8/14/1935: President Roosevelt signs into law the Social Security Act of 1935. The Supreme Court upheld the constitutionality of this law in Helvering v. Davis (1937).
Today in Supreme Court History: August 14, 1935
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Center for Investigative Reporting (Mother Jones/Reveal) Hiring First Amendment Fellow for One Year
The Center for Investigative Reporting (CIR), home to Mother Jones, Reveal, and CIR Studios, is hiring a full-time remote First Amendment Fellow to join our legal department. This one-year paid position will allow the fellow the chance to work closely as an associate with in-house counsel.
Responsibilities:
- prepublication review of articles, podcasts, documentaries,
- intellectual property matters,
- news gathering questions,
- reviewing and editing amicus briefs,
- helping reporters file and write appeal letters for public records requests,
- filing and litigating freedom-of-information, court-access as well as defending libel suits and other litigation matters.
Qualifications:
- be a junior attorney or 2025 law school graduate
- have an outstanding academic record with excellent research and writing skills,
- have an exceptional ability to work with a large and diverse staff,
- have demonstrated deep interest in media law and the First Amendment,
- a great sense of humor and exceptionally collegial, and
- an ability to multitask and work under deadline pressure.
Please note: Preference will be given to students with public interest funding. The fellowship is designed to be both a learning and work experience for a new lawyer excited about media law and the First Amendment. To be clear, the position is not budgeted to lead to employment after one year.
Applications for the Fellow can be found here.
Court Issues Preliminary Injunction Against UCLA, Stemming from Risk of Repetition of Exclusion of Jewish or Pro-Israel Students from Parts of Campus
If participants in unauthorized encampments exclude Jewish or pro-Israel students from walking in parts of campus, UCLA would then have to close those parts to everyone.
From today's order by Judge Mark Scarsi (C.D. Cal.) in Frankel v. Regents:
In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion….
On April 25, 2024, a group of pro-Palestinian protesters occupied a portion of the UCLA campus known as Royce Quad and established an encampment. Royce Quad is a major thoroughfare and gathering place and borders several campus buildings, including Powell Library and Royce Hall. The encampment was rimmed with plywood and metal barriers. Protesters established checkpoints and required passersby to wear a specific wristband to cross them. News reporting indicates that the encampment's entrances were guarded by protesters, and people who supported the existence of the state of Israel were kept out of the encampment. Protesters associated with the encampment "directly interfered with instruction by blocking students' pathways to classrooms."
Plaintiffs are three Jewish students who assert they have a religious obligation to support the Jewish state of Israel. Prior to the protests, Plaintiff Frankel often made use of Royce Quad. After protesters erected the encampment, Plaintiff Frankel stopped using the Royce Quad because he believed that he could not traverse the encampment without disavowing Israel. He also saw protesters attempt to erect an encampment at the UCLA School of Law's Shapiro courtyard on June 10, 2024.
Similarly, Plaintiff Ghayoum was unable to access Powell Library because he understood that traversing the encampment, which blocked entrance to the library, carried a risk of violence. He also canceled plans to meet a friend at Ackerman Union after four protesters stopped him while he walked toward Janss Steps and repeatedly asked him if he had a wristband. Plaintiff Ghayoum also could not study at Powell Library because protesters from the encampment blocked his access to the library.
And Plaintiff Shemuelian also decided not to traverse Royce Quad because of her knowledge that she would have to disavow her religious beliefs to do so. The encampment led UCLA to effectively make certain of its programs, activities, and campus areas available to other students when UCLA knew that some Jewish students, including Plaintiffs, were excluded based of their genuinely held religious beliefs.
Intel N.Y.-Based Israeli Employee Alleges Firing Over Complaints of Executive's Pro-Hamas Posts, Seeks Pseudonymity
From a motion filed today in Doe v. Intel Corp. (S.D.N.Y.); for more on the underlying lawsuit, see Intel Axes Israeli NYC Engineer Who Complained About Boss 'Liking' X Posts Cheering Hamas: Suit (N.Y. Post, Beri Kochman):
John Doe is a Jewish Israeli executive at Intel, a global multi-technology company, who proudly served in the Israeli Defense Forces ("IDF") before joining the company. At Intel, John Doe was forced to report to a supervisor—Intel Vice President Alaa Badr ("Badr")—who was openly and proudly supporting the terrorist organization Hamas and celebrating the deaths of Israelis after Hamas's brutal October 7, 2023 attacks on Israel which took the lives of over 1,000 innocent Israelis while hundreds more were taken captive by the terrorist group. Indeed, Badr openly liked social media posts—for anyone to see—celebrating the death of IDF soldiers, like John Doe, and celebrating "successful" Hamas missile strikes, including one that struck Mr. Doe's family home. In no uncertain terms, the heinous acts doled by Hamas on October 7, 2023 changed the landscape of the modern world for Israeli Jewish citizens worldwide.
The Israel-Hamas War that erupted after Hamas's October 7th attack has led to a frenetic and violent rise in hate crimes against Jews around the world, but specifically in New York where Plaintiff resides. According to the Anti-Defamation League (the "ADL"), antisemitic incidents in New York soared 110 percent in 2023—the highest number the ADL has ever recorded in New York and the second-highest number reported in any state across America. Indeed, nearly 14 percent of all antisemitic incidents reported nationwide in 2023 took place in New York State, and in the fourth quarter of 2023 alone, the ADL recorded 815 antisemitic incidents in New York. These statistics, of course, only reflect the number of reported incidents. The actual numbers are likely significantly higher.
New York City Mayor Eric Adams recognized the inherent danger that Jewish people in New York face when he said that after October 7th, he was seeing a "normalization of antisemitism in New York…" while district attorneys representing all 62 counties in New York recognized the increase in violence, condemned violence against Jewish people and pledged to prosecute hate crimes aggressively. Despite this, however, violence against Jewish people in New York has continued to escalate in 2024 with antisemitic hate crimes climbing sharply by 45 percent in the first quarter of the year. According to New York Police Department ("NYPD") data, in July 2024 alone, the NYPD investigated 30 anti-Jewish offenses, and there have been 229 antisemitic hate crimes reported in just the first seven months of 2024.
These statistics speak to the reality that all Jewish people are facing, but former IDF personnel—like John Doe—are at an even greater risk of being targeted both domestically and by foreign actors if they are revealed to be former IDF military members. There have been countless reports of individuals being attacked simply for wearing IDF clothing. As a result, John Doe publicly stating he served in the IDF and bringing these claims places him in significant danger of being subjected to harassment, threats, and physical violence. Given the heightened violence in both the United States and Israel since the October 7th massacre, Plaintiff has a reasonable fear of retaliatory physical harm to both himself and his family if he is publicly named.
No Pseudonymity for Hindu Plaintiffs Challenging Enforcement of California Caste Discrimination Ban
From Hindu American Found. v. Kish, decided today by Judge Dale Drozd (E.D. Cal.):
[P]laintiff HAF [and nine individual plaintiffs, including three Doe plaintiffs, seek] declaratory and injunctive relief against defendant Kevin Kish, in his official capacity as the director of the California Civil Rights Department …, for allegedly violating the constitutional rights of all Hindu Americans by initiating a Fair Employment and Housing Act … enforcement action in state court against Cisco Systems, Inc. … for discrimination, harassment, and retaliation against an employee based on his caste status. Plaintiff HAF alleges that the Department's discrimination suit brought against Cisco … violated the … Free Exercise Clause … and the Due Process and Equal Protection Clauses … by linking the practice of caste discrimination to Hinduism….
The Ninth Circuit has identified three situations in which parties have been allowed to proceed under pseudonyms: "(1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve privacy in a matter of sensitive and highly personal nature; and (3) when the anonymous party is compelled to admit [his or her] intention to engage in illegal conduct, thereby risking criminal prosecution …." A party requesting to proceed pseudonymously has the burden of showing that their "need for anonymity outweighs prejudice to the opposing party and the public's interest in knowing the party's identity."
If a party seeks to sue pseudonymously based on retaliatory harm, courts apply a five- factor balancing test that weighs: "'(1) the severity of the threatened harm, (2) the reasonableness of the anonymous party's fears, … (3) the anonymous party's vulnerability to such retaliation,' (4) the prejudice to the opposing party, and (5) the public interest." The first two factors are the most important….
To proceed under pseudonyms, "a plaintiff must show both (1) a fear of severe harm, and (2) that the fear of severe harm is reasonable." Here, the Doe plaintiffs argue that, as Hindus who reside or work in California, "they are vulnerable … to being individually sued by the [Department] in retaliation for participating in this action;" and they may experience "physical, mental, and economical harm from those around them, including but not limited to prospective employers, co-workers, and persons they interact with on a daily basis." However, the evidence presented by the Doe plaintiffs in the declarations they have filed in support of their motion falls short of persuading the court that consideration of these factors weigh in their favor.
Protesting Outside School, Calling Principal a Racist, Is Protected by the First Amendment
From Johnson v. Knox County Bd. of Ed., decided Mar. 31 by Judge J. Ronnier Greer (E.D. Tenn.), but just recently posted on Westlaw; seems correct to me:
Plaintiffs allege the following facts: On the afternoon of March 31, 2022, Rebekiah Johnson, and her young adult son Shaque Johnson went to New Hopewell Elementary, where Brandon Pratt was the principal, "to bring attention to the racism within the schools and administration that the Johnsons had experienced through Principal Brandon Pratt." Shaque Johnson stood across the street from one of the parking lot exit/entrances holding a sign that stated, "Mr. Pratt was wrong. Read eagleswithcolor.com" on one side and "the TRUTH about Principal Pratt, eagleswithcolor.com" on the other side. Rebekiah Johnson walked along the street on the side of the school with her sign that read "Mr. Pratt is racist. eagleswithcolor.com" on one side, while the other side read, "The Community needs to know! eagleswithcolor.com." Rebekiah Johnson and her son were on the street, which is public property. As parents arrived to pick up their children, Rebekiah Johnson walked between the two exits/entrances holding her sign.
The SRO [School Resource Officer] approached Rebekiah Johnson and told her she needed to move across the street. Rebekiah Johnson told him that "she was on public property and had a right to stand where she was standing." The officer replied, "Yes … as long as you don't go behind the fence." At that time, Rebekiah Johnson was standing nearly thirty feet away from the fence. The SRO then walked away. Rebekiah Johnson continued walking along the street with her sign and only spoke with people who asked her a question. She did not impede traffic or create a disruption.
Meanwhile, Shaque Johnson stood silently across the street from the other exit of the school so parents could see his sign as they left the school parking lot. While he stood there, the SRO and another older white gentleman who was later identified as Fred Wade, a teaching assistant at New Hopewell Elementary School, walked along the school driveway and stood near the exit. Wade began addressing Shaque Johnson across the street. He seemed angry and the SRO was carrying a gun, so Shaque Johnson began recording the interaction on his phone. Wade yelled at him from across the street, stating that Shaque Johnson "could not be recording." Shaque Johnson told Wade he could record and Wade threatened to take Shaque Johnson's phone from him. When most of the cars had left the parking lot, Wade and the SRO walked away. "Once the school driveway was pretty much cleared out Rebekiah and Shaque Johnson decided to pack up their signs to leave."
On April 7, 2022, Rebekiah Johnson received a letter from Investigator Martin Timms. The letter stated, "It has come to the attention of the Knox County Schools Security Division that your recent protest at New Hopewell Elementary School has been inappropriate and disruptive. As a result of this behavior, you are being issued a civility code letter." The letter cited Knox County Board of Education Policy B-230 and stated, "Further violations in Knox County Schools Board Policy B-230 may result in you being banned from coming on to any property owned or controlled by Knox County Schools." Finally, the letter stated that Rebekiah Johnson needed to make herself aware of Tenn. Code Ann. §§ 39-14-405, 39-14-406, and 39-17-305." Rebekiah Johnson needed to be able to access KCBOE property to pick up her younger children, who attended Knox County schools other than New Hopewell Elementary. After receiving the letter, she and Shaque Johnson did not protest against Principal Pratt again….
The court allowed much of the plaintiffs' First Amendment case to go forward:
Case Over Handcuffing and 30-Minute Detention of Concealed Carry Permit Holder Can Go Forward
"[A] person in possession of a firearm and a facially valid permit for that firearm had a clearly established right to be free from the kind of forcible and prolonged detention to which Soukaneh was subjected, absent any objective reason to suspect that the permit was forged or otherwise invalid."
From yesterday's Second Circuit decision in Soukaneh v. Andrzejewski, decided by Judge Eunice Lee, joined by Judges Gerard Lynch and Beth Robinson:
The evidence, taken in the light most favorable to Plaintiff-Appellee Basel Soukaneh, would permit a reasonable jury to find that in the course of a routine traffic stop, [Nicholas Andrzejewski, a Waterbury, Connecticut police officer] unlawfully and violently handcuffed and detained Soukaneh in the back of a police vehicle for over half an hour and conducted a warrantless search of Soukaneh's vehicle after Soukaneh presented a facially valid firearms permit and disclosed that he possessed a firearm pursuant to the permit. On appeal, Andrzejewski argues that we should reverse the district court's denial of qualified immunity because the presence of the lawfully owned firearm in the vehicle gave him the requisite probable cause to detain Soukaneh, search the interior of his car, and search his trunk….
Andrzejewski argues that … his actions … were justified because he had both "a reasonable suspicion of possible criminal activity" and "probable cause to detain [Soukaneh] and search his person and his vehicle" once he was made aware of the presence of a gun in the vehicle—even absent any articulable basis to question the permit's validity….
The desire to confirm the legitimacy of the facially valid firearms permit that Soukaneh presented did not—with nothing more—provide Andrzejewski with probable cause for the half-hour or longer handcuffed detention that occurred. It is uncontested that Soukaneh presented Andrzejewski with a gun license, the legitimacy of which Andrzejewski himself admits he had no reason to question. Moreover, Andrzejewski concedes that he was informed of the facially valid license before Soukaneh told him that he had a gun and specified its location.
State May Not Deny Grants to Charity Based on Its Religious Discrimination in Employment, When
the state had allowed other organizations to get grants despite their discriminating based on race and sex—so suggests the Ninth Circuit in a recent decision granting an injunction pending appeal.
From Thursday's decision in Youth 71Five Ministries v. Williams, decided by Judge Kenneth Lee, joined by Judges Bridget Bade and Danielle Forrest:
Youth 71Five Ministries (71Five) is a Christian organization that serves and mentors at-risk youths of all backgrounds, including those who are not Christian. But 71Five hires only those who share its faith and can thus advance the group's mission and message. Once the state of Oregon learned of this hiring practice, it canceled $410,000 in grants to 71Five, asserting that the group violated the state's non-discrimination policy. The district court denied 71Five's motion for a preliminary injunction, and 71Five has now filed an emergency motion seeking an injunction pending appeal of the district court's order.
We grant the injunction and set an expedited briefing schedule for the appeal. We hold that 71Five is likely to succeed on the merits. Under the Free Exercise Clause of the First Amendment, the government must treat secular and religious groups equally. But Oregon has not applied its non-discrimination policy neutrally, as it continues to fund secular organizations that favor certain groups based on race and gender identification in violation of the same non-discrimination policy that Oregon relied on in denying funding to 71Five….
71Five is a nonprofit, Christian ministry in Medford, Oregon that provides services and mentoring to at-risk youth. Its name derives from Psalm 71:5, which says, "Lord God, you are my hope. I have trusted you since I was young." 71Five provides youth centers in two southern Oregon counties "where students can have a safe and supportive place to hang out and develop meaningful relationships" and enjoy free meals and team activities. It also sponsors a community-based ministry to "transform the lives of inner-city youth" by having them "know God and … serve their communities." In addition, 71Five provides "voluntary Bible studies," "one-to-one visits and mentoring," and "group discussions" for youths in detention centers, group homes, and emergency shelters.
While it serves youths of all backgrounds without regard to religion, 71Five requires that its employees and volunteers "subscribe and adhere without mental reservation" to a statement of Christian faith. As 71Five puts it, it strives to meet the youth's "physical, mental, emotional and social needs," but its main goal is for the youth to "have an opportunity of having a personal relationship" with Jesus Christ….
First Amendment Right to Post Videos of One's Disability-Claim Medical Examination
From yesterday's opinion in Ten Injured Workers v. State (Wash. Ct. App.), written by Chief Judge Lori Smith, joined by Judges Stephen Dwyer and Leonard Feldman; I'm not sure the analysis is quite right, but the result seems correct:
In 2023, the legislature amended RCW 51.36.070 to allow injured workers to audio and video record their independent medical examinations (IMEs) [conducted for purposes of disability pay claims -EV]. However, subsection (4)(g) of the statute forbids workers from posting a recorded IME to social media….
As the United States Supreme Court recently noted, one of the most important places for the exchange of views in our modern society is "cyberspace—the 'vast democratic forums of the Internet' in general, and social media in particular." "Social media offers 'relatively unlimited, low-cost capacity for communications of all kinds'" and allows users to "engage in a wide array of protected First Amendment activity on topics 'as diverse as human thought.'"
It is well-established that online posts may constitute speech or expressive conduct. Thus, posts on social media expressing varying views and opinions can be protected forms of speech. But determining whether an online post is speech or conduct presents a complex question, dependent on the context, content, and, at times, the speaker at issue.
County Contractors May Be Required to Report How Many Jews (Among Other Minority Groups) They Employ
From the Wayne County (Mich.) Municipal Code; this is the county that contains Detroit:
Sec. 55-14.—Nondiscrimination by county contractors.
(1) A contractor shall, as a condition of being awarded a contract, certify in writing that it is in compliance with the provisions of Section 120-192 of the Wayne County Procurement Ordinance [which generally bans discrimination based on "race, color, creed, national origin, age, marital status, handicap, sex, religion, familial status, height or weight, or prior criminal conviction(s)"].
(2) Upon request, each prospective contractor shall submit to the County data showing current total employment by occupational category, sex and minority group and shall provide copies of its equal employment opportunity policies and procedures.
Sec. 55-6(17) defines "minority" as:
A person who is Black or African American, Native American, Alaskan native, Hispanic or Latino, Asian, Native Hawaiian or other Pacific Islander, Middle Eastern, Jewish or Caribbean.
Today in Supreme Court History: August 13, 1788
8/13/1788: Federalist No. 85 is published by Alexander Hamilton.
The Fifth Circuit Shuts Down Geofence Warrants—And Maybe A Lot More
An astonishing ruling, and one that creates splits on two differerent issues.
Once in a while there is a court ruling on the Fourth Amendment that just makes my jaw drop. The Fifth Circuit had such a ruling last Friday, United States v. Jamarr Smith. The case creates a split with the Fourth Circuit on one important issue, and it creates another split with the Colorado Supreme Court on an even more important issue.
The new case is about the Fourth Amendment limits of geofence warrants, which are warrants to access location information for users who have opted into having Internet providers retain location history. The Fifth Circuit makes two important holdings. First, accessing any amount of geofence records is a search under an expansive reading of Carpenter v. United States. That's the issue that creates the split with the Fourth Circuit in United States v. Chatrie. As I noted just a few weeks ago, Chatrie held that accessing such records is not a search in the first place, at least if the records sought are relatively limited in scale. The Fifth Circuit expressly disagrees.
Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance. The government can't gather these kinds of online records at all, in other words, even with a warrant based on probable cause. This holding conflicts with a recent ruling of the Colorado Supreme Court, People v. Seymour, and more broadly raises questions of whether any digital warrants for online contents are constitutional.
There's obviously a lot going on in this new decision. Because I have blogged about the search issue several times before, including just last month, I want to focus this post instead on the second ruling—that geofence warrants are not permitted, even with probable cause. I think this ruling is wrong, and that it's very important for it to be overturned. This post explains why.
I. The Legal Context
First, some context. When the government obtains a geofence warrant, the provider is ordered to provide data matching the geofence. The warrant will call for the provider to hand over records made in a particular window of time and that recorded locations in a particular physical area. The provider has a database consisting of location records of the accounts that opted into the service, and the provider—here, Google—searches through the database looking for a match with the records sought in the warrant. Google calls this "Step 1" of its geofence warrant process. If Google finds matches, it then goes through further steps that ultimately gives the government records that are responsive to the warrant.
Warrants have to be particular, and particularity requires two things. First, the place to be searched must be particular. For example, the government can't get a warrant to search an entire city block, or to search the entirety of an apartment building with lots of independent units. The place that is searched through has to be smaller than that, like a single business or (more often) a single house. Second, particularity requires a particular description of the thing to be seized. The government can only take the evidence or contraband that is evidence of the crime.
Most discussions of particularity are about the particularity of the things to be seized. Prior discussions of particularity for geofence warrants have focused on that. The issue has been, how broad can the warrant can be in terms of how much time and space the warrant can cover? A geofence warrant orders the provider to hand over records that were of users in a particular area for a particular span of time. A warrant might cover, say, within a mile of where the crime occurred, for, say, the 30 minutes before the crime occurred and up to 30 minutes after it. But that kind of particularity is about how broad the records can be that the government gets.
The issue in Smith is about the first kind of particularity—the place to be searched.
II. The Warrant Ruling
Smith rules that the database that Google has created, through which Google looks for matches with the data described in the warrant, is just too big to search. Google combines all of its location records from all of its users worldwide into a single database, covering an estimated 592 million people, that it calls Sensorvault. When Google queries that Sensorvault database, the Fifth Circuit holds, it is scanning through a "place" too big for the Fourth Amendment to allow.
Here's the entirety of the court's above-the-line analysis on this issue, with italics in the main text in the original:
When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.
Geofence warrants present the exact sort of "general, exploratory rummaging" that the Fourth Amendment was designed to prevent. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); see also Riley, 573 U.S. at 403; Geofence Warrants and the Fourth Amendment, [Kerr note: A student note cited 10 times in the opinion] supra at 2519. In fact, Google Maps creator Brian McClendon has called these warrants "fishing expedition[s]," and explained that Google employees originally assumed law enforcement would only seek Location History data on specific people—a reality that did not come true. Jennifer Valentino-DeVries, Tracking Phones, Google Is a Dragnet for the Police, N.Y. Times (Apr. 13, 2019), https://perma.cc/NCF3-H5DP. "Awareness that the government may be watching chills associational and expressive freedoms." Jones, 565 U.S. at 416 (Sotomayor, J., concurring.). And, when these core rights are at issue, the warrant requirement must "be accorded the most scrupulous exactitude." See Stanford, 379 U.S. at 485.
Here, the Government contends that geofence warrants are not general warrants because they are "limited to specified information directly tied to a particular [crime] at a particular place and time." This argument misses the mark. While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.
In sum, geofence warrants are "[e]mblematic of general warrants" and are "highly suspect per se." Geofence Warrants and the Fourth Amendment, supra at 2520; Amster & Diehl, Against Geofences, [Kerr note: A student note cited 13 times in the opinion] supra at 433– 34; Chad Marlow & Jennifer Stisa Granick, Celebrating an Important Victory in the Ongoing Fight Against Reverse Warrants, ACLU (Jan. 29, 2024), https://perma.cc/SC2R-S7PJ ("The constitutionality of reverse warrants is highly suspect because, like general warrants that are prohibited by the Fourth Amendment, they permit searches of vast quantities of private, personal information without identifying any particular criminal suspects or demonstrating probable cause to believe evidence will be located in the corporate databases they search."); Chatrie (App.), 107 F.4th at 353 (Wynn, J., dissenting) ("[A] [geofence] warrant is uncomfortably akin to the sort of 'reviled' general warrants used by English authorities that the Framers intended the Fourth Amendment to forbid.").
This court "cannot forgive the requirements of the Fourth Amendment in the name of law enforcement." Berger v. New York, 388 U.S. 41, 62 (1967). Accordingly, we hold that geofence warrants are general warrants categorically prohibited by the Fourth Amendment.
The court does go on to say the good-faith exception applies here and so there is no suppression, but that particular ruling is tiny potatoes. It's the warrant ruling that is the serious biggie here.
III. My Take On Why The Warrant Ruling Is Wrong
I think the Fifth Circuit's warrant ruling is wrong— and not just wrong, but basically bananas. Here are three reasons why, together with an explanation of why the stakes of the case are so high.
First, the ruling conflicts with the Supreme Court's precedents on warrant particularity. The Fifth Circuit's decision relies heavily on two law student notes. It quotes an ACLU blog post. It also quotes a Wall Street Journal article. But it doesn't even mention the Supreme Court's relevant caselaw on warrant particularity. And that authority, it seems to me, conflicts with the Fifth Circuit's ruling.
An especially relevant case is United States v. Karo, which considered the Fourth Amendment implications of installing and monitoring a location tracker in physical space. The Supreme Court had previously ruled that no search occurred when the tracker recorded beeper locations while the beeper was out on public roads. Karo ruled that a search did occur when the tracker was brought inside a home and registered locations inside.
The relevant part of Karo is the Court's reply to an argument the government made about warrant particularity. No warrant was needed to use a tracker, the United States argued, because it wasn't possible to draft a particular warrant. After all, the whole point of using the beeper is to find the location of the item that the suspect has, and thus to locate the suspect. If you don't know where the beeper is, then you can't specifically describe the place to be searched. And if you can't specifically describe a place to be searched, you can't get a warrant. Thus, the surveillance should be allowed without a warrant, the government reasoned.
The Supreme Court responded by rejecting the premise and explaining how to draft a warrant in such cases to match the Fourth Amendment particularity standard:
It will still be possible to describe the object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested. In our view, this information will suffice to permit issuance of a warrant authorizing beeper installation and surveillance.
It seems to me that this controls Smith, too. The warrant problem in Karo was a lot like the problem in geofence warrant cases. The "place to be searched" is basically everywhere. The search would occur wherever the beeper happened to go. But instead of saying that no warrant could be obtained, the Supreme Court in Karo articulated a way to draft warrants to allow the surveillance. The place to be searched was the object into which the beeper is to be placed, with the particularity being provided by the length of time for which beeper surveillance is requested.
I personally don't think geofencing is a search in the first place, as I have argued before. But if we are to say that geofencing is a search, it seems to me that the approach from Karo should govern here. Following Karo, the particularity should be provided by a description of the database into which the query is made, combined with the length of time (and amount of geographic space) the warrant covers. We can argue about how long a period is permissible, and how big a geographic space is permissible. But the idea that there is a cap on the size of the database seems hard to square with Karo.
Unfortunately the Fifth Circuit doesn't discuss Karo, so we don't know what the panel's response to it might be.
Second, the warrant ruling seems hard to square with Carpenter v. United States. The notion that warrants cannot be obtained to search through particularly large databases also strikes me as hard to square with the Supreme Court's ruling in Carpenter, the case on which the Fifth Circuit's own search ruling is based.
Carpenter made two important rulings. First, the Court ruled that access to at least long-term cell-site location information (CSLI) is a search. Carpenter then took on a second issue: Does the government need a warrant to compel CSLI, or can it be compelled with just a subpoena? The Court ruled that a warrant was required: Read More
The Logic of Voting for a Lesser Evil—and Other Writings on the Morality of Voting
Compendium of some of my work on the rights and wrongs of voting.
We are in the midst of another election cycle. And I'm far from the only person who thinks the available options are far from great. This situation, like other recent elections, raises difficult questions about such issues as whether people have a duty to vote, whether it is permissible to vote for a badly flawed candidate if the alternative is even worse, and how to balance competing issues in making voting decisions.
I've written about these kinds of issues in some detail, previously, and this post links and and summarizes some of those writings. It is not a post about which 2024 presidential candidate is best (or least bad), though I will likely write about that on a later occasion. It's about how we should make such decisions. Unless otherwise noted, these pieces were all published right here at the VC blog:
1. "The Logic of Voting for a Lesser Evil"
This post was inspired by the 2016 election, but almost all of it remains relevant today. In it, I explain why it is both permissible and desirable to vote for the lesser evil in an election where all of the viable options are bad. I address a variety of counterarguments, including claims that voting for a lesser evil makes you morally complicit in that candidate's wrongdoing, arguments that it's better to cast a "protest vote" for a candidate that has no chance of winning, arguments based on the very low probability that your vote will be decisive, and more. Here's a brief excerpt:
Imagine an election where the only options are Queen Cersei from Game of Thrones, and Sauron, the Dark Lord from Tolkien's Lord of the Rings. If Cersei wins, she will kill many innocent people, and oppress others. But she will leave much of the population more or less alone (as long as they don't openly oppose her or threaten her family in any way). If Sauron wins, he will kill far more innocent people, and make the survivors his slaves.
You can instead cast a protest vote for a vastly better alternative, such as Gandalf….. But, by assumption, these are purely symbolic options, because they have zero chance of prevailing. If the protest voter would otherwise have backed Cersei, the net effect of his decision to protest is to increase the likelihood of the worst possible outcome: the triumph of Sauron.
Under those circumstances, it seems clear that a person who ensures a Cersei victory has done a good deed. He or she will have saved large numbers of people from slavery or death, even though the Cersei regime would be a deeply unjust one.
The Cersei-Sauron hypothetical was obviously inspired by the contest between Trump and Hillary Clinton, and is an exaggerated version of that tradeoff. But I think it works for Trump v. Harris—and many other elections—as well.
Notice how my logic is different from that of those who say you can only vote for a candidate if he or she meets some minimal threshold of character or good policy. On my approach, it is morally justifiable to vote for almost any candidate—even a cruel despot like Cersei—so long as the only feasible alternatives are even worse.
Canadian columnist John Robson responded to my piece in the National Post, and I, in turn, posted a rejoinder.
2. "Justifying a Moral Duty to Vote is a Lot Harder than You Might Think."
Many people, including some political theorists, believe we have a moral duty to vote. I disagree. Indeed, I think—in many cases—it's better if you don't vote, especially if ignorance and bias make it likely you will make a bad decision. Casting a ballot motivated by ignorance and bias is often worse than not voting at all.
3."Is there a Moral Duty to Vote in an Election Where the Stakes are Unusually High?"
Even if there is no general duty to vote, perhaps we are morally required to do so in situations where the stakes of an election are unusually high. In this post, I explain why I disagree—at least with respect to most voters. There is, however, a limited kernel of truth in this argument. An excerpt:
There is a kernel of truth to the claim that you have a duty to vote if the stakes are high enough. But the resulting moral duty applies far less often than advocates of the argument tend to assume. And the same reasoning actually implies many people have a moral duty not to vote.
Let's start with the kernel of truth. Imagine there's an election for a powerful political office that pits Gandalf (the benevolent wizard in J.R.R. Tolkien's Lord of the Rings) against Sauron, the despotic dark lord from the same story. If Sauron prevails, millions of people will die or be enslaved, while Gandalf would rule justly if he manages to win. And all you have to do to ensure Gandalf's victory is check his name on a ballot. If you do so, Gandalf wins; if not, Sauron does.
In this scenario, it seems like you have a moral duty to vote for Gandalf, at least barring some kind of extraordinary exigent circumstance. In a real election, of course, the odds that your vote will make a difference are far smaller than in this stylized example….
However, a large enough difference between the two candidates could potentially justify a duty to vote for the "right" candidate, even if the odds of casting a decisive ballot are very low….
But notice that the duty in question is not an obligation to participate in the process for its own sake. It's a duty to help good triumph over evil in a situation where you can do so at little or no cost. If you have a moral duty to vote for Gandalf in these types of scenarios, it follows that you also have a moral duty not to vote for Sauron. Indeed, the person who votes for Sauron is more worthy of condemnation than the one who merely abstains. The former is actively helping evil win, while the latter "merely" chooses not to help stop it.
While Gandalf supporters may have a duty to vote, Sauron supporters actually have a duty to abstain from doing so. Ideally, they should stop supporting Sauron entirely. But they at least should not take any actions that increase the likelihood of his victory.
All of the above analysis assumes that the voter knows which candidate is superior and to what degree. But, in reality, we have widespread political ignorance, and most voters often don't even know very basic facts about how government and politics work. Most are also highly biased in their evaluation of the information they do know….
Unless and until a voter becomes well-informed about the issues and at least reasonably objective in his or her evaluation of political information, she has good reason to question her judgment about which candidate is superior, much less by how much. Thus, she cannot conclude she has a duty to vote to help the "right" side win. She may instead have a presumptive duty to abstain from voting until she meets at least some minimal threshold of political knowledge….
Later in this piece, I not some possible exceptions to situations to the presumptive duty to abstain; there are unusual situations where ignorant voting really is better than no voting, and even unusual situations where ignorance leads to better decisions than knowledge (I expand on the latter possibility in greater detail in Chapter 2 of my book Democracy and Political Ignorance). I also address some other caveats and counterarguments.
Some steps you can take to be a better voter, building on a helpful article in Scientific American. I think a wide range of people can do these things. You don't have to be an academic or policy expert to undertake the task. But I am skeptical that more than a small fraction of the electorate will ever be willing to put in the time and effort.
5. "Suffer the Little Children to Vote"
In this post, I make a tentative argument for letting children vote, so long as they show they have attained a level of political knowledge as high as that of the average adult voter -which is not that high a standard! I expanded on the idea here. I do note the crucial caveat that it may not be feasible to do this, because it's possible government can't be trusted to come up with an objective knowledge test for the children (though we do in fact impose such a test on immigrants seeking to become US citizens). Letting knowledgeable children vote is one of my least popular ideas (which is saying no little, given how many other unpopular views I hold!). But I remain unrepentant about it. My nine-year-old daughter is one of the relatively few fans of this policy.
My proposal should be differentiated from the idea of letting parents cast votes on behalf of their children, endorsed by Republican VP candidate J.D. Vance, among others.
6. "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance," in Hana Samaržija and Quassim Cassam, eds. The Epistemology of Democracy (Routledge, 2023).
Many of the most serious flaws of voting arise from the fact that most voters tend to be ignorant about government public policy, and highly biased in their evaluation of the political information they do know. In this article, I go over a range of possible strategies for mitigating this problem. Here's the abstract:
There is broad, though not universal, agreement that widespread voter ignorance and irrational evaluation of evidence are serious threats to democracy. But there is deep disagreement over strategies for mitigating the danger. "Top-down" approaches, such as epistocracy and lodging more authority in the hands of experts, seek to mitigate ignorance by concentrating more political power in the hands of the more knowledgeable segments of the population. By contrast, "bottom-up" approaches seek to either raise the political competence of the general public or empower ordinary people in ways that give them better incentives to make good decisions than conventional ballot-box voting does. Examples of bottom-up strategies include increasing voter knowledge through education, various "sortition" proposals, and also shifting more decisions to institutions where citizens can "vote with their feet."
This chapter surveys and critiques a range of both top-down and bottom-up strategies. I conclude that top-down strategies have systematic flaws that severely limit their potential. While they should not be categorically rejected, we should be wary of adopting them on a large scale. Bottom-up strategies have significant limitations of their own. But expanding foot voting opportunities holds more promise than any other currently available option. The idea of paying voters to increase their knowledge also deserves serious consideration.
I expand upon the foot-voting approach to mitigating political ignorance in more detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. Sadly, neither this strategy for dealing with political ignorance nor any other is likely to be enacted in time for this year's election! Any serious reform effort will probably take at least some years to have a significant impact.
How to decide which issues to prioritize over others. Not solely about voting. But relevant to voting decisions.
8. "If You Don't Vote, You Still Have Every Right to Complain."
Feeling down after considering the above? This piece might make you slightly happier; even if you don't vote, you are justified in criticizing the policies of the winners! I would add that the same logic shows that, if you vote for the winner on the grounds that she is a lesser evil, you are still justified in complaining about her policies. Vote for Cersei over Sauron, when necessary. But then condemn the evil she does. Just make sure not to be at the wrong place at the wrong time when she decides to purge her critics.
Monday Open Thread
What's on your mind?
Advice to Entering Law Students—2024
Some ideas that might help you make better use of the opportunities available to you in law school.
Law students around the country will be starting classes over the next few weeks. Back in 2018, I wrote a post offering advice to entering students, which I updated in 2019, 2022, and last year. I tried to focus on points that I rarely, if ever, see made in other pieces of this type. I think all three of my original suggestions remain just as relevant today. So I reprint my advice from earlier posts largely unaltered, with the addition of some modest editing and updating:
1. Think carefully about what kind of law you want to practice.
Law is a profession with relatively high income and social status. Yet studies repeatedly show that many lawyers are deeply unhappy, a higher percentage than in most other professions. One reason for this is that many of them hate the work they do. It doesn't necessarily have to be that way. There are lots of different types of legal careers out there, and it's likely that one of them will be a good fit for you. A person who would be miserable working for a large "Biglaw" firm might be happy as a public interest lawyer or a family law practitioner, and so on. But to take advantage of this diversity, you need to start considering what type of legal career best fits your needs and interests.
There are many ways to find out about potential options. But one place to start is to talk to the career services office at your school, which should have information about a range of possibilities. Many also often have databases of alumni working in various types of legal careers. Talking to these people can give you a sense of what life as a practitioner in Field X is really like.
This advice applies not just to what you do in school, narrowly defined, but what you do in the summer, as well. Law students typically get summer jobs at firms or other potential future employers. Apply widely, and look for organizations that might be good employers, or at least introduce you to areas of law that might be crucial for your future career.
The summer clerk job I took at the Institute for Justice after my first year in law school, was a key step towards becoming a property scholar, and helped lead me to write two books and numerous articles about takings. Spending a summer at a public interest firm might change your life, too!
Regardless, don't just "go with the flow" in terms of choosing what kind of legal career you want to pursue. The jobs that many of your classmates want may be terrible for you (and vice versa). Keep in mind, also, that you likely have a wider range of options now than you will in five or ten years, when it may be much harder to switch to a very different field from the one you have been working in since graduation.
2. Get to know as many of your classmates and professors as you reasonably can.
Law is a "people" business. Connections are extremely important. No matter how brilliant a legal thinker you may be, it's hard to get ahead as a lawyer purely by working alone at your desk—even with the help of AI and other modern tech. Many of your law school classmates could turn out to be useful connections down the road. This is obviously true at big-name national schools whose alumni routinely become judges, powerful government officials, and partners at major firms. But it's also true at schools whose reputation is more regional or local in nature. If you plan to make a career in that area yourself, many of your classmates could turn out to be useful contacts.
The same holds true for professors, many of whom have extensive connections in their respective fields. They are sometimes harder to get to know than students. But the effort is often worth it, anyway. And many of them are actually more than eager to talk about their work.
This is one front on which I didn't do very well when I was in law school, myself. Nonetheless, I still suggest you do as I say, not as I actually did. You will be better off if you learn from my mistakes than if you repeat them.
3. Think about whether what you plan to do is right and just.
Law presents more serious moral dilemmas than many other professions. What lawyers do can often cost innocent people their liberty, their property, or even their lives. It can also save all three. Lawyers have played key roles in almost every major advance for liberty and justice in American history, including the establishment of the Constitution, the antislavery movement, the civil rights movement and many others. But they have also been among the major perpetrators of most of the great injustices in our history, as well.
Robert Cover's classic book Justice Accused—a work that made a big impression on me when I was a law student—describes how some of the greatest judges and legal minds of antebellum America became complicit in the perpetuation of slavery. While we have made great progress since that time, the legal system is not as far removed from the days of the Fugitive Slave Acts as we might like to think. There are still grave injustices in the system, and lawyers whose work has the effect of perpetuating and exacerbating them. We even still have lawyers who do such things as come up with dubious rationales for deporting literal escaped slaves back to places where they are likely to face further oppression.
Law school is the right time to start working to ensure that the career you pursue is at least morally defensible. You don't necessarily have a moral obligation to devote your career to doing good. But you should at least avoid exacerbating evil. And it's easier to do that if you think carefully about the issues involved now (when you still have a wide range of options), than if you wait until you are already enmeshed in a job that involves perpetrating injustice. At that point, it may be too late—both for you and (more importantly) for the people harmed.
4. Legal knowledge isn't as different from other kinds of knowledge as you might think.
Students often ask me how best to study for law school classes. My answer is that there isn't one way that's best for everyone. You probably know what works for you far better than I do.
In law school, you are likely to be bombarded with all sorts of complex methods of studying and outlining cases. Advocates of each will often tell you theirs is the One True Path to law school success. Some students really do find these methods useful.
But I would urge you to consider the possibility that you can study for law school classes by using…. much the same methods as you used to study other subjects in the past. If you were successful in social science and humanities classes as an undergraduate, the methods that worked there are likely to carry over.
I know because that's largely what I did as a law student myself. I did the reading, identified key points, and didn't bother with complicated outlines or spend money on study guides. If I did badly in a class, it wasn't for lack of more complex study methods (usually, I either got lazy or just had a bad day on the final exam). And I've seen plenty of other people succeed with similar approaches. You can save a lot of time and aggravation (and some money) that way. And that time, energy, and money can be better devoted to other purposes—including advancing your studies and your career in other ways!
Ultimately, when reading a legal decision (or any assignment), you need to 1) identify the key issues, and 2) understand why they are important. With rare exceptions, the case in question was likely included in the reading because it highlights some rule, standard, or issue that has a broader significance. If you know what that is and why it matters, much of your work is done. The same goes for most other kinds of assigned reading: they are probably there because the professor thinks they elucidate some broadly important point. Figure out what it is, and you will be in good shape.
The experience of the Covid-19 pandemic has highlighted the importance of Point 2. The loss of much in-person contact was a serious problem, one we would do well to avoid repeating.
I don't think I need to dwell on how the events of the last few years have reinforced the significance of Point 3. Suffice to say there are many recent examples of lawyers facilitating both good and evil. Even if you don't maximize the former, you should at least avoid contributing to the latter.
"Why You Should Feel Good About Liberalism" "in the Tradition of Locke, Kant, and the Founders"
"We need to get better at standing up for the greatest social technology ever devised."
From the always thoughtful and readable Jonathan Rauch, in Persuasion; some excerpts, though the whole thing is much worth reading:
Never in my lifetime have critiques of Locke, Smith, Mill, the British Enlightenment, and the American founding emanated from so many different quarters, attacked from so many directions, and sounded so scathing and confident. The liberal tradition has been undone by its amorality (says the right) and its injustice (says the left); it has, they charge, made society unfair, politics narcissistic, and truth meaningless.
Above all, they charge, liberalism has lost the confidence of the public—and of liberals….
[Yet] no viable system has emerged that can come close to replicating liberalism's capacity to produce knowledge, prosperity, freedom, and peace. In fact, both on its own terms and compared with all the historic alternatives, liberalism has delivered spectacular results. It is the greatest social technology ever invented, and well ahead of whatever comes second.
This paradoxical situation has me scratching my head, and I'm not alone. Why is liberalism so widely challenged and attacked, and so defensive and self-doubting, when it has so much to brag about? Increasingly, I have come to think we must look for an answer not just in liberalism's failures—though there certainly are some—but in liberals' failure of nerve….
New Faculty-Edited Law Journal
Looks like an excellent project, and with top editors:
Launching JLEA
Journal of Law and Empirical AnalysisThe Journal of Law and Empirical Analysis solicits papers that offer empirical evidence on questions of importance for the law. In addition to rigorous work permitting causal inference, it is open to qualitative research, intriguing correlations, registered reports, and methods papers.
JLEA provides a forum for interdisciplinarity and encourages contributions from lawyers, economists, political scientists, sociologists, criminologists, psychologists, computer scientists, and any other social or natural science.
The editors aim to provide the fastest responses possible consistent with peer review. In particular, our goal is to provide an initial decision in 6-8 weeks. Accepted articles will be published continuously as soon as they are ready.
The journal is completely open access, and there are no publication or article processing fees.
The first issue is available at https://journals.sagepub.com/home/LEX.
The editors in chief are:
Is Saying a Fellow Servicemember (Not to Her Face) Is a "Slut" a Crime in the Military?
From U.S. v. Truitt, decided earlier this month by the U.S. Coast Guard Court of Criminal Appeals, in an opinion by Judge Kurt Brubaker, joined by Chief Judge Lane McClelland and Judge Herbert Claiborne Pell:
In this case, we examine the boundaries of the Coast Guard's punitive order prohibiting sexual harassment. Appellant was the leading petty officer of Coast Guard Sector San Francisco's machinery technician shop. She was in a locker room with Machinery Technician Second Class (MK2) TC, who had recently joined the shop. The two were alone, chatting as they changed clothes. While talking about people within the shop, Appellant referred to Seaman (SN) SA, a junior enlisted member of the shop, as "[a] sector slut." MK2 TC testified she found the comment offensive and was "shocked," but said nothing until, about three weeks later, she relayed the comment to SN SA.
During a meeting with junior enlisted members of the shop, Appellant asked whether they felt they could trust her. SN SA said she did not because she heard what Appellant had called her. After the meeting, Appellant said, "You know I didn't mean it. You're like a little sister to me." …
A military judge, sitting as a special court-martial, convicted Appellant of … violating ALCOAST Commandant's Notice (ACN) 003/20, dated 7 January 2020, by sexually harassing SN SA. [Discussion of other charges, related to unrelated misconduct, omitted. -EV] …
