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

Short Circuit: A roundup of recent federal court decisions

Prosecuting for profit, the Hacky Sack champ, and a Christmas Spectacular.

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

In The New York Times, IJ Senior Attorneys Robert McNamara and Paul Sherman urge Americans of all stripes to put aside their beliefs about abortion and root for an outcome in NIFLA v. Becerra, which was argued before the Supreme Court this week, that protects free speech.

New on the podcast: a trio of bestirring property rights cases. Click here for iTunes.

  • In an effort to crack down on robocalls, FCC passes broad regulation of autodialers. How broad? So broad that it treats basically every smartphone like an autodialer. D.C. Circuit: That is not reasonable.
  • "Pain, pathos, and personal degradation": Should prosecutors have been permitted to introduce (cringe-inducing) evidence of Maine doctor's incestuous relations with his daughter or was said evidence just meant to prejudice jurors (in tax, health fraud case) against him? First Circuit: Conviction affirmed.
  • When confronted with a suicidal armed man locked in an apartment, who would wait for crisis negotiators to show up? Only "a bunch of fucking pussies," says this Nazareth, Penn. officer, who instead knocks and announces, upon which the man immediately shoots himself. Does the dead man's partner have a cause of action under the Americans with Disabilities Act? Third Circuit: Perhaps she does.
  • At sentencing, question arises whether "conspiracy to commit murder" qualifies as a "crime of violence." Fourth Circuit: Congress defined the word "conspiracy" so broadly (without any "overt act" requirement) that we reluctantly conclude it does not. Dissent: Plotting to kill a human being is not a crime of violence? Heaven help us.
  • Standing on the Mexican side of the U.S.–Mexico border, unarmed 15-year-old is shot and killed by a border patrol agent. Can his family sue the agent for damages? Fifth Circuit (en banc): For the second time, no, they cannot.
  • Trial lawyers aren't allowed to strike jury members based solely on race (called a "Batson violation"), and if questioned they have to be ready to provide race-neutral reasons for striking potential jurors. But are courts required to conduct a "comparative juror analysis" and ask why they kept other jurors to whom those same race-neutral reasons apply? Fifth Circuit (en banc): Nope. Dissent: "Today's opinion saps most of the force out of this one tool that has ever resulted in us finding a Batson violation."
  • The Sixth Circuit holds that a criminal defendant (cousin to a notorious criminal lawyer) has a right to appeal a decision that he is incompetent to stand trial, even though the most he can hope to achieve is a ruling that forces him to stand trial.
  • Dearborn Heights, Mich. pizza delivery man with affinity for watching ISIS videos, purchasing firearms draws attention of sympathetic 19-year-old woman on Twitter. He discusses with her his plans to attack a church. Yikes! She's undercover FBI. He pleads guilty to firearms violations. District court: Five years in prison, which includes an upward variance thanks to the church-attacking plans. Sixth Circuit: That's fine, even though the gov't hasn't charged him for said plans.
  • Elkhart, Ind. high school has hosted the "Christmas Spectacular," an annual winter concert, for decades. Parents object. School scrubs New Testament reading, adds Hanukkah and Kwanzaa songs, keeps student-performed Nativity scene. District court: That still violates the Establishment Clause. School goes back to the drawing board; the Spectacular now consists of a variety of songs (religious and non-religious), skits, an 80 percent shorter Nativity scene (ft. mannequins instead of students), and no biblical readings. Seventh Circuit: This version is constitutional. Concurrence: The court "playing the role of producer" in deciding what material can appear in a concert is more government entanglement with religion than the Spectacular is.
  • Guinness World Record holder for most consecutive kicks on a "footbag"—aka, a Hacky Sack—sues Guinness and Wendy's fast food restaurants, claiming a cross promotion they ran with his name and record violated trademark law. Seventh Circuit says you can hack, brah, but you can't state a claim.
  • Larry Flynt has given exposure to lots of individuals, but the Eighth Circuit won't let him expose the medical qualifications of Missouri's execution team members.
  • Are a pro se prisoner's allegations of excessive force "too vague" to support relief when he alleges that two Phoenix police officers "beat the crap out of" him? Ninth Circuit: No.
  • Trinity County, Calif. district attorney hires private law firms to pursue civil-enforcement actions on a contingency-fee basis, giving these firms a direct financial incentive to maximize the penalties imposed. Which, says this Ninth Circuit panel, is A-OK.
  • Historically, Utah Republican Party selected nominees through a caucus system, but state Legislature passes a law saying candidates must also be allowed to qualify by gathering signatures. Tenth Circuit: Which does not unduly burden the party's right of association, as the legislature was just trying to fix an overly-restrictive nominating procedure. Dissent: Procedure determines substance, and the Legislature cannot be allowed to tinker with the substance of whom a party nominates to office.
  • Opa-Locka, Fla. 911 caller reports man trying to get through window of a neighbor's house. Officers respond, see man matching the caller's description, point guns at him, handcuff him, pat him down, reach into his pocket and find a single bullet. Eleventh Circuit: The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet.

Until last night, wide swaths of Louisville, Ky. were off limits to food trucks thanks to a ban on such trucks operating within 150 feet of a restaurant that sold similar food. The rule was so broad that a hot dog vendor could not open up shop near a Mexican restaurant without risking fines or jail time. (They both sell chips.) Restaurants were even known to change their menus to force trucks to move. Well, no more. Yesterday, city officials voted to eliminate the 150-foot rule, which had been the subject of an IJ constitutional challenge. Click here to learn more.

The Million Mom March: Mass Mobilization Against Guns

In 2000, the Million Mom March brought hundreds of thousands of people together to demonstrate against guns.

On Mother's Day 2000, record-setting demonstrations for gun control were held in Washington, D.C., and in 73 other cities. Organized by the "Million Mom March," these demonstrations were hailed by much of the media at the decisive turning point in the political battle over gun ownership. This article takes a look at the history of the march, and some of the similarities and differences from 2018 anti-gun rallies.

The founder

After growing up in Louisiana and graduating from Louisiana State University with a major in journalism, Donna Dees-Thomases began her career as a local television news reporter. Then she moved to Washington, as a staffer first for Democratic Senator Bennett Johnston, then with Senator Russell Long, both of Louisiana. Her autobiography makes no mention of her having any opinion on the gun control issues that those Senators addressed during her time with them. (Her autobiography is Donna Dees-Thomases & Alison Hendrie, Looking for a Few Good Moms: How One Mother Rallied a Million Others Against the Gun Lobby (Emmaus, Penn.: Rodale, 2004).) After that, she became the publicist for CBS News anchor Dan Rather. By 1999, she had transitioned to a one-day-per-week job as a publicist for David Letterman, living in suburban New Jersey, and devoting most of her attention to her two young children, as well as older children from a previous marriage of her husband.

On August 7, 1999, a racist, mentally ill man loaded seven guns into his car in order to attack Jews in Los Angeles. He went to the Skirball Cultural Center, then to American Jewish University and finally to the Simon Wiesenthal Center's Museum of Tolerance. As he scouted each location, he realized that all of them had armed security, so he did not attack.

On August 10, he found an undefended target: North Valley Jewish Community Center. He opened fire on the playground, fired 70 shots, wounding one adult and three children. After fleeing, he murdered a mailman. Eventually, he was apprehended in Las Vegas. To avoid the death penalty, he pleaded guilty, and was sentenced to life in prison.

Back in New Jersey, Mrs. Dees-Thomases watched the coverage of the attack with horror. Her husband and in-laws were Jewish, and her children attended a Jewish Community Center nursery school. She started reading about gun control and tried to reach out the leading anti-gun lobby of the time (Handgun Control, Inc., now known as the Brady Campaign), but without much response. So she decided to take the reins herself, and applied for a permit to hold a demonstration in Washington, D.C., on May 14, 2000--Mother's Day.

She noticed an article in the New York Post about the controversy of a permit for a "Million Youth March," in New York City. The 1999 march was a follow-up to a 1998 event of the same name, organized by Khalid Abdul Muhammad. A notorious racist, anti-Semite, and hater of homosexuals, he had been expelled from the Nation of Islam and censured by both houses of the U.S. Congress. The 1998 rally had turned into a melee between the 6,000 demonstrators and the police, with Muhammad exhorting the crowd to take the officers' gun and kill them. Mayor Giuliani said that the Million Youth March was "filled with hatred, horrible, awful, vicious, anti-Semitic and other anti-white rhetoric, as well as exhortations to kill people, murder people."

As Dees-Thomases read about the planned 1999 Million Youth March, "I realized that this 'Million March' brand had built-in news value. So I decided to borrow the name." (p. 11).

This was a controversial borrowing. It reminded many people of the "Million Man March" that Louis Farrakhan had organized on the National Mall in D.C. in 1995. Indeed, the name for Muhammad's "Million Youth March" seemed to be derived from Farrakhan's "Million Man March." Dees-Thomases was surprised that people thought her similarly-named march might "echo or condone the alleged anti-Semitic stance of Louis Farrakhan, the founder of the Million Man March." She felt that "adopting this name was akin to 'turning the other cheek.'" (p. 66).

It is not clear why Dees-Thomases called Farrakhan's amti-Semitism "alleged."

Beginning to organize

Mrs. Dees-Thomases called her sister-in-law, Susan Thomases for advice. Mrs. Thomases was a longtime friend and political advisor of Hillary Clinton. Mrs. Thomases told her sister-in-law to hire a good lawyer and a good accountant, and recommended an individual for the job of event planner. According to Mrs. Dees-Thomases, that was the only help she ever solicited or received from Mrs. Thomases (p. 13).

Mrs. Dees-Thomases used her publicity skills and network of media contacts to garner media attention, and that helped lead to the formation of some local chapters of the Million Mom March. But she was still paying most of the expenses herself, feeling overwhelmed--and also undersupported by the established gun control groups.

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Credit Card Company Requirements That Merchants Not Sell Guns to 18-to-20-Year-Olds

The companies likely must make exemptions for those states that ban the merchants from discriminating based on age.

Citigroup announced that it will "require new retail sector clients or partners to adhere to .... restrict the sale of firearms for individuals under 21 years of age." But what if the retailer is in one of the states that generally ban age discrimination in public accommodations, and include 18-to-20-year-olds in that ban? (Some states only ban age discrimination against those 21 and above, or 40 and above; let's set those aside.)

Any credit card companies that have such policies must exempt retailers' actions in those no-age-discrimination states. When a law bans some action, it also usually (explicitly or implicitly) bans others from trying to cause that action. It's a crime for you to kill someone (without adequate justification), so it's a crime for me to try to pressure you into killing him. It's a tort for you to libel someone (assuming you know the factual allegations you're making are false and defamatory), so it's a tort for me to offer you money to do so.

Likewise, generally speaking, for antidiscrimination law. Consider, for instance, Michigan law; the Elliott-Larsen Civil Rights Act (Mich. Comp. Laws. §§ 37.2301-.2304) bans age discrimination in retail sales, and § 37.2701 likewise provides that no person shall "[a]id, abet, incite, compel, or coerce a person to engage in a violation of this act" or "[w]illfully obstruct or prevent a person from complying with this act" or "interfere with a person in the exercise or enjoyment of ... any right granted or protected by this act." If a credit card company demands that stores illegally discriminate, then it's inciting, compeling, and coercing violations within the meaning of the law, obstructing the stores' complying with the law, and interfering with 18-to-20-year-olds' enjoyment of rights granted by the law.

If a credit card company required its business partners not to sell wedding cakes to gays and lesbians, that would violate the law in those states that ban sexual orientation discrimination by such businesses -- and the ban would apply not just to the cake shops, but also to the credit card company. The same is true for age discrimination in gun sales; the legal analysis is the same (whatever you might think about the moral issues).

Now this is just a matter of state law. If a state bans rifle and shotgun sales to 18-to-20-year-olds, then of course stores would be required to discriminate against them. (Federal law already bans handgun sales by gun dealers to under-21-year-olds.) Likewise, if a state wanted to exempt gun sales from the age discrimination ban, it could do so (though I know of no states that do). But if a state bans age discrimination in gun sales -- as several states (likely about a dozen) do -- then credit card companies can't insist that their business partners violate the law in those states. And the same applies to the cities and counties that have similar ordinances, which are sometimes broader than state law provides.

The Supreme Court on Broad Interpretations of Statutes and Prosecutorial Discretion

"[I]nsofar as the public fears arbitrary prosecution, it risks undermining necessary confidence in the criminal justice system."

From yesterday's Marinello v. U.S.:

[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute's highly abstract general statutory language places great power in the hands of the prosecutor. Doing so risks allowing "policemen, prosecutors, and juries to pursue their personal predilections," which could result in the nonuniform execution of that power across time and geographic location. And insofar as the public fears arbitrary prosecution, it risks undermining necessary confidence in the criminal justice system. That is one reason why we have said that we "cannot construe a criminal statute on the assumption that the Government will 'use it responsibly.' "

The background: Federal law makes it a crime to "corruptly ... obstruct or impede, the due administration" of the Internal Revenue Code. The question before the court is whether this criminalized all actions that deliberately, and with a desire for illegal gain for someone (which is how "corruptly" has been read), make it harder for the government to assess and collect lawfully owed taxes, or was instead limited to attempts to obstruct a specific investigation (e.g., a pending audit). The defendant in this case was cheating on his taxes, but prosecuting him for that was made harder by his deliberately running an all-cash business and constantly shredding financial records; the court concluded that such practices were not themselves criminal under the statute.

Here's part of the Court's concern (in a seven-Justice opinion written by Justice Breyer):

A broad interpretation would also risk ... lack of fair warning and related kinds of unfairness .... Interpreted broadly, the provision could apply to a person who pays a babysitter $41 per week in cash without withholding taxes, leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to provide every record to an accountant. Such an individual may sometimes believe that, in doing so, he is running the risk of having violated an IRS rule, but we sincerely doubt he would believe he is facing a potential felony prosecution for tax obstruction. Had Congress intended that outcome, it would have spoken with more clarity than it did in [the obstruction statute].

Justice Thomas, joined by Justice Alito, dissented, and responded to the above passages this way:

To be sure, [the law] is a sweeping obstruction statute. Congress may well have concluded that a broad statute was warranted because "our tax structure is based on a system of self-reporting" and "the Government depends upon the good faith and integrity of each potential taxpayer to disclose honestly all information relevant to tax liability." ...

The Court frets that the Omnibus Clause might apply to "a person who pays a babysitter $41 per week in cash without withholding taxes," "leaves a large cash tip in a restaurant," "fails to keep donation receipts from every charity," or "fails to provide every record to an accountant." Whether the Omnibus Clause would cover these hypotheticals -- and whether the Government would waste its resources identifying and prosecuting them -- is debatable. But what should not be debatable is that the statute covers Marinello, who systematically shredded documents and hid evidence about his company's earnings to avoid paying taxes even after warnings from his lawyer and accountant. It is not hard to find similar cases prosecuted under the Omnibus Clause. .

The Court, in its effort to exclude hypotheticals, has constructed an opening in the Omnibus Clause large enough that even the worst offenders can escape liability. In doing so, it failed to heed what this Court recognized in a similar case: "[T]he authority vested in tax collectors may be abused, as all power is subject to abuse. However, the solution is not to restrict that authority so as to undermine the efficacy of the federal tax system."

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"The City Cannot ... Prospectively Try[] to Guess Whether Certain [Speakers] ... Will ... Create a Disturbance"

Spokane Valley (Wash.) resists groups' letter opposing event put on by speaker who has at times drawn unruly supporters.

KXLY-TV (Hawk Hammer) reports that various groups have written to the City of Spokane Valley expressing concern about a rally led by one Joey Gibson, a Senate candidate, which will be held Sunday at a city-owned event center:

Joey Gibson's organization, Patriot Prayer, is a far-right fringe organization mostly known for fights at its rallies.... [A]ssaults and arrests were reported at Patriot Prayer events throughout summer 2017....

While Gibson has claimed to exclude white nationalist and white supremacist groups from his Patriot Prayer rallies, members of these groups show up regularly. Patriot Prayer is openly organizing with multiple white nationalist -- and even self-declared "national socialist" -- groups for an "Oregon Nationalist Summer" in summer 2018....

The current Facebook description of the March 25th rally (as of March 16th) includes plans for a "rally with a march after." This despite the fact that CenterPlace informed us March 12th that the rally organizer, Lesley Haskell, has not secured a permit for a march. On March 13th Haskell stated "the march [...] has been taken off the table" but has not altered the event to inform attendees. Haskell (who has her own history of Islamophobic and anti-Black comments) also disavows responsibility for "those that may show up and attempt to create an environment of chaos, fear, dangerous behavior" and warns that "we who are involved with Mr. Gibson and this rally are not responsible for their actions." Considering the extremist groups with whom Gibson routinely allies, this is a dangerously irresponsible statement. The community also deserves to know the identity and qualifications of Haskell's "security team who has experience in handling situations involving protesters." Haskell and Gibson need to take responsibility for public safety before, during, and after their rally on Sunday the 25th.

These questions are particularly urgent considering the rally venue. CenterPlace is part of a Spokane Valley complex with a family atmosphere, including a YMCA with a pool and climbing wall, a popular playground, and a major public park. CenterPlace is also owned by the City of Spokane Valley and managed by the City of Spokane Valley Parks and Recreation Department. This publicly owned community resource has the mission "to build community identity" and "to serve the needs of a diverse and growing Northwest region." How is this mission fulfilled by hosting a group notorious for fomenting violence?

In sum, we question the time, venue, and safety of this rally. When extremists enter the heart of our community, they have the right to spew their hate. It remains ill-advised for them to disrupt and endanger our community with poorly conceived events that are likely to result in avowed Neo-Nazis rubbing shoulders with families at a playground.

The City responded:

The City of Spokane Valley rents space at CenterPlace Regional Event Center to individuals and groups from the community who are looking for quality meeting space. The City does this in a non-discriminatory fashion for anyone requesting space and who agrees to the City's terms of use. The City cannot be in a position of prospectively trying to guess whether certain renters of the facility will break the rules or create a disturbance. If the City gains information that suggests that may be the case, we will react accordingly and attempt to put appropriate plans in place to try to ensure that the use of the City facility is lawful and peaceful. The City of Spokane Valley and its elected leadership are strong proponents of the First Amendment and the right of citizens to express themselves in lawful ways.

The City has received calls from members of the community expressing concern about the City's rental of CenterPlace to the Northwest Grassroots Alliance for this event. Staff and the Spokane Valley Police Department are working to identify and hopefully resolve any issues that may come up. Spokane Valley urges the meeting participants and other members of the public who may show up to exhibit decorum and tolerance in all discussions that revolve around this event.

The City's position strikes me as quite correct, and indeed mandated by the First Amendment, once they open up space for members of the public to rent.

The Unpublished Dissent in Cooper v. Aaron

"Of all the tribunals this is the one that should stick to the rules."

Professor Josh Blackman has a nice new paper, The Irrepressible Myths of Cooper v. Aaron, which canvasses the drafting history of one of the Supreme Court's most important decisions about its own authority. Cooper is where the Supreme Court declared itself to be "supreme in the exposition of the law of the Constitution," and held that its own judicial decisions are "the supreme law of the land," alongside the Constitution itself. As Josh argues, the Supreme Court may have thought it had pressing practical reasons to make these declarations, but it did not do a good job justifying them.

I learned several new things from the paper, one of which was that despite the opinion's famous unanimity, Justice Clark had at some point drafted a dissent. Here is a key paragraph:

I see no reason why we should set aside all procedural rules in this case and still require other litigants to comply with the same. The case should be considered in the regular course not by forced action. Of all the tribunals this is one that should stick to the rules. To do otherwise is to create the very situation that the Constitution prohibits, the existence of a preferred class.

But apparently Justice Clark did not ever circulate the dissent and just ended up joining. Still, I think this succinctly highlights the danger of courts that demand procedural regularity from litigants while being less willing to live up to it themselves.

If you want to learn much more, Josh has helpfully put all of the papers he used online. And if you want more from me, my own somewhat critical take on Cooper is here.

Washington’s one-minute hate for Silicon Valley

Episode 208 of the Cyberlaw Podcast

All of Washington is mad at Silicon Valley these days, as our news roundup reveals. Dems and the media have moved on from blaming Hillary Clinton's loss on Vladimir Putin; now they're blaming Facebook and Cambridge Analytica. Gus Hurwitz and I have doubts about the claims of illegality, but I reprise my frequent critique of privacy laws: they are uniquely likely to be enforced against those who annoy governing elites (because they're so vague and disconnected from objectionable conduct that they can be enforced against almost anyone).

Alan Cohn describes the many regulatory agencies now feeling emboldened to take a whack at cryptocurrencies. He's hopeful that only bad actors will actually feel the blow.

I lay out the remarkably aggressive, and novel, enforcement philosophy behind CFIUS's rejection of the Broadcom-Qualcomm deal – and the steadily advancing Congressional effort to regulate Silicon Valley's Chinese connections more closely. That effort has featured some remarkably harsh political attacks on tech giants like IBM and GE.

Is all this hate for techies good or bad for the effort to reimpose net neutrality through the courts? The states? Stephanie Roy maps the terrain, which turns out to be every bit as muddled as you thought the last time you read about it.

Need another reason to hate technology? How about this: hackers are soon going to kill someone. I explain the latest scary reports from Saudi Arabia's industrial control system – and America's.

Pressed for time, we do quick hits on stories that deserved more but got crowded out:

  • Why you won't go wrong betting that privacy zealots hate cybersecurity.
  • Trouble in AMD's chipsets raises backdoor and supply chain worries.
  • Treasury sanctions the usual Russians for election meddling.
  • Hal Martin's dumb argument for making mass theft of classified documents harder ("Geez, who can keep track of a single document when you're stealing terabytes?") is rejected.
  • And for those who wonder why the right is starting to hate Big Tech as much as the left does, here's one week's worth of stories from Silicon Valley that got heavy attention from conservative sites:
    • Twitter suspends comedian Steven Crowder for a video in which an intern crashed an LGBTQ meeting in SXSW claiming to identify as a computer.
    • YouTube follows suit.
    • Yet somehow Louis Farrakhan keeps both his Twitter account and its coveted blue check while tweeting crap like this: "the FBI has been the worst enemy of Black advancement. The Jews have control over those agencies of government."
    • At the same time that it's broadcasting Farrakhan, Twitter seems to be blocking much of the Drudge Report.
    • And Western Journal (WJ)says Facebook's new algorithm for "giving a boost to quality news" reduced lefty site traffic by 2 percent and righty site traffic by 14 percent. As an example, comparing two NY tabloids with very different politics, WJ says the change boosted Facebook's traffic to the lefty Daily News by 24 percent and cut the righty NY Post's traffic by 11 percent. (Similar claims were made by another conservative site using a different methodology.

Finally, our interview is with Pete Chronis, Turner's Chief Information Security Officer, and author of the new book, The Cyber Conundrum. Pete lays out his vision for a cybersecurity moon shot, and the two of us explore particular cybersecurity remedies that make up the effort. We take detours to consider the vulnerabilities equities process, both here and in China. We also touch on the unwise purist stand being taken by IETF on TLS 1.3; the engineers seem determined to offer internet users what might be called "Privacy and Insecurity – By Design." (And to bring this post full circle, if you were wondering why ordinary people are getting sick of dancing to the tune of Silicon Valley engineers, the IETF's stiff-necked and counterproductive position on security for corporate network users would be a good place to start.)

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to or leave a message at +1 202 862 5785.

The Cyberlaw Podcast is hiring a part-time intern for our Washington, DC offices. If you are interested, visit our website at

Download the 208th Episode (mp3).

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Court Allows Lawsuit Against Ideological Group for Discriminatory Rejection of Noncommercial Ad in Its Publication

The National Lawyers Guild refused to run a congratulatory advertisement submitted by an Israeli organization -- the organization is suing for discrimination in "public accommodations," and a New York court has let the case go forward.

In Bibliotechnical Athenaeum v. National Lawyers Guild, Inc., 2018 WL 1172597 (N.Y.Sup. Mar. 6, 2018), the National Lawyers Guild -- a "progressive bar association" -- held an awards banquet. For the banquet, the Guild printed a program, the Dinner Journal, which

consists of 40 pages. With the exception of a cover page, a two-page introduction, a program agenda, and seven pages of honoree biographies, the remaining 25-plus pages consist of advertisements. Most of the advertisements congratulate one or more of the honorees, some simply list the name and address of the advertiser without any accompanying message, and some contain what could be considered statements or messages referencing current and historic political issues....

The Athenaeum, an Israeli organization, tried to submit a 3" x 3", which was to read:

Bibliotechnical Athenaeum
Congratulations to the Honorees
4 Shlomtzion St. Elazar
Gush Etzion 9094200
State of Israel

But the Guild e-mailed the Athenaeum to say that it would reject the ad because of the Guild's "resolution barring [Defendants] from accepting funds from Israeli organizations." The Athenaeum sued, claiming this constituted public accommodation discrimination based on national origin in violation of New York state and city law.

The court agreed that this violated the law. In an earlier decision in the same case, the court noted that the law defines "person" broadly, to include associations as well as individuals. And in this decision, the court held that

the phrase "public accommodation" [under the City and State Human Rights Laws] has been interpreted broadly since the statutes were first enacted, and ... the annual dinner banquet fell squarely within its broad scope. Likewise, ... the Guild's offer to advertise in the Dinner Journal was open to the public and ... Defendants refused to accept the advertisement based only on Plaintiff's national origin. In fact, Defendants did not controvert Plaintiff's assertion that they refused the advertisement solely because Plaintiff was an Israeli corporation.

The court went on to refuse to dismiss the case on First Amendment grounds:

Defendants place much reliance on Miami Herald Publ'g Co. v Tornillo (1974), in which the Supreme Court struck down Florida's "right of reply" statute requiring newspapers to print a reply if a published article assailed a political candidate's record or character. Several courts have relied on Tornillo to dismiss lawsuits against newspapers that have refused to print advertisements.... [But] because Defendants were not traditional newspapers, this case appear[s] to fall outside Tornillo's scope....

[N]otwithstanding Tornillo, Defendants' actions may still be entitled to First Amendment protection since requiring Defendants to publish Plaintiff's advertisement might be considered compelled speech... Defendants argue that the Dinner Journal is more than just a phone-book style compilation of biographies and information, but rather a publication filled with assertions of political opinions. Defendants explain that the Dinner Journal highlights several of the honorees' work on behalf of Palestinians and shows that many of the advertisers supported this work. For example, the Arab American Action Network placed an advertisement "salut[ing] the NLG and [one of the honorees] for their incredible work defending the rights of Palestinians in Chicago." Similarly, one of the advertisements congratulates an honoree for "selflessly supporting ... the struggle of the Palestinian people, and other anti-racist and anti-imperialist struggles." The Dinner Journal contains several other advertisements of this nature.

Set against this background, Defendants' counsel contends that "the proposed ad submitted by Plaintiff with its controversial Gush Etzion address expressed its own political message in gross contradiction of the view of the National Lawyers Guild." In other words, by listing Gush Etzion as Plaintiff's address, Defendants argue that the proposed advertisement contained "controversial" information which they were entitled to reject.

Defendants' arguments, however, must be rejected, as this court cannot, at least on this record, take judicial notice of the controversial nature of settlements in the West Bank..... [A] court may take judicial notice of facts that are capable of "immediate and accurate determination by resort to easily accessible sources of indisputable accuracy." Whether denoting an address as being in Israel is controversial or noncontroversial does not fall into that category. Quite to the contrary, the issue of Israeli settlements in the West Bank is the very epitome of a topic that cannot be reduced to "indisputable accuracy."

Moreover, Defendants' discussion about settlements appears for the first time in counsel's memorandum of law. It goes without saying that a recitation by counsel is patently insufficient for purposes of showing that Defendants' actions were based upon the Guild's political opinions as opposed to a discriminatory motive.

Turning now to the merits of the First Amendment argument, I find that it is not a sufficient basis to dismiss the complaint at this stage.... In assessing whether an individual is being improperly required to engage in forced speech or expressive conduct, the Supreme Court has held that the threshold inquiry is whether the conduct allegedly compelled was sufficiently expressive so as to trigger First Amendment protections. Conduct, in turn, is considered inherently expressive when there exists " '[a]n intent to convey a particularized message' " as well as a likelihood that the intended " 'message [will] be understood by those who view[] it.' "

Under those standards, I cannot say on the papers before me that the complaint must be dismissed. Without having the benefit of discovery, it is questionable whether the proposed advertisement is forced speech. The advertisement, which simply stated that Plaintiff congratulated the honorees at the dinner and listed an address, is not so different from many of the others appearing in the Dinner Journal. It is therefore questionable whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws. In other words, it is not clear from the complaint or documentary evidence that the speech in question triggers First Amendment protections.

It bears repeating that this is a motion to dismiss. The allegations contained in the amended complaint, namely that Plaintiff was discriminated against on the basis of its national origin, must be deemed true for purposes of this motion. The pleadings are supported by an email, purportedly written by the "NLG National Office," which unequivocally states that the advertisement was being rejected on the basis of Plaintiff's national origin. While the Dinner Journal circumstantially evinces Defendants' political affiliations, it does not totally undermine Plaintiff's allegations or the email in question so as to establish a complete documentary defense.

In sum, this case may eventually turn on the First Amendment, but the issues presented on this motion must first be borne out through discovery before the court can make that determination....

In an earlier decision, the court also reasoned that "the New York Court of Appeals has long recognized that free speech restrictions are consistent with the First Amendment where they serve to protect against discrimination":

In N.Y. State Club Ass'n v City of New York (1987), a consortium of some 125 private clubs, many of whom were allegedly organized along national origin, religious, ethnic and gender lines, challenged the New York City Human Rights Law as soon as it was enacted. The Association argued that the law violated its members' right to free speech and association under the First Amendment. In rejecting that argument, the Court drew a distinction between the clubs' general activities and the specific practice of discrimination -- "The law evinces an intent not to dictate the selection policies or activities of the private clubs except to the extent necessary to ensure that they do not automatically exclude persons from membership or use of the facilities on account of invidious discrimination." The law also "employed the least restrictive means to achieve its ends" and "plaintiff has made no showing that its members' free speech rights will be abridged -- either in altering the policies or functions of the various organizations ... or in creating a chilling effect on the behavior of club members." More importantly, the Court held that "although plaintiff's constituent members have a right to free speech and to association, they lack the right to practice invidious discrimination ... in the distribution of important business advantages and privileges.... Any incidental intrusion on protected free speech rights accomplished by the local measure is no greater than is necessary to fulfill the State's legitimate purpose ...."

Yet the court's analysis strikes me as quite wrong. The Dinner Journal is a publication that is just as protected by the First Amendment as a newspaper. (The Supreme Court has long recognized that the freedom from compelled speech applies to all speakers, whether or not they are members of the institutional media.) The National Lawyers Guild has an absolute right to choose what not to publish in the Dinner Journal's pages; and whatever antidiscrimination law might say about clubs' decisions about whom to admit (see Roberts v. U.S. Jaycees (1983)), it can't limit speakers' decisions about what to include in their publications.

Nor does this extend just to speech that has been proved to be "controversial." It appears that the Guild refused the ad not because the address was in a West Bank settlement, but because the submitter was an Israeli organization. But that does not matter -- the Guild is entitled to exclude Israeli speech and not just speech from Israeli settlements.

The one possible complication is that here the Guild's e-mail seemed to stress its objection to the identity of the advertiser and not just the content of the advertiser's message (the e-mail said the Guild would not "accept[] funds from Israeli organizations"). In this respect, the case is different from Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995), whether the St. Patrick's Day Parade organizers refused to allow a group from parading under a banner saying "Irish American Gay, Lesbian and Bisexual Group of Boston," but apparently didn't seek to exclude gays and lesbians generally from marching under other banners. Yet just as in Dale v. Boy Scouts of America (2000) the Court allowed the Boy Scouts from excluding a would-be assistant scoutmaster because he was gay (even if he wasn't going to say any pro-gay messages as part of his speech to scouts on behalf of the organization), so the National Lawyers Guild has a right to exclude messages from Israeli organizations.

And it also doesn't matter "whether there is a likelihood the Guild would be perceived as endorsing any Israeli government policies as opposed to merely complying with antidiscrimination laws." Indeed, in the leading modern compelled speech case, Wooley v. Maynard (1977), the Court held that drivers couldn't be required to display "Live Free or Die" on their license plates even though (as the Wooley dissent noted) passersby wouldn't perceive drivers as endorsing the motto (as opposed to merely displaying a government-issued license plate). People and organizations can't be required to display or print speech that they disapprove of, regardless of whether observers would perceive them as endorsing the speech.

Legally unfounded speech restrictions and compulsions such as this one should indeed be dismissed early in the process, such as on a motion to dismiss, rather than waiting for future development of legally irrelevant facts. As readers might gather, I agree with the National Lawyers Guild on very little, and I don't agree as a policy matter with its boycott of Israelis. But its First Amendment argument here was quite right, and should have prevailed.

Sex, Lies, and Constitutional Law: The Stormy Daniels Settlement Agreement

There is, it turns out, more to the Stormy Daniels Affair than meets the eye.

[UPDATE 3/20: For those of you who are interested in the issue I raise at the end of this post concerning enforceability of arbitral award in cases involving speech restrictions, you might want to take a look at Bruce Wessel's article in the ABA Journal on "Preliminary Injunctions Enforcing Contractual Nondisparagement Clauses" (scroll down to p. 20)]

Here's what we now know: First, that Ms. Daniels (aka Stephanie Clifford) was paid $130,000 a few weeks before the 2016 election. Michael Cohen, one of the Trump lawyers, has admitted making that payment - though he insists, risibly, that he did so out of his own pocket! {File Under: "Not remotely credible!"}

Second, we now know that there was a written contract between Daniels and Trump* - entitled "Confidential Settlement Agreement and Mutual Release; Assignment of Copyright; Non-Disparagement Agreement."

* To be fair, we can only be 98% certain that Trump was actually a party to this contract. It's all very cloak-and-dagger; you can read it for yourself here.

On its face, the Agreement purports to be between "Peggy Peterson" and "David Dennison." But the Agreement goes on to state that these names are "pseudonyms whose true identity [is] acknowledged in a Side Letter." The Side Letter, in turn, says that "the person referred to as Peggy Peterson in the Settlement Agreement is Stephanie Gregory Clifford, aka Stormy Daniels." It then idenfies the person referred to as "David Dennison" - but that name has been blacked out (at least, in the publicly-available copies of the Side Letter that I have seen).

So I suppose that it could be somebody other than Trump; Mr. Cohen might have had another client who was willing to pay Daniels $130,000 in late October 2016 to keep quiet about something. But as far as I'm aware, nobody (including, notably, Mr. Cohen) has made that suggestion, and I am proceeding on the assumption that Mr. Trump - our president, and the Leader of the Free World - is the guy wearing the wig and fake mustache and calling himself "David Dennison."

And third, we now know exactly what the Agreement said, because Daniels has put it into the public record, appending it to a Complaint she recently filed in CA Superior Court seeking a declaration that the Agreement is invalid and unenforceable [more on this suit below].

The Agreement makes for very interesting reading; I recommend it. It's a pretty complicated and strange-looking little legal animal that Mr. Cohen cobbled together - complicated enough so that it makes one suspect that this was not the very first time Mr. Cohen had occasion to put a deal like this together, though I admit that is just rank speculation on my part.

The gist of the Agreement is that:

1. Daniels receives $130,000, in exchange for which she promises never to disclose, to anyone "any information pertaining to [Dennison/Trump] and/or his family . . . and/or friends," including any Dennison/Trump-related

"business information, familial information, any of his alleged sexual partners, alleged sexual action, or alleged sexual conduct, related matters or paternity information [uh-oh!], legal matters, contractual information ... private social life, personal lifestyle, [or] private conduct."

2. To the extent that any of that information is in tangible form - "letters, agreements, documents, audio recordings, images, electronic data, photographs, canvas art, . . . or art in any other form or other media" - Daniels also promises to transfer ownership of all such property, and ownership of all the intellectual property rights in such property, to Dennison/Trump.

3. Daniels also promises not to "disparage" Trump or his family, to anyone, ever.

4. Dennison/Trump, for his part, in addition to promising to hand over the dough, agrees that he will not sue Daniels for any efforts she may have made "to sell, exploit and/or disseminate" this information prior to the date of the Agreement.

Oddly, the Agreement requires Daniels to identify by name, in the Agreement itself, all persons to whom she had made a prior disclosure of any confidential information about Dennison/Trump. [See Sec. 4.2] She did so, listing four individuals, whose names are clearly legible on the copy of the Agreement filed by Daniels and now publicly posted: Mike Mosney, Angel Ryan, Gina Rodriguez, and Keith Munyan. I assume I'm not the first person to wonder how much of Daniels' story these folks can corroborate.

5. For any breach by Daniels, Trump can, due to the "irreparable nature of the injury he would suffer" in the event of such breach, claim "liquidated damages" from Daniels in the amount of $1 million per item disclosed.

6. The parties agree to "mandatory binding confidential arbitration," before an arbitrator who shall have "the right to impose all legal and equitable remedies that would be available to any of the parties in . . . any court of competent jurisdiction," to resolve all controversies under the Agreement. The parties - and this is in bold-faced type in the Agreement - have "no right of appeal or review of" the arbitrator's decision. (See Sec 5.2). One and done.

What to make of all this?


Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations

An interesting dissent from denial of certiorari this morning.

From today's Garco Construction, Inc. v. Speer, a dissent from denial of certiorari by Justice Thomas, joined by Justice Gorsuch:

Petitioner Garco Construction, Inc. ... had a contract with the Army Corps of Engineers to build housing units on Malmstrom Air Force Base. As part of its contract, Garco agreed to comply with all base access policies. After construction began, the base denied access to certain employees of Garco's subcontractor.

Although the text of the base's access policy required only a "wants and warrants" check, the base clarified that the policy also required background checks and excluded many individuals with criminal histories -- even if those individuals did not have any wants or warrants. Garco's request for an equitable adjustment of the contract was denied, and the Armed Services Board of Contract Appeals denied Garco's appeal.

The Court of Appeals for the Federal Circuit affirmed. Despite acknowledging "some merit" to Garco's argument that 'wants and warrants'" means only wants and warrants, the Federal Circuit deferred to the base's interpretation of its access policy under Auer v. Robbins, 519 U.S. 452 (1997).

Garco filed a petition for certiorari, asking whether this Court's decisions in Auer and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), should be overruled. I would have granted certiorari to address that question.

Seminole Rock and Auer require courts to give "controlling weight" to an agency's interpretation of its own regulations. To qualify, an agency's interpretation need not be "the best" reading of the regulation. Decker v. Northwest Environmental Defense Center, 568 U.S. 597, 613 (2013). It need only be a reading that is not "plainly erroneous or inconsistent with the regulation." Although Seminole Rock deference was initially applied exclusively "in the price control context and only to official agency interpretations," this Court has since expanded it to many contexts and to informal interpretations.

Seminole Rock deference is constitutionally suspect. It transfers "the judge's exercise of interpretive judgment to the agency," which is "not properly constituted to exercise the judicial power." It also undermines "the judicial 'check' on the political branches" by ceding the courts' authority to independently interpret and apply legal texts. And it results in an "accumulation of governmental powers" by allowing the same agency that promulgated a regulation to "change the meaning" of that regulation "at [its] discretion." This Court has never "put forward a persuasive justification" for Seminole Rock deference.

By all accounts, Seminole Rock deference is "on its last gasp." Several Members of this Court have said that it merits reconsideration in an appropriate case [citing opinions by Justices Alito and Thomas, and by Chief Justice Roberts]. Even the author of Auer [Justice Scalia] came to doubt its correctness.

This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates. While Garco was performing its obligations under the contract, the base adopted an interpretation of its access policy that read "wants and warrants" to include "wants or warrants, sex offenders, violent offenders, those who are on probation, and those who are in a pre-release program." The Federal Circuit deferred to that textually dubious interpretation.

Thus, an agency was able to unilaterally modify a contract by issuing a new " 'clarification' with retroactive effect." This type of conduct "frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government."

True, the agency here is part of the military, and the military receives substantial deference on matters of policy. But nothing about the military context of this case affects the legitimacy of Seminole Rock deference. "The proper question faced by courts in interpreting a regulation is ... what the regulation means." While the military is far better equipped than the courts to decide matters of tactics and security, it is no better equipped to read legal texts. Pointing to the military's policy expertise "misidentifies the relevant inquiry."

Because this Court has passed up another opportunity to remedy "precisely the accumulation of governmental powers that the Framers warned against," I respectfully dissent from the denial of certiorari.

For more on this question, see this post by Jonathan Adler.

D.C. Councilman Warns About "Rothschilds Controlling the Climate" "to Own the Cities"

"It’s climate manipulation and D.C. keep talking about ‘we are a resilient city’ and that’s a model based off the Rothschilds controlling the climate to create natural disasters they can pay for to own the cities, man."

WTOP (D.C.) (Jennifer Ortiz) quotes -- and links to -- a Facebook video put out by D.C. Councilman (and former D.C. Board of Education member) Trayon White, Sr.:

It just started snowing out of nowhere this morning. Y'all better pay attention to this climate control.

It's climate manipulation and D.C. keep talking about "we are a resilient city" and that's a model based off the Rothschilds controlling the climate to create natural disasters they can pay for to own the cities, man.

Wow, I knew we Jews were powerful, but I didn't know we actually controlled the weather.

The Councilman put out an apology; decide for yourself how much weight you would like to put on it:

Thanks to Charles Glasser at InstaPundit for the pointer.

Why We Shouldn't Give Special Credence to the Political Views of Young People and Victims

Recent events such as the student walkout to promote gun control raise the issue of how much credibility we should give to the political views of the young, and victims of crime. At least as a general rule, there is no reason to give those views any special credence.

Recent events, such as the national school "walkout" to promote gun control, raise the question of how much credence we should give to the political views of young people and crime victims. If large numbers of high school or college-age people support a view and protest in favor of it, does that make it any more likely to be true? In a recent Washington Post column, Megan McArdle casts cold water on the notion that the walkout and other similar events reflect any special insight of the young, that the rest of us should defer to:

The idea that children, in their innocence, have special moral insight goes back a long way in Western culture... It has, of course, always warred with some variant of the belief that "children should be seen and not heard" — that children are not yet ready to hold up their end in adult conversations....

Kids today do know something that the rest of us don't: what it's like to be kids today. But the rest of us do remember what it was like to be kids. If children really were special repositories of virtue, then it is doubtful so many people would recall their school days as the lifetime peak of personal meanness — both receiving and giving. And while teenagers are near the peak of their ability to absorb information, they are decades from the peak of "crystallized intelligence" — their stock of knowledge about the world, or what we might call "wisdom...."

That is not to say that gun-control advocacy is stupid. But if you wouldn't be swayed by a 17-year-old's passionate advocacy for a lower drinking age — or for that matter, their ideas about Federal Reserve policy — then you should probably apply those same cautions to their other views....

What is true of children is - though to a much lesser degree - also true of many young adults in their late teens or early twenties. They too are, on average, less knowledgeable and have less developed judgment than people at later stages in the life-cycle. For many years, surveys of political knowledge have consistently found that it correlates with age. The young, as a general rule, know less about government and public policy than other age groups. For that reason, they are also less likely to have valuable insights on how to address difficult issues.

Obviously, there is enormous variation among both young people and older ones. As with most other statistical generalizations, there are numerous exceptions to the general correlation between age and political knowledge. Many older adults are deeply ignorant about public policy. Indeed, such ignorance is both widespread and, for most voters, actually rational behavior. By contrast, there clearly are young people - including some children - who know far more about policy issues than the vast majority of adults. I have long argued that, at least in principle, children with high levels of political knowledge should be given the right to vote, regardless of age.

It would be a mistake to dismiss policy proposals out of hand, merely because of the age of their adherents. But it is also a mistake to ascribe any special political wisdom to the young. The fact that large numbers of young people support a political cause adds little, if anything, to its merits.

The recent gun control protests draw moral authority not only from the age of the protesters, but from the fact that some of their leaders are survivors of school shootings, such as the one in Parkland, Florida that precipitated the current round of protest activity. Even school-age protesters who have not personally experienced gun violence may be seen as having special moral authority, because they are perceived as facing a heightened risk of suffering such horrible events in the future. In reality, school shootings are extraordinarily rare, and schools are among the safest places in American society. Schoolchildren are far more likely to be killed in accidents while walking or riding their bikes to school than in a shooting at school.

But even if students really were disproportionately likely to be victims of gun violence, that would not be a good reason to give special credence to their policy views. Personally experiencing a horrific event or being at disproportionate risk of suffering one, doesn't necessarily give you special insight into how to prevent such tragedies from occurring. A person who survives an awful plane crash does not thereby gain special insight into aviation safety. Similarly, a person who survives a mass shooting does not thereby get much in the way of useful knowledge of gun policy.

Survivor testimony does have important value in some situations. For example, the testimony of Holocaust survivors and victims of other mass murders provides powerful evidence that those atrocities actually did occur (though there is often other evidence, as well, such as the extensive records kept by the perpetrators of the Holocaust). But the experience of being a Holocaust or Gulag survivor does not, in and of itself, give much insight into how to prevent future Hitlers and Stalins from committing similar atrocities. Similarly, surviving a school shooting does not create expertise on gun control.

Often, the real reason for focusing attention on victims and survivors is not the value of their insights, but the way in which they tug at our emotional heart-strings. Opposition to policies promoted by survivors of a recent horrific event is easy to denounce as callous and unfeeling. Here, we would do well to remember that our immediate emotional reactions to tragedy are rarely a useful guide to policy. All too often, giving in to such feelings results in policies that create more harm and injustice than they prevent. Liberals are quick to point out this out when it comes to terrorist attacks. Conservatives routinely do so in the aftermath of mass shootings. Both are right, and both would do well to heed each other's warnings. As with emotional reactions to terrorist attacks, overreactions to the extremely rare phenomenon of school shootings can easily result in dangerous and unjust policies, as with the "zero tolerance" policies enacted in the aftermath of the 1999 Columbine shootings.

The use of victims as spokespersons for dubious policies is a game that both sides of the political spectrum can play. The 2016 Republican convention, for example, featured speeches by relatives of people killed by undocumented immigrants. Liberals correctly recognize that these statements, however heartfelt, do not change the fact that immigrants, including undocumented immigrants, actually have much lower crime rates than native-born Americans. And the family members' statements certainly don't provide any justification for Trump's cruel deportation policies, which routinely target people who have lived in the US for years without committing violence of any kind. Those who rightly denounce the use of this tactic by the GOP should also be wary of similar ploys by the other side of the political spectrum.

Ultimately, we should try, as much as possible, to base government policy on reason and evidence. That means resisting calls to give special credence to the views of the young and crime victims, except in the rare instances where they really are likely to have valuable insights on policy. Indeed, it pays to be skeptical of all emotional appeals that are more likely to short-circuit our judgment than improve it.

Twitter's Policy Changes Hurting This Russian's Bots

For historical reasons, this blog has three Twitter feeds -- @VolokhC (the main one) plus @VolokhConspirac and @VolokhCom -- but it looks like I'll have two close the latter two.

As I understand it, Twitter is changing its policy to bar users from automatically posting to multiple accounts, apparently to cut down on malicious or fraudulent bots. Unfortunately for us, when I set up the blog's Twitter feeds, I inadvertently set up and somehow promoted @VolokhCom and @VolokhConspirac as well as @VolokhC. (I forget exactly how the mixup happened, but it did.) Though the great majority of our readers are at @VolokhC, we have 6,700 put together on the other two accounts.

That used to be fine, because I just had the service automatically Tweet about all our posts to all three accounts, so there was no extra hassle for our readers (or for me). But now that won't be alllowed -- and Twitter apparently doesn't let you merge two accounts, so by the end of this coming week, all our @VolokhCom and @VolokhConspirac subscribers will have to subscribe to @VolokhC if they want to keep getting our posts. (I'll also announce that through specific Tweets to those accounts.)

I'll also have to find some other way of handling our specialized free-speech-post-only and gun-post-only @VolokhSpeech and @VolokhGuns accounts. I think I should be able to Retweet some posts to those accounts, but I will no longer be able to do this automatically.

In any case, that's the situation, unless someone gives me a better idea.

If you'd rather get posts in other ways, here are two options:

  1. To get the Volokh Daily e-mail, go to, enter your e-mail address, and then click on the link in the verification e-mail that you get.

  2. To get each post in your Outlook mailbox as it appears (my favorite way for following most of my favorite blogs):

    • In Outlook 2007, go to Tools / Account Settings / RSS Feeds; in Office 365, go to File / Account Settings / Account Settings / RSS Feeds.
    • Then, in either version, click on New, enter the RSS address (for us, it's, click on Change Folder when that option comes up, and set the target folder to be the Inbox.

Short Circuit: A roundup of recent federal court decisions

Sanctuary cities, the fiduciary rule, and iced coffee.

Since 2009, Tennessee officials have levied nearly $100,000 in fines on African-style hair braiders—not for any health or sanitation violations but simply for operating without a license. The license, which takes 300 hours to obtain, creates real hardship for braiders and doesn't much benefit the public, so it's welcome news that a bill to repeal it is advancing in the Legislature. IJ Legislative Analyst Nick Sibilla has the story at

  • Man is convicted in 2004, sentenced to life for pair of Woodbine, N.J. robberies where victims were tied up, threatened. Third Circuit: New trial or set him free; his attorney rendered ineffective counsel by failing to question detectives' handling of "the one piece of tangible evidence" tying the man to the crime (a cigarette butt purportedly found at one of the crime scenes that could actually have come from his home).
  • Under South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law," kids as young as 7 have been arrested for cursing, refusing to follow directions, or getting into minor scuffles. So the kids challenge the law. Fourth Circuit: And their lawsuit should be allowed to go forward.
  • On personal blog, prosecutor writes a series of posts on litigious political activist with a criminal past; the activist complains to the prosecutor's superiors; the posts are not altered. A still-unidentified hoax caller then triggers a SWAT raid of the prosecutor's home. District court: The activist cannot sue the prosecutor for seeking to have him investigated for playing a role in the hoax. Fourth Circuit: That's so.
  • Allegation: Manassas City, Va. detective (an alleged child molester) compels 17-year-old to masturbate in front of armed officers so as to compare his erect penis with illicit images sent to the teen's 15-year-old girlfriend. District court: Qualified immunity. Fourth Circuit (2017, over a dissent): Reversed. The detective violated the teen's Fourth Amendment right of privacy and should have known it. Fourth Circuit (2018, on dueling petitions for rehearing, also over a dissent): So actually, we vacate rather than reverse the district court on that point. Also, it's possible the detective's actions amounted to creating child porn, for which the 17-year-old can seek recompense (a claim previously dismissed). (We discussed the 2017 ruling on the podcast.)
  • In areas zoned for single-family living, Salisbury, Md. forbids more than two unrelated persons from living together. Officials: So landlord renting house to two brothers and a friend is breaking the law. District court: The ordinance is unconstitutionally vague. Fourth Circuit (2016): Is it? District court: It's not. Fourth Circuit (2018): The renters have moved out; case is moot.
  • Texas law aimed at curtailing so-called "sanctuary cities" (wherein local officials limit their cooperation with federal immigration authorities) is challenged on a host of constitutional theories; district court enters preliminary injunction. Fifth Circuit: Which we now vacate; the law is constitutional, except for the provision that prohibits elected officials from "endorsing" sanctuary policies, which violates the First Amendment.
  • In 2016, the Department of Labor enacted the "Fiduciary Rule," unsettling decades of practice by broadly reinterpreting the term "investment advice fiduciary" to subject hundreds of thousands of financial service providers in the market for ERISA plans and IRAs to stringent regulation. Fifth Circuit (over a dissent): Which they had no authority to do; the Fiduciary Rule is vacated.
  • Blount County, Tenn. detective and prosecutor withhold exculpatory evidence in 2002 murder trial, so man's conviction is vacated in 2011. He's acquitted on retrial in 2015. Was the man's deadline to sue for prosecutorial misconduct a year after the vacatur or a year after the acquittal? The latter, says the Sixth Circuit, so his suit should not have been dismissed.
  • Lima, Ohio police take sexagenarian drunk driving suspect to ground; one officer knees him repeatedly, fracturing a rib, when he doesn't produce his hands for cuffing (allegedly because they're pinned underneath him). Sixth Circuit: The knees were excessive force, but our precedent puts officers on notice not to beat people (who might be offering slight resistance) only in booking rooms—this was a traffic stop. The man can't sue.
  • Former employee of red light camera company that bribed Chicago official (who is now serving 10 years) turns informant, seeks sizable cut of the $20 mil the company paid to settle the city's suit. Seventh Circuit: The chutzpah!
  • When a reasonable person orders a 12-oz. iced coffee, do they expect a full 12 oz. of coffee—or some coffee and some ice in a 12-oz. cup? Los Angeles man: The former. Starbucks is defrauding its customers. Ninth Circuit: Not so.
  • Suspect, already searched, is unarmed, sitting compliantly on the bumper of a squad car, and being watched over by an armed King County, Wash. officer. Nonetheless, another officer allegedly points a gun at the suspect's head and threatens to kill him. Is that so wrong? It's wrong, says the Ninth Circuit. So wrong? Not so wrong that every reasonable officer would have understood it was unconstitutional. Qualified immunity.
  • Civil Procedure Exam Question: California Highway Patrolman punches septuagenarian in the stomach during a traffic stop, and jury returns a special verdict finding excessive force. Officer isn't as quick with his notice of appeal as he is with his fists, waiting 199 days to file. But the court's even slower, waiting 227 days to approve and enter judgment on the special verdict. Is the notice of appeal timely? Professor Ninth Circuit says "No"; judgment was "constructively" entered after 150 days.
  • Allegation: After completing his sentence, man spends eight years in Los Angeles County jail awaiting word on whether he's to be deemed too dangerous to release. For more than six of those years, he's housed with criminal convicts, wearing a red jumpsuit that marks him as a sex offender, for which another inmate attacks him with a razor. Ninth Circuit: He can sue the then-sheriff (who is facing prison time for unrelated matters).
  • Do the Articles of Confederation give rise to employment discrimination claims? They do not, says the Tenth Circuit.
  • Eleventh Circuit: Wearing a mask in public is illegal in Georgia (with exceptions for Halloween, among other things), a measure meant to protect against "terrorization by masked vigilantes." So an allegedly peaceful protester arrested for wearing a Guy Fawkes mask can't sue Atlanta police. Dissent: That's not the law; wearing a mask in public is legal unless the wearer intends to intimidate people; "non-threatening political mask wearing" doesn't meet that standard.
  • In a blog post, doctor suggests another doctor's method for treating Alzheimer's and other ailments (by injecting a drug used to treat arthritis along patients' spines) is quackery. Libel? Eleventh Circuit (2017): No, the purported quack's suit is a Strategic Lawsuit Against Public Participation. Eleventh Circuit (2018): And he can pay the blogger's legal bills—$260k.

Long one of the most important and vigorously enforced provisions in the Constitution, the Contract Clause was meant to bar states from retroactively altering contracts, which, apart from the unfairness of it, creates uncertainty in commerce and credit markets because businesses can't know if their agreements will be honored. But the Clause was largely read out of the Constitution in the 20th century, and now state legislators have relatively free rein to rewrite private contracts as they see fit. On Monday, however, the Supreme Court will consider a Contract Clause case for the first time in a generation, presenting the opportunity to revive this crucial property rights safeguard. Click here to read an IJ amicus brief, written on behalf of Vanderbilt prof James W. Ely, urging the Court to embrace the original meaning of the Clause.

Announcement: Liberty & Law Center Seeks Free Speech Fellow

Liberty and Law Center
Free Speech Clinic Fellow

Salary Range: Competitive with similar fellowships.

The Liberty and Law Center at the Antonin Scalia Law School is looking for a Free Speech Clinic Fellow to run a new Free Speech Clinic for law students, which will begin in Fall of 2018. The Free Speech Clinic Fellow will collaborate with the Clinic Director to manage, instruct, and support the activities of the Free Speech Clinic. It is anticipated that the Clinic will focus on two core First Amendment objectives: (1) litigating and supporting cases and other legal proceedings that further the cause of free speech; and (2) training a group of future lawyers who want to advance their knowledge of the status of freedom of speech in the United States, and seek practical training in protecting freedom of speech.

About the Liberty and Law Center:

The Liberty and Law Center is a new academic center within Scalia Law School. Its mission is to provide a forum to learn about the role of law in protecting and promoting liberty, challenge government encroachment upon liberty, and lead the discussion of the law's role in protecting and promoting liberty.

Fellowship Description:

At the direction of the Clinic Director and the Center's leadership, the Fellow's responsibilities include but are not limited to:

  • Serve as the day-to-day manager of the Clinic.
  • Provide supervision and instruction to students in the Clinic, including feedback, mentoring, and training.
  • Manage ongoing cases, ensuring that the work is done in a timely and professional manner.
  • Assist with the organization and teaching of the Clinic, focusing on substantive knowledge of First Amendment doctrine and the litigation process, as well as effective legal writing, advocacy, and client relations skills.
  • Develop the focus of cases the Clinic will work on, including developing and maintaining relationships with public interest law firms with which the Clinic expects to collaborate.
  • Assist in managing the marketing and promotion of the Clinic.

This is a full-time position for a period of two-years, and is benefits eligible. The position may be renewable.

Requirements: The Fellow must be a U.S. citizen (or otherwise eligible to work in the U.S.) and a law school graduate, with practical experience and background in constitutional law.

Desired qualifications and skills:

  • A strong interest in freedom of speech and the First Amendment;
  • 2 or more years of relevant experience;
  • Demonstrated ability to collaborate with others and execute projects;
  • Strong analytical and research skills;
  • Strong spoken and written communication skills; and
  • Highly self-motivated and detail-oriented with an ability to advance projects in a self-directed way.

Required qualifications:

  • A juris doctor;
  • License to practice law in Virginia, or ability to obtain a Virginia bar license within a short timeframe; and
  • Either (1) At least one year of litigation experience; or (2) a demonstrated interest in constitutional law and public interest litigation.

Required application materials:

  • Cover letter;
  • Resume, no longer than two pages;
  • Three professional references; and
  • Writing sample, no longer than five pages (can be an excerpt from a longer work).


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