The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Supreme Court

Did Justice Jackson Disclose the Outcome in Relentless and Loper-Bright?

Did we get a hint to the outcome in one of this term's bigger cases at today's oral argument?

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I was listening to the oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System today, and I was struck by the following exchange (from the transcript):

JUSTICE JACKSON: If I understand you correctly, each new company that is created in an industry can suddenly bring a challenge that might risk or undermine valid –invalidation of the entire basis of the industry, each new company, because you say each new company that's created can bring such a lawsuit. Now, whether or not it will succeed, I understand, but aren't you risking destabilization of the industry in this way?

MR. WEIR: We don't think so. We—we think the experience in the Sixth Circuit is what you'll see. There –there was no uptick in challenges to old regulations in the Sixth Circuit, and we would have seen them there in the last —

JUSTICE JACKSON: Is —is that possible because we had other doctrines that prevented, so, you know, for example, Chevron existed and so there were lots of things that already –you know, right? Like, there are reasons why you might not have an uptick. I'm just wondering, in a world in which you could bring these actions, why wouldn't you have this problem?

MR. WEIR: Well, I –I think that because most regulations are –are valid, there's –there's no argument that they're unlawful. So you would –so you wouldn't see them. It's only the ones that have defects that you're going to see challenges to or potential defects.

Was this a suggestion that Chevron will no longer exist after this term? I suppose we will know by July.

A Response to John Mikhail on "Officers of the United States"—Part I

The issues, arguments, and evidence raised by Mikhail has already been addressed by our scholarship. This evidence was not "ignored or overlooked."

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[This post is co-authored with Professor Seth Barrett Tillman]

On Monday, February 19, 2024, Professor John Mikhail wrote a post on Balkinization titled, A Reality Check on "Officer of the United States" at the Founding. His post begins:

The Supreme Court seems poised to reverse Colorado's decision to exclude Donald Trump from its Republican presidential primary ballot on grounds other than that Trump did not take the right kind of oath to support the Constitution. Nevertheless, one or more of the Justices might still be inclined to agree with Trump that the President is not an "officer of the United States" within the meaning of Section Three of the Fourteenth Amendment. Trump prioritized this argument in his briefs to the Court, drawing primarily on the scholarship of Seth Barrett Tillman and his co-author, Josh Blackman. While I have long admired the detailed work that Professors Tillman and Blackman have done on this topic, I remain unconvinced by their core argument that this term refers only to appointed officials, not elected officials. In this post, I outline some of the reasons why, drawing upon research that I have pursued for many years on the Officers of the United States to which the Necessary and Proper Clause refers. Much of the evidence I discuss here has been ignored or overlooked in the existing scholarship on Section Three, and most of it does not appear in any of the briefs in Trump v. Anderson. (emphasis added).

We appreciate that Mikhail thought our scholarship was "detailed," but we were surprised by his conclusion. Could it be that we have "overlooked"" leading evidence to the contrary? Or worse, were we aware of this contrary evidence, yet consciously chose to "ignore"? No. We have addressed in our scholarship almost all of the arguments that Mikhail advances in his post. He does not indicate with any specificity what evidence was "ignored or overlooked" in the literature by others or by us. Perhaps Mikhail is not persuaded by our prior publications and responses. But that's quite a different claim from asserting that something significant was "ignored or overlooked."

Mikhail's post closes with this admonition: "the Justices should think long and hard before declaring that the President of the United States is not an Officer of the United States for the purposes of Section Three." Were Mikhail merely making intellectual points about an abstract legal question, we would be inclined to not reply with such rapidity.  Indeed, Mikhail has had the opportunity to put his thoughts into writing on these issues since circa 2017. Here, at the eleventh hour, after briefing and oral argument in Trump v. Anderson, after the decision has already been assigned to a Justice and is likely substantially drafted, this is yet another attempt at rushed scholarship. We view recent posts by Mark Graber and others in a similar fashion. We use this opportunity to respond to Mikhail's primary points.

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Free Speech

Journal of Free Speech Law: "Courting Censorship," by Prof. Philip Hamburger

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The article is here; the Introduction:

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship—in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court's precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion as the archetype or model of constitutionally accountable government conduct. Even in suits against government, the Blum test normally requires plaintiffs to prove that private action has been coercively converted into government action. In such ways, the Blum state action doctrine is not merely erroneous, but has signaled to government that it can get away with censorship as long as it keeps most of it privatized and not overtly coercive.

When it comes to the First Amendment, this Article expresses concern about the doctrinal tendency to confuse "abridging" and "prohibiting." The First Amendment carefully distinguishes the two: It simultaneously bars abridging, or reducing, the freedom of speech, and forbids prohibiting the free exercise of religion. This isn't to say that much coercion is required for a free exercise violation. But the First Amendment at least reveals that it bars whatever merely diminishes the freedom of speech, without any need to show coercion or other prohibiting. Unfortunately, this important distinction between abridging and prohibiting has been lost, with the result that First Amendment doctrine seems to make coercion necessary for a speech violation. Once again, doctrine mistakenly suggests that government can censor Americans—at least if it avoids the most blatant sorts of coercion.

The Supreme Court needs to repudiate the judicial doctrines that invite censorship. When the censorship-justifying doctrines are put aside, and the First Amendment itself is examined, it becomes clear that the Amendment leaves no room for privatized and less-than-coercive evasions of its freedom of speech. This is not, moreover, an unrealistic ideal. The First Amendment itself contains hints as to how censorship can be barred without standing in the way of lawful executive persuasion.

[A.] The Problem

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Free Speech

UC's National Center for Free Speech and Civic Engagement $20K Non-Residential Fellowships

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The Center is accepting applications until March 15; check out the details here. (I'm one of the Advisory Board members.) An excerpt:

Each year, the Center selects Fellows from a broad range of disciplines and backgrounds such as law, journalism, higher education, social science, technology and government.

The Center welcomes candidates from all backgrounds to apply, and invites a wide range of innovative projects. As part of the University of California, the Center is committed to promoting diversity and equal opportunity in its education, services and administration, as well as research and creative activity. We are focused on projects that address current issues affecting students, staff, administrators and faculty and will have a direct impact on individuals and communities across campuses. Work products can take many forms such as (but not limited to) qualitative/quantitative research, curricular modules, toolkits or training programs/pilots.

As a Center Fellow, you will be welcomed into a community of practitioners, educators and students who share the common purpose of advancing the mission of the Center. Incoming Fellows are connected with former Fellows and become part of a larger UC-wide and national network of scholars, educators, practitioners and activists.

The one-year fellowship will run from July 1, 2024 through June 30, 2025.

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Education

Supreme Court Refuses to Hear Case Involving Use of Race-Neutral Means to Facilitate Anti-Asian Discrimination at Selective Public High School.

Justice Alito wrote a strong dissent to denial of certiorari. The issues the case raises are likely to recur. In the meantime, the lower court ruling in the case sets a dangerous precedent.

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The Thomas Jefferson High School for Science and Technology. Fairfax, Virginia. (NA)

 

Today the Supreme Court refused to review Coalition for TJ v. Fairfax County School Board,  a case in which the Thomas Jefferson High School for Science and Technology ("TJ")—a selective high public school in Fairfax County, Virginia —used facially neutral means to to reduce the percentage of Asian students it admitted. In 2020, TJ adopted a new admissions policy that, while  neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, and get a student body closer to the population demographics of Fairfax County (which is about 19% Asian).

I criticized the Fourth Circuit appellate court opinion in this case here, analyzed the district ruling in favor of the plaintiffs here. While the Supreme Court will not be hearing this case, the issues it raises are almost certain to recur, and the justices will likely have to confront them eventually.

Before proceeding, I should note that my wife, Alison Somin, is one of the Pacific Legal Foundation attorneys representing the plaintiffs in this case (a group of parents of Asian-American applicants to TJ), on a pro bono basis. If you want to discount what I say because of this connection, you are free to do so. But my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on the TJ case. Anyone who cares to check will, I think, find that my take on the case is completely consistent with my previously expressed views on these two interconnected topics.

Justice Samuel Alito wrote a forceful dissent to denial of certiorari, warning that the lower court ruling sets a dangerous precedent (I raised similar concerns myself, as did Judge Allison Jones Rushing in her dissent to the Fourth Circuit ruling):

A group representing applicants for admission to a highly competitive public magnet school brought suit, claiming that changes in the school's admissions requirements violated the Equal Protection Clause. They alleged that the changes were made for the purpose of discriminating on the basis of race, to the detriment of Asian-American
applicants. The District Court found that direct and circumstantial evidence supported that claim and issued aninjunction against implementation of the changes. On ap-
peal, however, a divided Fourth Circuit panel reversed and held that the plaintiff 's claim failed simply because the challenged changes did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction….

The panel majority held that the Coalition could not prevail because, as the majority saw things, the new policy "visit[ed] no racially disparate impact on Asian American students" since, even after use of the new policy began, Asian Americans still received 54.36 percent of the admissions offers [compared to the previous 73%]….This percentage exceeded the percentage of Asian- American students in the applicant pool, and therefore, according to the panel majority's reasoning, Asian-American students had no cause to complain. As the panel majority put it, "an application of elementary arithmetic shows that Asian American students, as a class, experience no material disadvantage under the policy's functioning" and in fact perform "better in securing admission to TJ than students from any other racial or ethnic group…."

As Judge Rushing explained in dissent, under the Fourth Circuit's view, the Constitution permits "facially neutral laws explicitly motivated by racial discrimination, as long as the law's negative effect on the targeted racial group pushes it no lower than other racial groups…."  "It would not matter, for example, if a new law cut a racial group's success rate from 90% to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at
a higher rate…. " This rule defies law and logic.

Consider the following hypothetical case. Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black. Suppose that the principal emails the coach and says: "You have too many black players. You need to replace some of them with white players." And suppose the coach emails back: "Ok. That will hurt the team, but if you insist, I'll do it." The coach then
takes five of his black players aside and kicks them off the  team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Court's sustaining such discrimination, but in principle there is no difference between that imaginary case and one now before us.

As the district court found, the record in this case is full of statements indicating that race was the primary motivation for for the change in admissions policies, and that the School Board specifically sought to reduce the number of Asian students in order to increase the percentage of blacks and Hispanics, and also to—as the TJ principal put it—ensure the TJ student body better  "reflect[s] the racial composition in [the Fairfax County Public Schools].'" Other officials claimed that having too many Asian students was in itself harmful because it would damage TJ's "culture." State legislator Mark Keam fulminated about the "unethical ways" Asian-American parents "push their kids into [TJ]," when those parents are "not even going to stay in America," but instead are "using [TJ] to get into Ivy League schools and then go back to their home country."

The Fourth Circuit could have limited themselves to holding (wrongly, in my view) that the School Board would have adopted the new policy even in spite of illicit racial motivation; this is the relevant legal standard under longstanding Supreme Court precedent. But they went beyon that and made a much worse decision, holding that evidence of racist motivation is simply irrelevant so long as the group discriminated against is still represented at a higher rate than its percentage of the applicant pool. That's a dangerous precedent that can easily be abused in many circumstances, by both right and left-wing policy makers.

As I have previously noted, anti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.

While the Court has refused to take the TJ case, the issues it raises are likely to recur. In the wake of the Supreme Court's decision in SFFA v. Harvard severely restricting open use of racial preferences in admissions, many schools are likely to use facially neutral means to achieve the same ends, by deliberately using admissions criteria that correlated with race. The problem of efforts to reduce the number of Asian students at elite institutions is also far from unique to this case. Indeed, it arose in the Harvard case itself.

The Supreme Court can run from these questions. But it can't hide from them for very long. If the justices try to do so, more and more institutions are likely to find "race neutral" ways to circumvent the Court's decision, and to target Asian students.

Free Speech

Ninth Circuit Denies Rehearing En Banc of Panel Decision Holding Gun Ads Restriction Is Likely Unconstitutional

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The order came down today; it noted that no judge called for a vote on the en banc rehearing petition. Here's my post on the panel decision, from September.

[* * *]

California Restriction on Gun Ads That "Reasonably Appear[] to Be Attractive to Minors" Likely Unconstitutional

From Junior Sports Magazines, Inc. v. Bonta, decided today [Sept, 13, 2023] by Ninth Circuit Judge Kenneth Lee, joined by Judges Randy Smith and Lawrence VanDyke:

This case is not about whether children can buy firearms. (They cannot under California law.) Nor is this case about whether minors can legally use firearms. (California allows minors under adult supervision to possess and use firearms for hunting, target practice, and other activities.) And this case is not about whether California has tools to combat the scourge of youth gun violence. (It does.)

Rather, this case is about whether California can ban a truthful ad about firearms used legally by adults and minors—just because the ad "reasonably appears to be attractive to minors." So, for example, an ad showcasing a safer hunting rifle with less recoil for minors would likely be unlawful in California. Under our First Amendment jurisprudence, states can ban truthful and lawful advertising only if it "materially" and "directly" advances a substantial government interest and is no more extensive than necessary. California likely cannot meet this high bar.

While California has a substantial interest in reducing gun violence and unlawful use of firearms by minors, its law does not "directly" and "materially" further either goal. California cannot straitjacket the First Amendment by, on the one hand, allowing minors to possess and use firearms and then, on the other hand, banning truthful advertisements about that lawful use of firearms. There is no evidence in the record that a minor in California has ever unlawfully bought a gun, let alone because of an ad. Nor has the state produced any evidence that truthful ads about lawful uses of guns—like an ad about hunting rifles in Junior Sports Magazines' Junior Shooters—encourage illegal or violent gun use among minors. Simply put, California cannot lean on gossamers of speculation to weave an evidence-free narrative that its law curbing the First Amendment "significantly" decreases unlawful gun use among minors. The First Amendment demands more than good intentions and wishful thinking to warrant the government's muzzling of speech.

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Supreme Court

Justice Kavanaugh Still Wants SCOTUS To Hear More Cases

The Supreme Court's docket may be awfully small, but it's not Justice Kavanaugh's fault.

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In several recent posts I have noted that Justice Kavanaugh appears to want the Supreme Court to hear a significant number of cases that his colleagues do not. We know this because the Supreme Court's order lists often note that he would have granted certiorari in a case that was denied.

Today we see another example of this. Among the cases in which the Court denied certiorari on today's order list is South Carolina State Ports Authority v. National Labor Relations Board. In addition to noting that certiorari was denied, the order list also notes that Justice Kavanaugh would have granted the petition.

This case presented the following interesting questions:

1. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense because the targeted secondary employer could choose to take its business elsewhere and, in that way, can "control" the primary employer's work assignments.

2. Whether a union's unlawful secondary boycott is shielded by the work-preservation defense even when no bargaining unit jobs are threatened.

While I find these questions interesting, it does not appear that four justices found them to be worthy of certiorari.

While he appears to want the Court to hear more cases, Justice Kavanaugh did not join Justice Alito's dissent from denial of certiorari in Coalition for TJ v. Fairfax County School Board, a case concerning the extent to which school districts may consider race (or proxies for race) in school assignment decisions.  (My co-blogger Ilya Somin blogged about the lower court's decision here.)

What this may suggest is that while Justice Kavanaugh wants to hear more cases that raise questions of significance to the business community or regulatory matters, including cases involving patents, tort litigation and labor law, he is not as keen to hear cases implicating culture war flashpoints, such as race.

An important qualification to note here is that justices are not required to disclose when they would have granted certiorari in a given case. So while we know at least some cases in which Justice Kavanaugh would have granted certiorari, we do not know how his colleagues voted in these cases, or whether there are other cases in which Justice Kavanaugh would have supported certiorari, but chose not to disclose that fact.

Abortion

Supreme Court Denies Red State Effort to Intervene in Mifepristone Case

The Court also rejects a late-filed amicus briefs from the American Bar Association, but accepts one from former FDA Commissioners.

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The Supreme Court is scheduled to hear oral argument in FDA v. Alliance for Hippocratic Medicine and Danco Laboratories v. Alliance for Hippocratic Medicine, the combined cases concerning the Food & Drug Administration's regulation of mifepristone, on March 26.

This morning, on the Orders List, the Court denied a motion to intervene filed by Missouri, Kansas, and Idaho. These states argued that the should be allowed to intervene so as to ensure that the requirements of Article III standing are met so that the Court can reach the merits. (This is, I take it, a tacit admission that the plaintiffs' standing claims are quite tenuous, as I have argued at length in some of the poses linked below.) The states base this argument, in part, on their successful motion to intervene in the trial court (which Adam Unikowsky dissects here). In any event, the Court rejected the motion.

The Court also ruled on two applications to file late-submitted amicus briefs, one from the American Bar Association and one from former Commissioners of the FDA. Interestingly enough, the Court rejected the former brief, but accepted the latter. Looking at the two briefs, this seems like a reasonable call. The FDA Commissioners brief provides relevant expertise that might be absent from other filed briefs. The ABA brief, not so much. Indeed, one has to wonder why the ABA brief was filed at all, as this case does not relate (even tangentially) to the needs or interests of the legal profession and does not add much given what has already been filed on the FDA's behalf in this case. Moreover, filing briefs like this is something the ABA should avoid if it wants to be seen as an apolitical organization that represents the legal profession and can speak to questions relating to the practice of law with any degree of authority.

The Court also denied a motion to intervene filed by Gregory J. Roden as "Next Friend of Americans en ventre sa mere." No surprise there.

For those interested in more about this case, yesterday I participated in a panel discussion on this case with my colleague Jessie Hill, sponsored by the Law-Medicine Center at the Case Western Reserve University School of Law. Video of that program may be viewed here.

Also, here are my prior blog posts about this case and the issues it raises:

Equity, Property, and One View of the Cathedral

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I've revised my short essay called Equity's Role in Defining Property Rights, and this passage might be relevant for readers interested in remedies, standing, and equity:

Critically, this protection of property rights is tailored, and it does not have to be just a reiteration of the property right in the form of an injunction. In other words, one should be careful not to think that an injunction is simply on all fours with the scope of the right in question. To the contrary, an equitable remedy may be phased in or phased out, expanded prophylactically, limited because of laches or unclean hands or undue hardship, or made conditional on acts to be taken by the plaintiff or defendant or both. And even after an injunction is issued, the court can come back and modify or dissolve it, without changing the underlying property right.

The most famous exposition of a contrary view, conceiving of the scope of an injunction as coextensive with a property right, is Professor Guido Calabresi and Douglas Melamed's One View of the Cathedral. That article is right to emphasize the protection of property with equitable remedies like the injunction. But the Cathedral's mistake is to ignore how the protection of property rights by equity is distinct from the definition of property rights. The scope of one does not have to be the scope of the other.

These property exceptions—these doctrines that equity will not do x, y, or z, except to protect property rights—serve multiple functions. One function is to channel equity's focus. Analogous to standing doctrine, they tie equity to something more concrete and specific, ensuring that the dispute can be put "on the map," so to speak.

If you want to read more, the essay is here. And the way equitable doctrines (like the requirement of a proprietary interest) can work analogously to standing doctrine is taken up in Debs and the Federal Equity Jurisdiction, coauthored with Professor Aditya Bamzai.

Free Speech

"Victimizing the Families of Opposing Counsel and Causing Well-Founded Concern for Their Well-Being … Is … a Profound Dishonor as a Lawyer"

"Lawyers in litigation may be expected to assume the risk of a certain amount of rough-and-tumble. Their families do not. In preying on the families of opposing counsel, Mr. Manookian crossed the Rubicon."

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From Manookian v. Bd. of Prof. Responsibility, decided Friday by the Tennessee Supreme Court (majority opinion by Chief Justice Holly Kirby):

In this lawyer disciplinary case, the lawyer's conduct compels disbarment. The lawyer sent a series of intimidating, demeaning, embarrassing, and harassing communications to opposing counsel and others.

Some targeted family members of opposing counsel, including one family member who was also a former client, and caused well-founded concern for their well-being and safety. In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the purpose of the communications was to intimidate opposing counsel in order to gain unfair advantage in pending litigation. It concluded inter alia that the lawyer's conduct was prejudicial to the administration of justice, that he failed to respect the rights of third persons, and that he violated his duty to a former client, in violation of Tennessee's Rules of Professional Conduct.

The hearing panel said the presumptive sanction was disbarment, found four aggravating factors, and found no mitigating circumstances. Without explanation, the hearing panel recommended a two-year suspension instead of disbarment. The attorney appealed to the trial court. The trial court indicated that, had the Board of Professional Responsibility filed a separate petition for review, the trial court would have recommended disbarment, but because the Board did not, the trial court affirmed the sanction of suspension. Both parties appeal.

Here, the lawyer's conduct was egregious. Victimizing the families of opposing counsel and causing concern for their well-being and safety is an especially grave offense and a profound dishonor as a lawyer. The hearing panel's decision to deviate downward from the presumptive sanction of disbarment was arbitrary and capricious, and the lawyer must be disbarred. Accordingly, we modify the judgment of the hearing panel and impose the sanction of disbarment.

An excerpt from the long discussion of Manookian's misconduct:

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Free Speech

White University Administrator's Race Discrimination Case Can Go Forward

The administrator, at Texas A & M University Texarkana, alleges he was pushed out because of his race, and because he had declined to discipline a student who "had used the word 'Nigga' in [a classmate's] presence while on a trip to the mall."

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From Magistrate Judge J. Boone Baxter's Report and Recommendation in Greig v. Texas A&M Univ. Texarkana, adopted Thursday by District Judge Rodney Gilstrap (E.D. Tex.):

Plaintiff Carl Greig … alleges he is a fifty-eight year old white male who worked for TAMUT as the Assistant Vice President of Student Affairs for approximately twenty-five years. According to Plaintiff, part of his job duties included investigating student complaints about other students' violations of TAMUT's Code of Conduct and other offensive behavior. Plaintiff alleges he received favorable reviews until July 2022 and had never been discipled or told that his job performance fell below acceptable standards prior to July 2022. Plaintiff alleges he was discriminated against on the basis of race based on a single incident where he investigated, but did not discipline, a student who used a negative racial epithet. Specifically, Plaintiff alleges as follows:

In August of 2021, a student ("Student 1") filed a written complaint with [Plaintiff's] office complaining that another student ("Student 2") had used the word "Nigga" in her presence while on a trip to the mall several months earlier (Spring 2021). At the time the offensive word was used, the students were good friends and Student 1 did not complain that she was offended by Student 2's statement. The students' friendship deteriorated after the Spring of 2021 and then had a series of interpersonal problems including, but not limited to, Student 1 complaining to [Plaintiff] about Student 2's offensive statement and Student 2 claiming that Student 1 had threatened to "beat her ass."

[Plaintiff] knew of the students' long history of interpersonal conflict. [Plaintiff] conducted a thorough investigation into Student 1's complaint. [Plaintiff] conducted research regarding Student 2's First Amendment rights and sought guidance from the System General Counsel and the TAMU System Title IX Coordinator on how to respond to Student 1's complaint. Based on advice he received from both legal counsel and the TAMU System Title IX Coordinator and [Plaintiff's] own research, [Plaintiff] decided that punishing Student 2 would violate her First Amendment rights and that she had not violated the Student Code of Conduct in effect at that time. [Plaintiff] counselled Student 2 on three separate occasions about how offensive the word she used was and advised her not to use the word again.

Student 1 was dissatisfied that [Plaintiff] had not removed Student 2 from her position on Student Government and in a sorority and elevated her complaint to the President who assigned the investigation to the Human Resources Department that had no authority over or involvement with student complaints. The Human Resources Director conducted her own investigation into Student 2's statement and ultimately did not punish Student 2.

Plaintiff alleges TAMUT began reducing his job duties following the Human Resource Director's investigation; removed Plaintiff from investigating any student complaint that involved race and from any involvement in any Title IX case; and cancelled, without explanation, an open position for which Plaintiff had selected a candidate. Plaintiff further alleges as follows:

In the aftermath of [Plaintiff's] decision not to discipline Student 2, Defendant held a "Town Meeting," open to students and faculty. At the Town Meeting, a faculty member demanded that [Plaintiff] be replaced by a person of color. Defendant's President attended the Town Hall and did not reject the faculty member's demand. In November 2021, [Plaintiff's] supervisor, the Vice President of Student Affairs, advised him that he should consider looking for a new job because Defendant intended to blame [Plaintiff] for all race-related issues after his failure to punish Student 2. [Plaintiff's] supervisor also said [Plaintiff] made the right decision not to punish Student 2.

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National Security

Make Finland the Land of Shooting Badassery Again

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[UPDATE: Added this image, with thanks to Will @Abraczinskas for the pointer; author unknown.]

The Guardian (Miranda Bryant) reports:

Finland plans to open more than 300 new shooting ranges to encourage more citizens to take up the hobby in the interest of national defence.

It is hoped that shooting in the Nordic country—which last year became Nato's newest member and which shares a 830-mile (1,330km) border with Russia—could become as popular as football or ice hockey.

Ah, the elephant bear in the room, which in this instance the article does talk about.

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Thoughts on Internet Content Moderation from Spending Thousands of Hours Moderating Volokh Conspiracy Threads (Repost from 2022)

Reposting a thought I had after the Fifth Circuit's decision.

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Note to readers: I first published the blog post below in 2022, after the Fifth Circuit's ruling.  I thought I would repost it in light of the Supreme Court's oral argument in the case next week.  — Orin

Reading the Fifth Circuit's decision in Netchoice v. Paxton brings me back to the old days of the Volokh Conspiracy.  A little bit of context: Back when we were at volokh.com, we introduced open comment threads. For a few years, I spent over an hour a day, every day, moderating Volokh Conspiracy comment threads.  I stopped after we moved to The Washington Post in 2014, where comment moderation was up to them.  I'm very glad I don't do comment moderation anymore.  But my comment moderation experience at volokh.com left a lasting impression.

I think three of those impressions might be relevant to thinking about Netchoice.

First: It is a strange rule of human nature that most people who are moderated in an online forum feel, with great certainty, that they are being censored for their beliefs.  Few people think they just went too far, or that they broke the rules.  Moderation is usually seen as the fruit of bias. So liberal commenters were positive I deleted their comments or even banned them because this is a conservative blog and we were afraid that liberal truths would pierce through the darkness and show the false claims of conservatives.  And conservative commenters were completely confident that I deleted their comments or even banned them because we are liberals trying to prevent conservative truths from exposing liberal lies.  It just happened all the time.  Moderation led to claims of censorship like day following night.

Second: Content moderation always reflects a message of the moderator.  My goal in moderating Volokh Conspiracy comments was just to keep discussions civil.  My thinking was that if you can keep comments civil, you will not only encourage better comments but also entice better commenters.  And I think experience proved that correct. For a few years there, moderated Volokh comment threads were pretty insightful places to go to look for perspectives on our posts.  But moderation always implies some some sort of message.  It implies some value or judgment that the site has (or maybe just the primary moderator has) that they want to advance. For example, when I was moderating out uncivil comments and commenters at volokh.com, I didn't care if an opinion was liberal or conservative.  But my moderation still expressed a value: A belief in a marketplace of ideas, where we wanted the ideas to be expressed in a way that might persuade.  That was the value we (or I) had.  It's a process value, but still a value. Moderating was always an effort to further that underlying value we had.

Third, perfect comment moderation is impossible, but you can't let the perfect be the enemy of the good.  I wrote above that many moderated commenters believed that they were being censored for their beliefs. A corollary is that many commenters had examples of comments from the other side that had remained up, apparently unmoderated, that to them proved the bias.  If you deleted a comment as uncivil, it was common to hear howls of outrage that months ago jukeboxgrad had a substantially similar comment somewhere that is still up, so that under the principles of due process and the Magna Carta it would be despicable to moderate this comment now.  The problem was scale. We might have 20 posts a day in those days, as there were a lot of short posts. An average post might get (say) 100 comments, with some getting many more. That was around 2,000 comments to wade through every day. You'd need full time moderators to try to moderate them all, with some sort of legal-like process for adjudicating individual comment moderation decisions. Moderated commenters often seemed to want that—and in some cases, to demand it.  But it was just impossible given our day jobs.  Moderation was needed to make comment threads worth reading, but the sheer scale of comments made imperfect moderating the best you could do.

Griffin's Case (1869) and The Enforcement Act of 1870

Justice Kavanaugh was right. Chief Justice Chase's decision in Griffin's Case "forms the backdrop against which Congress" legislated The Enforcement Act of 1870. 

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[This post is co-authored with Professor Seth Barrett Tillman]

On Thursday, February 15, 2024, Professor Mark Graber published a post on Balkinization titled "The Enforcement Act of 1870: Disqualification Myths and Realities." Graber accuses Trump's lawyers of "fabrication" and "mythmaking" concerning Griffin's Case and the Enforcement Act of 1870. He writes that Trump's lawyers "claim[ed] that Griffin's Case inspired the Enforcement Act of 1870." 

  • "Donald Trump's lawyers engaged in mythmaking when in their briefs and in oral argument they insisted that Congress was responding to Chief Justice Salmon Chase's claim in Griffin's Case (1869) that constitutional disqualification was not self-executing, that no person could be disqualified from office in the absence of federal legislation." (emphasis added).
  • "The Trumpian claim that Griffin's Case inspired the Enforcement Act of 1870 is a fabrication." (emphasis added).
  • "The only evidence Trump and his lawyers have that Griffin's Case influenced the Enforcement Act of 1870 is that Griffin's Case was decided in 1869, the year before the Enforcement Act was passed." (emphasis added).

In fact, Trump's lawyer, Jonathan Mitchell, made narrower claims. Mitchell said:

  • "Griffin's Case provided the backdrop against which Congress legislated the Enforcement Act of 1870 when it first provided an enforcement mechanism for Section 3." Trans. at 12 (emphasis added). 
  • "Congress relied on Griffin's Case when it enacted the Enforcement Act of 1870." Trans. at 13 (emphasis added).
  • "Congress took up the invitation provided by Griffin's Case and established writs of quo warranto in the 1870 Enforcement Act." Trans. at 14 (emphasis added).

And Justice Kavanaugh likewise made a relatively narrow claim as part of the liquidation argument. He said that Griffin's Case was a "precedent" that was "reinforced because Congress itself relies on that precedent in the Enforcement Act of 1870 and [Griffin's Case] forms the backdrop against which Congress does legislate."

We think the positions put forward by Justice Kavanaugh and Jonathan Mitchell were substantially correct. Professor Will Baude and Professor Michael Stokes Paulsen, to their credit, made a point along the same lines. They wrote, "Congress may have been responding to the decision in Griffin's Case (wrongly) holding that such legislation was required for Section Three to have operative legal effect." Baude & Paulsen, The Sweep and Force of Section 3, at 20 n.55 (emphasis added). We too made a similar point. Blackman & Tillman, Sweeping and Forcing, at 442-43.We agree that Congress was responding to Griffin's Case, but we, unlike Baude and Paulsen, maintain Griffin's Case was rightly decided.

In this post, we intend to show that Graber's claims do not withstand scrutiny. To make our case, we will walk through the overlapping chronologies of Griffin's Case and the Enforcement Act of 1870. (This post will presume the reader already has some familiarity with the facts of Griffin's Case and its posture and the general history of Reconstruction.)

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Free Speech

Don't Pick Out That Corvette Yet: Prosecutor Loses Libel Lawsuit Against Newspaper

What does it mean, in context, to say that a prosecutor "assisted with the prosecution" of someone who has been exonerated?

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From Polk County Pub. Co. v. Coleman, decided Friday by the Texas Supreme Court, in an opinion by Justice Jimmy Blacklock:

In June 2020, a small newspaper in Polk County ran a story criticizing a local assistant district attorney named Tommy Coleman. Most of the article criticized the Williamson County District Attorney's office, where Coleman previously worked, for its involvement in the infamous wrongful conviction of Michael Morton.

Among the article's claims about Coleman was the statement that he "assisted with the prosecution of Michael Morton" while a prosecutor in Williamson County. The 1987 conviction of Michael Morton, which involved prosecutorial misconduct in the handling of evidence, happened long before Coleman started practicing law. Morton was exonerated in 2011 after spending nearly 25 years in prison.

Coleman sued for defamation, claiming that the article's statement that he "assisted with the prosecution of Michael Morton" was false and defamatory. At this stage of the proceedings, he does not challenge the accuracy of anything else in the article. The article described an episode in which Coleman, while a prosecutor for Williamson County, was heard in the courtroom during a post-conviction hearing mocking requests by Morton's attorneys for DNA testing of the piece of evidence that eventually exonerated Morton: "'Ewww! Bloody bandana! Bloody bandana,' Coleman is reported as saying in a demeaning tone during a hearing in September 2011." This regrettable episode, the veracity of which Coleman does not contest at this stage of the case, was the only factual detail the article offered to describe the way in which Coleman "assisted with the prosecution of Michael Morton."

The defendants now contend, among other arguments, that the challenged statement is not actionably false. As explained in more detail below, we do not determine the truth or falsity of the article's statement that Coleman "assisted with the prosecution of Michael Morton" by asking whether the statement is a legally precise characterization of the role Coleman played as an attorney in the sad saga of Michael Morton's prosecution and exoneration.

Instead, this Court's precedent requires that we judge the truth or falsity of an allegedly defamatory statement by identifying the "gist" of what the statement conveys about the plaintiff to a reasonable reader of the entire article. If the gist of the challenged statement, within the context of the article as a whole, is true, then the statement is considered substantially true and therefore not actionable—even if the statement errs in the details.

As explained below, we conclude that, in its context, the article's claim that Coleman "assisted with the prosecution of Michael Morton" was substantially true given Coleman's public involvement in his office's efforts to keep Morton behind bars by resisting DNA testing of the "bloody bandana." The statement is therefore not actionably defamatory, and Coleman's claims should be dismissed.

An excerpt from the court's legal analysis:

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