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

Why We Shouldn't "Just Enforce the Law"

The case of a woman who may be prosecuted for sheltering animals during Hurricane Florence highlights some reasons why it is often wrong to enforce the law.

In debates over issues such as undocumented immigration, the War on Drugs, and others, we often hear the claim that the government should "just enforce the law." If anyone breaks the law, the state is obligated to enforce it against them if it finds out about the violation, and the perpetrators have no right to complain, because they deserve whatever punishment they get.

Perhaps so. But this story about a woman who may be subject to charges for sheltering pets during Hurricane Florence highlights the flaws in that way of thinking:

A Wayne County woman could face charges after sheltering more than two dozen pets as Hurricane Florence impacted North Carolina.

Tammie Hedges runs Crazy's Claws n Paws, a non-profit group which helps low-income families with veterinary bills, pet supplies and other needs.

She's in the process of converting a warehouse space along Route 581 into a shelter. With the storm approaching last week, she offered it as an option for pets to stay.

"The goal was to make sure they were not out there drowning," Hedges said. "We had an elderly couple, they were evacuating that afternoon, and there was no way they could take 18 animals with them."

Through donations, Hedges brought in crates, food and other supplies to help the animals get through the storm. She said volunteers stayed with the animals 24 hours a day...

On Monday, after the storm had passed, she said she got a call from Wayne County's animal services manager Frank Sauls regarding the animals.

She said he told her, "You can voluntarily hand over the animals, or I can go get a warrant."

She surrendered the animals. The Goldsboro News-Argus reported that Sauls said Hedges could still face charges for taking in the animals....

Hedges acknowledged the facility is not formally registered as a shelter, but she said she believes she shouldn't face charges for what happened.

"We're not just gonna let (the animals) suffer and die and drown," she said....

"I think it's really sad that when someone tries to do the right thing, they're punished for it," said Davidson. "I'm hoping they don't file charges. We'd like to see him reach out to her and push the reset button."

Most readers' intuitive reaction to this story is probably that it would indeed be unjust for the authorities to file criminal charges against Tammie Hedges. Far from being a wrongdoer, she should be lauded for sheltering beloved pets who might otherwise have been killed or injured in the storm. But if the government indeed has a duty to "just enforce the law," then she should be prosecuted. While it may seem as if Hedges did a good deed, in reality she's just another scofflaw who deserves to be punished. North Carolina law forbids operation of an animal shelter without a certificate of registration. And if I interpret the state's Animal Welfare Act correctly, violators are subject to a civil fine of up to $5000. If we truly believe the "enforce the law" mantra, the state should force Hedges to pay up!

Nonetheless, it would be wrong for state officials to go after Hedges. One possible reason is limited resources. In a society where there are so many laws that the government cannot possibly target more than a small proportion of violators, it seems wasteful to target Hedges. A prosecutor who decided to pursue her should be admonished to "go fight some real crime."

But resource constraints are not the only reason to let Hedges off the hook. Even if she could be punished at little or no cost to the state (or if the fine assessed against her was enough to cover the costs), it would still be unjust to enforce the law against her. Why? Because, as one of her associates put it in the article quoted above, she was doing "the right thing." Far from being reprehensible, her actions were praiseworthy. Though she probably broke the law, what she did was still right.

But if it is right to break the law to save cats and dogs who might otherwise die in a storm, why not to save humans facing similar dangers? Consider undocumented immigrants fleeing violence and oppression, and those likely to be injured or killed if deported. Similarly, there are people who violate federal drug laws in order to get medical marijuana essential to ease their pain, or purchase organs illegally, because that is the only way they can survive in the face of artificial organ shortages created by federal laws banning organ markets. Perhaps there are other valid justifications for enforcing the law in these cases (though I doubt it). But enforcement cannot be defended simply based on the fact that they are on the books, and therefore must automatically be obeyed.

Today, we praise nineteenth century antislavery activists who operated the "underground railroad" in defiance of federal Fugitive Slave Acts, and condemn government officials who tried to prosecute them. But some modern-day laws - like the examples noted above - also inflict grave harm on innocent people. The Justice Department's current interpretation of immigration law even literally requires the deportation of some escaped slave laborers on the theory that the forced labor they performed for their masters qualifies as "material support" for terrorism. If it is wrong to prosecute Hedges for her efforts to save pets during a storm, it is also wrong to prosecute those who violate immigration laws, drug laws, and other similar legislation in order to save innocent people from oppression and death.

Many nonetheless argue that we have a categorical duty to obey and enforce the law, because we consented to do so. This might be true in a world where government was genuinely consensual, in the way private clubs are; members have at least a presumptive duty to obey the club's rules because they agreed to do so when they joined. "Obey or leave" is often a reasonable demand in such circumstances. But real-world governments are not like clubs, and are not based on any genuine consent. I summarized the reasons why in this post.

Another possible justification for enforcing all laws is the idea that the government officials who enact them simply know better than we do. While ordinary citizens may not understand the rationale for prosecuting Tammie Hedges, the North Carolina state legislature is better-informed and we must defer to their superior wisdom. This theory would be plausible if there was good reason to believe that laws and regulations are enacted through an objective, deliberative process that carefully weighs relevant considerations of morality and practicality. In reality, the people who enact laws are heavily influenced by widespread voter ignorance and prejudice, and by strong biases of their own. To put it mildly, politicians are hardly a profession noted for their outstanding moral insights and objectivity in evaluating evidence.

You don't have to be an anarchist or a hard-core libertarian to distrust the government's moral judgment. Polling data shows that most Americans rate the ethics and trustworthiness of members of Congress at about the same (very low) level as those of car salesmen. If you view the dictates of used car salesmen with suspicion, the same goes for those of government officials whose ethical sensibilities aren't much better.

None of this proves that no laws should ever be enforced, or that it is morally permissible to disobey the law anytime we want to. Far from it. Many illegal activities are morally wrong entirely aside from the fact that there are laws against them. Consider such obvious cases as laws against murder, rape, or theft. In other cases, the activity in question may not be intrinsically wrong, but banning it is the only way to produce some important social benefit (e.g. - tax laws that pay for vital infrastructure or pollution control that could not be provided by private means). There are likely other examples of morally defensible laws, as well.

The key point here is not that no laws are worthy of enforcement, but that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges' animal shelter. But the same principles apply far more broadly.

Admittedly, there is room for reasonable disagreement about which laws are justifiable to enforce, and which are not. People can err in the direction of choosing not to enforce laws in cases where it is actually just to do so. But that risk is no excuse for allowing the opposite type of error to run rampant. In a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical "enforce the law" approach to political morality.

Yale Law Prof. Amy Chua's Statement on Her Advice to Clerkship Applicants

Yale law professor Amy Chua has recently been accused of telling law students that Brett Kavanaugh hired only women who "looked like models," and therefore urged them to dress to interviews with him in a way that "exude[d] a 'model-like' femininity" (I'm quoting here the characterization from The Guardian). Chua had recommended many clerks to Judge Kavanaugh, and her daughter has clerked (or perhaps is clerking, I'm not sure) for him.

I have no idea whether Judge Kavanaugh has indeed preferred good-looking women as clerks; and, if Prof. Chua thought he did, I don't think giving advice based on that should be viewed as alleged "faculty misconduct" on Prof. Chua's part: Even according to these reports, she was basically doing what I think older women mentors have long done (and been expected to) for young women -- teling them about what she thought (rightly or wrongly) real life (good or bad) operated in this situation, and about how to dress in order to get ahead. Nor would advice to dress "model-like" suggest to me dressing unprofessionally (though I have to confess that I pay very little attention to models or how they dress), but rather dressing in a particular professional style.

But in any event, Prof. Chua (who I'm told has had serious health problems for some month) has sent around the following statement (paragraph breaks added):

Everything that is being said about the advice I give to students applying to Brett Kavanaugh -- or any judge -- is outrageous, 100% false, and the exact opposite of everything I have stood for and said for the last fifteen years.

I always tell students to prep insanely hard -- that substance is the most important thing. I advise them to read every opinion, including dissents, the judge has ever written as well as important recent cases from the circuit and Supreme Court. I tell them to review all the black-letter courses they've taken and to be prepared to answer hard questions about their writing sample. I tell them to be courteous to everyone, including the staff and clerks.

I advise students, male and female, to dress professionally -- not too casually -- and to avoid inappropriate clothing. I remind them that they are interviewing with a member of the judiciary.

I always try my best to be frank and transparent, and to hold students to the highest professional standard, and every year for the last decade I have been invited by affinity groups like Yale Law Women, the Black Law Students Association, and Outlaws to host clerkship advice sessions. My record as a clerkship mentor, especially for women and minorities, is among the things I'm most proud of in my life.

Disclosure: I don't personally know Prof. Chua (I don't think we've ever met); I have met her husband, Jed Rubenfeld, who writes on constitutional law, at conferences, though I don't think I've spoken to him or corresponded with him in years; I know Judge Kavanaugh from clerking, though I likewise haven't talked to him in a long time. But he has cited my book and my law review articles in his opinions, which is enough to strip the impartiality from all but the strongest of law professors ....

Short Circuit: A Roundup of Recent Federal Court Decisions

Sacred pachyderms, boating while Latino, and police misconduct insurance.

Over at the Cato Institute's Daily Podcast, IJ Senior Attorney Robert McNamara explains why the Supreme Court's recent decision in NIFLA v. Becerra is one of the most important free speech rulings in a generation. Click here to listen.

Or click here to read McNamara and fellow IJ Senior Attorney Paul Sherman on NIFLA in Cato's Supreme Court Review.

  • Under decades-old Federal Election Commission regulations, nonprofits that run political ads need disclose the identities only of donors who earmarked their donations for those specific ads. Uh oh! A federal district court holds that this is a plain misreading of the law, which requires all contributors be disclosed. D.C. Circuit: And that is probably right, so we will not grant a stay pending appeal. (NB: Neither will the Supreme Court.)
  • Advocacy group for the blind sues the Container Store, alleging that the company's use of touch-screen point-of-sale devices—which are inaccessible to blind customers—violates the Americans with Disabilities Act. Not so fast, says the Container Store: You agreed to arbitrate disputes when you signed up for our loyalty program. First Circuit (with retired Justice Souter sitting by designation): They did no such thing, because the terms of the arbitration agreement were never communicated to them.
  • Third time's a charm (but so were the first and second): After twice persuading the Third Circuit to reinstate her complaint alleging that Pennsylvania prison officials suspended her visitation privileges in retaliation for her exercise of First Amendment rights, pro se plaintiff persuades the same court to vacate the entry of summary judgment in the prison officials' favor. But, adds the Third Circuit: Pleeeeeeease get a lawyer on remand.
  • Special ed teen pleads guilty to assaulting Brownsville, Tex. corrections officer. Four years into his eight-year prison sentence, video emerges that exonerates him; he's released. Fifth Circuit (en banc): But he can't sue the gov't for hiding exculpatory evidence because he pleaded guilty. The right to receive exculpatory evidence applies only to trials, not to plea-bargaining. By entering a guilty plea, the teen waived the right to a trial and, by extension, the right to receive exculpatory evidence. Judge Ho, concurring: And criminal defendants should be glad that Brady rights are waivable; it gives them the option to trade that right for something better, like less jail time. (Indeed, an unwaivable right is like receiving an elephant as a gift from the King of Siam: if you can't sell the elephant, return it, or trade it, then the pachyderms will "inevitably eat their owners out of house and home.") Judge Costa, dissenting: The trend among our sister courts is to recognize Brady rights pre-trial.
  • Fifth Circuit: Officers seeking to conduct a "knock and talk" need to back off if no one answers the door—either to conduct more surveillance, get a warrant, or call it a day. What they can't do is repeatedly bang on the door, call residents on the phone, and peek in windows at 2 a.m. So no qualified immunity for Southlake, Tex. officers who allegedly did that and also body-slammed an unresisting, practically blind mother onto brick steps. (Local news write-up of the incident here.)
  • Seeking to raise tax revenue, Upper Arlington, Ohio officials prohibit schools from operating in business district. Religious school challenges the restriction as a violation of the Religious Land Use and Institutionalized Persons Act. Sixth Circuit: Plaintiff isn't similarly situated to any of the groups allowed to operate in the business district, so there is no violation. Dissent: RLUIPA does not contain a "similarly situated" requirement; you (and other courts) are just making that up.
  • Nashville city attorney states at oral argument that police forced picketers to leave a public sidewalk near the city's LGBTQ Pride Festival to create a "safe space." Sixth Circuit: But for the content of the picketers' speech, they wouldn't have been removed. That's content-based discrimination; strict scrutiny applies, and Nashville loses. Dissent: The picketers' use of bullhorns means Nashville's action wasn't content-based, and concessions by Nashville's "obviously harried" attorney at oral argument shouldn't count as evidence.
  • Tennessee state legislator engages in pattern of inappropriate sexual behavior (see the official report), is expelled from the Legislature, and loses his lifetime health insurance and some pension benefits. District court: He can't sue the state's benefits administrators who cut him off; it was the Legislature that voted to do it. Sixth Circuit: Reversed. He has standing.
  • Milwaukee County Jail has zero-tolerance policy forbidding corrections officers from having sexual contact with inmates, trains guards to avoid such contact and quizzes them to demonstrate they understand. Guard rapes inmate multiple times anyway; he's later fired, prosecuted, jailed for three days. Jury awards inmate $6.7 mil. Seventh Circuit: The county need not pay it.
  • After six and a half hours of questioning, mentally retarded man confesses that he, along with a cousin, murdered aunt and uncle in their Douglas County, Neb. home. Physical evidence fails to support confession, so crime-scene commander plants blood. Both men charged with murder; charges dismissed months later after Wisconsin teenagers plead guilty to the crime. Eighth Circuit (2012): The men can sue investigators for coercing the confession, fabricating evidence. Nebraska Supreme Court: The (now-former) commander's evidence-tampering conviction is affirmed. Eighth Circuit (2018): The county's insurance company doesn't have to pony up the $6.6 mil the commander has been ordered to pay the men, as his actions were criminal and the policy excludes such things. (Click here for some local longform journalism.)
  • Memorabilia collector and museum are all shook up over who owns a guitar that Elvis played on his final tour. Eighth Circuit to collector: Don't be cruel, it's the museum's.
  • Man sends out distress call after his boat engine dies. The Coast Guard tows him to Oxnard, Calif. harbor, where eight officers are waiting to detain him on suspicion of being an illegal alien, which it turns out he is. Ninth Circuit (August 2017): Boating while Latino does not give rise to probable cause; terminate the removal proceedings. But wait! The opinion is withdrawn in July 2018 after its author, Judge Pregerson, dies. Ninth Circuit (now with Judge Wardlaw): Actually, we'll let the immigration court figure out if removal proceedings should be terminated. Judge Paez/Pregerson concurring: It is troubling that the gov't encourages noncitizens to apply to relief programs and then uses that info against them in removal proceedings.
  • To fight climate change, Oregon imposes a system of carbon-credit trading for fuels. Plaintiffs: Which discriminates against out-of-state fuels and overrides an EPA rule. The Ninth Circuit (over a dissent): Not so. It's permissible environmental protection, and we've upheld a near-identical system in California. This one's fine too.
  • Kansas man absconds to Texas with underage girl to (in his words) "stack and lay low." He's caught, convicted of sex trafficking. Man: "Stack and lay low" is a rap lyric that alludes to "frugality, working every day, and living a full life with friends and family." Tenth Circuit: The jury could have reasonably inferred otherwise. (Later in the song, the rapper says, "[T]hey don't question what I say 'cause I'm a ladies['] pimp.") Conviction affirmed.
  • Family and friends of prison inmates seek class arbitration against company that allows them to transfer money to inmates, alleging exorbitant fees. But should the question of whether they can arbitrate as a class be decided by the court or by an arbitrator? Eleventh Circuit: The arbitration agreement makes clear that the parties consented to all questions being arbitrated, including the question of arbitrability.

After four years fighting in federal court, IJ this week settled a class action lawsuit against Philadelphia over its abusive civil forfeiture practices. The city has agreed to solid procedural reforms and will set up a $3 million compensation fund so that innocent owners, who were never convicted of a crime, will get every dollar back. For over a decade, Philadelphia turned civil forfeiture into a machine, taking more than 1,200 homes, 3,500 vehicles, and $50 million in cash from residents. Working from a "courtroom" at City Hall, prosecutors controlled a forfeiture process that involved no judge and in which defendants weren't entitled to an attorney, even though their most precious property was often on the line. The consent decrees the city has agreed to will keep future prosecutors from ever again using citizens as ATMs. Click here to read more.

Criminal Libel Prosecution -- Under a Statute Struck Down 30 Years Before

A woman's case against the defendants who arranged the prosecution (a police department captain, who was her ex-husband and the target of her speech, and his friend who was a police investigator) can go forward.

From yesterday's decision in King v. King (M.D. Ga. Sept. 20, 2018), written by Judge Marc T. Treadwell:

On January 15, 2015, Anne King posted on Facebook: "That moment when everyone in your house has the flu and you ask your kid's dad to get them (not me) more Motrin and Tylenol and he refuses." Her post referred to Captain Corey King, the father of Ms. King's children, her ex-husband, and an officer with the Washington County Sheriff's Department.

Later that morning, Captain King, feeling upset and "disrespected" over the post, contacted Washington County's magistrate court about initiating a criminal complaint against Ms. King. Captain King then went to the courthouse office of Washington County Sheriff's Department Investigator Trey Burgamy, his "[p]retty good friend" or "close friend," to begin the process for having Ms. King arrested....

After some twists and turns, and at the suggestion of Washington County Chief Magistrate Ralph Todd, Investigator Burgamy prepared an affidavit, swearing to the following facts:

Personally came INV. TREY BURGAMY, who on oath says that, to the best of his/her knowledge and belief, ANNE MARIE KING did in the County aforesaid, commit the offense of, TO WIT: CRIMINAL DEFAMATION ... against LAWS OF THE STATE OF GEORGIA (O.C.G.A. 16-11-40)


And thus deponent makes this affidavit that a warrant may issue for [the subject's] arrest....

Ms. King was arrested and put in a holding cell for 5½ hours, until her aunt bailed her out. But, as the court noted,

"Criminal defamation" is not a crime under the laws of Georgia, and it has not been since the Georgia Supreme Court struck it down as unconstitutional in 1982. In fact, the Georgia Law Enforcement Handbook and the Official Code of Georgia that Investigator Burgamy used for his reference specifically stated that the criminal defamation statute "has been held unconstitutional in the case of Williamson versus State 1982." ... Not surprisingly, the charges against Ms. King were ultimately dismissed.

Ms. King sued Captain King and Investigator Burgamy; the court concluded that King wasn't liable for violating her First and Fourth Amendment rights because he was acting as a private individual, not a government official, in asking for her to be arrested and prosecuted, but the court allowed the constitutional case to go forward against Burgamy:


Birth Mother Ordered Not to Post Photo of Deceased Adopted Child

When she did post such a photo, she was arrested and prosecuted -- a remarkable case from two years ago, which I just learned about.

Sabrina Stone gave her infant son up for adoption, but shortly before he turned two, he tragically drowned in his new family's (the Russells') swimming pool. Stone learned about this (the Russells are suing the hospital claiming that it wrongly informed her of this), and was understandably upset.

According to the Russells, Stone threatened them and their other child and other family members; she came to the funeral home and wrote her name several times in the viewing book, listing herself as "bio mother"; and she posted allegedly "stolen pictures" of the son. The Russells then got a restraining order forbidding Stone from contacting the Russells, but also providing that,

Defendant shall not post any pictures of the minor child on social media, including Facebook.

Nor was this limited to posting copies of any outright "stolen" pictures (if any were indeed physically stolen): It covers any pictures (presumably including, for instance, the one publicly available on the funeral home's site), with no regard to whether the posting is "fair use" under copyright law -- which it almost certainly would be, given the noncommercial use and the lack of any effect on any market for the photo.

And the Oklahoma legal system was quite serious about this: When Stone did post such a picture, she was arrested for violating the order, and prosecuted and convicted. The arrest warrant was based on Stone's posting "pictures of the deceased child on face book," as well as "several post[s] and comments about the situation," not on any allegations of threats, violence, or the like.

Seems like a pretty clear First Amendment violation: There is no First Amendment exception even for posting pictures of living children who are entirely unrelated to you (e.g., a photo you take at a park). Posting a picture of a dead child whom you have good reason to mourn -- or even when you think you have reason to fault someone for his death -- is surely constitutionally protected. Whatever Stone may or may not have done to the Russells that warranted a restraining order generally, I can see no basis for a speech restriction like this.

As I mentioned, the injunction is a couple of years old, and I'm not sure whether Oklahoma law provides any avenue for vacating it now. But I learned about it very recently, and thought it was worth noting as an illustration of the kinds of speech restrictions that are often issued by trial courts (on top of the others that I've blogged about in recent years).

Government Boycotts Based on Companies' (and Their Employees') Speech

More on their unconstitutionality.

Prof. Adam Scales writes, in response to my argument about why the First Amendment bars governments from discriminating against Nike based on Nike's having Colin Kaepernick as a spokesman:

I have some doubt that Nike's hiring of Kapernick should be taken seriously as essentially expressive activity. While Nike is clearly taking sides in the aspect of the culture war, can we discern with any confidence Nike's corporate position on, say, Section 1983 liability? Nike isn't taking out ads calling for investigation of police brutality; they are hiring a pitchman who inspires deep feelings. Feelings that Nike has calculated will be reflected among its target customers.

You write that it would ok for governments to refuse to deal with companies that (lawfully) discriminated against gays. Let's push this a bit. May the government refuse to deal with a company that hires prominent anti-gay activist for its commercial advertising? I honestly can't tell that your answer would be, based on this analysis, and I don't think both of your observations can be correct. Sure, the anti-gay discrimination is action, but I'll bet that a lot of the time it would have a genuine expressive component. I could be wrong, however. Maybe the company is just like Nike, and only does this to placate its expected customers. Shouldn't we try to find out before settling the constitutional question?

[1.] Hiring a spokesman is hiring someone to speak for you, to appear in your print and video ads. That is the exercise of Nike's First Amendment rights, much as any film director's decision to hire a particular actor is the exercise of his First Amendment rights. You could, if you want to, label it the exercise of expressive association rights as well as free speech rights; but since expressive association rights are an aspect of your free speech rights, the analysis is the same. (Nike's videos are commercial speech, but that doesn't matter here.) I do think that hiring Colin Kaepernick as a spokesman sends a particular ideological message; but in any event, it is indubitably First-Amendment-protected activity.

[2.] But my argument goes beyond that, because I think the government generally can't discriminate against companies based on the politics of their employees (or, more broadly, their employees' exercise of any constitutional rights), whatever role the employee has.

Say, for instance, that California said, "we refuse to do business with companies whose CEOs are Republicans," or "whose CEOs own guns," or "whose CEOs have had abortions." Even if that doesn't violate the business's First Amendment rights (because the business isn't speaking through its CEO), it violates the CEOs' rights -- it targets them for governmental retaliation, though pressuring their employers to fire (or not hire) them. Board of Comm'rs v. Umbehr (1996) made clear that the government generally can't terminate a contract with a sole proprietor (there, a trash hauler) based on the person's speech; the government can't be able to terminate a contract with a corporation based on its CEO's speech or any other employee's speech. (While the Umbehr court focused only on termination of existing contracts, its reasoning rested on the analogy between government contracting and government employment -- and when it comes to government emloyment, the Court has expressly held that politically based refusals to hire are generally as unconstitutional as politically based dismissals, see Rutan v. Republican Party (1990).)

Certainly if the government refused to deal with a company because some of its employees were black or women or Catholics, it would be clear that the government is violating the Equal Protection Clause; the same applies to the other rights -- just imagine the power the government would have to suppress speech, or other constitutional rights, if it could threaten to retaliate against people's employers this way. Indirectly suppressing the speech by threatening the employers is just as unconstitutional as doing it by threatening the employees; constitutional protections apply whenever "government officials, through exercise of their regulatory authority over an employer, demand the discharge of an employee," and Umbehr tells us that constitutional principles apply when the government acts through exercise of its contracting authority and not just its regulatory authority.

[3.] Of course the same is true whether the government is discriminating against employees who hire people who are seen as anti-police, anti-gay, anti-Muslim, anti-American, or pro-police, pro-gay, pro-Muslim, or pro-American. The government can refuse to do business with companies that discriminate based on race, sex, sexual orientation, and the like. (Title VI of the Civil Rights Act is a classic example of such a law.) It could even refuse to do business with companies that refuse to serve police officers, or with companies whose employees discriminate in various constitutionally unprotected ways even off the job. But that's precisely because a private company's act or its employees' acts of discriminating is not protected by the First Amendment in most circumstances. A company's and its employees' speech are protected by the First Amendment.

[4.] Finally, as I noted in the update to the original post, the First Amendment doesn't provide this protection whenever someone's actions "have a genuine expressive component." Most conduct has some expressive component, if only to express the actor's support for such conduct. Most discrimination has some expressive component. But the government may refuse to do business with people or companies based on their or their employees' conduct, when it does so for reasons unrelated to that expression -- for instance, because it doesn't want government funds to indirectly flow to constitutionally unprotected discrimination.

Here, though, it's clear that a government actor is contemplating discriminating against Nike because of either Nike's or Kaepernick's expression (or both). That's why the First Amendment protection kicks in.

“The Schoolhouse Gate”: Gavin Grimm and the Future of Constitutional Law in Public Schools

The Supreme Court has not resolved transgender students’ rights to access restrooms—but it won’t stay that way for long.

This post is the final in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind."

Perhaps the most polarizing education case that the Supreme Court has agreed to address in recent years involved whether schools can legally prohibit transgender students from accessing restrooms consistent with their gender identities. The lawsuit stemmed from events that began in 2014, when a rising tenth-grade student named Gavin Grimm informed school officials in Gloucester County, Virginia, that he wished to be referred to with masculine pronouns and addressed by his newly adopted legal name. Ever since Grimm first appreciated the distinction between boys and girls, he felt that he was a transgender male—even if his vocabulary then lacked that terminology. At age six, Grimm began rejecting traditional feminine attire. Years later, when Grimm came out as trans to his parents, they were initially stunned, as neither of them had ever previously encountered the transgender concept. But they educated themselves about the subject and soon resolved to assist with their child's transition. Grimm's parents, in addition to facilitating his name change, would help him secure hormonal treatments to lower his voice and to provide him with a more traditionally masculine appearance.

Despite this affirming parental response, Grimm feared how school officials would react to his transition. His trepidation initially proved misplaced, as Gloucester High School accepted Grimm's request to recognize his male gender identity and pledged its support. As Grimm recalled, "[The school] assured me that teachers and administrators would call me Gavin, and use male pronouns when referring to me, and if anyone gave me any kind of trouble, it would be resolved right away." Roughly one month into the school year, Grimm sought and received permission from Gloucester's principal to begin using the boys' restroom, rather than a single-occupancy restroom located in the nurse's office. Going to a separate part of the school—isolated from fellow students—to relieve himself caused Grimm to feel embarrassment and extreme discomfort. After receiving school authorization, Grimm used the boys' restroom without incident for seven weeks.

But when adults in Gloucester County learned that Grimm was using the male bathroom, the school board held two meetings, where many community members attacked the arrangement. At the first meeting, several speakers emphatically used feminine terms, including "girl" and "young lady," to refer to Grimm. Yet that first meeting was decorous compared with the second meeting, when one speaker called Grimm "a freak" and likened him to a person who, believing he is actually a canine, attempts to urinate on fire hydrants. Grimm, who attended both meetings, pleaded with the school board, "All I want to do is to be a normal child and use the restroom in peace." By a 6–1 vote, the board rejected Grimm's request, and enacted a policy requiring "students with gender identity issues" to use separate, private facilities from their classmates. In response to this change, Grimm sought to avoid using the restroom at school altogether and consequently developed several urinary tract infections. He also decided to mount a lawsuit contesting the school board's policy.

The U.S. Court of Appeals for the Fourth Circuit vindicated Grimm's claim in April 2016. In so doing, it yielded to the Obama administration's interpretation of regulations regarding Title IX of the Education Amendments Act of 1972. This statute prohibits discrimination "on the basis of sex" for educational entities that receive money from the federal government. While Title IX contains regulations that permit sex-segregated bathrooms, the Obama administration instructed schools generally to treat trans students in accordance with their gender identities for purposes of those regulations, meaning that it would be impermissible to exclude Grimm from the boys' restroom. The Fourth Circuit found that the regulatory terms contained sufficient ambiguity that—in accordance with binding administrative law precedent—the executive branch's interpretation deserved deference. The Supreme Court agreed to review the Fourth Circuit's opinion, but shortly before the Court was scheduled to hear oral argument, the Trump administration rescinded the Obama administration's guidance. The Supreme Court subsequently remanded the case to the lower courts for an assessment of whether Grimm should prevail even amid the transformed legal landscape.

While Gavin Grimm graduated from high school before the Supreme Court ever definitively addressed his claim, it seems unlikely that the Court will be able to avoid resolving his central legal question for long. One estimate suggests that there are somewhere between 165,000 and 555,000 transgender students attending various elementary and secondary schools in the United States, and many of them do so in jurisdictions where educational authorities treat them adversely. If the issue does soon return to the Court, moreover, it could quite plausibly pose a question not in the statutory and regulatory domain but in the constitutional domain.

Days after the Trump administration rescinded the previous administration's guidance, a district court judge in western Pennsylvania relied upon the Equal Protection Clause to reject a school board's efforts to prohibit three transgender students from accessing restrooms congruent with their gender identities. The Supreme Court's extensive jurisprudence interpreting the Equal Protection Clause to reject sex classifications, Judge Mark Hornak reasoned, provided protection to transgender students in this context. "[D]iscrimination based on transgender status in these circumstances is essentially the epitome of discrimination based on gender nonconformity, making differentiation based on transgender status akin to discrimination based on sex for these purposes," Judge Hornak wrote. "The Plaintiffs are the only students who are not allowed to use the common restrooms consistent with their gender identities."

As in Gavin Grimm's case, the Pennsylvania high school in question had initially permitted transgender students to use their requested bathrooms before the school board enacted a measure eliminating that access. Prior to the district's new policy, the school experienced neither bathroom disturbances nor intrusions upon student privacy. Permitting transgender students to use only the various single-occupancy bathrooms located around the school did not, according to Judge Hornak, satisfy transgender students' rights under the Fourteenth Amendment.

While it seems predictable that many right-leaning critics would disparage opinions vindicating transgender students' claims, it may be surprising to learn that some commentators can be understood to denigrate such opinions from the left. To these commentators, the notion that a human being can somehow use the "wrong" bathroom is itself profoundly wrong. Indeed, a few prominent legal scholars have contended that it has grown increasingly difficult to justify sex-segregated bathrooms at all. Grimm's attorney expressly disavowed such a goal, stating that his client "is not trying to dismantle sex-segregated restrooms. He's just trying to use them."

Whatever Grimm's precise objectives, though, surely some trans people would regard abolishing sex-segregated bathrooms as an important victory, even if they also acknowledged it is one that seems unlikely to materialize in the current climate. The trans community, like all communities, holds varied ideals and aspirations. As Jennifer Finney Boylan—author of a best-selling autobiography titled She's Not There: A Life in Two Genders—has memorably expressed this point, "If you've met one trans person, you've met . . . one trans person." In one form or another, then, it seems possible the restroom will remain a contested social space in schools—and the larger society that contains them—for many years to come.

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No, Government Boycotts of Nike Aren't Constitutional

The government may not discriminate against businesses because of the political views the business (or its spokesman) has expressed.

GoLocalProv News reports that the town council of a Providence-area town "voted 3-2 in favor of a resolution Monday night requesting the town and school department refrain from purchasing Nike products, after Colin Kaepernick became the recent face of the company." But any such boycott by the town and the schools would violate the First Amendment, just as Denver Airport's refusing to rent space to Chick-fil-A because of its executives' anti-same-sex-marriage stand would have done the same. (Ultimately, the Chick-fil-A seems to have been approved.)

As the Supreme Court held, by a 7-2 vote, in Board of Comm'rs v. Umbehr (1996),"the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for their exercise of the freedom of speech." And while the Umbehr court focused only on termination of existing contracts, its reasoning rested on the analogy between government contracting and government employment -- and when it comes to government emloyment, the Court has expressly held that politically based refusals to hire are generally as unconstitutional as politically based dismissals, see Rutan v. Republican Party (1990). As with government employees, the government likely can refuse to do business with contractors when doing business with them causes enough disruption (even when the disruption stems from public reaction to the contractors' speech); but there has to be a real showing of such disruption, and not just a few people being upset and demanding a boycott.

Now this applies only to retaliation based on a business's (or its employees' or contractors') First-Amendment-protected activity, such as speech or contributions to political causes. Refusing to deal with companies that engage in constitutionally unprotected -- even if legal -- conduct is generally allowed:

  • A government may, for instance, refuse to do business with employers that discriminate based on sexual orientation, even in jurisdictions where such discrimination is legal.
  • Likewise, a government may refuse to do business with banks that refuse to lend to gun manufacturers.

But here, it appears that the town council is acting entirely based on Nike's and Colin Kaepernick's speech, just as the Denver authorities appeared to be motivated entirely by Chick-fil-A's political activity (and not, say, any discrimination by Chick-fil-A against gay patrons; to my knowledge Chick-fil-A has never been accused of that.)

Thanks to reader Brian Bishop for the pointer to the GoLocalProv story.

UPDATE: A commenter suggests that deliberately not doing business with banks that refuse to lend to gun manufacturers might also violate the First Amendment, because the banks' refusals can send (and can be intended to send) a political message. But that's not enough to trigger the First Amendment here; most actions can send a political message, if only a message that the action is good and any laws or norms against it are bad. Certainly most forms of overt discrimination, whether based on the target's race, sexual orientation, or line of business, send a message.

The First Amendment is violated when the government discriminates against businesses (or others) because of the businesses' message, rather than because of what the businesses do. If government officials think that banks that deliberately refuse to lend to gun manufacturers are improperly interfering with citizens' rights, that's discrimination based on the banks' action, not based on the banks' speech (or on the expressive components of the banks' action). Likewise for a vast range of other decisions not to deal with businesses because of what the businesses do (regardless of the message that is sent by what the businesses do).

“The Schoolhouse Gate”: Public Schools, Unauthorized Immigrants, and the Overlooked Import of Plyler v. Doe

The 1982 decision prevented a Texas measure from becoming dominant, thus ensuring access to school for undocumented minors throughout the nation.

This post is the fourth in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." In Plyler v. Doe, the Supreme Court invalidated a Texas law that permitted schools to exclude undocumented minors. Prominent law professors have dismissed the decision as insignificant, but closer examination reveals Plyler v. Doe rests among the most momentous cases in the Supreme Court's entire history.

In 1974, Humberto Alvarez departed Mexico City and headed north in search of a better way of life for his family. After crossing the U.S. border without authorization, Alvarez settled in Tyler, Texas, where he secured work at a local meatpacking plant and sent for his family. But one year after his children arrived, Tyler education officials declared that unauthorized immigrants had effectively been banished from the public schools. Relying upon a statewide law that refused to allocate funds to localities for the education of noncitizens and even permitted their exclusion from public schools, Tyler announced that unauthorized immigrants would be required to pay one thousand dollars in tuition annually for each child who attended school.

Tyler's school superintendent, James Plyler, contended that educating undocumented minors financially strained the district. But this explanation seems difficult to credit as unauthorized immigrants accounted for only twenty-four of the sixteen thousand students in the district. After Alvarez witnessed his children stay home from school day after day at the beginning of the 1977 school year, he joined three other families in a lawsuit contesting the constitutionality of Texas's exclusionary law. The federal trial court in Tyler ordered the schools to readmit the excluded students.

In 1982, the Supreme Court in Plyler v. Doe endorsed that assessment by deeming the measure unconstitutional in a 5–4 decision. Justice William Brennan's opinion rested on three key justifications. First, Brennan emphasized that the Texas law penalized minors, repeatedly referred to as "innocent children," not because of their own conduct but because of their parents' actions. Second, Brennan contended that the measure's absolute exclusion of unauthorized immigrants from school severely burdened this vulnerable group. The complete absence of education would "impose[ ] a lifetime hardship" on young unauthorized immigrants, harming not only their own economic prospects but also their ability to contribute to the nation's civic life. Third, Brennan suggested that upholding Texas's law would "raise the specter of a permanent caste of undocumented resident aliens" because it curtailed access to American public schools—traditionally, an invaluable aid in sociocultural assimilation. "We cannot ignore the significant costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests," Brennan reasoned.

Chief Justice Burger's dissenting opinion portrayed the Texas statute as a valid, if unwise exercise of constitutional authority. Burger left no doubt that he found the law imprudent from a policy standpoint, but he nonetheless insisted it violated no constitutional provision. "The Constitution does not provide a cure for every social ill, nor does it vest judges with a mandate to try to remedy every social problem," he contended. "[W]hen this Court rushes in to remedy what it perceives to be the failings of the political processes, it deprives those processes of an opportunity to function."

When the Court issued Plyler v. Doe, no state in the nation other than Texas had enacted legislation eliminating unauthorized immigrants' access to education. This legislative background has, in recent years, motivated some law professors to dismiss Plyler v. Doe as an insignificant opinion that invalidated merely an "outlier" statute. According to these scholars, it would be sorely mistaken to understand Plyler v. Doe as providing a meaningful contribution to America's constitutional legacy of protecting minority rights because the opinion simply ratified the prevailing view across the country.

But such dismissive assessments of Plyler v. Doe miss the mark. Although initially rejecting a policy located only in Texas, the decision has enjoyed broad applicability throughout the nation, and has served as a vital bulwark against widespread efforts to deprive unauthorized immigrants of access to education. Plyler v. Doe's guarantee that the schoolhouse doors cannot be closed to one of society's most marginalized, vilified groups has allowed innumerable children to expand their minds and their horizons.

Examining Plyler v. Doe in context renders its major contributions to the American legal landscape unmistakable. Justice Brennan's opinion expressly noted that unauthorized immigrants "now live within various States" and framed the decision as holding nationwide implications. In addition, that four Supreme Court justices voted to uphold the Texas statute suggests it was hardly viewed as incomprehensible from a national perspective. During the Court's internal deliberations, moreover, Justice William Rehnquist referred to unauthorized immigrants as "wetbacks." That Rehnquist would use such incendiary, offensive language vividly attests to the unvarnished animus directed toward unauthorized immigrants, even in the most rarefied elements of American society.

Furthermore, Texas's exclusionary measure was perceived as neither trivial nor eccentric. The civil rights community viewed Plyler v. Doe as momentous because it feared that a decision upholding the Texas measure would invite additional states to adopt analogous statutes. As it turned out, Texas was far from the last jurisdiction seeking to ban unauthorized immigrants from school. Voters in California during the 1990s and legislators in Alabama two decades later enacted their own versions of these initiatives, as supporters of both measures hoped to spark a reassessment of Plyler v. Doe. In both instances, lower federal courts swiftly applied the precedent to reject those measures. In the absence of a Supreme Court precedent on the question, though, it seems virtually guaranteed that many additional states would have adopted similar measures.

Civil rights lawyers have utilized Plyler v. Doe around the nation to prevent school districts from adopting measures that demand information from enrolling students that unauthorized immigrants cannot provide. In recent years, civil rights groups have motivated education officials to warn school districts against requiring information from enrolling students that would force unauthorized immigrants to disclose their immigration status. The Department of Justice, under President Obama, joined the chorus condemning these enrollment practices by invoking Plyler v. Doe to inform school administrators that the practices violated federal law.

Plyler v. Doe's protection of unauthorized immigrants' access to public schools has endured for more than three decades. The opinion's durability is remarkable not least because it challenges an ascendant school of thought within legal academia, suggesting that the Supreme Court affords protection to particular groups only after a social movement has first succeeded in transforming cultural attitudes within the larger nation. That narrative surely captures many important constitutional developments, but it is virtually impossible to construe Plyler v. Doe as the culmination of a mass social movement that altered American attitudes toward unauthorized immigration. No such movement existed in the early 1980s. Scholars interested in exploring the judicial capacity to vindicate constitutional rights—even in the absence of widespread popular support—would be well advised to examine Plyler v. Doe's successful effort to retain access to education for all minors, including unauthorized immigrants.

On the Relationship Between "Liberalism" and Racism

Liberal ideas can result in racism, but not for the reasons leftist scholars have posited.

Over the last few years, I've noticed that it's increasingly popular among leftist academics to blame the rise of liberalism (individual rights, equality under the law, competitive markets, constitutional limited government, etc.) in the nineteenth century for the rise of racist ideologies in the same time period. In particular, they blame "capitalism," for reasons I find too ahistorical and silly to bother to recount.

Of course, liberals of all parties, from "progressive" liberals to libertarians, are scandalized by such a suggestion. They argue that it was precisely liberal values that fought racism and other forms of inherited privilege, and believe that the leftists' intense hostility to the market economy that arose with liberalism has gotten the better of them.

This may not be an original thought, but I had an epiphany last year while teaching Prigg v. Pennsylvania, a case in which the antebellum Supreme Court upheld the right of private slave catchers to kidnap escaped slaves from free states and take them to the slave South. The epiphany was that the rise of liberalism, especially the natural-rights variety, did help lead to the rise of racism, but not because of "capitalism."

In earlier times, when "might made right," things like slavery needed no justification. "We won the war and captured enemy prisoners and made them slaves" was quite sufficient. But once liberalism took hold, and people broadly accepted the premise that "all men are created equal" and are "endowed by their Creator with certain natural rights," but they still want to maintain, say, African slavery in the American South, they have to create rationales as to why people of African descent aren't really "people" in the same sense that people of European descent are.

The same could be said for Jews in Europe once liberalism got a strong foothold there. Intellectuals could no longer justify hatred of Jews on religious grounds thanks to their belief in freedom of conscience, so they had to either accept Jews as fully equal citizens, or invent racist rationales to explain why Jews were different from those persons entitled to equal rights. In short, if liberalism notions take hold in a society, but large percentages of the population are not willing to abandon prior systems of oppression, the rise of racism will be the natural result as the defenders of oppression seek rationales for refusing to extend rights to minority groups.

“The Schoolhouse Gate”: SCOTUS Strikes a Mighty Blow to Student Rights

A 1977 opinion allowed public school educators to strike students as punishment for infractions, and the archaic practice persists today.

This post is the third in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." Of the many areas where the Supreme Court has played a role in American public education, none is so disconcerting as its refusal to rein in corporal punishment. The story of Ingraham v. Wright is oft-overlooked in constitutional law circles, but its impact remains significant.

On October 6, 1970, Charles R. Drew Junior High School student James Ingraham was one of several students who, when instructed to depart the auditorium's stage, responded with insufficient urgency. At Drew, this typical adolescent behavior amounted to flagrant insubordination. Principal Willie J. Wright informed the wayward students that he would deliver five blows to their backsides with a wooden paddle. When Ingraham protested, Wright summoned two colleagues to restrain him and struck Ingraham more than twenty times.

The force of these accumulated blows left Ingraham with injuries that required medical attention. The examining physician diagnosed Ingraham as suffering from a hematoma (an abnormal buildup of blood in human tissue), directed Ingraham to recover at home for at least a week, and prescribed a battery of painkillers, laxatives, cold compresses, and sleeping pills. Ingraham made two more hospital visits in the following days, eventually returning to school after missing nearly two weeks.

Ingraham's subsequent lawsuit challenging the infliction of corporal punishment in public schools brought the issue to the national fore. Clear-eyed appraisals provided ample reason to believe that Ingraham's arguments would prevail in the Supreme Court. Judicial decisions had recently eliminated the use of corporal punishment in prisons, and observers deemed it unfathomable that the constitutional safeguards afforded to convicted criminals would not also be afforded to public school students.

Corporal punishment's opponents could also draw solace from the Court's recent sensitivity to the constitutional claims of students. Decisions vindicating the free speech rights of student protesters and affording suspended students procedural rights combined to suggest that corporal punishment would soon be tamed. If due process required that students who were suspended receive notice and an opportunity to be heard, logic suggested that those protections should also be extended to students who were going to be struck with foreign objects.

It would have been difficult to concoct a ghastlier portrayal of corporal punishment, so Ingraham v. Wright appeared to call out for the Supreme Court's intervention. But in a 5–4 decision, the Court resisted that call. Justice Powell, writing for the majority, quickly dispatched Ingraham's first claim for relief, which suggested that extreme forms of corporal punishment violated the Eighth Amendment's protection against cruel and unusual punishment. Given that only two states then prohibited the practice, Powell explained that he could discern no legislative trend toward abolition.

He then asserted that, when educators dispense corporal punishment, those actions do not even constitute "punishment" for purposes of the Eighth Amendment. In order to fall within the Eighth Amendment's scope, the punishment in question must stem from some connection to a criminal conviction. Justice Powell acknowledged that this construction meant students could receive treatment that even prison inmates are spared but brushed aside that concern. "The schoolchild has little need for the protection of the Eighth Amendment," he wrote. "Though attendance may not always be voluntary, the public school remains an open institution."

Ingraham's second constitutional claim asserted that the absence of procedural protections afforded students before they were paddled violated the Fourteenth Amendment's Due Process Clause. Justice Powell rejected the notion that due process required any type of even informal hearing to occur before school authorities imposed corporal punishment. In Powell's view, requiring such hearings could harm the ability of teachers to maintain order in the nation's classrooms. "Elimination or curtailment of corporal punishment would be welcomed by many as a societal advance," Powell wrote. "But when such a policy choice may result from this Court's determination of an asserted right to due process, rather than from the normal processes of community debate and legislative action, the societal costs cannot be dismissed as insubstantial."

Justice Byron White, joined by three other justices, wrote a dissenting opinion that parted company with the majority on both constitutional claims. Justice White contended that the majority in effect improperly inserted the word "criminal" into the relevant constitutional text so that it prohibited only "cruel and unusual criminal punishments"—a limitation that the Constitution's framers had declined to make. As to the due process claim, Justice White skewered the majority opinion for requiring a student who had already been paddled to seek redress only after the fact: "The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding."

Scholars and journalists alike excoriated Ingraham. Powell's opinion, critics charged, offered a parsimonious conception of the Eighth Amendment, one that was in no way compelled by precedent. The Chicago Tribune complained that it "makes no ethical, legal, or common sense to tolerate corporal punishment against children when it is not permitted against any other group of people in our society." The New York Times featured an even harsher assessment: "Each member of the majority deserves at least five whacks."

The outcome of the Supreme Court opinion that bore his name reached James Ingraham, then twenty-one years old, in a Florida jail cell, where he was serving a one-year sentence for resisting arrest. Not surprisingly, Ingraham declared the decision "a big letdown." It seems plausible to maintain that Ingraham's receipt of corporal punishment in 1970—even if it played no causal role in his jail stint—signaled his membership among society's marginalized citizens who account for an overwhelming portion of the nation's incarcerated population.

That story remains familiar today. Critics of corporal punishment frequently assail the practice by observing that the percentage of black students who receive the paddle is dramatically higher than their percentage of the overall student population. According to the most recent set of statistics compiled by the Department of Education, black students make up about 16 percent of the nation's public school students but receive about 35 percent of the nation's corporal punishment.

Today, a large majority of the nation's corporal punishment occurs in just a handful of southern states. But while recent data reveal a decrease in corporal punishment, they do not support the blithe assumption that educators must be on the verge of voluntarily relinquishing their paddles. In 2006, more than 223,000 students received corporal punishment in public schools during the preceding school year. In 2012, nearly 167,000 students still received corporal punishment in schools.

That students in American public schools continue to be paddled today is an atrocity. No legal issue sits higher atop the long list of needed educational reforms than eliminating corporal punishment against students—the sole remaining group that governmental actors are permitted to strike with impunity.

Interstate Sovereign Immunity and Why the Supreme Court Should Leave It Alone Right Now

My amicus brief with Stephen Sachs in Franchise Tax Board v. Hyatt

Over the past few decades, the Supreme Court has generally recognized that state governments cannot be sued without their consent under the doctrine of sovereign immunity, and that the federal government has little power to abrogate this immunity and force states into state or federal court. But can a state be forced into another state's courts? In a case called Nevada v. Hall, the Supreme Court said "yes," and in a case called Franchise Tax Board v. Hyatt, the Supreme Court has granted certiorari to decide whether Nevada v. Hall should be overruled.

Today my friend Stephen Sachs and I filed an amicus brief on behalf of ourselves and in support of neither party. In a nutshell we argue that Hall is mostly right, partly wrong, but that this case is a bad vehicle for dealing with any of the wrong parts and the case should be dismissed -- among other reasons because the Supreme Court itself may lack jurisdiction over the appeal. Here is the summary of the argument:

This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution's effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, contra Pet. Br. 35–36, but neither did they leave each State wholly free to hale other States before its courts, contra Br. in Opp. (BIO) 13–14. While Hall's holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.

1. Hall correctly held that States lack a constitutional immunity in sister-state courts. The Founders viewed each State as immune from such suits under the common law and the law of nations. Before the Constitution's enactment, this was plainly not a constitutional right, and nothing in the Constitution changed that. Thus, Hall properly rejected the argument that there is a "federal rule of law implicit in the Constitution that requires all of the states to adhere to the sovereign-immunity doctrine as it prevailed when the Constitution was adopted." 440 U.S. at 418.

A plain reading of the Constitution's text reveals no affirmative guarantee of sister-state immunity. Unless otherwise specified "in the plan of the convention," The Federalist No. 81, at 549 (Alexander Hamilton) (Jacob E. Cooke ed., 1961), the Constitution takes the States' sovereign rights as it finds them. The Founders left the rules of sister-state immunity precisely as they were: as ordinary rules of common law and the law of nations, to be enforced through ordinary channels. The Franchise Tax Board treats the Founders' broad support for sovereign immunity as evidence of its constitutional stature. Pet. Br. 23–28. But it is a "fundamental mistake" to "quote prominent Framers without investigating the legal basis for their conclusions." Nelson, Sovereign Immunity as a Doctrine of Personal Jurisdiction, 115 Harv. L. Rev. 1559, 1653 (2002).

In essence, the Board argues that the issue is of constitutional significance, so it must be addressed somewhere in the Constitution—and that the Court has wandered from the text before, so it may as well do so here. Pet. Br. 18–20, 34–39. That sells this Court's decisions short. The "fundamental postulates" of immunity recognized by this Court, Alden v. Maine, 527 U.S. 706, 729 (1999), are bona fide rules of common law, "backdrop" legal principles that the Constitution indirectly protects from federal abrogation. See generally Baude, Sovereign Immunity and the Constitutional Text, 103 Va. L. Rev. 1 (2017); Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1816–19, 1868–75 (2012). Article III simply declines to abrogate certain State immunities from suit, see Hans v. Louisiana, 134 U.S. 1 (1890); Monaco v. Mississippi, 292 U.S. 313 (1934), and Article I likewise declines to grant Congress an enumerated power to do so, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996); Alden, 527 U.S. 706. Neither these refusals to grant additional powers to the Federal Government, nor the Eleventh Amendment's further restriction of the federal judicial power, impose any constitutional restraints on State governments—which retain every power "not delegated to the United States by the Constitution, nor prohibited by it to the States." U.S. Const. amend. X.

2. Hall went too far, however, in denying that "the Constitution places any limit on the exercise of one State's power to authorize its courts to assert jurisdiction over another State," 440 U.S. at 421 (emphasis added), and in reducing sister-state immunity to a "matter of comity," id. at 425. In particular, Hall was likely wrong to assume that a State's abrogation of immunity in its own courts could be projected outward so as to bind other state and federal courts.

Even without a direct guarantee of sister-state immunity, the Constitution may well offer substantial indirect protection rooted in the law of judgments. Whatever a State's power to prescribe rules for its own courts, it cannot force other courts to take notice of "a jurisdiction which, according to the law of nations, [the] sovereign could not confer." Rose v. Himely, 8 U.S. (4 Cranch) 241, 276–77 (1808). Early federal and state courts routinely refused full faith and credit to state judgments that exceeded the jurisdictional limits imposed by the law of nations and the common law. These same principles would provide ample protection for States today, shielding them from suit in sister-state courts without inventing a novel constitutional rule.

3. In an appropriate case, these principles might justify revisiting and narrowing portions of Hall. Yet this case is a poor vehicle for doing so.

A State threatened by suit in a sister-state court has many options, ranging from default to a federal action against the plaintiff to an original-jurisdiction action against the offending State. Each of these options might allow a federal court, including this Court, to enforce California's common-law immunity from suit.

The Board has done none of these things. Instead, it appeared in Nevada's courts, lost its state-court litigation, and then sought review in this Court on federal-question grounds. Yet sister-state immunity is not a rule of federal law that can support federal-question jurisdiction. And the Board's appearance may have waived its right to shield itself from the Nevada judgment under other heads of jurisdiction.

More urgently, on a faithful reading of the Eleventh Amendment's text, this Court's own subject-matter jurisdiction is in serious doubt. Gilbert Hyatt's suit against the Board is one "commenced or prosecuted against one of the United States by Citizens of another State"—to which "[t]he Judicial power of the United States," including the power vested in this Court, "shall not be construed to extend." U.S. Const. amend. XI. Though the Court has announced exceptions to the Eleventh Amendment in similar cases, these cases did not adequately address the Amendment's text and history. This issue is jurisdictional, and it would need to be reexamined sua sponte before the Court could reach the merits.

Because the case has been improperly framed by the parties and cannot be resolved properly without further briefing, the Court should dismiss the writ as improvidently granted. Alternatively, it should dismiss for lack of jurisdiction—or, if satisfied of its jurisdiction, should affirm.

You can read the whole brief on the Supreme Court website or on SSRN.

“The Schoolhouse Gate”: The Unpopularity of Free Speech in Public Schools

The Supreme Court’s decision in Tinker is viewed as the high-water mark for students’ First Amendment rights, but Justice Black’s strident dissent—not the majority—spoke for most Americans at the time.

This post is the second in a series of edited excerpts from my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." The Supreme Court's 1969 decision in Tinker v. Des Moines Independent Community School District is now correctly revered as a landmark in protecting student rights. But Tinker's outcome was far from preordained, and its vehement dissent accurately captured many Americans' growing concerns over youth culture.

In December 1965, a group of students in Des Moines, Iowa—including Christopher Eckhardt, John Tinker, and Mary Beth Tinker—planned to protest the Vietnam War by wearing black armbands to school. When plans of the protest leaked, Des Moines school officials hastily created a plan to suspend pupils wearing armbands. This policy was necessary, the officials maintained, to avoid disruptions they believed would result from the protest. The officials noted that a former Des Moines student had been killed in Vietnam and expressed concern that his friends who remained in school would create a volatile environment.

When Christopher Eckhardt arrived at school, he made his way directly to the principal's office so that he could be suspended. One school official sought to coax Eckhardt into removing his armband by observing that "colleges [don't] accept demonstrators," and that he "was too young and immature to have too many views."

John Tinker wore his armband at school through lunchtime, before a teacher finally instructed him to report to the principal's office. Like her brother, Mary Beth Tinker wore her armband for much of the day—until she attracted the notice of her mathematics teacher, who had dedicated the entire previous day of class to condemning student demonstrators. The students filed a lawsuit contending that their suspensions violated the First Amendment right of free expression, setting in motion what would culminate in the Supreme Court's most consequential student rights opinion in its entire history.

In Tinker v. Des Moines Independent Community School District, the Supreme Court, by a 7–2 margin, vindicated the right of students to express their views in school. Justice Abe Fortas's majority opinion used a turn of phrase that not only became a staple of judicial opinions but even entered the larger national culture: "It can hardly be argued that … students … shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." That language established the fundamental terms of debate for students' rights cases.

Fortas made clear that public schools could not prevent students from expressing particular ideas simply because their message may contradict the school's preferred message. That the Des Moines school district sought to prohibit students from expressing an antiwar viewpoint—when it otherwise permitted students to express their viewpoints on a whole range of issues—rendered the policy constitutionally dubious: "In our system, state-operated schools may not be enclaves of totalitarianism."

Moreover, Fortas emphasized that it would be unwise to permit schools to suppress views, as today's students will soon assume responsibility for maintaining tomorrow's civic discourse: "The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection."

Justice Hugo Black's heated dissent made little effort to conceal his deep displeasure. "It may be that the Nation has outworn the old-fashioned slogan that 'children are to be seen not heard,' but one may, I hope, be permitted to harbor the thought that taxpayers send children to school on the premise that at their age they need to learn, not teach," he wrote. For Black, Tinker marked "the beginning of a new revolutionary era of permissiveness in this country." Black further contended that those inclined to protest were the public schools' "loudest-mouthed, but maybe not their brightest, students." In Black's estimation, Tinker did not merely permit the inmates to run the asylum but thrust the least equipped inmates among them into the warden's role.

Tinker garnered acclaim for reining in overzealous educators who had trampled upon students' First Amendment rights, and many elite observers condemned Justice Black's dissent. Criticism of Justice Black's dissent, however, obscured the prevalence of such views among many Americans during the late 1960s. Black tapped into a deep wellspring of cultural anxiety that engulfed the Court's efforts to extend constitutional rights to students.

Accordingly, Tinker's outcome was far from inevitable from the viewpoint of the 1960s. When Tinker initially arrived at the Court, Justice Fortas himself wrote, "this is a tough case" on a law clerk memorandum outlining the students' petition for certiorari. Fortas eventually voted to deny the students' petition, a stance that (if not overcome by his colleagues) would have permitted the school officials' suppression of student speech to remain intact from their victory at the circuit court level.

The notion that Tinker was far from an assured triumph for student rights finds further support in the events of the late 1960s. The Court heard oral arguments in Tinker only one week after Richard Nixon defeated Hubert Humphrey for the presidency. Nixon's campaign condemned the Supreme Court for its supposedly indulgent treatment of the criminal element and promised to restore "law and order" on behalf of "the forgotten Americans." Time designated "The Middle Americans" its "Man and Woman of the Year" for 1969, and quoted a resident of Pittsfield, Massachusetts, who groused, "Dissent is disgusting. If you have a complaint, write your Congressman or the President. School is to get an education."

Polling data suggests these "Middle Americans" would have embraced Justice Black's dissent. In a Harris poll taken only one month after Tinker, 52 percent of respondents opposed granting rights to student protesters, and only 38 percent of respondents supported granting such rights. Respondents to a February 1969 Gallup poll identified a lack of student discipline as the foremost problem confronting the nation's schools. Many respondents would doubtless have identified the behavior at issue in Des Moines, with students disobeying direct orders from their principals, as a cardinal example of the breakdown in student discipline that must be corrected.

Tinker represented a momentous innovation in the recognition of students' constitutional rights. For the first time, the Supreme Court recognized that students retain the essential power to communicate their ideas to one another; such communication is an integral part of the educational process; and public schools have a responsibility to tolerate dissident speech, so both the marketplace of ideas functions properly and citizens will be prepared to participate in the freewheeling debate that characterizes the United States. Tinker's constitutional contributions would deserve to be honored if they arrived at any time. But that Tinker resisted, rather than ratified, the era's prevailing attitudes on student dissent makes those contributions all the more remarkable.

Episode 231: Ah, September, when Europe unleashes a summer's worth of crazy

Episode 231 of the Cyberlaw Podcast

Our interview this week (in our new studio!) is with Hon. Michael Chertoff, my former boss at Homeland Security and newly minted author of Exploding Data: Reclaiming Our Cyber Security in the Digital Age. The conversation – and the book – is wide ranging and shows how much his views on privacy, data, and government have evolved in the decade since he left government. 231

He's a little friendlier to European notions of data protection, a little more cautious about government authority to access data, and even a bit more open to the idea of letting the victims of cyberattacks leave their networks to find their attackers (under government supervision, that is). It's a thoughtful, practical meditation on where the digital revolution is taking us and how we should try to steer it.

The News Roundup features Paul Rosenzweig, Matthew Heiman, and Gus Hurwitz – whom we congratulate for his move to tenured status at Nebraska. We all marvel at Europe's misplaced enthusiasm for regulating the Internet. This fall the Europeans returned from their August vacation to embrace a boatload of gobsmackingly unrealistic tech mandates – so unrealistic that you might almost think they're designed to allow the endless imposition of crippling fines on Silicon Valley.

In the last week or so, European institutions have pretty much shot the regulatory moon: Matthew sets out the European Parliament's expensive and wrongheaded copyright rules. Paul covers the European Commission's proposal that social media take down all terror-inciting speech within one hour, on pain of massive fines. Gus discusses the European Court of Human Rights' ruling that GCHQ's bulk data collection practices fail to meet human rights standards, though they can be fixed without dumping bulk collection. And I marvel that France is urging the European Court of Justice, which needs little encouragement to indulge its anti-Americanism, to impose Europe's "right to be forgotten" censorship regime on Americans and on other users around the world. That's a position so extreme that it was even opposed by the European Commission. Gus explains.

In other news, Paul outlines the National Academy of Sciences' report, offering a sensible set of security measures for American voting systems. We all unpack the new California IoT security bill, which is now on the governor's desk. I predict that, flawed though it is, ten more state legislatures could adopt the bill in the next year.

This Week in Social Media Bias: Paul tells us that Twitter has found a deep well of hate speech in … the United States Code. I tell the ambiguous story of offering up my Facebook account to verify claims of social media censorship. And Gus reports that the Left has discovered a problem with fact checking for social media posts; to their surprise, it doesn't always work in their favor.

In closing, we quickly touch on the meltdown of the world's biggest identity database and The Intercept's endlessly tendentious article trying to make a scandal out of IBM's face recognition software, which can apparently search footage by skin color.

Download the 231st Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Politico Symposium on How to Handle the Kavanaugh Sexual Assault Accusation

It includes contributions by a variety of legal scholars and commentators, including myself.

Judge Brett Kavanaugh.Judge Brett Kavanaugh.

Politico has posted a symposium on how the Senate should handle the sexual assault accusation against Supreme Court nominee Judge Brett Kavanaugh. The symposium includes pieces by various prominent legal scholars and commentators, including Laurence H. Tribe, Sanford V. Levinson, Abbe Gluck, Deborah Rhode, Mari Matsuda, Catharine MacKinnon and Michele Landis Dauber, Richard Epstein, and Ilya Shapiro, among others. Here is an excerpt from my contribution:

The woman who has accused Supreme Court nominee Judge Brett Kavanaugh of sexual assault has now come forward. What should the Senate do? The Judiciary Committee should investigate the matter, and potentially hold additional hearings, and if necessary delay voting on the nomination, as recently suggested by GOP Senator Jeff Flake....

What should the standard of proof be? A Supreme Court confirmation hearing is very different from a criminal trial, where guilt must be proven beyond a reasonable doubt. Denying a person a lifetime position of vast power on the nation's highest court is not the same thing as taking away his or her liberty. It is reasonable to set a lower threshold for the former than the latter.

At the same time, it would be a mistake to put nominees in the position of having to definitively prove that accusations leveled against them are false. If that becomes the norm, virtually any nomination could be derailed by unsubstantiated accusations concerning alleged wrongdoing that occurred decades ago. I would thus tentatively suggest that the right standard is that of preponderance of evidence. If the evidence indicates that it is more likely than not that a Supreme Court nominee is guilty of serious wrongdoing, that should be sufficient to reject the nomination....

The situation may change radically if other women come forward with plausible accusations of sexual assault or harassment. Regardless, fair-minded observers should keep an open mind and should encourage the Senate to conduct as unbiased an investigation as possible. Sadly, that may be too much to expect in this era of poisonous partisan bias.

I also address the question of whether the accusation should be disqualifying if evidence indicates that it is likely to be true:

There is some merit to the idea that we should discount accusations about long-ago events that occurred when the perpetrator was a minor. But whether such issues can be ignored completely depends on the seriousness of the charge and the importance of the position for which the person is being considered. Sexual assault is a serious crime and a seat on the Supreme Court is a position of vast power.

In addition to this symposium, I highly recommend this insightful and balanced article on the issue, by Reason's Robby Soave.

UPDATE: The Politico symposium has added several additional contributors since I initially put up this post. I have edited the post accordingly.


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