally, "nonimmigrant aliens" are tourists, students, business travelers, and temporary workers who enter the U.S. for fixed periods of time; they are lawfully admitted aliens who are not lawful permanent residents. In order to meet the definition of a nonimmigrant alien, the individual MUST hold a nonimmigrant visa. The definition does NOT include permanent resident aliens, aliens legally admitted to the U.S. with a visa other than a nonimmigrant visa, or aliens legally admitted to the U.S. without a visa.

So people who are on short-term trips from a Visa Waiver Program country (most European, East Asian, and Pacific democracies, plus Brunei and Chile), or countries as to which we have similar visa-free entry rules (Canada and Bermuda, I think), are not forbidden by federal law from renting a gun at a shooting range, or even buying or borrowing a gun to keep at their temporary home. But if they're tourists or short-term business visitors from, say, China or India or Israel or Mexico or Brazil -- trips for which a visa is required -- then they are so forbidden; likewise if they're here for an extended stay as a student or a business traveler.

[4.] What's more, if you take someone to a range knowing that they are, say, a U.K. citizen here on a student visa, or an Indian citizen here for a short trip, you are yourself likely committing the crime of aiding and abetting that person's illegal gun possession, or of conspiring with that person to illegally possess a gun. And that's so even if you don't know the conduct is illegal, so long as you know about the person's immigration status.

Likewise, a range employee who rents a gun and sells ammunition to a visitor knowing that the visitor is an alien here on a nonimmigrant visa -- for instance, because a tour guide or a friend of the visitor mentions that the visitor is just briefly visiting from China, or some such -- is also guilty as an aider and abettor or a coconspirator.

That's so even if the employee isn't 100% sure that the visitor is here on a nonimmigrant visa; under the "ostrich doctrine," a jury can be instructed that it "may find that a defendant acted knowingly if you find beyond a reasonable doubt that the defendant ... was aware of a high probability that [a particular fact was true], and ... deliberately avoided learning the truth." At least some courts hold that "failure to investigate" when one has knowledge of a high probability of an incriminating fact "can be a deliberate action." And it's also possible that the range employee might be guilty under 18 U.S.C. § 922(d) even if he just has reason to know of the visitor's immigrant visa status, though that's complicated (see the Rental of Firearm On-Premises section of this ATF publication). I expect that the typical range employee is safe because he has little reason to know the visa status of a foreign visitor; but an employee who knows that a visitor is a Chinese tourists and that most Chinese tourists come in on a tourist visa might well be guilty.

[5.] There are, though, some exception to the nonimmigrant alien possession ban, in subsection (y)(2) of the statute; they are chiefly for certain foreign officials, for aliens "admitted to the United States for lawful hunting or sporting purposes," or for aliens who are "in possession of a hunting license or permit lawfully issued in the United States."

So if the alien gets a hunting license, from any state (not just the one he's in), he's exempt from the ban until the license expires. That's apparently true regardless of whether he goes hunting, or plans to go hunting, or shoots with the gun with which he will hunt, or buys a gun with which he will hunt.

Some states (for instance, Alaska and Arizona) appear to let you order such licenses entirely online, and at a relatively modest cost (it seems to be $20 for a short-term Arizona license and a $60 for a longer small-game Alaska license, though I'm not positive). There's always some danger, to be sure, when one uses this sort of formalistic workaround that seems pretty clearly nonresponsive to the "spirit of the law," whatever that might be; it's possible that a prosecutor will think it's too clever by half, and that a court will agree. But as I read the letter of the law, buying this sort of cheap out-of-state license online should indeed be sufficient to exempt the buyer from the ban on possession and receipt by immigrant-visa visitors. (It wouldn't do anything for people who are forbidden to possess guns because they are felons, illegal aliens, and the like, since the hunting license exception doesn't apply to them.)

[* * *]

Naturally, this is just a general perspective; there may be extra complexities stemming from state laws and from other matters. But this should give you a sense of what's potentially dangerous (even if not of what's 100% safe) -- and a sense of just how odd gun laws can be.

UPDATE: I originally gave a Canadian on a student visa as an example, but it seems that Canadians (and Bermudans) don't need student visas to study in the U.S.; thanks to reader JeffDG for alerting me to this. I changed the example to U.K. citizens, and it could equally work for citizens of many other countries as well.

Theories of State Constitutional Interpretation

Thoughts on reading Judge Sutton's new book.

I recently read Judge Jeffrey Sutton's excellent new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. As readers may know, the book argues for a rejuvenation of state constitutionalism. Near the end of the book, Judge Sutton offers some practical ways that might happen. In his view, lawyers making constitutional claims should make them more often in state court; they should make constitutional arguments based on state constitutions; and state courts should prioritize state constitutional law claims over federal constitutional law ones. Part of the argument that caught my eye was also addressed to law schools and law professors. More law schools should offer more courses in state constitutionalism, Sutton argues. And more law professors should focus their work on state constitutionalism.

This raises an interesting question: Why don't more law professors write about state constitutions?

There are probably a bunch of reasons, but let me offer some amateurish speculation about just one. It seems to me that there aren't widely-known distinct theories of state constitutional interpretation. A lot of academic writing on federal constitutional law is about theories of interpretation. That subject tends to draw the most law-professor attention. But there doesn't seem to be a distinct set of theories on how to interpret state constitutions as compared to the federal constitution.

At least that's my sense from reading state court decisions, especially in my scholarly area of search and seizure law. State courts sometimes interpret their state search and seizure provisions as different from the federal Fourth Amendment. But they typically do so by simply reaching a different result using the same basic principles that federal courts follow. There are exceptions, but that seems to be the usual practice.

To be sure, there is at least some scholarly writing on distinct theories of state constitutional interpretation. Here's one example by a state court judge; here's another by a political science professor; and here's a third from a law professor.

But I would think there should be a lot more. The states have constitutional roles that are fundamentally different than the federal goverment. State constitutions often reflect particular histories and concerns that produced unique text and context. And state constitutions can put state judges in a different role. For example, state judges are often elected, and state constitutions can be fairly easy to amend. I can imagine arguments that these sorts of differences should lead state judges to favor different theories of state constitutional interpretation. You could envision some kind of broad set of theories of state constitutional interpretation that might suggest particular theories for particular states based on these differences.

There's at least some scholarly writing along those lines, as noted above. And my apologies if I missed more of it, which I very likely did. But this seems like a really rich area deserving more scholarly attention. And I suspect the interpretive angle would help attract more law professors, and more law schools, to focus more on state constitutional law.

Search Warrants and Compelled Biometric Access to Phones

A new ruling, and some (mostly critical) thoughts.

Magistrate Judge Kandis Westmore of the U.S. District Court in Oakland, California, recently handed down an opinion denying a search warrant application because the prosecutors asked for a provision compelling everyone present to submit to a fingerprint or other biometric means of unlocking digital devices found there. According to Magistrate Judge Westmore, such a provision would violate the Fourth and Fifth Amendments.

Judge Westmore also ruled that it would be impermissible for the warrant to allow a seizure of all devices on the scene. In her view, the warrant can only authorize the seizure of devices "reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit."

I think this opinion is partially right on one issue but mostly takes the wrong track. I agree that the compelled biometric provision is impermissible. But I mostly disagree with Judge Westmore as to why that's the case. And I think the second ruling, that not all devices can be seized, is mistaken. Here are the details, for those interested.

I. Compelled Biometrics Under the Fourth Amendment

Let's start with the compelled-biometrics ruling. The court first rules that this provision is not permissible under the Fourth Amendment because the government hasn't established probable cause as to each person who might be compelled to unlock the device. From the opinion:

[T]he Government seeks an order that would allow agents executing this warrant to compel "any individual, who is found at the Subject Premises and reasonably believed by law enforcement to be a user of the device, to unlock the device using biometrie features...." (Aff. 117h.) This request is overbroad. There are two suspects identified in the affidavit, but the request is neither limited to a particular person nor a particular device.

Thus, the Court finds that the Application does not establish sufficient probable cause to compel any person who happens to he at the Subject Premises at the time of the search to provide a finger, thumb or other biometric feature to potentially unlock any unspecified digital device that may be seized during the otherwise lawful search.

I think the court has the right instinct, but I don't think the issue is worked out quite the way it should be.

The first question is whether these sorts of provisions shold be permitted in warrants at all. There isn't much law on this, but let me offer my view that compelled biometric provisions categorically don't belong in warrants. The problem is that warrants can't try to regulate how a search is executed. Warrants have to say where the search is executed and what the government can seize there. But I think that what happens onsite -- the details of how the warrant is executed -- is a matter of case-by-case Fourth Amendment reasonableness that has to be litigated ex post rather than resolved as a rule ex ante. Given that, I think that the compelled biometric provision is an impermissible effort to regulate the details of the warrant's execution. The government can't settle their powers in the warrant ahead of time: They need to act reasonably when the warrant is actually executed.

Granted, my view above is just my opinion. I recognize that there's room in the Ninth Circuit for a different answer. The Ninth Circuit in United States v. Comprehensive Drug Testing took a very favorable view of ex ante search restrictions in warrants. Given that decision, it's at least plausible that ex ante restrictions can also extend to regulating unlocking. But if so, that raises the question of what standard applies to compel biometric access. It's hard to say what that standard is, I think, as the reasonableness standard for compelling any particular biometric access could depend on the facts. In general, though, I'm skeptical of Judge Westmore's apparent assumption that probable cause would be needed to compel a person to submit to a means of biometric access. Fingerprinting usually just requires reasonable suspicion, not probable cause. We don't know if the government would have reasonable suspicion, as we don't know the facts yet. But I think the Fourth Amendment standard is likely lower than Judge Westmore assumes.

In summary: For this part of the opinion, on the Fourth Amendment issue, I eagree with Judge Westore as to the result but have some disagreement as to the reasoning.

II. Compelled Biometrics Under the Fifth Amendment

The court next makes the very surprising holding that mandating biometric access would violate the Fifth Amendment privilege against self-incrimination. This is the part of the opinion that has drawn the most attention. But I think this ruling is incorrect for several reasons.

The first question raised by the Fifth Amendment aspects of compelled biometric access is whether it can be adjudicated now, before the warrant is signed. The opinion concludes that, as a matter of "moral imperative," it has to be adjudicated before the warrant is signed:

The undersigned has found no legal authority explicitly restricting the Court from considering the privileges and protections afforded by the Fifth Amendment prior to signing a warrant. In fact, the prejudice that suspects may suffer should the Fifth Amendment be ignored at this juncture—both due to the practical difficulty in prevailing on a motion to suppress and the fact that they are not represented in the warrant process—gives rise to a moral imperative demanding consideration of the Fifth Amendment. To do otherwise would be a miscarriage of justice.

This is pretty grand language, but I think it's wrong. The Supreme Court has been clear that the Fifth Amendment privilege against self-incrimination only comes into play when a person affirmatively asserts his Fifth Amendment privilege. As Justice Alito wrote in his controlling plurality opinion in Salinas v. Texas, there is ordinarily an "express invocation" requirement to the privilege. With a few exceptions presumably not implicated here, you have to affirmatively plead the Fifth before you can rely on the privilege. When you plead the Fifth, you put everyone on notice that you think you have rights at stake: A court can then assess whether the facts support your assertion of privilege.

Given the invocation requirement, I don't think a court can rule on the Fifth Amendment implications of a set of events that may or may not require someone to do something in which a person may or may not assert the privilege. You have to wait for the assertion of privilege to rule on it, I think.

Next, the court rules that biometric access will violate the Fifth Amendment because it is the functional equivalent of compelling a password. If the government tried to compel a person to disclose his password, the Fifth Amendment would be implicated; it should be no less implicated if the governmemnt figures out a way to access a device through biometric means. As the court puts it, "biometric features serve the same purpose of a passcode, which is to secure the owner's content, pragmatically rendering them functionally equivalent."

The Government expresses some urgency with the need to compel the use of the biometric features to bypass the need to enter a passcode. This urgency appears to be rooted in the Government's inability to compel the production of the passcode under the current jurisprudence. It follows, however, that if a person cannot be compelled to provide a passcode because it is a testimonial communication, a person cannot be compelled to provide one's finger, thumb, iris, faee, or other biometric feature to unlock that same device.

But that doesn't follow. The reason compelling a passcode raises Fifth Amendment issues is that compulsion to disclose the password is testimonial. It requires a person to speak, either through express words or acts that necessarily imply a person's state of mind. Biometric access doesn't, at least outside very unusual circumstances presumably not raised here.

It's true that the purpose of bypassing biometric security is the same as the purpose of bypassing a password gate with a password. The purpose in both cases is to then search the device. But that's a Fourth Amendment issue, not a Fifth Amendment issue. The government already has established probable cause, satisfying the Fourth Amendment. The fact that a non-testimonial means of executing a search with a warrant happens to have the same purpose as a testimonial means doesn't make the former testimonial under the Fifth Amendment. It just means that they both require a warrant under the Fourth Amendment.

The court next argues that compelling a person to place a finger on a reader (or use any other biometric forms of access) has a testimonial aspect: "the act concedes that the phone was in the possession and control of the suspect, and authenticates ownership or access to the phone and all of its digital contents." But I have to respectfully disagree with that, too. I think Judge Westmore is mixing up the testimonial significance of an act with its evidentiary significance.

As I explained in this forthcoming article, the testimonial question under the Fifth Amendment is about what the person compelled is necessarily saying by completing the act. What thought does it reveal? Being compelled to place a finger on a reader doesn't reveal any thought. A person could do it asleep or dead. It may be that the fact that the fingerprint unlocks a particular phone gives the government important evidence; in Fifth Amendment terms, it may be incriminating. But it doesn't make it testimonial, so the Fifth Amendment privilege doesn't apply.

The court then concludes that the foregone conclusion doctrine doesn't apply. In the court's view, the foregone conclusion doctrine applies only if all of the evidentary value the evidence is known. But that can't be the case because electronic devices store so much information: "the Government inherently lacks the requisite prior knowledge of the information and documents that could he obtained via a search of these unknown digital devices, such that it would not be a question of mere surrender." I disagree with that part, as well, as I think the foregone conclusion doctrine only looks to whether the testimonial aspect of the act is known -- not whether the evidentiary value of what the act may help reveal is known. Here there is no known testimonial act.

III. The Limit on Devices That Can Be Seized

I'll conclude by flagging a brief part of the opinion that is important but is also easy to miss. The court rules that the warrant cannot authorize the search and seizure of every computer found onsite:

The Government's request to search and seize all digital devices at the Subject Premises is similarly overbroad [as the request to get fingerprints from everyone onsite]. The Government cannot he permitted to search and seize a mobile phone or other device that is on a non-suspect's person simply because they are present during an otherwise lawful search.

While the warrant is denied, any resubmission must be limited to those devices reasonably believed by law enforcement to be owned or controlled by the two suspects identified in the affidavit.

I don't think that's right. The Ninth Circuit dealt with this most clearly in United States v. Adjani, where the government searched Adjani's apartment and seized (and later searched) a computer found there that belonged to someone else, Reinhold. The computer ended up having evidence on it, and Reinhold was charged together with Adjani. The Ninth Circuit rejected Reinhold's argument that her computer couldn't be searched on the ground that "probable cause analysis focuses not on the owner of the property, but rather on whether evidence of the crime can be found on the property given the circumstances."

Reinhold's argument that there was no probable cause to search her computer, a private and personal piece of property, because the warrant failed to list her as a "target, suspect, or co-conspirator" misunderstands Fourth Amendment jurisprudence. Although individuals undoubtedly have a high expectation of privacy in the files stored on their personal computers, we have never held that agents may establish probable cause to search only those items owned or possessed by the criminal suspect. The law is to the contrary. "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific `things' to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); cf. United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ("A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search.").

I think that's equally true here. Further, the Ninth Circuit approved of the seizure and removal of computers to see if they contain the evidence sought in United States v. Hill, which I think is the correct rule as explained here.


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