The Volokh Conspiracy

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

The Volokh Conspiracy

Donald Trump

Thoughts on the Assassination Attempt Against Trump

The attack deserves condemnation. But it should not obscure the evil of Trump himself, including his role in promoting political violence.

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Former President Donald Trump stands amid four Secret Service agents, with blood showing on his ear.
Former President Donald Trump stands amid four Secret Service agents helping him off the stage, in the wake of the assassination attempt. (Hu Yousong / Xinhua News Agency/Newscom)

 

A few thoughts on yesterday's assassination attempt against Trump:

1. It should go without saying. But I condemn the attack. Violence is not the way to solve our political problems. It's worth remembering that Trump was not the only victim. A participant in the rally was killed, and two others wounded. The slain spectator, former firefighter Corey Comperatore, died bravely trying to shield his family. The shooting of these three people is even more reprehensible than that of Trump. No one deserves to die merely for attending a political rally. As for Trump, his wrongdoing should be dealt with through the legal and political system, not random violence.

It is nowhere near the same thing as actually getting shot at. But I have my own experiences with politically motivated death threats, including one from the man who later turned out to be "pipe bomber" Cesar Sayoc, a right-wing nativist. I do not want such things to continue spreading.

Can political assassination ever be justified? Maybe so. I think Fanny Kaplan was right to try to kill Lenin, and von Stauffenberg and others right to try to assassinate Hitler. But unlike Lenin and Hitler's subjects, we don't face an evil on the same scale, and—even more importantly—we still have available peaceful means of combating it.

2. Despite gaslighting to the contrary, there is no contradiction between condemning the attack and saying that Trump is an authoritarian, an enemy of fundamental liberal values, and a menace to democracy. The man tried to use force and fraud to stay in power after losing an election (promoting an insurrection in the process), threatens to use the power of government to punish political opponents, brutalized thousands of innocent children with his illegal family separation policy, and more. Pointing this out was and is entirely justified.  Nothing that happened yesterday mitigates Trump's evil. He is no Hitler. But being a run-of-the-mill wannabe dictator is bad enough. Certainly enough to justify severe condemnation and harsh rhetoric.

3. It's worth noting that nearly all prominent Democrats, from President Biden on down, condemned yesterday's attack without reservation. By contrast, Trump and many of his allies defend and praise the January 6 attackers,  and make light of other political violence by their supporters (e.g.—the attack on Nancy Pelosi's husband). For those keeping score, prominent Democrats—including Biden and Barack Obama also condemned the post-George Floyd riots (as did I at the time). There's plenty of awful people and politicians who abuse power in both major parties (e.g.- I have condemned Biden's repeated attempts to raid the treasury for his student loan forgiveness program).  But when it comes to promoting and excusing political violence by their supporters, the two parties are not morally equivalent.

4. We now know the shooter was a registered Republican and also once donated $15 through Act Blue (a left-wing political fundraising group). This combination is less surprising than it might seem. Many people have unusual political views that don't neatly fit the left-right political spectrum. That's true of many perpetrators of political assassinations, as well. This guy may have had weird political motives that only make sense to him. Alternatively, he could have had a nonpolitical motive that was even weirder. Recall that John Hinckley (the man who almost killed Reagan), did it because he thought it would impress movie star Jodie Foster and persuade her to go out with him. We may learn more about the current shooter's motives in coming days. Until then, we should avoid unsupported claims about them.

5. I fear Trump will get a sympathy boost from this event. It may be only a couple percentage points in the upcoming election. But that could be decisive in a close contest. If so, it is even more imperative than before that the Democrats replace Biden with a stronger candidate.

6. Those who claim the Democrats and Biden were trying to get Trump killed in order to stay in power should recall that, if Trump were assassinated, the GOP could replace him with a more popular candidate, who would also get a sympathy boost from the assassination, while being free of much of Trump's negative baggage. That would actually increase the Republicans' odds of winning the election relative to a world where the attack never happened. Biden's narrow self-interest was better served by keeping Trump as his opponent. There are other problems with the conspiracy theory, as well. But this is a big one I have not seen mentioned elsewhere.

Politics

Mission to Israel Part I: Should I Stay Or Should I Go?

The first in a multi-part series about my recent mission to Israel.

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Though I have a lot of family in Israel, I had only visited once. After I took the bar exam in 2009, I took a trip known as Birthright–a program that provides young Jews a free trip to Israel. For much of the past fifteen years, I kept telling myself I should visit Israel again, but the logistics never worked out. Indeed, during the summer of 2023, several of my cousins visited New York. I wanted to take my family to see them, but we had already committed to other travels and couldn't make it work. I told my kids that we would go to Israel the following year. 

Little did I know what would happen on October 7. In the immediate aftermath of that horrific date, I could not have fathomed when it would be safe to return to Israel. I was in close contact with many of my cousins, and feared for their safety. Still, a trip to Israel seemed out of reach.

In March 2023, the World Jewish Congress sponsored a delegation of American judges to visit Israel. The mission made some headlines. Since then, WJC has sponsored other similar delegations. In April, I received an invitation to attend a mission with other law professors. The timing was inauspicious. Only a few days later, Iran sent a massive barrage of drones and missiles to Israel. Thankfully, American and other allies helped Israel shoot down virtually all of the projectiles, and the damage was minimal. Still, a potential war with Iran loomed in the horizon. Moreover, United and other airlines cancelled all flights to Israel through June.

I thought about the issue for some time, and ultimately decided to accept the invitation. In future posts, I will explore my thinking of why I chose to go. Here, I want to make a more basic point for others: with proper precautions, the country is safe for tourism. Indeed, as I traveled throughout Israel, I heard a constant refrain: the best way for Americans to show solidarity with Israel is to buy a plane ticket and see what happened with your own eyes. Reading stories and listening to podcasts does not cut it.

Moreover, this is a once-in-a-lifetime opportunity to visit Israel without crowds. Tourism has declined in recent months–and reasonably so. Landmarks like the Church of the Holy Sepulcher usually have lines that stretch for hours. But now it can be entered in a few minutes, without people jostling for space. I was able to have a private moment at the Western Wall (the Kotel) without anyone crowding near me. (And, in the Jewish small world department, I met two Rabbis who were friends with my Rabbis back home in Houston.) 

A brief note on security. Israel is a small country, roughly the size from New Jersey. From top to bottom, it is about a five-hour drive. At the widest point, from east to the west (or from the river to the sea, if you will), it is about a three hour drive. The most unpredictable threat are missiles from Lebanon in the north and from the Gaza Strip in the South. (The other sides do not provide pamphlets or text messages indicating where and when a missile will be sent.) Throughout the country, Israel has developed a series of sophisticated missile defense systems, as well as warning sirens. There is also an app to alert your phone. Every structure is required to have a "safe room" that provides at least some protection from blast. Each floor of a hotel has a special space. Depending on your distance from the border, the warning time varies. In Tel Aviv, you have about 90 seconds from a siren to get into a shelter. In Jerusalem, you have about 1 minute. In Ashkelon, you have about 30 seconds. If you are near the Gaza Strip, you have about 10 seconds–just enough to lay down on the floor. During my trip, I thankfully did not hear any sirens, but was well prepared to comply with the safety protocols. The WJC had a designated security official who kept us very safe. As he told with a classic Israeli accent, "If you do whatever I say, you will be safe, no worries." It is a miracle how people are able to go about their daily lives in the middle of war zone.

One final note. I realize that my posts on most topics tend to trigger and infuriate people. If so, I encourage you to stop reading. My perspectives here will not be popular, and will likely cause some controversy. But those most likely to take offense truly can't help it, and they will read, only to express faux outrage. It's a vicious cycle. Remember, these reactions are largely performative. Everyone plays their role.

Bauer: "[T]here's little point left to [the Special Counsel] regulations, at least insofar as they purport to authorize investigations of presidents."

Good riddance to special counsel investigations of the President.

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Earlier this week, I revisited the Mueller investigation in light of Trump v. United States. My conclusion: the entire basis of the investigation would have been void in light of the Court's decision. Virtually everything that triggered Mueller's appointment was a "core" presidential power. Moreover, nearly the entirety of the investigation probed Trump to determine whether he had "corrupt" motives–an inquiry that Chief Justice Roberts's decision foreclosed. In hindsight, this investigation should have never happened. I think we would have been all better off without that colossal waste of time.

Going forward, do the special counsel regulations have any vestigial role with regard to investigations of the President? I think the answer has to be no. And agreeing with me is Bob Bauer.

At Lawfare, Bauer explains that his thinking on this issue has changed since Trump v. United States–a decision he vigorously disagrees with on many levels:

Jack Goldsmith, my co-author of "After Trump: Reconstructing the Presidency," and I have written about and proposed reforms to the special counsel regulations pursuant to which the department may conduct criminal investigations of the president. Goldsmith has since argued that the regulations have proved to be a failure, attempts at reform will fail, and the rules ought to be withdrawn. He made his case by appeal to experience. I did not agree. I have had second thoughts and now conclude that, after the Supreme Court immunity decision, there's little point left to these regulations, at least insofar as they purport to authorize investigations of presidents. Perhaps they could remain in place for cases involving other senior administration officials, but it is not obvious why, once on the chopping block, any piece of them survives.

The Archibald Coxes, the Leon Jaworskis, the Robert Muellers, the Jack Smiths: We may never see the likes of them again.

Bauer is nostalgic for Mueller and Smith. I say good riddance. The concept that prosecution can be divorced from politics was always a fantasy. Justice Scalia's dissent in Morrison has gone unanswered for nearly three decades. He was right.

It is true that the special counsel regulations remain on the books for lower-ranking officials. And I agree with Zach Price that it will be very hard for the President to do much mischief without the help of subordinates who lack immunity. But we should not pretend that some "independent" prosecutor can perform any meaningful function.

Clarifying the Uncertainty over Direct and Indirect Taxes in Moore v. United States

A guest post from Professor Rob Natelson

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[I am pleased to pass along this guest post from Professor Rob Natelson, a leading originalist scholar whose work is frequently cited in Supreme Court opinions.]

The Supreme Court's June 20 decision in Moore v. United States continues the long-standing controversy over the Constitution's distinction between "direct" and "indirect" taxes. Writing for the Court, Justice Brett Kavanagh stated that "Generally speaking, direct taxes are those taxes imposed on persons or property" while indirect levies are "imposed on activities and transactions." Apparently based on that standard, he concluded that income taxes are indirect.

In her concurring opinion, Justice Ketanji Brown Jackson wrote, "[I]t appears the category [of direct taxes] was originally intended to encompass only land and head taxes."

From an originalist standpoint, these statements are wrong. A full review of the historical record leaves little doubt that the direct/indirect distinction was both clear to the Founders and quite different from either description in Moore.

Although the difference between direct and indirect taxes probably did not affect the result in Moore, it continues to be consequential. It governed the result in National Federation of Independent Business v. Sebelius, the 2012 case that upheld the penalty in the Affordable Care Act (ACA) for not purchasing health insurance. The Court held that (1) the penalty, although intended primarily to affect behavior and not raise revenue, was a tax, and (2) that it was an indirect tax.

For reasons set forth below, both holdings were erroneous—the product, I believe, of the fact that parties and amici both under-briefed the tax issue. The Founding-era record shows that the ACA penalty was not a tax. And that if it were a tax, it would be a capitation, and therefore direct.

More recently, some commentators have argued that a federal wealth tax should be considered "indirect." Some maintain that the decision in Pollock v. Farmers Loan and Trust, holding that the income tax is direct, was erroneous. Then there are those who think the direct-tax apportionment rule was a product of slavery.

The Founding-era record does not support any of these contentions.

Direct Tax Statutes

During the 18th century, direct tax laws were omnibus statutes imposing specific rates on an identified base—sometimes called the "ratable estate." The content of the base occasionally was amended, but mostly remained stable from year to year. However, the elements in the base were subject to periodic assessment. Hence variations on the word "assessment" were associated closely with direct tax statutes.

Such statutes commonly apportioned tax revenue among counties, towns, or other subdivisions.

Apportionment aside, direct tax statutes were somewhat similar in structure to modern real property tax laws. And early (pre-1700) statutes of this kind, particularly in Britain, focused mostly on land and improvements to land.

By the Founding-era, although land continued to be the most valuable part of the base, the statutes had been expanded to include many other items. By way of example, consider a British direct tax law adopted in the reign of Queen Anne (1713)—linked here. Note that it is elaborately apportioned among political subdivisions. Note also that the base includes not only land but wealth and income: "ready Money" (cash), debts receivable, other personal property, and income from a range of employments.

The income tax rate imposed in this statute was ten percent—that is, "Two Shillings for every Twenty Shillings which he she or they do receive in One Year by virtue of" such income.

Now let's go stateside. Here is a link to a 1780 Massachusetts direct tax statute. It also is apportioned by geographic location. It levies on "male polls above the age of sixteen years," personal estates, "including money at interest . . . monies of all kinds in hand, and also the amount of the just value of all goods, wares, and merchandize, stock in trade, vessels of all sorts . . . plate, horses, oxen and cattle . . . sheep, swine and grain of all sorts, and all kind of produce of the land, and all other property whatsoever . . . [unimproved land and certain general exceptions follow]." Thus, this direct tax statute levied on almost all kinds of wealth and property.

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Supreme Court

NYT Round Table on the Supreme Court Term

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Over at the New York Times opinion page, I participated in a fun roundtable conversation with Professors Kate Shaw and Stephen Vladeck about the recent Supreme Court term. We discussed the Trump immunity case, my recent op-ed, the state of the Supreme Court's shadow docket, and more.

Here's one exchange:

Shaw: Will, I want to ask a couple of questions about your recent Times piece reflecting on the term. As I read you, you think the court went (badly?) astray in its two cases directly involving Trump, on immunity and on Colorado's efforts to disqualify Trump under Section 3 of the 14th Amendment. Your paper with Michael Stokes Paulsen played a critical role in the Section 3 debates.

Yet you also write that elsewhere this term, the court was faithful to originalism, a method of interpretation you favor. But is this any kind of originalist court if it's willing to jettison the method in the term's two biggest constitutional cases? One way to view the court after this term is originalist for Republican results, pragmatic for anything else.

Baude: There are plenty of examples of the court adhering to its principles even in ruling against right-wing claims — the Consumer Financial Protection Bureau appropriations case, Rahimi (the Second Amendment case), the standing cases that reversed the Fifth Circuit on both mifepristone and social media jawboning.

But I agree with your basic point. The law professor Gerald Gunther once criticized the law professor Alexander Bickel for wanting the Supreme Court to maintain "100 percent insistence on principle, 20 percent of the time." Maybe now we're getting closer to 80 percent of the time, but that remaining percentage is killer.

Shaw: Your piece ends on a tantalizing note: "When dealing with Mr. Trump in particular, the court is so sure that our other institutions cannot be trusted that it fails to look in the mirror." If it looked in the mirror, what do you think it would see?

Baude: See, that line worked so well when I could end with an ambiguity.

Shaw: I know!

Baude: It's no secret that the Supreme Court trusts no institution in America as much as it trusts the Supreme Court. That's not something unique to the Roberts court — we've been living in an age of judicial supremacy for more than 50 years. But I think the court should recognize that all of the flaws and biases it sees in other institutions are potentially true of itself, too. The justices are only human, even if they are really doing their best.

You can read the whole thing here.

Commerce Clause

Court Holds Federal Ban on Home-Distilling Exceeds Congress' Enumerated Powers

A potentially important post-NFIB enumerated powers challenge.

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Yesterday, in Hobby Distillers Association v. Alcohol and Tobacco Tax and Trade Bureau, a federal district court in Texas held that federal laws banning distilled spirits plants (aka "stills") in homes or dwellings exceed the scope of Congress' enumerated powers. Specifically, the court concluded that the prohibitions exceed the scope of the federal taxing power and the Interstate Commerce Clause, even as supplemented by the Necessary and Proper Clause. The court further entered a permanent injunction barring enforcement of these provisions against those plaintiffs found to have standing (one individual and members of the Hobby Distillers Association.) The plaintiffs were represented by attorneys at the Competitive Enterprise Institute, and background on the case (and the various filings) can be found on CEI's website here.

Hobby Distillers Association has the potential to be a significant post-NFIB challenge to the expansive of use of federal power. A few excerpts from the decision are below the jump.

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Judiciary

Decrepitude on the Bench

Decrepitude is not only a problem in the oval office.

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A federal district court has denied Judge Pauline Newman's challenge to her suspension from the U.S. Court of Appeals for the Federal Circuit. The Circuit's Chief Judge, Kimberly Moore, suspended Judge Newman due to her alleged physical and cognitive impairment. Judge Newman is 97 and denies the allegations. Reuters reports she plans to appeal.

Whether or not Judge Newman is still fit for judicial service (and whether or not there are legal problems with how Chief Judge Moore has treated her), the episode highlights one potential problem with life tenure: Sometimes judges do not know when to quit.

Some years ago, historian David Garrow wrote an extensive law review article on the subject, "Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment," in the University of Chicago Law Review. It is a fascinating read. Here is a taste from the introduction:

Mental decrepitude and incapacity have troubled the United States Supreme Court from the 1790s to the 1990s. The history of the Court is replete with repeated instances of justices casting decisive votes or otherwise participating actively in the Court's work when their colleagues and/or families had serious doubts about their mental capacities. Contrary to conventional wisdom among legal scholars and historians, a thorough survey of Supreme Court historiography reveals that mental decrepitude has been an even more frequent problem on the twentieth-century Court than it was during the nineteenth. The historical evidence convincingly demonstrates that mental decrepitude among aging justices is a persistently recurring problem that merits serious attention. . . .

More than seventy years ago, former Justice and future Chief Justice Charles Evans Hughes emphasized publicly that "[i]t is extraordinary how reluctant aged judges are to retire and to give up their accustomed work."' Over the ensuing years little has changed. The United States Supreme Court since 1990 has featured four justices who continued serving after reaching the age of eighty: William J. Brennan, Jr., Thurgood Marshall, Harry A. Blackmun, and John Paul Stevens. Chief Justice Hughes was an early proponent of mandatory judicial retirement at age seventy-five, and he pointedly warned that "the importance in the Supreme Court of avoiding the risk of having judges who are unable properly to do their work and yet insist on remaining on the bench, is too great to permit chances to be taken." But no constitutional reform has occurred, and thus it remains undeniably true, as Chief Judge Richard A. Posner observed in 1995, that "[t]he judiciary is the nation's premier geriatric occupation."' A careful review of both Supreme Court Justices' aggregate biographies, and the little-remembered efforts to enact a corrective amendment, shows that the Court's history offers some powerfully important present-day lessons and reveals how both scholarly knowledge and conventional wisdom are woefully incomplete. Today the conclusion unfortunately remains, just as Charles Evans Hughes said in 1928, that "[t]he exigency to be thought of is not illness but decrepitude."

Garrow recommends a constitutional amendment forcing retirement at 75. He posits such an amendment might have been adopted in 1937 had Franklin Roosevelt been willing to accept such an alternative to his court-packing plan.

Some states have age limits for judges. In Ohio, for example, no individual can be appointed or elected to a judgeship once they reach 70 years old. There is no such limit in the federal courts.

Due to the lack of age limits, we expect our judges—and our justices in particular—to be old. Interestingly enough, this year we have a Presidential election in which both major-party presidential candidates are older than every member of the Supreme Court. This is quite remarkable (and may be without precedent).

We should be concerned about decrepitude on courts. We should also be concerned about it in the White House.

 

Legal Ethics

Excessive Calls for Recusal Threaten Judicial Independence

Activists and politicians look for almost any excuse to claim that judges should withdraw from cases. Their calls for recusal may be frivolous, but it gives them an opportunity to criticize judges they don't like.

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It is becoming increasingly common for politicians and activist groups to call for judges to recuse from high-profile cases on the flimsiest of grounds. One example was the laughable effort by Senator Elizabeth Warren to get Judge Don Willett of the U.S. Court of Appeals for the Fifth Circuit to recuse from a case involving limits on credit card fees because one of his children's savings account invested a minimal amount in a bank that was not a party to the case. The U.S. Judicial Conference Committee on Codes of Conduct determined (correctly) that Judge Willett's investment was too "indirect and contingent" to require recusal in the case, but this was not enough for Senator Warren.

Attorney Ted Olson decries the "alarming increase in baseless judicial-ethics attacks" and recusal demands by non-parties in a recent Wall Street Journal op-ed. After recounting the tale above, he writes:

Interest groups have demanded that judges and justices recuse themselves based on similarly attenuated investment connections. The latest came when outside groups wrote to a federal district judge demanding that he recuse himself from considering the lawfulness of the Federal Trade Commission's new regulation banning noncompete clauses in employment contracts. The judge holds stock in several publicly traded companies that aren't parties to the litigation but have used noncompete clauses in their employment contracts.

Recusal tactics have become more outrageous. Normally, only parties directly involved in the litigation can file a motion to recuse a judge for an alleged conflict of interest. But we now see coordinated campaigns to pressure recusals. Left-wing interest groups are submitting demands for recusal, coupled with press releases and press conferences. This practice should stop. There is no formal mechanism for outsiders to file such recusal demands, and for good reason. They clog courts with additional briefings and hearings, causing delays and distorting outcomes. Courts should refuse to entertain these ill-intended requests, and the lawyers and litigants responsible should be subjected to sanctions. . . .

As Olson notes, unfounded arguments for recusal will not be limited to judges on one side of the jurisprudential spectrum. Olson notes that some same-sex marriage opponents sought to force a judge's recusal in that litigation. He could also have noted that there are a number of prominent liberal judges married to individuals active in public policy who would be forced to recuse from many cases were the standards pushed by activists applied even-handedly.

As Olson notes, excessive calls for recusal and baseless ethical attacks have implications beyond the individual cases in which they are raised.

These tactics are harmful. Unwarranted accusations of judicial bias or conflicts aim to intimidate judges to recuse themselves unnecessarily or, worse, to overcompensate in their judicial decisions. These accusations seek to undermine the courts' legitimacy and the public's confidence in the impartial administration of justice.

Those are the immediate objectives. In this latest trend of coordinated recusal attacks, however, I see a much more malicious and dangerous long-term objective. These unfounded attacks are ultimately aimed at undermining the independence of the federal judiciary as a whole. . . . This is a well-financed and coordinated effort to lay the foundation for calls for court packing and other reform measures that would destroy the judiciary's independence.

Accessing Google Location History Records Is Not a Search — At Least When Limited — Fourth Circuit Rules

An important case on "The Digital Fourth Amendment"

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Regular readers may recall my prior coverage of United States v. Chatrie, a case on the Fourth Amendment implications of collecting Google location history records—location records stored by Google about where logged-in Google users are located—which in the Chatrie case were used to identify a bank robber.  The Fourth Circuit handed down its ruling in the case yesterday, and I thought I would give a quick summary and offer some thoughts.

My 2022 post explained the technology, the facts, and the trial court's ruling, so please go there for the details, as I'd rather not repeat it all here.  (Go ahead, really, I'll wait. Okay, back?  Now let's continue.). As you'll recall from my 2022 post—which you just read, right?— the trial court in this case (1) assumed that collecting the records was a Fourth Amendment search; (2) adopted a very narrow view of how broadly warrants for such records can extend, under which the Chatrie geofence warrant was plainly unconstitutional; and then (3) upheld the collection of records anyway under the good-faith exception to the warrant requirement because it was such a novel issue.  My 2022 post was skeptical of this, suggesting that no search may have occurred in the first place and that warrants should be a lot broader than what the district court concluded.

In the new ruling, the Fourth Circuit rules 2-1 that no search occurred. Judge Jay Richardson wrote the majority opinion, and he was joined by Judge Harvie Wilkinson, Judge James Wynn dissented.  Here's the key reasoning from the majority opinion by Judge Richardson:

Relying on Carpenter, Chatrie argues that the government conducted a search when it obtained his Location History data from Google. We disagree. Carpenter identified two rationales that justify applying the third-party doctrine: the limited degree to which the information sought implicates privacy concerns and the voluntary exposure of that information to third parties. Both rationales apply here. Accordingly, we find that Chatrie did not have a reasonable expectation of privacy in the two hours' worth of Location History data that law enforcement obtained from Google. So the government did not conduct a search by obtaining it.

Start with the nature of the information sought. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206. The government requested and obtained only two hours' worth of Chatrie's Location History data.16 By no means was this an "all-encompassing record of [Chatrie's] whereabouts … provid[ing] an intimate window into [his] person[al] life." Carpenter, 585 U.S. at 311, 138 S.Ct. 2206. All the government had was an "individual trip viewed in isolation," which, standing alone, was not enough to "enable[ ] deductions about 'what [Chatrie] does repeatedly, what he does not do, and what he does ensemble.' "Beautiful Struggle, 2 F.4th at 342 (quoting Maynard, 615 F.3d at 562–63). The information obtained was therefore far less revealing than that obtained in Jones, Carpenter, or Beautiful Struggle and more like the short-term public movements in Knotts, which the Court found were "voluntarily conveyed to anyone who wanted to look." Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Knotts, 460 U.S. at 281, 103 S.Ct. 1081). A record of a person's single, brief trip is no more revealing than his bank records or telephone call logs. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 742, 99 S.Ct. 2577. Chatrie thus did not have a "legitimate 'expectation of privacy,' " in the information obtained by the government, so the first rationale for the third-party doctrine applies here. Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (quoting Miller, 425 U.S. at 442, 96 S.Ct. 1619).

Furthermore, Chatrie voluntarily exposed his location information to Google by opting in to Location History. Id. at 315, 138 S.Ct. 2206. Consider again how Location History works. Location History is an optional setting that adds extra features, like traffic updates and targeted advertisements, to a user's experience. But it is "off by default" and must be affirmatively activated by a user before Google begins tracking and storing his location data. J.A. 1333–34. Of course, once Google secures this consent, it monitors his location at all times and across all devices. Yet even then, Google still affords the user ultimate control over how his data is used: If he changes his mind, he can review, edit, or delete the collected information and stop Google from collecting more. Whether Google tracks a user's location, therefore, is entirely up to the user himself. If Google compiles a record of his whereabouts, it is only because he has authorized Google to do so.

Nor is a user's consent secured in ignorance, either. See Carpenter, 585 U.S. at 314, 138 S.Ct. 2206 (explaining that the third-party doctrine applies to information "knowingly shared with another"). To the contrary, the record shows that Google provides users with ample notice about the nature of this setting. Before Google allows a user to enable Location History, it first displays text that explains the basics of the service. The text states that enabling Location History "[s]aves where you go with your devices," meaning "[t]his data may be saved and used in any Google service where you were signed in to give you more personalized experiences." It also informs a user about his ability to view, delete, or change his location data. A user cannot opt in to Location History without seeing this text.

So unlike with CSLI, a user knowingly and voluntarily exposes his Location History data to Google. First, Location History is not " 'such a pervasive and insistent part of daily life' that [activating it] is indispensable to participation in modern society." Carpenter, 585 U.S. at 315, 138 S.Ct. 2206 (quoting Riley, 573 U.S. at 385, 134 S.Ct. 2473). Carpenter found that it is impossible to participate in modern life without a cell phone. Id. But the same cannot be said of Location History. While Location History offers a few useful features to a user's experience, its activation is unnecessary to use a phone or even to use apps like Google Maps. Chatrie gives us no reason to think that these added features are somehow indispensable to participation in modern society and that his decision to opt in was therefore involuntary. That two-thirds of active Google users have not enabled Location History is strong evidence to the contrary. Cf. Riley, 573 U.S. at 385, 134 S.Ct. 2473 (noting that, as of 2014, "a significant majority of American adults" owned smartphones). Thus, a user can decline to use Location History and still participate meaningfully in modern society.

Second, unlike CSLI, Location History data is obtained by a user's affirmative act. Carpenter noted that "a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up." 585 U.S. at 315, 138 S.Ct. 2206. But Location History is off by default and can be enabled only by a user's affirmative act. A person need not go off the grid by "disconnecting [his] phone from the network … to avoid" generating Location History data; instead, he can simply decline to opt in and continue using his phone as before. See id. Thus, "in [every] meaningful sense," a user who enables Location History "voluntarily 'assume[s] the risk' " of turning over his location information. Id. (quoting Smith, 442 U.S. at 745, 99 S.Ct. 2577). So the second rationale for the third-party doctrine applies here, too. The third-party doctrine therefore squarely governs this case. The government obtained only two hours' worth of Chatrie's location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he "t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government." Miller, 425 U.S. at 443, 96 S.Ct. 1619. He cannot now claim to have had a reasonable expectation of privacy in this information. See Smith, 442 U.S. at 743–44, 99 S.Ct. 2577. The government therefore did not conduct a search when it obtained the data.

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Free Speech

Libel, Fire, Healing Chakras, and Real Housewives of New York

“The article also documents Plaintiff’s four failed attempts at appearing on the Real Housewives of New York, and the potentially circumstantial evidence that the fire was used as a publicity stunt as it occurred just one day prior to Plaintiff joining a talk show wherein she talked extensively about the fire.”

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From Abitbol v. Rice, decided Monday by N.Y. trial court judge Mary Rosado; nothing special about the legal analysis, but with facts like these, how could I pass them up?

This action arises out of a fire and ensuing water damage at the condominium at 10 West End Avenue, New York, NY 10023 (the "Building"). Plaintiff resided in Apartment #14B in the Building and Defendant lived in Unit 12G. The morning of November 6, 2019, Plaintiff lit a candle to "cleanse energy and heal her Chakras." Plaintiff alleges she blew out the candle and took her son to school. Nonetheless, a fire somehow ignited, and the fire sprinkler systems were triggered. Defendant's unit sustained water damage.

Plaintiff alleges that sometime in July of 2022, Defendant told Fire Marshal Anthony Henry of the FDNY that Plaintiff deliberately started the fire to gain notoriety and be cast on "Real Housewives of New York." Plaintiff also alleges that in June of 2022, Defendant drafted and filed a civil complaint in Rice v. Abitbol (the "Parallel Action") alleging that Plaintiff deliberately caused the fire and sent the complaint to news media outlets, including I Love The Upper West Side ("ILTUWS"). Plaintiff claims Defendant made additional defamatory comments to the New York Post by asserting that the investigation into the fire was an "open arson investigation from what I have been told." Plaintiff alleges these statements constitute defamation per se because they accuse her of committing a criminal act. She also claims intentional infliction of emotional distress and seeks declaratory judgment….

The court granted Defendant Rice's motion to dismiss the case under New York's "anti-SLAPP law":

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Free Speech

Journal of Free Speech Law: "Adding Injury to Insult: Kant on Defaming the Dead," by Prof. David Sussman

An article from the Defamation: Philosophical and Legal Perspectives symposium, sponsored by the Center for Legal Philosophy at UC Irvine.

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The article is here; here are the introductory paragraphs:

In a brief and largely overlooked section of the Doctrine of Right, Kant considers the right a person has to retain a good reputation after their death, the acquisition of which he calls "a phenomenon as strange as it is undeniable." Kant here is not claiming that one should never speak ill of the dead, at least if one is speaking truthfully (although Kant does count it "a duty of virtue not to take malicious pleasure in exposing the faults of others"). Rather, Kant's concern is with posthumous defamation: the telling of lies that in some way "stains" the name of the deceased. Kant explains that when such a right is violated, those still alive acquire an obligation to restore the reputation of the dead. This obligation apparently falls on everyone regardless of their relation to the deceased: "[A]n apologist need not prove his authorization to play the role of apologist for the dead, for everyone inevitably arrogates this to himself as belonging … to the right of humanity as such."

Although Kant has no doubt that there really is such a right against posthumous defamation, he is very puzzled by it, admitting that "It is therefore indisputable that there is a basis for such an ideal acquisition for someone's right after his death against those who survive him, even though no deduction of its possibility can be given" (emphasis added). Kant's perplexity is understandable. He considers the right to a good reputation to be part of "private right," concerning "what is externally mine or yours" such as property, contractually obligated performances, and the peculiar category of "domestic right" that heads of households supposedly have with respect to their spouses, their children, and their domestic servants. The violation of private right involves the wrongful infliction of harm or loss in a way that would normally call for at least some sort of compensation from the party responsible. So understood, this right immediately raises the question of whether, and in what ways, the dead can be harmed or deprived of something, and more broadly how the dead can still have interests that merit legal protection.

Whether the dead can still be harmed or helped is a long-standing philosophical question going back at least to Aristotle (who answers both in the affirmative). If the only things intrinsically good or bad for a person are their experiences (or aspects of experience, like pleasure), then death clearly puts a person beyond all injury (assuming, as Kant does, that death is complete annihilation). If we understand a person's good to involve not just experience but the objects of what they desire or otherwise care about, there remains what to make of those desires once the subject of those desires is no more. If I no longer exist after I die, just who could it be that could be benefited by the satisfaction of the desires that I developed when I was alive?

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