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

Will Lawyers Be Punishable for Using the "Wrong" Pronouns to Refer to Transgender People in "Social" or "Bar Association" Activities?

LAMBDA Legal suggests the answer would be "yes," under the American Bar Association's proposed rule 8.4, which they are supporting.

In 2016, the American Bar Association proposed a new ethical rule for lawyers, 8.4(g) (plus the official comment). Many, including me, have argued that this rule, if adopted, would create an unconstitutional speech code for lawyers—and one that extends not just to speech in court or in other litigation activities, but also to "bar association, business or social activities in connection with the practice of law" (in the words of the official comment):

It is professional misconduct for a lawyer to ... engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline, or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these rules.

Discrimination and harassment ... includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.

As I've argued, the restriction is potentially very broad:

Say that some lawyers put on a Continuing Legal Education event that included a debate on same-sex marriage, or on whether there should be limits on immigration from Muslim countries, or on whether people should be allowed to use the bathrooms that correspond to their gender identity rather than their biological sex. In the process, unsurprisingly, the debater on one side said something that was critical of gays, Muslims or transgender people. If the rule is adopted, the debater could well be disciplined by the state bar:


Judge Didn't Err by Refusing to Let Witness Testify With Her Face Covered

So holds the New South Wales (Australia) high court.

In Elzahed v. New South Wales (decided Friday), a Muslim woman (along with her family members) sued the government, claiming that she was mistreated when a terrorism-related search warrant was executed at her home. The woman insisted on testifying wearing a full face veil (niqab). The judge suggested that she might instead testify from "a remote room, [with her] face ... uncovered," or "that the court would be closed so that only the lawyers involved in the proceedings would be in court and see the appellant giving evidence." But the woman refused, on the grounds that she "would not reveal her face to men." (The judge was female, but at least some of the lawyers were apparently male; this was a bench trial, so there would not have been a jury present.)

The judge therefore refused to allow the woman's testimony, and the New South Wales high court held that the judge acted permissibly. The court cited an earlier decision stating that "in recent years judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of demeanour. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events." But the earlier decision concluded that this principle "does not eliminate the 'established principles about witness credibility,'" including the view that a court may consider a witness's facial expressions as part of the evidence:

There was no error in the primary judge's ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant's evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant's evidence or the conflicting evidence of the NSW police officers.

Viewing the appellant's face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant's application....

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Interview with Judge Jeffrey Sutton About his New Book "51 Imperfect Solutions: States and the Making of American Constitutional Law" - Part I

The first part of my interview with Judge Sutton about his important new book on state constitutions.

State constitutions are the forgotten stepchildren of American constitutional discourse. The federal Constitution gets the lion's share of attention from scholars and legal commentators. In his new book, 51 Imperect Solutions: States and the Making of American Constitutional Law, Judge Jeffrey Sutton sets out to help change that. Judge Sutton is a judge of the US Court of Appeals for the Sixth Circuit. He has also served as an adjunct professor of law at the Ohio State University College of Law. Judge Sutton has also taught a class on State Constitutional Law at Harvard Law School. This post is Part I of my interview with Judge Sutton about his book. Part II will be posted tomorrow. The book was also recently reviewed by prominent constitutional law scholar Sanford Levinson, at Balkinization.

Here is a summary of the book, provided by the publisher (Oxford University Press):

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue-and some others as well-through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions.

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform.

The following are are my questions, and Judge Sutton's answers:

1. What led you to write a book about state constitutions?

As the State Solicitor of Ohio from 1995 to 1998, I first became aware of the significance of state constitutional law. I had not studied the topic in law school and could not have studied it there. At the time, most law schools in the country, including mine, did not offer a course on state constitutional law. As the State Solicitor, however, I found myself facing state constitutional law issues in the Ohio Supreme Court on a regular basis. Many of my most significant cases turned on state constitutional law: school funding, vouchers, tort reform, search and seizure, and many more to boot. I lost many of those cases on state grounds. As I tell my state constitutional law students at Harvard and Ohio State, I could teach a semester-long course on the subject based solely on cases I lost at the Ohio Supreme Court under the Ohio Constitution.

That humbling experience prompted several reactions over time. One was surprise. Why wasn't the subject taught in law school? And why hadn't I seen more of this in practice? The answers, I came to realize, are connected. In attacking the validity of a state or local law, it's difficult to understand why claimants would prefer one chance (a claim under the federal constitution), as opposed to two chances (claims under the federal and state constitutions), to invalidate a law. As my experience as a litigant in the Ohio Supreme Court confirmed, either opportunity has the potential to provide relief for a party.

Another reaction was curiosity. Why didn't books about constitutional law look at debates about bedrock liberty and property guarantees through the lens of the federal and state courts as well as the federal and state constitutions? Most constitutional law stories focus on the U.S. Supreme Court and the U.S. Constitution. Those accounts also follow a familiar pattern, often casting this state government or that state official as the villain in the story and the federal courts as the heroes. There is ample support for that narrative, and I did not set out in this book to contradict it.

But both considerations did prompt me to think about writing an account from another perspective—one that would highlight the relevance of state constitutions and supplement the prevailing narrative with accounts in which the States, especially the state courts, led the way in responding to new challenges to deprivations of liberty or property. If there is a message in the book, it is that an underappreciation of state constitutional law (and state judges) has hurt state and federal law and has undermined the proper balance between state and federal courts in protecting liberty and property.

2. You argue in 51 Imperfect Solutions that state courts should interpret state constitutions with less deference to the way the U.S. Supreme Court interprets similar provisions of the federal Constitution. What would be the benefits of this? Would it improve protection for important rights at the state level? Would it ensure that rights are better tailored to the diverse needs of each State?

State courts owe no allegiance to the U.S. Supreme Court in construing similar, even identical, language in their own constitutions. Sure, state courts must respect U.S. Supreme Court precedent in construing the U.S. Constitution, but after that they have no more duty to follow a U.S. Supreme Court decision than they do to follow a decision of a sister state supreme court. As the final judicial arbiter of the meaning of their State's constitution, state supreme court justices may construe these guarantees to mean more or less than the counterpart guarantees in the U.S. Constitution. Nonetheless, state supreme courts often defer to rulings of the U.S. Supreme Court in construing similar or counterpart guarantees in their own constitutions. Some indeed commit to following U.S. Supreme Court decisions in lockstep into the future for entire swaths of the law. How strange. Who takes a voyage without knowing its destination?

State courts that independently construe the liberty and property rights in their own constitutions create a range of potential benefits for their citizens. One: the approach honors the original design of the federalist system and the original meaning of our individual rights. All of our liberty and property protections originated in the state constitutions between 1776 and 1787—before the summer of 1787. The federal framers, it's well to remember, relied on our state constitutions in drafting the U.S. Constitution. That was a good model for writing the U.S. Constitution, and it has promise as a model for interpreting the U.S. Constitution. On top of that, the state and federal founders saw federalism and divided government as the first bulwark in rights protection and assumed that the States and state courts would play a significant role, even if not an exclusive role, in that effort. What's sometimes called the New Federalism is not that new.

Another benefit: independent interpretation by each sovereign's high court of that State's constitution permits variation when variation is due. In a country of our size and diversity, a state supreme court often will have legitimate reasons for interpreting its constitutional guarantees differently from the guarantees in the U.S. Constitution and other state constitutions.

Many explanations for variation exist. Sometimes the state constitutions contain different words. Differences in terms often lead to differences in meaning—and aptly so. The history behind some state guarantees also might warrant a different interpretation. A free-exercise debate might come out differently in States like Maryland, Rhode Island, and Utah than in other States in view of the distinct historical experiences that prompted the freedom-of-religion guarantees in those States. Sometimes different interpretive methodologies will prompt different interpretations. If a U.S. Supreme Court decision turns on a living constitutionalist or pragmatic approach to interpretation, state supreme court justices who embrace originalism are free to adopt a different interpretation of the guarantee under their own constitution. The same is true in the other direction. Even state and federal judges who share the same interpretive methodology can disagree. The meaning of an "unreasonable search and seizure," as applied to a technology with no meaningful analogy to 18th century searches, is bound to generate different interpretations. Just read decisions of the U.S. Supreme Court for proof. If the nine federal justices can disagree reasonably about such issues, and if even those justices sharing the same interpretive approach can disagree reasonably about them, why shouldn't we expect similar disagreement between the U.S. Supreme Court and the State Supreme Courts—or between and among the State Supreme Courts. And sometimes the terms of the guarantees are sufficiently general that disagreement is inevitable. Is there just one way to construe due process, equal protection, free speech, and so on in all of the settings in which those words generate disputes? If we must accept imperfect answers to vexing constitutional questions from time to time, why should we insist on one imperfect solution rather than fifty-one of them.

3. What do you make of the length of most state constitutions?

Few state constitutions contain the spare language of the U.S. Constitution. In fact, all of the state constitutions are longer than their federal counterpart, usually by a big margin. There are modest exceptions in which some States have restrained themselves by limiting their charter to the essentials of a constitution: empowering and constraining. The constitutions of Iowa, Vermont, and Virginia come to mind. The prolix nature of most state constitutions turns on the reality that they are easier, much easier, to amend than the U.S. Constitution. After accounting for state-specific procedural hurdles, a 51% vote usually will do the trick. That can be helpful and hurtful: helpful because it is easier to update the constitution to account for new circumstances and hurtful because it runs the risk of constitutionalizing too many policy choices. States that try to constitutionalize everything face the hazard of constitutionalizing nothing. It's easy to wonder whether we would be better off if our state constitutions were a little more difficult to amend and the U.S. Constitution a little easier to amend.

4. Buck v. Bell, the "three generations of imbeciles are enough" case, is one of the most notorious decisions in the history of the U.S. Supreme Court. In the chapter of your book about the case, you argue that things might have gone better if litigation over mandatory sterilization had stayed in state court rather than moved into the federal system. Can you elaborate on why, and what lessons we can learn from this episode?

One takeaway from the eugenics story is the contrast between the state courts' impressive track record before the U.S. Supreme Court decided Buck v. Bell in 1927 and their disappearance after the decision. Yes, after 1927, the state courts were bound by the U.S. Supreme Court's interpretation of the Fourteenth Amendment. But they had no obligation to follow the decision in construing their state constitution's due process and other liberty guarantees. One might have thought that the state courts would continue to vindicate these independent guarantees after Buck v. Bell in the same way that they had vindicated them before the decision. But that didn't happen.

Think about the matter this way. If Congress opts not to pass a law, no state legislature would think it was required not to pass a similar law. Just so with Buck v. Bell. The Supreme Court opted not to constitutionalize a right against involuntary sterilization, but that left the States free to recognize a right on their own—or, easiest of all, to follow the state court precedents already on the books to that effect. As the eugenics story confirms, those who put all of their faith in just one branch of government for individual rights protection eventually will be disappointed.

Crime in D.C. to Negligently Cause "Significant Mental Suffering" by Saying Two Non-Political Things About Someone

That's what D.C. stalking law, as interpreted by D.C. courts, calls for.

D.C. law defines the crime of "stalking" to include, among other things, "communicat[ing] to or about another individual" "on 2 or more occasions" in a way that intentionally, knowingly, or negligently causes a person to experience "significant mental suffering or distress." The law does provide that it "does not apply to constitutionally protected activity." But two D.C. Superior Court decisions in recent years, Gray v. Sobin (2014) and White v. Muller (2017), have read this exception as limited to speech on matters of "public concern"—speech on purely private matters, they have held, is not "constitutionally protected" for purposes of this law.

Say then that a woman in D.C. finds that her boyfriend is cheating on her and tells two mutual friends about it (on two separate days). If she should have known that a reasonable person would feel "significant mental ... distress" as a result of being revealed as a cheater (not unlikely, I would think), she's committing a crime.

Or say that her boyfriend had given her an STD, and she tells two mutual friends about that. She too is committing a crime, if she should have known that a reasonable person would feel significant mental distress as a result of some friends learning this. Saying such things actually isn't a tort: Though "disclosure of private facts" can be tortious, that tort, for all its flaws, recognizes that friends have to be free to speak candidly to each other, and doesn't punish disclosures to only a small circle of friends. But D.C. stalking law would make the speech criminal.

And of course this would even clearer as to other speech that is less justifiable but still generally protected. If a woman badmouths another woman twice—say, reveals that the other woman has had many sexual partners, in a social circle where that is still seen as shameful—that too can be a crime. Same if a woman tells two friends that she left her boyfriend because he was impotent, or just a bad lover, or too poor for her, and she should know that learning about such statements would cause him to feel "significant mental ... distress."

Now I don't know if there have been any criminal prosecutions on this theory. Instead, the cases that I've seen involve people seeking "civil protective orders" against the people who were saying distressing things about them; under such orders, the speaker could be ordered not to go to certain places, not to possess firearms, and of course not to continue the speech that the court found to be "stalking." But to get such an order, the plaintiff must show that the defendant had committed a crime against the plaintiff; so the cases I cite expressly considered what constitutes criminal stalking, and held that repeated private-concern speech that negligently, knowingly, or intentionally causes significant mental distress is a crime in D.C.

And of course the presence of such a law can deter speech even if there's no criminal prosecution. The protective orders, once issued, are backed by the threat of criminal punishment. But even without a protective order proceeding, a police officer or a prosecutor can often get results just by threatening prosecution. Perhaps the police will use the statute only in narrow circumstances; but, as the Court said in U.S. v. Stevens (2010), "The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."

If you think that there should be a "private concern speech" exception to the First Amendment, applicable even in criminal cases, then you might support this statute. And Snyder v. Phelps (2011) did suggest that civil liability for private concern speech should sometimes be allowed, though there it was focusing only on speech that was "outrageous," that inflicted "severe" emotional distress, and that did so purposefully or recklessly, not just negligently—elements absent in the D.C. statute.

But I think the better view (especially for criminal cases, where the speech restrictions can't be defined as vaguely as they sometimes are in civil tort liability) is the one expressed in Stevens: "Most of what we say to one another lacks 'religious, political, scientific, educational, journalistic, historical, or artistic value"'(let alone serious value), but it is still sheltered from government regulation." Criminal punishment for any two incidents of speech about a person can't be permissible, even if the speaker should know that a reasonable person would find the speech to be significantly distressing.

Court Allows Suspicionless "Information Seeking" Stop of a Car Leaving a Home

A wrong decision, I think.

The Nebraska Supreme Court recently handed down a new Fourth Amendment decision, State v. Sievers, allowing a suspicionless stop of a car on the ground that the officers were merely seeking information about a crime believed to be going on where the car had recently been parked. The case strikes me as wrongly decided, and I thought I would explain why.

The question in Sievers is whether the police could stop a truck that had recently left a house that was suspected of being a place where drugs were sold and stolen firearms were being stored. The police were watching the house and were in the process of getting a warrant to search it. They saw a truck leave the premises and drive away, so they stopped the truck five blocks away. They did not observe any traffic violations that might have independently permitted the stop. A subsequent search of the car revealed two small baggies of meth in the front console of the car, and the driver's was convictied of possessing the meth.

On appeal, the Nebraska Supreme Court frames the legal issue as being "whether the suspicionless stop of [the truck] to gather information about stolen property and possible criminal activity at the residence he drove from, for which a search warrant was being sought, violated [the truck driver's] Fourth Amendment rights." So framed, the Court rules, the suspicionless stop did not violate the Fourth Amendment. Here's the key passage, with a paragraph break added:

Even a brief, limited governmental intrusion for the purpose of investigation must be justified at its inception by a showing of reasonable suspicion [citing Terry v. Ohio]. A seizure for the purpose of seeking information when police are investigating criminal activity that might pose a danger to the public, however, may be reasonable under the Fourth Amendment even in the absence of reasonable articulable suspicion of criminal conduct. The U.S. Supreme Court has explained that "special law enforcement concerns," such as a police roadblock, checkpoint, or other detention made for the gathering of information, will sometimes justify a stop of a vehicle "without individualized suspicion." "Like certain other forms of police activity, say, crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual."

In Illinois v. Lidster, the U.S. Supreme Court scrutinized a highway checkpoint that was set up to solicit information from motorists regarding a fatal hit-and-run accident. The Court found that a suspicionless, "information-seeking" stop made pursuant to the checkpoint was constitutional. The Court emphasized the "primary law enforcement purpose [behind the checkpoint] was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others."

The Court then applies the framework in Illinois v. Lidster, in turn based on Brown v. Texas, 443 U.S. 47 (1979), and concludes that the suspicionless stop of the car was reasonable.

I'm not persuaded. It's true that Lidster allowed a suspicionless "information-seeking" checkpoint stop, which is effectively an exception to the usual rule that reasonable suspicion is required under Terry v. Ohio. But the key to Lidster was that the officers were only trying to find innocent eyewitnesses to a past crime. The police set up the checkpoint at the scene of the accident hoping to find a member of the public who had seen the crime and might be able to give the policesome leads. This fell out of the usual Terry requirement of suspicion, the Lidster Court held, because the police where just asking members of the general public if they could help the police:

[T]he context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say,crowd control or public safety, an information-seeking stop is not the kind of event that involves suspicion, or lack of suspicion, of the relevant individual.

For another thing, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask questions designed to elicit self-incriminating information. And citizens will often react positively when police simply ask for their help as responsible citizens to give whatever information they may have to aid in law enforcement.

Further, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime. Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, or by putting questions to him if the person is willing to listen.

It seems obvious that Sievers was different. This was not a case of "seeking information from the public." The officers testified that they stopped the truck because they thought it might contain evidence of crime -- specifically, stolen goods that they thought were being stored at the house where the truck had been parked. When the stop occurred, the officer who ordered the stop "advised the [other] officers to make a traffic stop to prevent the truck from leaving with any stolen items." The lead officer explained that they neeed to stop and search the truck "for any items taken from the [firearms] burglary."

And when Sievers was stopped, the officers didn't treat him like a member of the public who perhaps just might have seen a crime. Instead, Sievers was treated as a dangerous suspect. Here's just a taste of what happened when the stop occurred:

[When he made the stop, Officer] Hubka observed the truck had only one occupant and saw the driver lean over and reach toward the center console area. Hubka considered the driver's actions to be "furtive movements," and consequently, he maintained a heightened security alert in case the driver was hiding something or reaching for a weapon. The officers testified they were "extra assertive" as they contacted the driver of the truck—in part because of the possible presence of a firearm. They ordered the driver, Sievers, to put his hands on the steering wheel and to not move as they helped remove him from the vehicle. The gang officers searched the interior driver's side of the truck and did not locate any weapons, narcotics, paraphernalia, or any stolen items.

The narcotics officers, who were following the truck in their unmarked vehicle, arrived simultaneously. Schilmoeller took over contact with Sievers, walked him to the cruiser, and sat him in the back of the cruiser with the door open and began questioning him. Sievers claims the officers had their guns drawn at this time, but not pointed at him. Sievers claims he was handcuffed during the officer's questioning. None of the officers remember any guns being drawn, and only Schilmoeller remembered when Sievers was handcuffed, which he stated occurred after the questioning was completed. Schilmoeller informed Sievers he was not under arrest, but was being detained due to a stolen property and narcotics investigation underway at the residence he had just driven from. Sievers admitted he had just been inside that residence and had just smoked marijuana before leaving, but "that was it." Schilmoeller attempted to obtain Sievers' consent to search the truck several times, but Sievers refused, stating that there were no illegal items inside the truck and that the truck belonged to his boss.

This doesn't strike me as a Lidster "information-seeking" stop, in which the person stopped is understood to be an innocent member of the public who may have been an eyewitness and is briefly stopped as a potential "responsible citizen" who can aid the investigation. Sievers was simply a suspect in the crime. I don't see how the Lidster reasonableness framework can apply.


D.C. City Councilman Tried to Get Anti-Stalking Order Against Freelance Journalist

The councilman was Trayon “Rothschilds Control the Weather” White (or, if you prefer, Trayon “Nazi Stormtrooper Protectors” White).

In my recent posts about D.C. City Councilman Trayon White, I forgot that late last year I stumbled across a case involving that very personage, and in the press of business neglected to blog about It. I thought I'd make up for that now, by quoting the D.C. Superior Court opinion in the case, White v. Muller (Oct. 6, 2017). First, the court's general summary:

The Petitioner Trayon White, a District of Columbia City Council Member [representing Ward 8], alleges that the Respondent John Muller, [a freelance journalist, focusing on local issues, and a Ward 8 resident], stalked him....

At first glance, this case seems rather straightforward; a pugnacious reporter aggressively pursuing a story. Surely, the First Amendment protects such endeavors no matter the politeness of the journalist. To that end, the District's stalking statute explicitly carves out conduct protected by the First Amendment.

The facts in this case, however, command a more nuanced analysis. Although a journalist, the record demonstrates that Mr. Muller's approach to Mr. White was largely personal in tone and substance. For example, in repeated text messages Mr. Muller implored and taunted Mr. White to "be a man" and repeatedly accused Mr. White of not being from the "street". But as discussed herein, even if these messages failed to constitute protected speech on matters of public concern, standing alone they cannot establish a crime under the Interfamily Offenses Act....

This Court can only issue a CPO [Civil Protective Order] if the Court finds that good cause has been shown that "the respondent has committed or threatened to commit a criminal offense against the petitioner." ... Stalking is the only ... offense at issue [here, and] ... is defined as "purposefully engag[ing] in a course of conduct directed at a specific individual … (1) [w]ith the intent to cause that individual to … (2) [t]hat the person knows would cause that individual reasonably to … or (3) [t]hat the person should have known would cause a reasonable person in the individual's circumstances to … [f]ear for his or her safety or the safety of another person; … [f]eel seriously alarmed, disturbed, or frightened; or … [s]uffer emotional distress." A "course of conduct" means "directly or indirectly … on two or more occasions, to: (A) Follow, monitor, place under surveillance, threaten, or communicate to or about another individual."

The stalking statute plainly states that it "does not apply to constitutionally protected activity." Therefore, the Court must also consider whether Mr. Muller's actions are protected by the First Amendment. To determine whether Mr. Muller's actions are protected speech, this Court looks to the thoughtful analysis of Judge Edelman in the recent case Gray v. Sobin, 2013 CPO 3690 (D.C. Sup. Ct. 2013), where the Court was also required to navigate the intersection between the District's stalking statute and the First Amendment.... The crux of Judge Edelman's analysis rested on whether the conduct at issue related to a matter of "public concern" (and hence, whether it falls outside the scope of the District's stalking statute).... Adopting that analysis ..., this Court must answer the following: 1) Is Mr. Muller's conduct, in the instances alleged by Mr. White, protected speech under the First Amendment? 2) If not, did Mr. Muller, on two or more occasions, engage in conduct against Mr. White that is prohibited by the stalking statute? ...

Now, the specific incidents of alleged stalking, with the court's analysis of each (with some paragraphs moved to keep the facts together with the analysis).

[1.] In early June 2017, Mr. White gave Mr. Muller a quote to use in a CityPaper article via text message....

In late June 2017, Mr. Muller sent Mr. White texts requesting an interview. Mr. White declined Mr. Muller's request to talk "man to man". Mr. Muller then repeatedly texted and called Mr. White's personal cell phone throughout the evening. By the Court's count, Mr. Muller sent Mr. White at least 47 text messages that night [starting at 7:18 pm]. Many of these text messages contain personal attacks, such as "You are a fraud and the whole city will know"; "you are not a street dude. Just a weak dude"; and "the whole city will know you are a fraud. Ward 8 counsel is too big for you. You are petty and small time. You say nothing that means anything. You are not a leader. Just a wannabe. All you ever will be." ...

[The texts] do not constitute speech protected under the First Amendment. These texts, which Mr. White received incessantly over the course of one evening, do not reference any particular policy or subject matter that Mr. Muller seeks to discuss. Instead, they are personal in nature, belittling, and appear to be Mr. Muller's attempt to intimidate Mr. White. Mr. White and Mr. Muller were the only participants in this conversation. There is no issue of public interest or public concern that can be gleaned from these messages. Accordingly, the Court finds that this conduct does not constitute protected speech.

Further, the Court finds that this instance of conduct forms a basis for stalking. Mr. Muller's conduct satisfies the elements of stalking because Mr. Muller either knew or should have known that both the number and content of these messages would cause Mr. White to fear for his safety, feel alarmed, or suffer emotional distress. However, to find stalking, the Court must find two instances of conduct that satisfy the elements. These texts count as one instance because they were continuing in nature and did not exceed a 24-hour period. ["Where a single act is of a continuing nature, each 24-hour period constitutes a separate occasion." D.C. Code § 22-3133 (c).] To find that Mr. Muller stalked Mr. White, the law requires at least one more instance of stalking conduct.

[2.] After these texts, Mr. Muller posted similar messages to a Facebook page called The Great Ward Eight [an active publicly accessible Facebook group of the community members of Ward 8]. These posts contained statements such as "[Mr. White] isn't from the streets." ... Mr. White asked Mr. Muller to stop making these posts....

This post was made on a public social media page that is explicitly established as a forum for the community to discuss matters of public interest. As a councilman, Mr. White's background in and relationship to community is an issue of public concern. Accordingly, the Court must find that this instance is protected speech and cannot form a basis for stalking.


Eliminate Article II’s Anomalous Birth Requirement, so “Made in America” Citizens May Run, With Gratitude, for President

Thank you to readers and commenters here this week. Your thoughtful consideration has improved my proposed amendment to render eligible for President all American citizens who meet the age and duration requirements of Article II. You have persuaded me to make two changes: (1) substitution of new 14-year length-of-citizenship requirement to replace current 14-year length-of-residency requirement; (2) addition of 6-year lag between ratification and effective date. You have also provided a sense of the strengths and weaknesses of various arguments for ratification. I am grateful. Now all that remains is to get the amendment ratified.

I modeled my proposal on one introduced in Congress May 18, 1868 by an Irish-born congressman from New York. Today, exactly 150 years later, I'm delighted to report that this proposed amendment has picked up senatorial support from an important committee chair. The Volokh Conspiracy gets results!

A few final thoughts.

  1. Anomalous Article II: If you were running a public company in the United States today, would you limit the CEO position to natural-born citizens? Be honest. Consider, too, whether POTUS is so distinct as to merit different treatment not only from how an American public company would define CEO eligibility but also from how the U.S. Constitution defines eligibility to be a federal lawmaker or life-tenured federal judge.
  1. Buy American: Federal law renders people eligible to become citizens after satisfying residency, knowledge, language, and good moral character requirements. Naturalized citizens who satisfy these requirements are Made in America. If the process is good enough to turn someone into an American citizen with all the other rights and responsibilities of citizenship, does it really make sense to withhold presidential eligibility alone? And whatever reason you might have for thinking it does make sense to withhold presidential eligibility alone, would it still make sense after also requiring fourteen years in America as an American citizen?
  1. Gratitude: Great Americans are grateful Americans. Deep gratitude for the gifts of earned American citizenship will distinguish any naturalized citizen who puts himself or herself forward to run for President of the United States. We need every little bit of this patriotic gratitude we can get in our public life. Naturalized American citizens should have the same right to run as their natural-born compatriots.

Let's shake off our civic sloth and undertake the ultimate exercise in American self-government; let's do our part to secure the blessings of liberty for ourselves and our posterity; let's amend the Constitution of the United States of America.

[UPDATE, from Eugene Volokh: Sorry, accidentally labeled this originally as my post; it's guest-blogger Kevin Walsh's.]

Arkansas Prior Restraint Saga -- One Court Says Yes, One Says No

I'll grant Justice Courtney Goodson's request to block ads that allegedly libel her during her reelection campaign, says one trial judge. Unconstitutional prior restraint, says another.

Monday, Judge Doug Martin issued a temporary restraining order—an unconstitutional prior restraint, I argued—ordering TV stations not to run the ads critical of Justice Goodson. Wednesday, he recused himself, because his wife had a business relationship with Justice Goodson's husband. Judge Mackie Pierce was appointed to hear the case instead.

Today, Judge Chris Piazza issued a similar temporary restraining order, barring the ads from running in a different part of the state. But also today, Judge Pierce granted a TV station's request to dissolve Judge Martin's order. So Judge Piazza's order is in effect in one part of the state, but Judge Martin's order has been vacated in the other. I don't know if TV stations are going to the Arkansas Court of Appeals or the Arkansas Supreme Court to get the new order vacated. I'll post the judges' orders when I get them.

Short Circuit: A roundup of recent federal court decisions

Meet and greets, La-la-land, and Ron Paul!

Through its "Bias Response Team," the University of Michigan investigates and punishes students for speech that might evoke "bothersome" or "hurtful" "feelings." Which runs afoul of the Fourteenth Amendment's protections against laws that don't give fair warning of what is and isn't prohibited. So argues Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, over at The Weekly Standard.

  • Fifteen-year-old robs Norfolk, Va. house party at gunpoint. His two (adult) confederates plead guilty, get 10- and 13-year sentences. The teen goes to trial, gets 118 years plus six life sentences (with the remote possibility of geriatric release at age 60). He files a habeas petition arguing his sentence is too long, violates the Eighth Amendment. In the meantime, then-Gov. Bob McDonnell reduces his sentence to 40 years. Is the habeas petition moot? Fourth Circuit: Yes.
  • Man kills 6-year-old boy near Iowa, La. in 1992. Defense: He's mentally ill, could not have understood his actions. Trial 1: Guilty of first-degree murder. Overturned on appeal due to judge's missteps (used race in jury-foreperson selection). Trial 2: Acquit on first-degree murder (which requires finding of intent to kill) but convict on second-degree murder (which does not). Overturned on appeal due to judge's missteps (e.g., judge was absent during significant portions of the proceedings). Trial 3 (with a new judge): Guilty of second-degree murder, as he intended to kill the boy. Fifth Circuit: Double jeopardy. The jury in the second trial found he lacked intent. The state can charge him with some other crime that does not involve intent, but this conviction can't stand. (Related: After the victim's mother testified she didn't want to see defendant put to death, prosecutors allegedly tried to have her other child taken away from her. H/t: Ethan Brown)
  • Midway through a state-court murder trial, the court discovers one of the jurors is the victim's niece. Oops! The niece is dismissed, and the trial goes on after the judge asks the jury as a group whether the dismissed juror had talked to any of them and receives no response—which might have been error on a direct appeal in federal court, says the Sixth Circuit (over a dissent), but isn't enough to warrant habeas relief.
  • Collusion, financial intrigue, and under-the table payments for political endorsements. Naturally, we're talking about the 2012 Ron Paul campaign. Eighth Circuit: No need to reconsider any convictions.
  • Plaintiff spent 20 years in prison for murder after a San Francisco police sergeant allegedly fabricated evidence and manipulated a witness into falsely identifying him. District court: The sergeant isn't liable because the prosecutor exercised independent judgment in bringing the murder charges. Ninth Circuit: Right, but that judgment may have been based on the phony evidence. Remanded for trial.
  • Allegation: Activists used false pretenses to enter Planned Parenthood conferences and set up interviews, which the activists then surreptitiously recorded and mendaciously edited so as to make it seem like Planned Parenthood sells aborted fetal tissue, setting off a national furor. Activists: The suit is a Strategic Lawsuit Against Public Participation, meant to punish us for protected First Amendment activity. Ninth Circuit: The case can proceed.
  • Are Seattle's attempts to unionize Uber and Lyft drivers preempted by federal antitrust law? They very well may be, says the Ninth Circuit.
  • Allegation: Man flees from traffic stop on foot, clutching his waistband. He flings away an object, which turns out to be a gun. Several seconds later, a Riverside, Calif. officer shoots him in the back, paralyzing him. Ninth Circuit (over a dissent): Qualified immunity.
  • In Colorado, once city officials declare property "blighted," owners have 30 days to file a lawsuit—or they are barred from challenging the designation, which can trigger seizure of their property via eminent domain (for seven years). Question: Do officials have to notify property owners of a blight designation? Indeed so, says the Tenth Circuit, but it's up to owners to figure out they only have 30 days to object. In the instant case, Glendale, Colo. officials' failure to notify the owners of carpet store (that sits in the footprint of a proposed mall) violates due process.
  • The feds arrest, freeze assets of Casper, Wyo. physician accused of illegally prescribing medication. Uh oh, he needs that money to pay for his defense! District Court: Well, they didn't take ALL of his money. Tenth Circuit: That is not the test.
  • Two Muskogee County, Okla. jail officials are convicted for holding "meet and greets," where they beat up new inmates. District court: Such displays "of strength and control may have served a purpose in the control of disorderly inmates and the overall safety of the jail staff." The officers get below-guidelines sentences of one and two years. Tenth Circuit (over a dissent): Which isn't unreasonable.
  • Aurora, Colo. police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He's charged with being a felon in possession. Suppress the evidence? No need, says the Tenth Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety. Dissent: The gov't is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.
  • Florida prison officials bar inmates from receiving magazine that, in addition to covering criminal justice issues, publishes ads advertising services (like three-way calling, pen-pal solicitations, and people locators) that inmates use to conduct criminal activities. A First Amendment violation? The Eleventh Circuit, citing Oscar Wilde, says no. (For some more fun, Ctrl+F for "la-la-land." Or have a gander at Footnote 11.)
  • St. Pete Beach, Fla. officials encourage the public to trespass on privately owned beachfront property. Does the city have to pay the owners? Jury: You bet. Pay $1.5 million. Eleventh Circuit: Affirmed. And for its money, the city gets a permanent easement across the parcel.

This week, Arizona Gov. Doug Ducey signed into law a bill that creates a statewide licensing scheme for food trucks. Huzzah! No longer will mobile food vendors be forced to obtain separate permits—and comply with a dizzying array of varying rules—from each town, city, and county where they want to operate. The law also prevents municipalities from imposing egregious red tape, like mandates to move every few hours or stay hundreds of feet away from brick-and-mortar restaurants. Click here to read more.

"Female Students" "May See Their Grades Raised One Level or Two"

That was the plan of a University of Akron professor, because of "the national movement to encourage women students to go into information sciences"; fortunately, the University blocked this.

Fox 8 Cleveland (Adrienne DiPiazza) has the story, with some more details at Campus Reform (Grace Gottschling); here's the e-mail, as quoted by Fox 8:

Rex Ramsier, the Provost of the university put out a statement in response:

The University has verified that there were no adjustments to grades based upon the gender of individuals in the class. While the professor's stated intention of encouraging female students to go into the information sciences field may be laudable, his approach as described in his email was clearly unacceptable. The University of Akron follows both the law and its policies and does not discriminate on the basis of sex. The professor in question has been advised accordingly, and he has reaffirmed his commitment to adhering to these strict standards.

Thanks to InstaPundit for the pointer.

Don't Blame the Railroad for Plessy v. Ferguson

On this 122nd anniversary of the decision in Plessy v. Ferguson, don't forget that the East Louisiana Railway had opposed the Jim Crow law and had cooperated with those who sought to challenge it.

Today is the 122st anniversary of the decision in Plessy v. Ferguson (1896). These days almost every middle school student is familiar with the case and how it ultimately came out. But just in case you were born on Mars: Notoriously, the Supreme Court upheld the constitutionality of Louisiana's Separate Car Act, which required railroads to provide "separate but equal" cars for blacks and whites.

One thing that some people don't know is that the railroads were rooting for Homer Plessy. Plessy was one of those lawsuits that was planned as a challenge to a law's constitutionality. In New Orleans, a committee was formed (calling itself the "Comité des Citoyens") dedicated to challenging the Act in court. It took two tries, but the Comité did indeed get the issue before a federal court.

In an essay entitled The Case of the Louisiana Traveler, the great historian C. Vann Woodward wrote about the railroads' cooperation with the efforts of the Comité:

Railroad officials proved surprisingly cooperative. The first one approached, however, confesses that his road "did not enforce the law." It provided the Jim Crow car and posted the sign required by law, but told its conductors to molest no one who ignored instructions. Officers of two other railroads "said the law was a bad and mean one; they would like to get rid of it," and asked for time to consult counsel. "The want to help us," said Martinet [a young lawyer/physician/editor who helped organize the resistance to Jim Crow in New Orleans], "but dread public opinion." … It was finally agreed that a white passenger should object to the presence of a black in a "white" coach, that the conductor should direct the passenger to go to the Jim Crow car, and that he should refuse to go. "The conductor will be instructed not to use force or molest," reported Martinet, "& our white passenger will swear out the affidavit. This will give us our habeas corpus case, I hope."

Woodward was writing here about the first lawsuit brought by the Comité. That case fizzled, because the plaintiff had bought a ticket to Alabama. Before it could be argued, the Louisiana Supreme Court had held in a case brought by the Pullman Company that the law was unconstitutional as applied to interstate passengers. As to the Plessy case itself, Woodward wrote that "it may be assumed that the railroad had been informed of the plan and agreed to cooperate." Indeed, the East Lousiana Railway had opposed the law prior to its passage, and there is some evidence that the railroads helped finance the case.

All of this tends to be intuitive to libertarians. Why would a railroad want to run two half-empty train cars if it can run one full car instead? To others (perhaps even including Woodward, who called the cooperation of railroad officials "surprising[]"), it is sometimes counter-intuitive. But if railroads had been keen on racial segregation, the Separate Car Act would have been unnecessary.

I hope to write more on C. Vann Woodward's take on the Jim Crow Era later. Woodward had quite a few insights on that period of history that can help make sense of our own era.

We Don’t Know What “Natural Born Citizen” Means and Probably Never Will

If unjustified exclusion of naturalized citizens doesn't move you to support a constitutional amendment to repeal the Natural Born Citizen Clause, maybe legal uncertainty will. Elimination of this uncertainty is the third best reason to support a repeal amendment. First is that repeal will make everyone better off and nobody worse off; second is that a repeal amendment makes for good politics. Even if you reject these first two reasons, though, elimination of legal uncertainty is independently desirable.

Although the Natural Born Citizen Clause unquestionably excludes millions of naturalized citizens, its most visible function in practical politics is to impose uncertainty and resulting costs respecting individuals whose "natural born" status is unclear. Because those who are plainly excluded do not bother to run, those who do run are either plainly not excluded or only arguably and uncertainly so. That means legal proceedings are inevitable.

In my earlier guest posts and most of the comments this week, we've been acting as if we know what "natural born Citizen" means. But we don't, at least not fully. We know that "natural born Citizen" excludes non-citizens and naturalized citizens. But there is genuine and deep legal uncertainty about whether some citizens are naturalized or natural-born.

Factual uncertainty can cause problems too, as birther excitement about Barack Obama illustrated. But factual uncertainty is likely to be less serious a problem than legal uncertainty. Simple matters of fact such as someone's place of birth can usually be ascertained and proven. When the evidence is pretty good, holdouts are likely to be people who would not politically support the person in question, and unreasonable persistence in holding out discredits the holdouts more than the candidate.

In the absence of a definitive judicial determination—-which we haven't yet had and probably never will—-legal uncertainty presents a problem more difficult to dispel. Jurists and scholars dispute whether "natural born" refers to a territorial concept (jus soli), a bloodline concept (jus sanguinis), or some combination, and how the law incorporated into the Constitution—whatever it may be—interacts with legislation enacted by Congress. The most recent comprehensive examination of the original legal meaning of the Natural Born Citizen Clause provided a new formulation of this meaning distinct from what the author described as the conventional wisdom as well as its leading alternative.

Republican Senator Ted Cruz's experiences in the 2016 presidential primary provide a recent illustration of the uncertain legal meaning of "natural born Citizen." By statute, Cruz has been a citizen of the United States from the time of his birth in Canada to a Cuban father and an American mother. But it is legally uncertain whether the federal statute supplying that status is a naturalization statute or one that makes him "a natural born Citizen." (The best formulation of Cruz's position is that "natural born Citizen" means "someone who was a U.S. citizen at birth with no need to through a naturalization proceeding at some later time.")

Despite the benefit to be gained from having a cloud removed from over his candidacy, someone in Cruz's position has good reason to avoid championing a repeal amendment. That would only lend legitimacy to a legal position he has rejected and could potentially undercut his support from people suspicious of foreign-born candidates regardless of citizenship status from one U.S.-citizen parent at birth.

Also, as many commenters have already noted, an amendment tied to any particular person's candidacy is unlikely to garner bipartisan support. Partisan politics must have had some influence on Senator Dianne Feinstein (D-CA), for example, when she said in 2004 in connection with "the Arnold Amendment" that "I don't think it is unfair to say the president of the United States should be a native-born citizen. Your allegiance is driven by your birth." (The political winds have since shifted for Democrats on immigration-related issues, of course. I'm guessing Senator Feinstein's old position on the Natural Born Citizen Clause has by now gone up in smoke.)

The legal uncertainty surrounding Cruz's eligibility imposed significant economic costs and incalculable (because unknown and unknowable) political costs. His participation in the 2016 Republican primary led to state election commission proceedings in five states (Illinois, Indiana, New Hampshire, New Jersey, and New York); lawsuits in six state courts (Florida, Hawaii, Illinois, New York, Pennsylvania, and Vermont); and lawsuits in six federal courts (Northern District of Alabama, Eastern District of Arkansas, District of New Hampshire, Eastern District of New York, Southern District of Texas (with appeal to the Fifth Circuit), and District of Utah (with appeal to the Tenth Circuit and petition for certiorari to the Supreme Court)). (HT: Derek Muller, Excess of Democracy.)

These proceedings all required time and money. But taken collectively, they yielded no definitive going-forward resolution. Some were resolved on non-merits grounds (such as lack of jurisdiction), or ended up moot or in a denial of certiorari at the Supreme Court when Cruz's candidacy was no longer viable. All of these proceedings—for just this one unsuccessful candidacy—were a waste of time and energy that amounted to nothing lasting for the law. And that is how such proceedings have consistently cashed out over time. Nobody who has paid attention to this status quo can defend it.

We're fortunate it has not been worse. Should it ever come to be that someone with an uncertain "natural born Citizen" status becomes President, whether through election or succession, that would be the worst possible time for the Supreme Court finally to render a judicial determination. Regardless of reasoning, the outcome would be understood primarily in partisan political terms. That's no good for the President, the Supreme Court, or the country. And all to what end?

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Google Now Deindexing Some Web Pages Based on FDA's Administrative Agency Findings

A new Google policy calls for such deindexing based on administrative agency findings—without a court order—in cases where the agency is “charged with protecting consumers’ physical safety from harm by products or services that they consume.”

It takes a lot to get Google to deindex a page, and thus hide it from searchers (at least from U.S.-based searchers). Unlike with YouTube, where Google exercises considerable editorial discretion, Google Search is generally aimed at indexing the Web, good and bad. Until recently, there have been only a few categories of content that Google would deindex based on someone's request (setting aside Google deindexing things itself based on a perception that someone is gaming its search algorithms, or that some site contains malware, and focusing just on Google search within the U.S.):

  1. Legal obligation (mostly copyright): U.S. copyright law threatens to hold search engines liable for linking to infringing material. Google therefore acts on DMCA takedown requests from people who claim to own a copyrighted work that a site allegedly infringes, though there's also a counternotification procedure that the site operator can use to get the material brought back up pending a copyright lawsuit.
  2. Confidential personally identifying information (such as social security numbers) or revenge porn: Google has no legal obligation to deindex pages containing such material, but it voluntarily does so, again based on just the objector's request. In the U.S., this is not a general right to be forgotten—it's limited to content like a "security or government ID number, bank account or credit card number, an image of your handwritten signature, [or] a nude or sexually explicit image or video of you that's been distributed without your consent."
  3. Court orders addressed to third parties (chiefly in libel cases): Here too Google generally has no legal obligation to deindex material—if you sue me for libel and get an injunction finding that my page libeled you and that I must remove it, that generally doesn't bind Google (though the Hassell v. Bird case now pending before the California Supreme Court might affect that). But if you send the order to Google, Google will consider voluntarily deindexing my pages, because of the court finding that the pages are libelous. (There are risks here, chiefly because many people have submitted forged and fraudulent orders; but that's a separate matter.)

It has just emerged, though, that Google has decided to deindex based on a fourth category:

  1. Administrative agency findings that sites illegally distribute material that risks physical harm to consumers: Right now, this category appears to include just warning letters from the U.S. Food and Drug Administrations, generally sent to off-shore online pharmacies that illegally sell prescription drugs to the U.S. A Google representative told me that this is supposed to be a narrow policy, limited to fact findings by "administrative agencies that are charged with protecting consumers' physical safety from harm by products or services that they consume," where there is reason to think that there was "some process through which site operator had notice and opportunity to be heard" in the investigation. The policy does not extend to agency findings of financial harm or reputational harm; as item 3 indicates, Google may act on a court order that certain material was, for instance, libelous, but factfinding by an administrative agency wouldn't suffice. But where there's an administrative agency finding that material can be physically harmful to consumers, a court order is no longer required.

Google told me that it's possible this may extend to other agencies, but so far they "have not received any removal requests from anyone but the FDA." They are currently contemplating only orders from federal agencies (and similar national agencies in other countries), because the effect of the deindexing would be nationwide.

So far, the deindexing requests that I've seen (see, e.g., here) have focused on sites that really are just online pharmaceutical stores. If a site appears to have more material (e.g., general information about pharmaceutical efficacy, political advocacy, and the like), then Google would try to deindex only the material that is illegal and that threatens physical safety.

Google and the FDA both state that this is an entirely voluntary policy on Google's part, and not motivated by any threat of enforcement against Google (and I doubt that there would be any current law that could yield such a threat of enforcement against Google just for providing links).

* * *

So those are, as best I can tell, the facts. What should we think about them? I don't think there are any viable legal objections to Google's new policy. The government apparently hasn't pressured Google into implementing it, so there are no First Amendment or Due Process Clause problems. And there's no law requiring Google to link to anything. (Indeed, such a law constraining Google's selection decisions might itself be unconstitutional, as Don Falk and I argued in a 2012 paper commissioned by Google; but in any case, no such law exists.) The questions here are ethical, prudential, and business questions.

So let me just flag some of these questions, without offering an answer.

Should Google be praised for protecting the public from the dangers of unprescribed—and, potentially, adulterated or otherwise harmful—pharmaceuticals?

Should Google be faulted for restricting what its users can see, just for their own supposed good and not to protect any concretely harmed third parties?

Should we worry that, just as category 3 (court-order-based takedowns, including for reputational or economic harms) has led to category 4 (administrative-finding-based takedowns, at least to prevent physical harms), category 4 will eventually slip into much broader takedown practices, based just on an agency's say-so?

Should we be glad to see such slippage, at least to prevent what appears to be criminal conduct?

I'd love to hear our readers' thoughts on all this. (Thanks to Reason's Mike Riggs for his help with this post, and to the Lumen Database, where I first saw the FDA takedown requests.)

UC Davis Law School Commencement 1978: California Supreme Court Justice Stanley Mosk’s Finest Hour

Students were enraged over his opinion for the California Supreme Court holding race-preferential admissions unconstitutional in Bakke v. University of California Regents. They demanded that he withdraw as Commencement speaker. He refused. “Judges,” he told them, “cannot be intimidated,” and “Lawsuits are won and lost in the courtrooms, not in the streets.”

Saturday will be graduation day at UC Davis Law School (as well as many other law schools). Congratulations to all the graduates!

I don't know who the Davis graduation speaker will be this year, but forty years ago, it was Justice Stanley Mosk of the California Supreme Court. This raised a hullaballoo. Although students had voted Mosk one of their preferred speakers back in the autumn, he was Public Enemy No. 1 to some students. Calling themselves the "Third World Coalition," a group of them demanded him to withdraw.

What crime had he committed to cause this left-of-center student outrage? Up until recently, Mosk had been considered one of the most liberal judges on any state supreme court in the country. His credentials as a civil rights activist were impeccable. In his personal life, he had quit fraternal organizations like the Elks and the Eagles to protest their refusal to admit blacks as members. As Attorney General of California, he had banned the Professional Golfers Association, which banned African-American players, from using state golf courses. As a judge, he had outlawed restrictive racial covenants (before the U.S. Supreme Court did so in Shelley v. Kraemer).

But Mosk had the audacity to take his commitment to equality seriously. He had been fighting for decades for equal treatment, and he was not able to turn around on a dime and approve the preferential treatment based on race practiced by colleges and universities in the name of "affirmative action." When the case of Bakke v. University of California Regents reached the California Supreme Court he wrote an extremely eloquent opinion for the majority condemning the UC-Davis Medical School's race-preferential admissions policy as unconstitutional. Read the whole opinion if you get a chance. Here is a taste:

To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.

I liked the language so much, I used it in the title to an article of mine: A "Dubious Expediency": How Race-Preferential Admissions Policies on Campus Hurt Minority Students. In this blog post, I repeat a little on what I wrote in that article.

It's unlikely Mosk was prepared for the onslaught that followed his opinion striking down Davis's affirmative action plan. The protests continued to build till the U.S. Supreme Court decided the case in June of 1978. Hundreds of placard-carrying demonstrators gathered beneath his office window to denounce his decision and demand its reversal. Thousands rallied elsewhere. When visiting local campuses, Mosk would routinely find himself greeted by picketers and hecklers.

At the Davis Commencement, about 50 to 75 picketers—mostly students, but also some from outside groups--greeted those who entered the building. When Mosk was introduced at the ceremony, about 34 of the 139 graduates, along with about 150 guests, walked out. But Mosk was undaunted. "Judges," he told the crowd, "cannot be intimidated," and "Lawsuits are won and lost in the courtrooms, not in the streets."

Mosk was never forgiven for this (and a couple of other) deviations from liberal orthodoxy, not even in death. In his 2001 New York Times obituary, he was accused of having a knack for anticipating and bending with political currents. In fact (for good or ill), Mosk had backbone rarely found in judges.

Weirdly, it is U.S. Supreme Court Justice Lewis Powell, a mild-mannered Nixon appointee, who ended up being beloved by the Left. Powell's fence-sitting opinion in Bakke effectively overturned Mosk's opinion and opened the door to ever-greater preferential treatment based on race. It was Powell, not Mosk who took the easy route: Bend with the political currents.

Unlike the irascible Mosk, the gentlemanly and accommodating Powell was an unlikely civil rights hero. A chairman of the Richmond School Board between 1953 and 1961 and a member of the Virginia Board of Education—the crucial years following the Supreme Court's decision in Brown v. Board of Education (1954)—Powell was in a position to take a leading role in dismantling Jim Crow. But Powell, who later went on to be president of the American Bar Association, did not distinguish himself as an advocate of desegregation "with all deliberate speed." As Jerome Karabel in The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton put it:

His own carefully worded assessment of his service in these positions was that it had taken place when the pace of desegregation had been "necessarily more measured than civil rights leaders would have liked." But this was a rather generous interpretation of his role in the years after the Brown decision, for when Powell stepped down as chairman of the Richmond School Board in 1961, after eight years of service, only 2 of the city's 23,000 black children attended school with white children. And during his two terms with the state Board of Education, Powell's sympathetic but fair-minded biographer reports that "he never did any more than was necessary to facilitate desegregation …[and] never spoke out against foot dragging and gradualism."

I mean no disrespect to Lewis Powell, who I believe was on balance a good jurist. But when the right thing to do was stand on principle in the face of demands for expedience, Stanley Mosk was the one to call on, not Powell. Powell's reputation as a serious supporter of civil rights is undeserved. A former ABA president, he could be described as a conciliator, or he could be described as a man who was disinclined to rock the boat. Both were accurate; the two description of Powell's temperament are one and the same. Whether it is a virtue or vice depends on the situation.

Given the mounting evidence that race-preferences make minority students less likely to succeed, Mosk's use of the term "dubious expediency" seems prescient.

Replies to Comments on a Constitutional Amendment to Repeal the Natural Born Citizen Clause

In this post, I reply to many of the posted comments on my proposed amendment to repeal the Natural Born Citizen Clause. To keep it simple and to move things along, I've paraphrased and combined or divided the comments in various ways. Hopefully I have hit the substance even if my altered phrasing has dissipated some of the energy in the original comments.

Has anyone in Congress sponsored this proposed amendment yet? No, not yet. Please pass along any leads. If the amendment starts out as a proposal from Democrats, it's unlikely to garner Republican support. But this effect is not symmetrical. To succeed, we should probably be looking to start with Republican lawmakers.

What about Senator Mitch McConnell as a lead sponsor? Bad idea because Secretary Elaine Chao is a naturalized citizen. If the proposal could plausibly be characterized as designed to advance the candidacy of any particular person, it will be tainted as partisan and will not garner the requisite ⅔ support to get out of Congress. One reason something like this failed the last time around is that it was viewed as the Arnold Amendment. (Among Senate Republicans now, best lead sponsor would probably be Senator John Cornyn or Senator Mike Lee.)

To combat the worry about advancing a particular candidate, why not include a lag period after ratification before the amendment becomes effective as law? Great idea. In addition to a provision stating that the proposed amendment must be ratified within a certain period of time before it expires as a proposal, Congress should also include an effective date that says this amendment shall not become effective until X years after it is ratified. (X should probably be somewhere between 5 and 7, so … 6.)

Given how little so many people care about this amendment already, won't the addition of a lag period make them care even less? No. People who don't care about the amendment won't care about its effective date.

Isn't it a problem that so few people care about this amendment? Not a problem that would prevent ratification. The Twenty-Seventh Amendment—our most recent—didn't inspire strong sentiments. And yet there it is in the Constitution.

If very few people care much about this amendment, why would anyone sponsor it? Putting aside the fact that it is good for America generally, uses include: (1) deflection of false "anti-immigrant" accusations based on a lawmaker's stance against illegal immigration; (2) attraction of votes from naturalized citizens and their friends; (3) rejection of "blood and soil" nationalism.

Is there a risk that ratifying this amendment would open things up in a way that could result in other amendments being proposed and ratified? Sure, but that's a good thing. Most of our constitutional change these days takes the form of judicial updating. It would be nice if we instead stepped up and took responsibility for our deferred constitutional maintenance ourselves. One reason to start with something like this amendment is to show that we shouldn't be scared of what others will do with constitutional amendments. The threshold for ratification is so high that something truly bad for America is very unlikely to make it through.

Have you considered whether the Fourteenth Amendment implicitly repeals the Natural Born Citizen Clause? I have, and it doesn't. On a legal blog like this, an adequate explanation for my answer to this question calls for a separate post. Please check in later this week.

Shouldn't there be a length-of-citizenship requirement for President like there is for Congress? Maybe so. I'm inclined to think that fourteen years of residency is enough, as Article II already requires. But if you prefer length-of-citizenship over length-of-residency, that is easy enough to accomplish in this amendment.

Why not just change the eligibility requirements to require 35 years of citizenship? There is a certain attraction to this proposal, which has been introduced previously. It's not my leading proposal because the birth, age, and length-of-residence requirements currently in Article II are in there for different reasons, and I have no objection to either the age or length-of-residence requirements. It might be simplistic, but the basic idea is simply to take out language that serves no good purpose well.

What about competing loyalties to country of birth for a candidate who is a naturalized citizen? Let's remember we're only talking about eligibility. Presumably voters can decide about allegiance. And there's no good reason to treat circumstances of birth as a reliable proxy. (The Manchurian Candidate was born in the United States.) With respect to competing loyalties more generally, the naturalization process requires a choice and newly naturalized Americans are akin to converts.


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