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Free Speech

First Amendment Protections for Anonymous Speakers Apply to Foreign Speakers

So holds a district court, in a copyright case brought by the Jehovah's Witnesses against a Reddit commenter.

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In In re DMCA Subpoena to Reddit, Inc., 2019 WL 2222041 (N.D. Cal. May 17), the Watch Tower Bible & Tract Society of Pennsylvania—the Jehovah's Witnesses organization—claimed that a commenter on a Reddit forum for ex-Jehovah's-Witnesses infringed Watch Tower's copyrights in a couple of items. They sought a subpoena to discover the identity of the commenter (who had posted under the pseudonym Darkspilver); Darkspilver sought to block the subpoena, arguing that the First Amendment protected his anonymity, but Watch Tower argued that he lacked First Amendment rights because had had admitted that he lived from outside the U.S., and was presumably posting from outside the U.S. But the court rejected that argument:

For support, Watch Tower cites two cases evaluating different constitutional provisions – the Fourth and the Fifth Amendments. See Johnson v. [Eisentrager], 339 U.S. 763 (1950) (Fifth Amendment); United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment).

In Johnson, the Supreme Court held that military prisoners captured abroad were not entitled to protection under the Fifth Amendment because they were: (a) enemy aliens; (b) had never been or resided in the United States; (c) were captured outside of the United States and held in military custody as war prisoners; and (d) were tried and convicted by a Military Commission sitting outside the United States for war crimes committed abroad…. In United States v. Verdugo-Urquidez, … the Court rejected the exterritorial application of the Fourth Amendment to a search conducted in Mexico of a Mexican resident and citizen's homes.

In contrast, here, the constitutional right at stake is a different constitutional amendment – the First Amendment – and the asserted violation does not concern merely extraterritorial conduct. The subpoena here was issued by a Court in the United States, on behalf of a United States company (Watch Tower) and was directed against another United States company (Reddit).

Moreover, the First Amendment protects the audience as well as the speaker…. Although the exact percentage of subscribers to Reddit forum who live in United States is unknown, the only data before the Court suggests that a substantial number are United States residents. Based on the involvement of the United States Court's procedures by and against United States companies and the audience of United States residents, as well as the broad nature of the First Amendment's protections, the Court finds that the First Amendment is applicable here.

The court went on to conclude that the proper First Amendment solution here was to allow disclosure of Darkspilver's identity only to plaintiff's lawyers, who would be obligated not to disclose to their client. Though Darkspilver might have a strong fair use defense,

Nevertheless, Watch Tower has not yet had a chance to conduct discovery on its copyright claim or to engage an expert to conduct a market analysis. Perhaps Watch Tower, if provided the opportunity, could demonstrate that fewer people visited its website after Darkspilver's posting. The Court is hesitant to deprive Watch Tower of the opportunity to develop its claim and supporting evidence before it has even filed suit.

In balancing the harms, while considering the fair use defense, the Court finds that they tip sharply in Darkspilver's favor. However, the Court notes that Darkspilver's concerns stem largely out of his fear that those in his congregation will discover his identity and shun him. If Reddit reveals Darkspilver's identity to Watch Tower's counsel, under an "attorney's eyes only" restriction, then any harm to Darkspilver would be alleviated. This restriction would enable Watch Tower to pursue its copyright claim without causing harm to Darkspilver.

Therefore, the Court hereby grants in part and denies in part Darkspilver's motion to quash. Reddit shall respond to the subpoena and provide the requested information to Watch Tower's counsel. However, only attorneys of record in this matter may obtain information about Darkspilver's identity. Watch Tower's attorneys of record shall not to disclose Darkspilver's identity to anyone else without approval in a Court Order from this Court. For example, Watch Tower's attorneys of record may not disclose Darkspilver's identity even to its client, staff, or expert witnesses without approval in a Court Order from this Court.

[Footnote: Watch Tower claimed at the hearing that it plans to disclose Darkspilver's identity to its forensic experts so that Watch Tower can determine how Darkspilver obtained confidential information in the chart and prevent further disclosure of that confidential information. This purpose is not related at all to a copyright issue, and for that reason, the Court rejects that form of disclosure.]

If Watch Tower elects to file a lawsuit against Darkspilver, the Court directs Watch Tower to seek to file the suit under his pseudonym and to keep his actual identity under seal, for attorney's eyes only. Moreover, Watch Tower is admonished that any violation of this Order will be sanctioned and that this Court retains jurisdiction over any potential violation of this Order.

EFF (Alex Moss) has more on this, arguing that the order should have entirely rejected the subpoena:

While the court agreed that "Watch Tower has not demonstrated any actual harm or likelihood of future harm"—the fourth fair use factor—it gave undue credence [to] Watch Tower's claim that "the harm it suffered from people infringing on its copyrights was directing others away from its website." … Based on the court's approach, the [First Amendment] standard offers weak protections for fair users. Even a far-fetched theory regarding a particular fair use factor, like the one posited here, might be enough to justify disclosure even if the rest of the fair use analysis clearly suggests the use was lawful.

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14 responses to “First Amendment Protections for Anonymous Speakers Apply to Foreign Speakers

  1. I think the key point about the 1st amendment is that it prohibits Congress from doing certain things, PERIOD, and doesn’t have squat to say about who they can’t be done to.

    Because they can’t be done, PERIOD. So who they might be done to is utterly irrelevant.

    The Executive can’t do them, either, because in most areas the executive gets it’s authority to do things on the theory that it’s executing a law passed by Congress.

    1. But only those who possess rights can sue over them in court. A fetus can’t make a claim that abortion squelches its future First Amendment rights, for example, or a claim that (say) government involvement in approving an abortion drug or something violates its rights. And the fact that (say) a fetus’s father is affected doesn’t give him standing to sue on the fetus’ behalf.

    2. Careful, Brett – next you’ll be applying that to equal protection for noncitizens!

      1. Of course equal protection extends to non-citizens.

        1. So a Muslim ban would be unconstitutional, eh?

  2. “Here’s some relevant facts. But for the attorneys’ eyes only!”

    Something doesn’t seem right about this. The attorney derives power from the people hiring them who are actually in the court case.

  3. This appears to me to lead to a line of argument that leads inexorably to a de facto overturning of Roe v. Wade.

    The Due Process Clause lacks “prenatal application.” But if it nonetheless applies full-force in the abortion context to everyone born who might merely be affected by an abortion, they could sue and have their cases tied up in the courts indefinitely, or at least until the pregnancy comes to term and the case is moot.

    It seems to me that a service provider who merely publishes comments without editorial control has diminished First Amendment rights, as the person to be sued, the one who is responsible, is supposed to be the poster, not the service provider. So if the poster has no First Amendment rights, I think the plaintiff may have a good claim.

    You could reach a similar result alternatively by making it a matter of statutory interpretation, saying that the substance of the Copyright statute is narrowed by the First Amendment, but that same statute applies equally narrowly everywhere.

    But this sort of you-can-get-around-the-limit-on-applicability-by-saying-It-applies-if-anyone-applicable-is-affected merely provides a recipe for overturning Roe v. Wade by getting around the limit on the Due Process Clause’s applicability to a fetus. If Roe is good law, this can’t be the right decision. And vice versa.

  4. I’m curious about the background to this case.

    Did Watch Tower send a DMCA takedown request to the ISP to remove the offending material before seeking this subpoena? Did the offender respond to the DMCA, or did the ISP refuse to take down the material?

    That is typically the first step when dealing with copyright infringement and the steps taken (or omitted) would say a lot about the parties’ motivations.

  5. I think it’s Johnson v. Eisentrager, not Johnson v. Eistrager.

    1. It is — the court decision miscited it, but on reflection I agree that it’s better to correct it, so I’ve revised the quote and added brackets to note the change.

  6. While the court agreed that “Watch Tower has not demonstrated any actual harm or likelihood of future harm”—the fourth fair use factor—it gave undue credence [to] Watch Tower’s claim that “the harm it suffered from people infringing on its copyrights was directing others away from its website.”

    The opinion is actually worse than that. This judge does not understand the fourth factor of the fair use doctrine. (She properly found the first three factors weigh in favor of fair use.) The fourth factor is “the effect of the use upon the potential market for or value of the copyrighted work.” IOW, if the use takes away from the market for the copyrighted work, that weighs against fair use.

    But, and this is critical, case law (IIRC the Supreme Court already has said this), this only means effects based on substitution of the copied work for the copyright owner’s work . It does not mean detracting from the market value based on criticism.

    Two examples illustrate this. If I post a movie on Youtube and then the studio loses revenue because people watch it there free, that weighs against fair use. That is a substitution loss.

    But if I write a negative review about a movie, and take snippets of it as part of my review, and then the revenues go down because people say, hey, that critic says the movie stinks, so I am going to watch something else, that is NOT a negative effect that counts for fair use.

    This is a classic case of fair use, and a classic case of abuse of copyright to silence criticism. Shame on the judge for blowing this.

    I read the opinion. Nothing there indicates that the JW’s are going to lose anything because of substitution. The copyrighted work is an advertisement (they don’t sell it for money like a movie). And the harm of traffic to their website is from criticism, not substitution.

    1. The Supreme Court case I was thinking about was Campbell v. Acuff Rose, where the Supreme Court considered parody:

      We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,” B. Kaplan, An Unhurried View of Copyright 69 (1967), the role of the courts is to distinguish between “[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.”

  7. Professor Volokh,

    As you know I have been commenting on your blog for many years. Years ago, I raised the issue of a structural similarity between Johnson v. Eisentrager and Roe v. Wade, to suggest that one day the Supreme Court would find itself confronting the issue head on and, if the court had a conservative majority, would end up substantially equating the two. Both abortion and the treatment of foreigners involve a conflict between moral ideals and the realities of people and nations putting themselves first and doing what they think is necessary to get ahead in the world.

    So here we are, a court decision, in the 9th circuit no less, that begins by assuming that the word “person” in the Bill of rights doesn’t apply to foreigners and they themselves have no First Amendment rights.

    And so the judiciary puts itself in a bind. The easier it is to get out of foreigners’ lack of rights by legal stratagems, without actually overturning Johnson, such as finding a citizen who claims to be a beneficiary who then has standing to assert the rights the foreigner has, the easier it becomes to get out of Roe v. Wade by without actually overturning it employing similar stratagem in that context.

    And the more the courts defend Roe, the more applicable those defenses become to the Administration’s treatment of foreigners.

    Once you equate the two as a structural legal matter, structural legal equality inexorably leads to moral equality.

    You can’t say foreigners are only technically non-persons, not really, without elevating the arguments of those who say the same about fetuses. And you can’t say non-applicability of the word “person” means equivalence to a mere piece of meat in the abortion context, without some of that reasoning inevitably blowing back to cases involving foreigners.

    If US-territory persons have an interest in hearing what a foreigner has to say sufficient to give the foreigner standing, it’s hard to see why born persons wouldn’t have some similar sort of interest in a fetus’s life.

Please to post comments

Border wall

Federal Court Rules Trump Cannot Use Defense Funds to Build Border Wall

The first court decision on Trump's plan to reallocate federal funds to "build the wall" goes against the administration.

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On Friday night, Federal District Judge Haywood Gilliam ruled against the administration in what is likely to be the first of many court decisions on the legality of President Trump's plans to reallocate federal defense and and drug interdiction funds to build his border wall. The court concluded that none of the the federal laws that the administration wants to use to reallocate funds for wall construction in California actually permits it to spend more money on the wall than Congress specifically authorized for that purpose. Judge Gilliam also emphasized that the administration's attempts to circumvent Congress' power of the purse threaten to undermine our constitutional system of separation of powers.

In order to build parts of Trump's planned border wall, the administration wants to reallocate funds under 10 USC Section 284, which allows the use of Department of Defense "counternarcotics" funds to provide support for "counterdrug activities" by other agencies, and 10 USC Section 2808, which applies  during a "national emergency" that "requires the use of the armed forces"  an allows the president to reallocate defense funds to "undertake military construction projects … that are necessary to support such use of the armed forces." In order to make use of Section 2808, Trump declared a "national emergency" under the National Emergencies Act of 1976.

Since the funds Congress specifically allocated to fund Section 284 during the current fiscal year are nearly exhausted, the Department of Defense wants to tap some $2.5 billion in additional funds by using Section 8005 of the most recent Department of Defense Appropriations Act. As Judge Gilliam explains, Section 8005 "authorizes the Secretary of Defense to transfer up to $4 billion 'of working capital funds of the Department of Defense or funds made available in this Act to the Department of Defense for military functions Section 8005 further provides that such authority to transfer may only be used (1) for higher priority items than those for which originally appropriated, and (2) based on unforeseen military requirements, but (3) in no case where the item for which funds are requested has been denied by the Congress." The federal government also plans to utilize some $3.6 billion under Section 2808. This combined total is far more than the $1.375 billion that Congress authorized in new border barrier spending in the deal that ended the government shutdown earlier this year.

For reasons Judge Gilliam outlines, neither Section 2808 nor the combination of Section 284 and Section 8005 actually authorize the president to spend money on border barriers. Moreover, the administration's efforts to tap these funds would seriously undermine the separation of powers of the courts allow them to succeed.

In his opinion, Judge Gilliam concludes that the administration's attempt to use Section 8005 runs afoul of two of that provisions' requirements: that the expenditure in question cannot be for a purpose "denied by Congress", and that it must be for  "unforeseen military requirements."

As Judge Gilliam points out, "the Defendants' argument that the need for the requested border barrier construction funding was "unforeseen" cannot logically be squared with the Administration's multiple requests for funding for exactly that purpose dating back to at least early 2018." Trump has been lobbying Congress for extensive new border wall funding for a long time now. Their refusal to satisfy his demands does not make the wall an "unforeseen" military need. He notes that if the administration prevails on this issue, virtually any Section 284 spending could qualify as as an "unforeseen" need, based on the theory that the need for  the spending was not known until the administration demanded it.

The administration's position on the "denied by Congress" issue is perhaps even more troubling. Judge Gilliam's ruling explains that the administration's demands for new border wall spending beyond the $1.375 billion included in the recent budget deal, were repeatedly rejected by Congress. This surely qualifies as a "denial" by Congress. The administration's attempts to get around this problem pose a serious threat to the separation of powers:

[T]he upshot of Defendants' argument is that the Acting Secretary of Defense is authorized to use Section 8005 to funnel an additional $1 billion to the Section 284 account for border barrier construction, notwithstanding that (1) Congress decided to appropriate only $1.375 billion for that purpose; (2) Congress's total fiscal year 2019 appropriation available under Section 284 for "[c]onstruction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States" was $517 million, much of which already has been spent; and (3) Defendants have acknowledged that the Administration considered reprogramming funds for border barrier construction even before the President signed into law Congress's $1.375 billion appropriation….

Put differently, according to Defendants, Section 8005 authorizes the Acting Secretary of Defense to essentially triple—or quintuple, when considering the recent additional $1.5 billion reprogramming—the amount Congress allocated to this account for these purposes, notwithstanding Congress's recent and clear actions in passing the CAA, and the relevant committees' express disapproval of the proposed reprogramming….

[R]eading Section 8005 to permit this massive redirection of funds under these circumstances likely would amount to an "unbounded authorization for Defendants to rewrite the federal budget…"

Judge Gilliam goes on to emphasize that:

The Court has serious concerns with Defendants' theory of appropriations law, which presumes that the Executive Branch can exercise spending authority unless Congress explicitly restricts such authority by statute…. But it is not Congress's burden to prohibit the Executive from spending the Nation's funds: it is the Executive's burden to show that its desired use of those funds was "affirmatively approved by Congress…

To have this any other way would deprive Congress of its absolute control over the power of the purse, "one of the most important authorities allocated to Congress in the Constitution's 'necessary partition of power among the several departments.'"… (quoting The Federalist No. 51, at 320 (James Madison)..).

On Section 2808, Judge Gilliam concludes that "it is unclear how border barrier construction could reasonably constitute a 'military construction project' such that Defendants' invocation of Section 2808 would be lawful." For reasons he explains, such border barriers do not qualify as a "military construction projects" as that term is defined in Section 2801 (which provides relevant definitions for 2808).

I pointed out some additional reasons why the administration's reliance on Section 2808 is flawed here. Among other things, immigration law enforcement does not qualify as an "emergency" that "requires the use of the armed forces." Indeed, using the armed forces for domestic law enforcement purposes is actually illegal.

Because the administration has not yet decided when and where it intends to use the Section 2808 funds, Judge Gilliam only issued a preliminary injunction against the use of Section 8005/Section 284 funds.

The bottom line in this case is that the president does not have the power to spend money for purposes not authorized by Congress, and he cannot circumvent Congress' power of the purse through creative manipulation of statues. As Judge Gilliam puts it, "Congress's 'absolute' control over federal expenditures—even when that control may frustrate the desires of the Executive Branch regarding initiatives it views as important—is not a bug in our constitutional system. It is a feature of that system, and an essential one."

This is not the first time the Trump Administration infringed on Congress' power of the purse. It has repeatedly done much the same thing in its efforts to withhold federal funds from "sanctuary cities," a strategy that has led to a long series of well-deserved defeats in court.

Judge Gilliam's decision only deals with the plaintiffs' motion for a preliminary injunction. But it is obvious which way he is likely to rule once the case reaches a final decision on the merits. In addressing the preliminary injunction question, he concluded that the plaintiffs are likely to prevail on the merits on both the Section 2808 and Section 8005/Section 284 issues.

Yesterday's ruling is just the beginning of what is likely to be a prolonged legal battle over Trump's efforts to reallocate funds to "build the wall." This case, filed by the ACLU on behalf of the Sierra Club and other groups, is just one of many lawsuits against the president's plan. It is the first to result in a judicial decision. There will likely be many more before this

Judge Gilliam does not address a number of issues that are likely to be dealt with in other cases, or perhaps even in this one, after the federal government files an appeal. These include whether the situation at the border qualifies as "national emergency" under the National Emergencies Act of 1976 (whose invocation was necessary to trigger Section 2808), and whether the president has the authority to use eminent domain to seize property for border wall construction not specifically authorized by Congress. Yesterday's ruling did not need to address these issues because Judge Gilliam concluded that the use of Section 2808 was illegal for other reasons, and because the administration has not yet tried to use the new funds to condemn property in the areas in question. Similarly, the ruling does not consider the legality of the administration's plan use federal asset forfeiture funds to build the wall, relying on 31 USC 9705. The Administration intends to use Section 9705 to fund wall construction in Texas, but in areas not covered by the lawsuit before Judge Gilliam.

As Winston Churchill might have put it, this ruling is not the end of the legal struggle over Trump's border wall; it barely even qualifies as the end of the beginning. But Judge Gilliam's decision is still a notable victory for opponents of the wall. It effectively highlights some key flaws in the administration's position.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

164 responses to “Federal Court Rules Trump Cannot Use Defense Funds to Build Border Wall

  1. Another “but Trump!” decision by a non-white Obama appointee. Yawn. Nothing to see here.

    1. If you agree with the ruling, what relevance is it that the judge is non-white and an Obama appointee? Or are you just mad that you didn’t get into Yale and Stanford Law?

      1. Because the ruling was in bad faith. And I didn’t apply to Yale or Stanford. But getting in as a black is not impressive. A white has to have at least a 172 to get in to either, whereas a black with a 160 can easily get in.

        I got a 176.

        1. If it was correct, how was it in bad faith? Should he have given an incorrect ruling just to make you feel better?

          1. It’s in bad faith because he doesn’t actually believe in the principle on which he claims this ruling is based.

            1. By “principle” you mean the wording of the three statutes in question?

              1. You are attempting to reason with a guy who believes women should be forbidden to vote, who is pining for a race war, who often lurches into tangential rants about ‘throbbing male members,’ and is a prominent member of the Volokh Conspiracy’s carefully cultivated right-wing follwing.

        2. “I got a 176.”

          76, I’d actually believe.

      2. So what you’re saying, is that you’re a racist.

        Good to know.

        1. Racist, and not shy about it.

    2. Yawn. Activist judge. Will be overturned.

  2. Judge Gilliam, appointed by Obama. No doubt a fair and impartial ruling – strictly on the law and merits, for sure.

    1. I actually agree with the ruling as a matter of principle. But I have no doubt that Gillam’s lofty references to separation of powers would take a back seat if Obama had, say, used general HHS funds to pay for PrEP drugs for gay men, or if he had used general education funds to pay for grants to teach BLM type propaganda, even if in each case Congress had voted no.

      1. He does make a lot of good points about the limits of the sections the Administration is trying to use to justify these expenses.

        On the other hand, I find his dismissal of border security as a non-military manner to be both reaching far out of his expertise and in direct contrast to even a cursory understanding of military history.

        The security of borders has been one of the primary purposes of the military throughout history. Denying that draws into question all of his other arguments.

        1. When I said I agreed in principle, I meant that I think the Constitution should be followed closely. That said, this “judge” has on intent on reining in any level of government out of any desire to follow the Constitution. He just wants to stop Trump. He’s part of the “#resistance.” The moment a Demoncrap gets into office, and suddenly he’ll be writing about the enormous latitude the executive gets in these instances.

          1. And the Republican judges will be taking over judgement for executive branch rationalizations by the Democratic presidents.

            “Go ahead, Doctor Jones. Blow it up! We are merely traveling through history. This…this is history!”

            (Doctor Jones ponders for a moment then blows up the Constitution Ark.)

        2. Rather than looking at the Judge’s dismissal of border security as a military matter, why not look at Trump using the United States military as toy soldiers for political gain?

          Recall just before the midterms: There was a caravan of men, women and children moving slowly on-foot up through Central American. This had occurred before and the result would be the same this time : The crowd would thin as it moved north; it would approach the border numbering in the hundreds to apply for asylum; U.S. border security would handle the situation. But this time was an election, so instead :

          1. Trump claimed that “criminals and unknown Middle Easterners are mixed” in with the group. There was no evidence of this, then or now.

          2. Trump claimed it was “actually mostly men” who were “pushing the few kids right up to the front”. This was pure lying.

          3. Trump said, “You look at that, it almost looks like an invasion. . I think it could be considered an invasion of our country”. This was either delusional panic or still more lying.

          4. Trump said he “wouldn’t be surprised” if George Soros was funding the caravan. This was either stomach-churning pandering or stomach-churning paranoid delusion, one or the other.

          5. Trump gave a speech bragging, “They want to throw rocks at our military, our military fights back,” he said. “I told them, consider it a rifle.” Having been in the military, I can assure you military commanders down the chain of command did not appreciate his juvenile crap.

          So Trump sent 6,000 troops and promised 10k more. For form’s sake, Defense Secretary James Mattis said, “We don’t do stunts in this department” before acting as stunt coordinator. The Army commander overseeing the mission began drawing-down his troops just after the election, even before the refugees reached the U.S. port of entry near Tijuana. Trump, of course, stopped mentioning the “invasion” caravan immediately after the voting ended.

          It was a cartoon spectacle worthy of a banana republic. Who’s “understanding of military history” would you trust, Federal District Judge Haywood Gilliam or Donald John Trump?

          1. Hi, Apple, meet Orange.

            The judge dismissed thousands of years of military history as part of his legal ruling. Not as part of a political campaign, or during a speech. He made claims of fact, and demanded that they be enforced – only he is blatantly wrong.

          2. Sorry, Toranth, but you’re confused over your apple/oranges and my example was on point. Go look up the The Posse Comitatus Act, which limits the powers of the federal government to use federal military personnel to enforce domestic policies within the United States. It dates from 1878, but represents a bedrock principle of federalism which long predated that.

            It has exemptions, such as those which allowed Eisenhower to call up military forces when state authorities refused to suppress violence against people exercising their constitutional rights. And it’s been modified – such as in 2006, with the provision that “armed forces could restore public order and enforce laws in the aftermath of a natural disaster, terrorist attack or incident, or other condition”.

            But almost everyone agrees – regardless of their ideology : The United States military should be involved in enforcing this country’s domestic laws to the absolute minimum possible extent and degree. Immigration enforcement is a matter of domestic law, executed by domestic law enforcement. Migrants and the so-called caravans are NOT invasions, despite Trump’s tin-horn third-world-grade theatrics. Sorry, Toranth, but even you can’t make a heroic battle from a few hundred ragged men, women and children on foot – your sepia-colored nostalgia notwithstanding.

            They are the purview of domestic enforcement agencies, exactly as Judge Haywood Gilliam said. Since you’re swimming in confusion about this, let me assure you Gilliam would welcome military action when Mexico sends tanks across the border. But that’s not what we’re discussing, is it?

            1. The returning, victorious general’s army shall remain outside of Rome.

            2. The caravans ARE “invasions”, they’re merely not military invasions,

              1. Invasions don’t ask for asylum.

            3. Again, guarding the borders is a standard function of the military around the world, and throughout history. Denying this is an absurdity, a delusional position that brings into question any other argument you make because it is so wrong.

              Second, the apples to oranges comparison I made that you failed to understand is the difference between a POLITICAL CAMPAIGN SPEECH and a LEGAL RULING. These are not the same thing and, again, claiming that they are is so delusional that it brings everything else you say into question.

              1. We passed a law ensuring we were not like a lot of other countries in your use of the military. No amount if caps lock or calling those disagreeing with you delusional changes our law.

                1. Error! Assumes facts not in evidence, plus is irrelevant to the discussion at hand.

                  Reread the post, and try again. This time, with a rational argument.

                  1. DMN deals with the argument as well below, but your appeal to ‘what is a standard function’ isn’t actually a statutory argument. It’s also not an argument Trump has made.

        3. “The security of borders has been one of the primary purposes of the military throughout history.”

          The Founders thought we could defend our borders without a standing army at all.

          1. You mean the same Founders that commissioned and funded the First American Regiment to guard the western borders of the United States against Indians? And the West Point fortress, artillery park, and Military Academy?
            Of course, it did take until all of 1791 until more regiments were created.

            The US Army has had thousands of men serving in it continuously since the Revolutionary War. Even in peacetime, there were regiments guarding the borders – all in addition to the thousands of state militia who did that same job (4000 in Virginia alone in 1811). The United States has never in its history been without a US Army.

            1. I was thinking more along the lines of the Founders who wrote a prohibition against Congress appropriating more than one year of funding for the Army, and added the Second Amendment to protect the existence of the militia. But yeah, those guys were around at the same time, too.

        4. The security of borders has been one of the primary purposes of the military throughout history. Denying that draws into question all of his other arguments.

          Setting aside the validity of the appeal to tradition — throughout history, the security of the ruling class against the population has been one of the primary purposes of the military — the security of borders against military incursion has been one of those primary purposes. Not against individual migrants.

          1. Against military incursion… and smuggling. and banditry, and to collect taxes or tariffs, for just a few additional examples.

            1. Which has nothing to do with asylum seekers or other migrants.

              Trump-worship rots its viewers’ brains, though those who succumb weren’t too bright to begin with

      2. Or if Obama had decided to create entire new program for illegals and affirmatively grant them benefits and issue them permits.

        Or if Obama had decided to make billions in risk corridor payments that Congress didn’t appropriate.

        We can’t tolerate a system with two clearly different definitions of justice.

    2. Are you arguing that an ongoing occurrence that Trump had been publicly complaining about for four years, and that he specifically requested funding for that Congress didn’t allocate, and that he specifically discussed reappropriating funds to address if Congress didn’t allocate them, was “unforeseen”?

      Or are you arguing that our southern border is a military “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department”?

      1. Actually, the truth is even more sordid. The “Build a Wall” shtick was a great presidential campaign applause line, particularly since Mexico was going to pay for it. But post-election wall talk was more infrequent, being no longer needed for crowd yuks. Successive budgets came and went with Congress refusing to fund a joke line, and Trump just shrugged his shoulders with indifference. In late 2018, he announced agreement to a budget reconciliation bill with all his customary bombast. But what followed was an afternoon/evening of flaming anger by toxic Right infotainment types like Coulter, Ingraham, and Limbaugh.

        That was enough. Within 24hrs he reversed his “position” a full 180 degrees and refused to support the budget bill he just praised. Then came the longest shutdown in history – over a wall ignored the first half of his presidency. Congress refused to fund the wall to bring the shutdown to a close, and refused to fund the wall in the negotiations which followed. This resulted in the phony emergency declaration.

        So Trump trashes the constitutional principle of congressional appropriations authority and all his lickspittles applaud. But this institutional damage isn’t over an emergency, or even an imaginary emergency. It’s because Trump feared the docile sheep comprising his political base were restless, and he wildly panicked.

        And we have to make critical constitutional law from that, a weak-willed man’s blind panic…..

        1. I wonder how often you commented on Obama’s trashing Constitutional principles. I would guess not often.

          1. Now, is your assumption based on the fact that when Obama did it, this other commenter didn’t object? Or are you just noting that Obama didn’t do it with the same frequency?

          2. I wonder how often you commented on Obama’s trashing Constitutional principles. I would guess not often.

            The last refuge of the Trump-worshipper.

    3. Meanwhile Judge McFadden, appointed by Trump, is himself motivated solely by the law and the merits, as he’s asserting (in the House’s case on exactly the same issue) that Congress’s only recourse, when the President ignores restrictions on his spending authority, is to pass another law. Somehow.

    4. A Judge who was appointed by Trump would be completely free of bias making a judgment involving the Trump administration in your world-view, right?

      Then, if the ruling still didn’t go ‘your way,’ you’d argue that the Judge had TDS and wasn’t a true Republican, or was part of the “Deep State.”

  3. It’s amusing that the judge gave separation of powers as the reason for his ruling, when that is also the reason the president is free to disregard any court decision. Or am I reading too much into that?

    1. Courts, schmourts. Trump isn’t free to disregard the House of Representatives.

      How about while Trump relies on the Senate to protect him from impeachment, the House announces, “No more money for farm programs. No more money for corn ethanol. Defense appropriations will be permanently reduced by the sum of all diverted appropriations. And no more money for buying planes for the air force, or for developing new ones.”

      How long do you think it would take to get enough Republicans to reconsider whether Republican President Pence might make more sense than Republican President Trump?

      1. “How long do you think it would take to get enough Republicans to reconsider whether Republican President Pence might make more sense than Republican President Trump?”

        There aren’t enough R’s in the House to impeach, and the D’s aren’t going to. Trump will run in 2020 on “waaa! The mean democrats won’t let me build a wall!” but will never answer the question “why didn’t you build it in the two years while your party controlled both houses of Congress?” because that question is “fake news” asked by reporters who work for failing news institutions.

      2. 80% of the government runs on autopilot and is unmoored from Congress.

        Who gives a shit about their petty threats when they outsourced their power to “independent” agencies long ago.

    2. The President is free to disregard court opinions, but the people who work for the President are not.

      1. “Here’s a pardon, have fun.”

        What could the Federal courts do in that case? Honest question – I’m assuming impeachment would follow quickly, but that’s a political act by the Congress, not the courts. DO the Courts actually have recourse?

        1. Are you suggesting a pardon prior to committing an offesne? How would that differ from a license for crime?

          1. Not quite what I’m asking. If these rulings go against Trump, and he has his administration go ahead and proceed with building the wall, I assume that they (the people doing the work up to the cabinet official) may be charged with crimes for this. I don’t know what crime – misuse of government funds? But I’m sure there’s something they could be charged with.

            If Trump then pardoned them, what recourse would the courts have? Would impeachment be the only possible resolution?

            1. “I’m sure there’s something they could be charged with.
              If Trump then pardoned them, what recourse would the courts have?”

              They can be charged when Trump is no longer President. President Warren’s AG might be quite aggressive in what the charge, and Mr. Trump can’t pardon anyone when he is ex-President Trump.

              1. Is there some way to “unpardon” someone? Because my understanding was that the pardon power was absolute, even when the individual hasn’t been charged yet (Nixon).

        2. So you think this is a great idea?

          Just tell your people to break the law and promise them pardons?

          Has your Trump-worship rotted your brain?

  4. 1. Standing?

    2. Appeal, and keep spending the money.

  5. “Indeed, using the armed forces for domestic law enforcement purposes is actually illegal.”
    There is an exception intended for use when civilian law enforcement has broken down, most recently used IIRC in the 1992 LA riots. An appalling bug in the Insurrection Act allows the President to decide unilaterally whether using the military for domestic law enforcement is necessary.

    1. Open borders can only transition to totalitarian socialism, otherwise the result is total chaos. National emergency or not?

  6. Why is a district judge in San Francisco telling the federal government what they can or can’t do in El Paso?

    1. Judge Gilliam was appointed by Obama – consequently he would never overreach, don’t you know?

    2. “Why is a district judge in San Francisco telling the federal government what they can or can’t do in El Paso?”

      Because we only have the one federal government, I guess.

      1. Still fail to see why a suit involving federal government construction projects in Yuma and El Paso is appropriate for a judge in the Northern District of California to hear. I guess Yuma is at least in the same federal circuit, but what’s the point in having a federal court system broken up into circuits and districts if you can just forum shop?

        1. The case is Sierra Club et al. v. Trump. The Sierra Club is headquartered in San Francisco, hence the name “Sierra Club.” Why shouldn’t they be able to bring suit in their home jurisdiction?

        2. “Still fail to see why a suit involving federal government construction projects in Yuma and El Paso is appropriate for a judge in the Northern District of California to hear”

          Because of the word “federal” in front of the word “judge”. (Feel free to bring in the ongoing discussion of whether or not a federal judge should be able to grant an injunction on the federal government outside their jurisdiction. But have more of an an idea what the argument is, before you do this.)

          1. “Feel free to bring in the ongoing discussion of whether or not a federal judge should be able to grant an injunction on the federal government outside their jurisdiction.”

            That’s literally what I was doing… hence the repeated references to the judge’s location and district.

    3. Why is a district judge in San Francisco telling the federal government what they can or can’t do in El Paso?

      Because what the government wants to do in El Paso involves spending money from the Treasury that Congress hasn’t authorized. The case had nothing specifically to do with El Paso. It had to do with rules for spending federal money. It’s plainly a legitimate Constitutional issue.

  7. This is an opinion which “effectively highlights some key flaws in the administration’s position”? Is that some kind of legal jargon for a gross misapplication of legal standards? No standing, no violation of any statute, a complete failure to show irreparable harm entitling plaintiffs to the extraordinary relief of a preliminary injunction. More embarrassing judicial resistance. Do we really have to do a replay of the travel ban nonsense? Apparently so.

  8. On the whole, Prof. Volokh’s evaluation of Judge Gilliam’s decision, as well as the decision, seemed right to me. The situation at the Mexican border may, for the migrants and for DHS, be an emergency, but calling it a military emergency and using DoD appropriated funds to address it is a big stretch. It is, in any case, far from an emergency in its impact on people in the US near the Mexican border.

    President Trump failed to convince the Congress of the need for these funds, and now must (or should) resort to the bully pulpit the presidency gives him. It may be unfortunate for his cause, but he has over used that, through Twitter and other media, to the point it may have become ineffective.

    1. Prof Somin’s evaluation, not Prof Volokh’s. If Prof Volokh has TDS his medication is keeing it well under control.

      1. Well, something is stopping EV from criticizing Trump. It may be meds, or who knows?

  9. The border money is peanuts. Trump just promised farmers he will give them $30 billion, to defray the losses he inflicted on them with his trade war. Where does Trump think that money is coming from, a House appropriation?

    1. “Where does Trump think that money is coming from, a House appropriation?”

      To the seasoned observer, the fact that President Trump promised anything to anybody does not imply that President Trump has any plan to actually deliver He says it, and hopes somebody who works for him can make it happen, and that’s the end of his thought process on the subject. This is not a recent development… we’re still waiting for that “better healthcare system” law he was going to sign on day one.

  10. More government by lawsuit.

    If the Democrats win in 2020, I have a feeling they are going to regret this precedent, since there are a lot of less Progressive judges out there that Republican suits can be shopped to.

    1. Depends on whether or not the next Democratic President (whether in 2021 or whenever) wants to spend money Congress declines to appropriate.

      Seems to me, there have been plenty of times a D President wanted to spend money on something an R Congress didn’t want to pay for. Having trouble off the top of my head recalling a similar case where the D President went ahead and did it anyway. Anyone got some examples?

      1. No, but I can identify statutory authorities authorizing the use of funds for border construction. How about the 2019 DoD Appropriations Act and the John S. McCain National Defense Authorization Act? Nothing in the Consolidated Appropriations Act limits the ability of the ability of the President to rely upon other statutory authorities to fund border wall construction under an emergency declaration.

        1. MKE, the approps act has hard caps on what those funds can be used for.
          And changes in the uses of such funds needs permission from Congress.

          And the NDAA does not authorize a wall.

          1. Yeah, hard caps on the use of funds made available under THAT ACT. That does not limit the availability of funds available under other statutes. Point to any such limiting language. And 10 U.S.C. § 2808 authorizes “without regard to any other provision of law,… military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces.”

            1. And 10 U.S.C. § 2801 defines “military construction project” as construction “carried out with respect to a military installation,” with “military installation” defined as “a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.”

              You know, this was all laid out neatly in the opinion.

              1. Another error in the opinion (hard to keep track of them all). The president (not a district judge) has the discretion to determine when a national emergency requires the use of the armed forces and border barrier construction seems to be clearly within the scope of a military construction project.

                1. ” The president (not a district judge) has the discretion to determine when a national emergency requires the use of the armed forces”

                  The President is the commander-in-chief of the armed forces. This does not mean he doesn’t have to follow the law when directing them. What do you call it when a member of the military orders men under his command to commit illegal acts?

              2. Moreover, no specific construction projects have yet been identified under sec. 2808 so how the bloody hell can any court say at this stage that the statute was violated?

                1. The court never claims to decide whether a national emergency has required the use of the armed forces; it only decides whether what the President has tried to do fits within the scope of his “emergency” authority under the statute, and explains why it does not.

                  As regards Section 2808, the Trump administration argued that it authorizes the construction of a wall along the U.S.-Mexico border, based on the argument that the “other activity” in “base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department” meant that the construction could be anywhere at all. The court rejected this argument, but didn’t actually issue an injunction under that Section, because as you note, “Defendants have not disclosed a plan for diverting funds under Section 2808 for border barrier construction.”

                  1. Don’t know what to say. The President clearly has the authority to reallocate funding from military construction projects made available through the national emergency declaration. The court is in error.

                    1. Clearly? Well that’s a great argument.

                    2. Seems pretty clear to me under 10 USC 2808(a):
                      “In the event of …the declaration by the President of a national emergency…the Secretary of Defense, without regard to any other provision of law, may undertake military construction projects, and may authorize the Secretaries of the military departments to undertake military construction projects, not otherwise authorized by law that are necessary to support such use of the armed forces. Such projects may be undertaken only within the total amount of funds that have been appropriated for military construction, including funds appropriated for family housing, that have not been obligated.”

                      But if you prefer, we could just say the President obviously has authority.

                    3. So you think the wall is a military construction project?

                      And you think Congress has effectively delegated it’s entire DoD budget activity to the President via this act?

                      Your conclusion are not clear from the law; they are actually absurd results.

                    4. Yes, I think border barrier construction can reasonably come within the definition of a military construction project.

                      And, defining the wall as a military construction project does not mean that Congress has effectively delegated its entire DOD budget activity to the President. That make no sense at all.

        2. “No, but I can identify statutory authorities authorizing the use of funds for border construction”

          It’s a shame whoever provided the President’s defense of this lawsuit couldn’t, then. Either you’re a better lawyer than they are, or you share the President’s ability to inflate his capabilities when speaking in public.

          1. That’s just plain ridiculous. An opinion issues that is so replete with legal error that it is a challenge just to cite them all and you think government counsel did not raise all possible defenses? Absurd. This crap will be reversed. Unfortunately it takes time.

            1. “Unfortunately, it takes time.”

              Not more than two years, clingers should hope.

            2. ” An opinion issues that is so replete with legal error that it is a challenge just to cite them all”

              Maybe start by finding one?

              1. No standing, no violation of any statute, a complete failure to show irreparable harm entitling plaintiffs to the extraordinary relief of a preliminary injunction.

      2. DACA

        Risk Corridor Payments

        Are two that I can think of.

        1. And now that I think about it how, what about the pallets full of cash sent to Iran? And wasn’t there a multi million dollar payment to some UN Climate Fund in furtherance of the Paris accord insanity? I’m sure there are many more examples.

          1. “what about the pallets full of cash sent to Iran?”

            You mean, Iran’s money?

            1. You mean, a small fraction of the money that Iran owed to the US for its seizure of property and harm to US entities? The money that has been held up pending arbitration and judgement before multiple international bodies because Iran refuses to participate? The money that Congress passed laws specifically denying the President the right to do anything with?

              That money?

              1. Whatever it was, it was not some cash payment to Iran like MKE puts it.

                And that money was not under any arbitration. It was frozen assets.

                No laws were broken in its release.

                1. It was pallets of cash (see 0:10). That’s… a cash payment.

                  That payment, plus the others, was in violation of the ITSR (Iranian sanctions) which strictly prohibited payments to Iran. There’s money laundering laws broken, because of the way the payments were made. There’s the laws against funding terrorist organizations or sponsors of terrorism. There was also a law protecting the claims of victims of Iranian terrorism.
                  And don’t forget that the “interest” portion of that payment was not allocated by Congress, and so was spent without any Congressional approval. Somewhat relevant here, no?

                  1. You better stop before there’s nothing left of Sarcastr0.

                  2. It was their money originally, MKE.

                    We ended those sanctions as part of our deal.

                    Do you know what payment means?

                    1. Do you even read any of the comments above? It’s like we’re going in circles.

          2. And now that I think about it how, what about the pallets full of cash sent to Iran?

            You mean a refund of money that Iran paid the US for stuff we didn’t deliver?

            Here is one explanation.

            But go ahead an believe the Fox/Limbaugh version because, hey, those guys are as honest as the day is long. Right?

            1. Try reading the above comments you idiot.

              1. Try getting the facts, you Trump-worshipping moron.

                Here’s a clue: don’t rely on Fox or Rush Limbaugh. They are lying to you, betting you’re too stupid to know it. So far that looks like a good bet.

    2. It won’t matter. Republican appointees actually tend to apply laws instead of making it up as they go.

  11. Without bothering to go as far as the Judge’s actual judgement and relying on Prof Somin’s account, there seems to be a confusion here on :

    “where the item for which funds are requested has been denied by the Congress”

    with Somin morphing the “item” into the “purpose.”

    In any event this looks to be about whether Congress has denied funds for the item (or the purpose.) Not about whether Congress has voted funds for the item (or purpose) but less than the government would like to spend.

    That is the difference between taking a second eclair when you have been alloated only one; and taking an eclair when eclairs have been forbidden to you tout court.

    Mrs Moore would adopt Judge Gilliam’s conclusion, but she certainly wouldn’t be claiming her decision was based on an analysis of the text.

    1. Moore; I want ten eclairs.
      Mrs M: you may have 1, I deny you the other 9.
      Mr M: eats 10, claiming eclairs were never denied.

      Trump requests a 10 billion dollar wall, is denied such wall and allowed to do spend on a much smaller wall. Idealogues online twist themselves into knots to argue that Congress didn’t deny him a more expensive wall.

      1. Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Point to any statutory language limiting access to other funding sources or in any way limiting the President’s authority to declare a national emergency. There is no such language.

        1. “Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction.”

          You cling to this, so I hope it is providing you some comfort.

          1. Feel free to identify any such limiting language….

            1. Appropriations are enabling language, not limiting language. They do not enable a wall. Hence your argument is bunk.

              1. Not really sure what point you’re making. My point is that there is nothing in the Consolidated Appropriations Act (that’s a statute by the way) that limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Do you contending otherwise?

                1. You need both appropriation and authorization authority to reprogram funds.

                  Did you even read the OP? Why all the Section 8005 business?

                  1. You misunderstand what is happening here Sarcastr0. Any funds utilized for border-barrier construction pursuant to 2808 will be used for the purpose for which they were appropriated.

                  2. And why all the section 8005 business? Because Plaintiffs are trying to manufacturer some legal basis for their complaint by challenging DODs transfer of funds, although they have no standing to challenge the transfer of funding from one DoD appropriation to another.

                  3. And foreseeing your next asinine comment, the frivolous section 8005 arguments relate to the construction of fencing under § 284 using funds transferred under the authority of § 8005. This is distinct from their frivolous complaints under section 2808.

              2. No point arguing with MKE, Sarcastro.

                He’s one of the many Trump idolaters who comment here.

    2. Yeah. Denied by Congress has a very specific meaning. Congress will expressly deny the use of funds for specific purposes. When they do, that usage is denied by Congress.

      It doesn’t mean “not yet appropriated”.

      The judge is being transparently partisan with this nonsense.

  12. I see two problems with the opinion. First, discussion of the basis for standing is very weak. It is nonexistent in the standing section. The opinion there asserts the plaintiffs have an interest in the case without any supporting facts. Standing is first discussed in the irreparable injury section. The plaintiffs assert that their recreational interests in the area would be damaged. The opinion simply accepts this assertion at face value. It doesn’t even explain why they think this is so, let alone recite any evidence to support it. Similarly, it accepts the plaintiffs’ assertion they have organizational standing at face value. It doesn’t explain why the plaintiffs are compelled to initiate this litigation, as opposed to doing so voluntarily. Nor does it provide any evidence funds were actually diverted to do so. For all we know, taking on this case might have resulted in a net increase in their funding and benefitted rather than harmed them.

    A second weakness is it provided very little discussion of what is meant by terms like “emergency” and “unforeseeable.” I agree with the ultimate outcome. But in an important case like this, I think the court should have taken a more scholarly approach, canvassing a more comprehensive set of sources before concluding that these terms exclude the circumstances of the Administrations current conduct.

    In short, I think the opinion probably got it right. But it was just sloppy about critical issues in an area that really calls for the exercise of care. Before a judge enters into a showdown between Congress and the President, they should really take great care to ensure standing is established and there is a basis for the judiciary butting in. And matters of this nature really need to be decided in a deliberative, careful, and scholarly way.

  13. The rise of #Resistance judges will damage the reputation of the judiciary, perhaps irreparably. Obama’s executive proclamations are forever and can not be undone by executive proclamation (or, at least, not by THIS executive). Trump’s executive proclamations, on the other hand, are without effect. Oh, well, if it sticks a thumb in Trump’s eye, I guess it’s worth it. Chuck Schumer called Trump a “do-nothing president”, but the Left sure spends a lot of time in court trying to block a whole lot of “nothing”.

    1. The rise of seeing every time Trump loses in court as an example of judicial bias tells what the judicary means to some people.

      1. The Republicans are slow but learn to weaponize the tools used against them. Keep that in mind moving forward before you have a party.

        1. Yes, your side sees the judicary as a weapon – an instrument of spite and nothing more.

          Saying everyone who does anything you don’t like is just doing that out of bad faith isn’t recognizing some vast judicial weaponization, it’s just delegitimizing all who stand in your way.

          Maybe stop doing that, it’s screwing up our politics.

      2. The judiciary at this point means nothing to me. It has no credibility. I’d personally applaud if Trump ordered Special Forces to kidnap this “judge” and turn him into a Mississippi wind chime.

        1. “I’d personally applaud if Trump ordered Special Forces to kidnap this “judge” and turn him into a Mississippi wind chime.”

          Whereas, presumably, if he did it to you, patriots would weep.

      3. It means what the judges have made it mean. When judges put their thumb on the scales, there’s no justice. They should be ashamed of what they are doing. But zealots know no shame.

        1. You didn’t even ready the opinion. Don’t pretend you have any idea if the judge is fire before you declare him shameless.

          1. The opinions are post-hoc justification for partisan decisions. The arguments are selective, ignoring or hand waving away anything that doesn’t support the partisan choice already made.

            It was obvious in the “Muslim ban” (because “rational basis”). It seems obvious here, at least as it relates to funds “denied by Congress “.

            If they aren’t partisan, why do they keep getting it wrong the same way? Why do their decisions keep getting overturned the same way?

            1. Did you even read it? No – judge rules in way you don’t like, you decide he’s ruling in bad faith.

              ‘Seems obvious here.’ You’re letting your wishes write reality.

              And it wasn’t obvious about the Muslim ban either. Animus not being a doctrine is the law, but it’s not some retrospect easy case.

              If they aren’t partisan, why do they keep getting it wrong the same way? Why do their decisions keep getting overturned the same way?
              Why do judges keep ruling against Trump? Might there be some other explanation than massive bias across scores of previous professionals?
              As for the overturned, well, if they’re all overruling Trump, than those what get overruled…do the math.

            2. Exactly. Tony the drunk Kennedy decided back in 2005 that a man penetrating another man’s anus was going to be protected come hell or high water, and after that, “marriage” licenses were soon to follow.

  14. Heaven forbid we use defense money on a wall to defend the country.

    1. Whether you like the wall or not, if you want a republic worth defending you’d better get that wall via the methods specified in our republic not just by imperially insisting on it.

      1. Just like with mass immigration and sanctuary cities and DACA, right?

        Right?

        1. DACA wasn’t just ignoring Congress. Neither are sanctuary cities. And mass migration is just a lie.

          I know you see the world through an angry nativist lens, but try and stay on topic.

          1. Yes, they were. Congress didn’t give amnesty to the “dreamers” so Obama did it unilaterally. And how is mass migration a lie? How else do you think America went from 90% white in 1965 to 65% white today? Where do you think the 60 million low-IQ mestizos we have now came from?

            1. “Congress didn’t give amnesty to the “dreamers” so Obama did it unilaterally.”

              Yes, they did. By only allowing around 400K deportations, they granted amnesty to all the illegals who weren’t in the 400K selected for deportation. They ALSO didn’t specify how to select which 400K illegals get a deportation hearing, and which don’t, leaving that as an exercise of prosecutorial discretion. Mr. Obama inherited a system that prioritized deportation hearings for three classes: Illegals convicted of crimes, recent arrivals, and repeat deportees. Anybody in one of those classes goes to the front of the line for a deportation hearing, anyone not in one of those classes goes to the end.

              Remember when there was a surge of unaccompanied minors at the border? President Obama went to Congress and asked for authority to hold more deportation hearings to deal with the increase. The Republican-led Congress chose to ignore the request, not even holding a hearing on the matter.

              1. How does prosecutorial discretion create a program that affirmatively issues work permits and grants benefits?

                1. That program far preexisted Obama and its work permits and benefits were granted by several earlier Republican Presidents.

                2. “How does prosecutorial discretion create a program that affirmatively issues work permits and grants benefits?”

                  Smoke and mirrors, mostly. But the claim wasn’t that the DACA program didn’t issue work permits and grant benefits, the claim was the DACA didn’t grant immunity.

                  DACA did grant immunity (which comes from prosecutorial discretion) and work permits (which did not.)

                  1. Upthread, you suggested that a later President may charge Trump Admin members that build the wall in violation of this ruling.

                    However, if a Trump prosecutor chose not to charge them, then by this argument wouldn’t those people be immune from all further charges, since you’ve claimed that prosecutorial discretion not to charge now is the same as a permanent grant of immunity?

          2. What are sanctuary cities giving illegals sanctuary from?

            1. “What are sanctuary cities giving illegals sanctuary from?”

              The city’s resources being used to assist the federal immigration officers.

      2. This is getting a little tiresome. Again, nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Point to any statutory language limiting access to other funding sources or in any way limiting the President’s authority to declare a national emergency.

        1. “This is getting a little tiresome. Again, nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction.”

          Nobody is arguing that it does.

          What is being pointed out to you (to the point of it being tiresome because it wasn’t the answer you wanted) is that the specific statutes cited don’t allow the proposed spending.

          1. You absolutely right, if we have to rely on a gross misinterpretation of clear statutory language employed by an overreaching district court judge. How’d that work out with the travel ban stupidity?

  15. It’s amazing all of the expansions on executive powers the courts found during the previous administration.

    It’s equally amazing how many of those powers are actually constrained by constitutional checks during the current administration.

    I’m sure the court will find new expansive power the next time a Democrat occupies the White House.

    1. “Today, a federal district court in Washington ruled in favor of the House of Representatives — and against the Obama administration — in House v. Burwell, concluding that funds to pay cost-sharing subsidies to health insurers under Section 1402 of the Affordable Care Act had never been appropriated by Congress. In her opinion, Judge Rosemary Collyer concluded that, insofar as such subsidies have been paid, it was unlawful for the executive branch to do so.”

      https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/12/house-of-representatives-prevails-in-obamacare-suit-but-will-decision-withstand-appeal/

      The Trump administration dropped the Obama administration’s appeal of that decision. The rules apply equally to both. Trump and his supporters appear to be the ones upset at this fact.

      1. There are always people with short memories who see any obstacle to getting what they want as unfair and one-sided. It’s immature and childish, and, alas, a prominent feature of the current President’s psychological makeup.

        Look at EVERY court ruling that goes against him. Trump makes excuses instead of accepting that a ruling might have gone against him because he was wrong. No, the reason the judge ruled against you isn’t the extensive opinion they produce showing the reasoning, it’s because they were appointed by somebody else. Or whatever.

        1. For the third (maybe fourth?) time. Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction. Point to any statutory language limiting access to other funding sources or in any way limiting the President’s authority to declare a national emergency.

          1. And for a fourth (or maybe fifth) time, repeated assertion of nonsense doesn’t make it true. Trump claimed the language of several specific statutes granted him the broad authority he claimed. The judge’s opinion examined the statutory language and laid out the exact reasons of why each claim was either justified (in one case) or not justified.

            If you had read the opinion you would know that, including knowing Trump’s plea was in part granted and in part denied.

            But you’re a Trump-bot so you simply parrot What Trump tells you to believe.

            Over and over and over.
            and know this was a

            1. If you think this vomitous mass of legal error will stand on appeal then you must have started drinking early for the holiday. No standing, no violation of any statute, a complete failure to show irreparable harm entitling plaintiffs to the extraordinary relief of a preliminary injunction. You probably also thought the travel ban decisions were going to hold on review.

          2. ” Nothing in the recent appropriations act limits the ability of the Government to rely upon other statutory authorities to fund additional border-barrier construction.”

            If they didn’t appropriate money for it, they didn’t appropriate money for it. Saying “hey, they appropriated money for this other thing, let’s use that money instead” is a circumvention of the Constitution.

            It’s a circumvention when Democrats do it. It’s a circumvention when Republicans do it.

            Whoever made President Trump’s legal arguments tried to cite some statutes that authorized spending on something that could cover a big, beautiful wall. Alas for them, and for President Trump, and for border-wall contractors, they didn’t cite any that actually covered the proposed expenditures.

            1. Monies were appropriated under the 2019 DoD Appropriations Act, among other sources. The President clearly acted within his statutory and constitutional authority. I doubt even you believe this crap decision will hold up on review.

  16. And for a fourth (or maybe fifth) time, repeated assertion of nonsense doesn’t make it true. Trump claimed the language of several specific statutes granted him the broad authority he claimed. The judge’s opinion examined the statutory language and laid out the exact reasons of why each claim was either justified (in one case) or not justified.

    If you had read the opinion you would know that, including knowing Trump’s plea was in part granted and in part denied.

    But you’re a Trump-bot so you simply parrot What Trump tells you to believe.

    Over and over and over.

  17. I hope this nigger dies of sickle cell anemia.

    1. Your Republican Party, ladies and gentlemen.

      1. Clean your house, GOP. If you dare.

        1. 10 to 1 he’s an Obama fanboy sock puppet.
          Hell, it’s probably that Smollett guy from Chicago.

          1. Smollett seems to be innocent. Or at least the police clammed up real fast once the FBI showed up.

            And don’t just go into denial about the racists in your party. I get RAK, you get ThreeLetterBigot and this guy. Wouldn’t trade ya!

            1. Maybe, if this clown show were still at the Post, you’d have a chance of being right.
              But I doubt your average Aryan Brotherhood type regularly looks at Reason.com.

  18. It would be a delicious irony if the judge who writes the 9th circuit smackdown on this guy contributed $21000 to Trump’s campaign.

Please to post comments

"It Is an Immutable and Universal Rule That Judges Are Not as Funny as They Think They Are"

Words of wisdom from the Utah Supreme Court.

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Thanks to commenter James Pollock for highlighting this, and adding: "To be fair to our robed brethren, NOBODY is as funny as they think they are"—though, as the Utah Supreme Court opinion suggests, judges are likelier than the rest of us to draw laughter even for their less funny jokes.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

3 responses to “"It Is an Immutable and Universal Rule That Judges Are Not as Funny as They Think They Are"

  1. I won’t quote from The Mikdado, since I hadn’t realized how offensive the uncensored lyrics were, but here they are if you want to get offended:

    https://bit.ly/2JYU1u2

  2. “It Is an Immutable and Universal Rule That Judges Are Not as Funny as They Think They Are”

    Professors, on the other hand . . .

    [ask a student after a semester of classes]

    1. After graduation, it’s the bosses’ jokes that get hilarious.

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Free Speech

Utah State Trial Judge Disciplined for Anti-Trump Remarks in Courtroom

The Utah Supreme Court upheld a six-month suspension without pay, based in part (though not entirely) on these remarks; the judge has a history of past discipline on other grounds as well.

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The charges also involved some nonpolitical bad conduct in a dispute with court personnel (omitted from the excerpts below), and also out-of-court public advocacy for and against political candidates, which are also forbidden by Utah judicial ethics rules. Judge Kwan challenged most of the out-of-court commentary charges (but not the charges based on in-court speech) on First Amendment grounds; but the court concluded that Judge Kwan's objections hadn't been raised in time (see below), and that in any event the suspension would be warranted even if the charges were limited to the ones that Judge Kwan acknowledged were constitutionally permissible.

Here's an excerpt, from In re Kwan (Utah May 22):

This judicial discipline proceeding requires us to decide the appropriate sanction for a judge who has engaged in repeated misconduct. Judge Michael Kwan [of the Taylorsville justice court] acknowledges that he violated the Utah Code of Judicial Conduct when he made seemingly shirty and politically charged comments to a defendant in his courtroom…. Moreover, in response to questions at oral argument, Judge Kwan conceded that an online post critical of then-presidential candidate Donald Trump also violated the code of conduct. But Judge Kwan argues that the six-month suspension the Judicial Conduct Commission (JCC) recommends is inappropriate. He claims that sanction rests, in part, on an unlawful attempt to regulate his constitutionally protected speech, and he asserts that a less severe penalty is all that is warranted….

In January 2017, while presiding over a hearing, Judge Kwan launched into an exchange with a defendant that appeared to demean the defendant and included political commentary regarding President Trump's immigration and tax policies:

"Judge: So, what happened with your fine payments?

"Defendant: So, I, just, live paycheck to paycheck ….

"Judge: Ok. So, when you set up the pay plan you were hoping you would have the money and it didn't pan out that way?

"Defendant: And I did not call, but I plan on when I get my taxes to just pay off all my court fines, because I cannot end up in jail again for not complying.

"Judge: You do realize that we have a new president, and you think we are getting any money back?

"Defendant: I hope.

"Judge: You hope?

"Defendant: I pray and I cross my fingers.

"Judge: Ok. Prayer might be the answer. 'Cause, he just signed an order to start building the wall and he has no money to do that, and so if you think you are going to get taxes back this year, uh-yeah, maybe, maybe not. But don't worry[,] there is a tax cut for the wealthy so if you make over $ 500,000 you're getting a tax cut. You're right[ ] there[,] right? Pretty close? All[ ]right, so do you have a plan? Other than just get the tax cut and pay it off?"

[Footnote: Judge Kwan contends that this was intended to be funny, not rude. It is an immutable and universal rule that judges are not as funny as they think they are. If someone laughs at a judge's joke, there is a decent chance that the laughter was dictated by the courtroom's power dynamic and not by a genuine belief that the joke was funny.] …

Read More

Short Circuit: A Roundup of Recent Federal Court Decisions

Litigation financing, campaign financing, and salmagundi.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

IJ's own Diana Simpson was on NPR discussing Chicago's vehicle impound system, which imposes tens of millions of dollars in fines and fees annually and is insanely unfair to residents, afflicting the innocent as well as the guilty and the poor most of all. Click here to listen.

  • Fan of the Libertarian Party dies, leaves the party a surprise gift of $235k. Uh oh! Campaign finance law imposes limits on contributions to political parties. Libertarian Party: The limits exist to prevent quid pro quo corruption, and we can't repay a favor to a dead guy. D.C. Circuit (en banc): Yeah, but it's conceivable that a donor might strike a corrupt bargain with a campaign before they die, so the limit is fine. Dissent: This is the First Amendment; you need real evidence, not just speculation.
  • Federal law authorizes retired law enforcement officers to carry concealed firearms all over the country (subject to some conditions), overriding state and local laws to the contrary. D.C.: Retired corrections officers don't count, as they didn't have the power to arrest anyone. D.C. Circuit: They do and did.
  • Friends, please enjoy this vocab quiz from Judge Selya of the First Circuit: Perfervid, salmagundi, immurement, plaint, ossature, praxis, and tenebrous. Plus, a scrutable idiom: "nose-on-the-face plain."
  • Lawful permanent resident, a hairdresser from the Bronx, is jailed for several months awaiting deportation hearing, during which time she experiences severe mental health breakdown. She prevails at her hearing; Orange County, N.Y. officials release her in sub-zero temperatures without her medication or any way of obtaining more (or even knowing what medication she needed). Second Circuit: She's plausibly alleged officials failed to provide adequate discharge planning in violation of the Fourteenth Amendment. The suit should not have been dismissed.
  • The Trump Administration failed to adequately explain its reasons for rescinding DACA, an Obama administration program delaying deportation for immigrants who came to the U.S. illegally as children. Which violated the Administrative Procedure Act. So says the Fourth Circuit (over a dissent).
  • Man buys gift for friends on Amazon—a headlamp. It's defective; it burns down his friends' Montgomery County, Md. home. Must Amazon pay the friends' insurer? The Fourth Circuit says no; under state law, Amazon is not a "seller" as it never took title to the lamp. Concurrence: Which is about the only thing Amazon didn't do; it warehoused the lamp, took payment for it, and assumed the risk of credit card fraud, among things. Maryland legislators and judges might want to look into this.
  • Litigation financing, heartbreak, and recusal collide in this Texas-sized debacle. A litigation financing company has a stake in 21 lawsuits being litigated by a Mexican law firm. But one of the law firm's owners is embroiled in a divorce in Texas, and his interest in the law firm is part of the marital estate. So the litigation financing company intervenes in the divorce proceeding to protect its investment in the law firm and to collect debts owing to the firm. But the lawyer the company hires to collect the soon-to-be-divorced lawyer's debts turns out to also be law partners with the divorce court judge. Which—when uncovered—explodes the litigation financing company's efforts to recover its investment and leaves it having wasted $2 mil in attorney fees. Yikes! But that's just the beginning. The litigation financing company then sues the lawyer for malpractice. No, not the lawyer getting the divorce. The other one; the one it originally hired to recover its investment but who had the business relationship with the judge. And in response to the company's suit, the lawyer commits what the Fifth Circuit later describes as a "litany of litigatory misbehavior." Which leads to the district court's striking the lawyers' pleadings, entering a default judgment in favor of the litigation financing company, and awarding nearly $3 mil in damages. Fifth Circuit: The default judgment shall stand, but the district court needs to recalculate the damages award.
  • Man allegedly violates his probation; his probation officer gets a Houston County, Tenn. judicial commissioner to revoke it. He goes to jail for several months. But wait! A state court judge rules that Tennessee judicial commissioners, who can issue search and arrest warrants, do not have the authority to issue probation revocation warrants. Can the man sue the commissioner? The Sixth Circuit says no. Judicial immunity.
  • Since 2014, Bel-Nor, Mo. resident has displayed a "Black Lives Matter" sign in his front yard; since 2016, he has also displayed two (now-outdated) political signs. City: Under our ordinance, you're allowed one "sign" and one "flag"—which we've defined to mean a piece of fabric that is a "symbol of a government or institution"—and none of your signs are a flag. Eighth Circuit: The city's different treatment of "signs" and "flags" is content based. A banner with an Army logo would qualify as a "flag," but one with a Cardinals logo wouldn't. That makes the ordinance likely invalid under the First Amendment, so the resident gets a preliminary injunction while the case proceeds.
  • Man is sent to prison for 145 years on strength of his eighth grade stepdaughter's testimony that he abused her. She recants, but a state court determines the recantation was not credible, and the Colorado Supreme Court declines to order a new trial. Tenth Circuit: His claim that the trial court relied on false testimony (in violation of due process) doesn't work since the allegedly false testimony was from a private citizen and he can't show the gov't knew it was false.
  • Gorilla Gym infringes Gorilla Playsets' trademark, as both use a similar size and type of gorilla for their children's playground equipment, says the Eleventh Circuit. But the district court was monkeying around when it ordered the infringer to pay its profits for continuing to use the trademark after being sued. After all, it was, at the time, a legal trademark that no judge had ruled against.
  • And in en banc news, the Ninth Circuit has asked the Montana Supreme Court for its view on whether dinosaur fossils are owned by the owner of the land on which they're found or instead by them that own the rights to mine minerals under that land.
  • And in further en banc news, the Seventh Circuit will not reconsider its decision applying the "doctrine of consular nonreviewability." Come for the initial decision (a U.S. citizen cannot challenge a consular official's decision to deny his Yemeni wife and children a visa because it isn't clear that the ability to live in America with one's spouse is a protected constitutional right (and, even if it were, the decision was legit)), stay for the fiery back and forth between the dissental and concurrence regarding the denial of rehearing. (Judicial abdication! Rights of citizenship! Bad faith of immigration officials!)

It was a good week for the First Amendment. In North Dakota, a federal judge issued a temporary restraining order barring the city of Mandan from imposing thousands of dollars in fines on the owners of the Lonesome Dove saloon (for now). The owners' crime? Commissioning a painted mural on the side of their building that features a sunset over a landscape with mountains and cowboys and the words "Lonesome Dove," which the city deemed an unlawful commercial message. Click here to learn more. In Savannah, Ga. a federal judge ruled that the city's tour guide licensing law, which, among other things, had imposed a 100-question test filled with picayune trivia on would-be guides, violated the First Amendment. "Today's ruling vindicates a simple principle," says IJ Senior Attorney Robert McNamara. "In this country, we rely on people to decide whom they want to listen to. We do not rely on government to decide who will get to speak." Click here for more.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

69 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. Instead of saying “nose-on-the-face plain,” Judge Selya could have just used the word “pellucid”, a perfectly good word that is underused.

    1. He already used it twice in that opinion…

      1. Oh my gosh you aren’t kidding about that. Judge Selya is certainly a sesquipedalian.

  2. I’m still having trouble with DACA. It never went through the comment period of of the APA which (should) mean it isn’t a valid regulation. How can a policy never officially implemented be challenged under as an APA violation?

    1. Indeed, how can it be illegal to terminate immediately without a comment period a program which was illegally adopted without a comment period in the first place? It should be mandatory to do that, not illegal!

      1. The Fourth Circuit didn’t find that the rescission of DACA was invalid because there was no notice and comment period. To the contrary, it agreed with the district court that the rescission didn’t require notice and comment.

        The Fourth Circuit found that the rescission of DACA violated the APA because it wasn’t adequately explained and thus was arbitrary and capricious.

        1. But why isn’t a simple “were revoking this because it was unlawfully implemented initially” not sufficient on its face? Don’t know if they made that argument, but it should win.

          Counter example: police arrest a man for violating a non-existent law. Judge determines that there was no violation, since the officer was mistaken as to the law, and so declines to order bail since there’s no accusation of a violation. Jail refuses to release man because there’s no bail, and tells him he’ll need to file a writ of habeas corpus. State shrugs its shoulders and says there’s nothing they can do, he was arrested without lawful authority, but he’ll just have to go through federal court to get an order for release.

          That’s obviously wrong, and correcting prior errors “because there was never a legal authority to do it in the first place” has to be sufficient justification, or were living in a dystopian tragedy.

          1. “That’s obviously wrong, and correcting prior errors “because there was never a legal authority to do it in the first place” has to be sufficient justification, or were living in a dystopian tragedy.”

            Guess what…

            1. Yeah yeah, FYTW. I understand.

      2. Brett, this was litigated; calling it illegal is being ignorant. Not all regulations need notice & comment, and this one was held not to.

        You can disagree with that case, but it looks more like you just call stuff you don’t like illegal.

    2. “I’m still having trouble with DACA. It never went through the comment period of of the APA which (should) mean it isn’t a valid regulation. How can a policy never officially implemented be challenged under as an APA violation?”

      The people who acted assuming it was valid have an argument for detrimental reliance. So you might get different legal answers for people who applied for DACA while Obama and Trump were still acting like it was valid, and for people who want to shelter themselves under it now.

      Note that there’s sufficient discretion to allow it to exist… the law says that anybody who’s here illegally can be deported, but it also says “but the government has to give you a hearing before it can actually remove you” and “the number of hearings that can be taken and the number of people they could potentially be given to are wildly dissimilar” This inherently means that the President (or various underlings) can decline to remove any specific illegal until all the other illegals are given hearings and removed.

      Even if the wall were finished tomorrow AND magically worked 100% to stop people from illegally arriving, you still need about 40 years at the present rate to process all the illegals already here.

      1. I’m not sure I get the detrimental reliance angle.

        Not honoring your predecessors promise is a raw deal for the immigrants, but what right have they given up? The right to continue to hide? I mean, “don’t be a dick” is a good rule to live by, but I don’t think it’s enforceable on the executive (that would be awesome though – monthly votes on every elected official, and for each time the electorate decides you were a dick that month you get a month in prison.

        1. ” “don’t be a dick” is a good rule to live by, but I don’t think it’s enforceable on the executive (that would be awesome though”

          If it was enforceable on the executive, the entire federal bureaucracy would be obliterated.

        2. “I’m not sure I get the detrimental reliance angle. ”

          “Come forward and we won’t deport you for at least 2 years.”
          “OK. Here I am.”
          “Ha, ha! Just kidding. We’re going to deport you right now.”

  3. re: the vocab quiz – I knew 2, guessed right on 2 and recognized 2 more as words I learned in 10th grade (and have probably never seen since).

    re: the Maryland concurrence – Or you could look into charging the people actually responsible – the manufacturer of the defective product. ‘Sue the seller’ made some sense when it was difficult or even impossible to know who the manufacturer was. (For example, when a retailer sources a commodity such as bolts of a common size from multiple manufacturers and stores them all in a common bin.) That model makes little sense in a scenario where everyone has detailed transaction logs and embedded metadata.

    1. According to the decision, the brand was Dream Light. Looking up headlamps on Amazon I do not see that brand listed, so identifying and suing the manufacturer might be kind of tough, transaction logs and metadata notwithstanding, especially if it’s in a foreign country.

      That doesn’t make Amazon liable, necessarily, but it does mean “sue the manufacturer” is not always a great solution.

      1. I was going to make the same comment as Rossami did… rather than having the legislature take note, perhaps Maryland lawyers should take note, and sue the maker of defective goods.

        Your counterargument that it’s hard to find the actual manufacturer isn’t true for the person who actually bought the defective product from the manufacturer. (OK, having your house burn down does give you SOME latitude for not having all your documents in order.)

        On the other hand, I’m pretty sure a letter printed on law firm letterhead explaining that says “I bought this thing through you and darn if the product didn’t burn down the guy’s house I gave it to. We’d like to sue the manufacturer instead of you. Would you mind helping us identify them?” sent to Amazon’s legal offices would produce all the information needed. I’d even give odds that the same letter, on insurance company letterhead, would do the trick.

      2. Amazon is guaranteed to have all that detail still in their logs. I’m sure of it because I can see similar records in my own order history on Amazon. I’ll grant that it might require a subpoena to Amazon for the legal identity and contact information of the manufacturer but that’s a fairly trivial step.

      3. I believe that to sue a company in a foreign country you have to serve process at the country’s embassy for them to forward it. Guess how speedy and diligent they will be.

        1. Maybe think of that before contracting with a foreign company.

          1. Or maybe Amazon is the cheapest cost avoider and should be given the responsibility of determining which foreign manufacturers are reliable.

            1. What the hell, let’s just pick YOU to be responsible for all the products sold on the Internet. If any of them turn out to be defective, any user(s) harmed by the product(s) can sue you.

              As long as it’s not me, it’s all the same, right?

  4. Gorilla Gym monkeying around. Uh, gorillas are apes, and not monkeys (though both are simians).

    1. Monkey as a common term is a paraphyletic taxon, all apes, including humans, are descendants of monkeys.

      It is pretty much orthodoxy in anthropology that a monophyletic taxon of Monkeys exists, and it is even in current popular usage. For example if someone points at say a bonobo and said: “look at that funny monkey”, nobody would be particularly confused. And it is not uncommon to define the Apes as a monophyletic taxon of Old World Monkeys.

      1. Quit gibbon him the business.

        1. Quit pulling macaque

    2. “gorillas are apes, and not monkeys (though both are simians).”

      Apes can act like monkeys, except for the parts of acting like monkeys that require prehensile tails, which apes lack.

      1. Is that a prehensile tail, or are you just happy to see me?

    3. Not all metaphors and idioms have to use scientific terminology.

  5. False recantations are a known phenomenon but any plausible recantation is reasonable doubt.
    “Plausible” would include being consistent with physical evidence and not the result of pressure.
    I will be pleasantly surprised if the government did not in fact know that there were problems with the testimony. In the George Gage case, they did. The prosecutors had a statement that the complaining witness was a “pathological liar”, from her own mother.
    I admit I had to look up “salmagundi” and “ossature”.

    1. The 10th circuit held that it is absolutely irrelevant whether the recantation was credible or not. All that matters is if the first trial violated the constitution. It didn’t. It’s not a constitutional violation for a private citizen to testify falsely as long as the government didn’t know it at the time. And since the trial had no constitutional error, what happened is no concern of the federal courts. It simply doesn’t matter if the person later turns out to be innocent. The opinion assumes he is innocent. They said that as long as the conviction was obtained lawfully, innocence just doesn’t matter. Once lawfully convicted, a person has no constitutional right to a new trial no matter what new evidence later turns up, and no matter how overwhelmingly it establishes innocence. Tough luck.

      1. A person who can show that they were falsely convicted has an avenue to pursue… executive clemency.

        1. I thought pardons were an admission of guilt? Of course our entire legal system is more and more based on requiring people to confess to crimes they didn’t necessarily commit…

          1. “I thought pardons were an admission of guilt? ”

            You thought incorrectly.

      2. ReaderY: “innocence just doesn’t matter”

        IANAL, so help me out here. When they say “actual innocence” doesn’t matter, don’t they actually mean a /claim/ of actual innocence doesn’t matter? As opposed to “We all know he’s actually innocent, but whatcha gonna do?”

        1. It’s more like, “since it’s not the federal courts’ business even if the claim of actual innocence is true, we’re not going to decide here if we think it’s true or not.

      3. This is not my field, I know I can be wrong.
        I had thought that evidence that could not have been discovered at trial time indicating actual innocence was grounds for a habeas petition.
        Right? Wrong?

        1. The trial court decided that the recantation was false, so there isn’t any new evidence for the federal court to consider.

    2. False recantations are a known phenomenon but any plausible recantation is reasonable doubt.

      Which makes it significant that the state trial court judge found (in a decision that appears clearly correct to me) that the recantation was not plausible.

  6. Retired cops carrying guns

    “No Title of Nobility shall be granted by the United States”

    A Life Peerage is a title of nobility

    1. The theory behind the LE Officer Safety Act was the retired cops would need to carry guns due to the bad guys they put away possibly wanting revenge in jurisdictions that otherwise wouldn’t allow for it, and that all cops should be able to carry for self defense outside their jurisdictions. It still requires retired officers to get a level of training given to them by the department. It’s more of a permit system for retired officers, and a form of national concealed carry reciprocity for active officers.

      1. No, the “Ordinary gun laws don’t apply to these people, because they’re Special as former King’s Men” element means that it’s still a patent of nobility, even if motivated by “they really need it and they really deserve it.”

      2. Yes, that makes sense, but then if it is appropriate then states can issue these patents of nobility, the United States though is doing it against the states.

      3. Former correctional officers should be covered under that intent, then, since they will have many people eager for revenge on them.

        1. Most correction officers work unarmed. This is because it’s generally a bad idea to take guns to near where the prisoners are kept.

          That’s the difference… cops carry as part of the job, and COs don’t. Also, depending on where you are, police officers are sworn officers, and COs are not sworn (in fact, some are not even public employees)

  7. I knew praxis and tenebrous without looking them up, but I’m curious as to why we’re getting a vocab test. Did someone use those other words in a trial or something?

    1. I would infer that these words (and phrase) were used in a circuit court opinion.

      1. In point of fact, they were all used in one specific opinion issued by the 1st Circuit.

    2. Judge Selya is known for using obscure words in his opinions. The words on that list were used in the opinion linked here.

  8. The courts never fail to apply immunity…..to the courts.

    Where, exactly, is immunity specified in the Constitution? And how is such a finding congruent with Article I section 9? And Article IV, section 2?

    1. “Where, exactly, is immunity specified in the Constitution?”

      Right in the beginning of Artilcle III. The supreme judicial power is vested in one Court, plus as many more as Congress sees fit to authorize.

      1. That may apply to the Supremes, but where are the laws passed by Congress that apply to the lesser courts, giving them rules to operate by?

        And how does that apply to State courts?

        1. “And how does that apply to State courts?”

          States are also sovereign. Can you sue the sovereign without sovereign permission?

  9. I agree with the dissent in the DACA case. The same broad discretion which gave the Obama administration the power to implement DACA gives the Trump administration the power to rescind it.

    The 4th Circuit majority’s opinion that the Trump administration gave an inadequate reason for rescinding DACA is, in my view, complete nonsense. Immigration enforcement is the law. It’s a law enacted by Congress. An administration needs no other reason to enforce the law than that’s what the law is. The President has a duty to take care that the laws be faithfully enforced. That duty alone is always reason enough. A new administration is always entitled to enforce existing laws more strictly than a prior administration did. And it simply doesn’t matter whether the prior administration’s leniency reflected a written or an unwritten policy.

  10. If I were a defense lawyer in the 4th Circuit, I would file a motion in every single criminal case that I had that the prosecution must be dismissed because the prosecutor failed to adequately explain the reasons for prosecuting. In the 4th Circuit, that fact that something is a violation of the law is simply not a good and sufficient reason for prosecuting it. This we know for sure. What we don’t know is what a good and sufficient reason might be. Until the 4th Circuit explains itself better, I would challenge each and every federal prosecution as being improper.

    1. Alternatively, if the reasoning is limited to reversing prior decisions not to prosecute, I would move for disclosure of prosecutorial deliberations to find out whether there was ever a prior decision not to prosecute that was later reviewed and changed. If there was, I would then challenge the decision to overturn the prior decision as being based on inadequate reasoning.

    2. “If I were a defense lawyer in the 4th Circuit, I would file a motion in every single criminal case that I had that the prosecution must be dismissed because the prosecutor failed to adequately explain the reasons for prosecuting.”

      Then you’d get laughed out, and the proceedings could continue.

      The problem isn’t that the President has to explain why he wants to prosecute. The problem is that the President has to explain why he wants to prosecute people he previously told would not be prosecuted.

      If a prosecutor (in the 4th circuit) grants immunity to somebody, and then tries to prosecute them, should the court accept this without discussion, or say “hey, wait a minute…”

      1. Nobody in DACA was granted immunity. Do you care to try again?

        1. “Nobody in DACA was granted immunity”

          Everybody in DACA was granted temporary immunity.

          “Do you care to try again?”

          No. You?

      2. Let me expand for you James…

        Comey stated he told Trump that he was not under investigation for collusion with Russia, in this case per your statement this would be seen as a granting of immunity. (It isn’t, but that is what you are inferring). Would you agree Trump should never have been investigated by the SP on this thesis?

        1. “Comey stated he told Trump that he was not under investigation for collusion with Russia, in this case per your statement this would be seen as a granting of immunity.”

          Are you expecting this to be taken seriously? Prosecutors grant immunity, not cops.

      3. “If a prosecutor (in the 4th circuit) grants immunity to somebody, and then tries to prosecute them, should the court accept this without discussion, or say “hey, wait a minute…”

        This analogy doesn’t work. By it’s nature, Trump’s recision only applies to people who continue to be unlawfully present after the recision.

        1. ” By it’s nature, Trump’s recision only applies to people who continue to be unlawfully present after the recision.”

          By it’s nature, it applies to nobody.

          1. Let’s try this again. President Hunter decides there are two many bald eagles in the wildlife sanctuary and announces he won’t prosecute people who hunt them if they obey certain rules, say an annual bag limit. Then president Avian comes into power and rescinds the rule, insists hunters leave the sanctuary and announces anyone found there will be prosecuted.

            Perhaps hunters have a right not to be prosecuted for things they did before the recession. But does this also give them a permanent right to continue to remain in the sanctuary and hunt there afterwards?

            1. Revision:

              Suppose President Hunter issued hunting licenses good for two years. President Avian attempts to rescind those licenses only one year in.
              Can the hunters who spent money anticipating next years’ hunt complain that having their licenses invalidated prior to their expiration cost them money?

  11. Salmagundi want pants too!

Please to post comments

Supreme Court

How Often Has the U.S. Supreme Court Struck Down a Federal Law?

Depends on who you ask.

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Everybody knows that the American courts exercise the power to evaluate the constitutionality of legislation and declare those laws that violate the Constitution to be legally void and of no effect. To a surprising degree, it has been unclear how often the courts have exercised that power.

The problem started at the beginning. The U.S. Constitution is clear about such basic governance issues as whether the president has the power to veto bills, whether Congress can override that veto, and how bills become law. The Constitution famously does not say that the federal courts have the power of judicial review; it merely says that the "judicial Power of the United States" shall be vested in the Supreme Court and any inferior courts that Congress might create.

It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.  But Marshall did provide a compelling account of that power, and his opinion eventually became a touchstone for those seeking to explain, justify or criticize such a power.

Because the Constitution does not explicitly set out the power of judicial review, it has been far more contested and far less systematically accounted for than other such basic features of the American constitutional system as the presidential veto. Even the name "judicial review" is a modern invention, coined by the young Princeton constitutional scholar Edward Corwin at the beginning of the twentieth century to provide a shorthand description for the increasingly prominent activity of the courts in scrutinizing the constitutionality of duly enacted statutes. Corwin coined the term in the midst of a scholarly and popular debate over the origins, scope and legitimacy of the power of judicial review.

Among the issues in that debate was how often the U.S. Supreme Court had actually exercised the power of judicial review. The answers were surprisingly diverse. Since the Constitution did not specify that there was such a power of judicial review, it also did not specify the form by which it should be exercised. The Constitution specified that presidential vetoes should be recorded in the journal of each legislative chamber. The number of vetoes could be numbered and counted. There is no such requirement when the courts strike down a law as unconstitutional.

When, in 1792, the 2nd Congress first heard the news from a constituent that a federal judge had declared a federal statutory provision unconstitutional, there was a brief debate over what kind of response might be appropriate and whether a system needed to be put in place so that the legislature would be promptly informed when such actions were taken. But nothing was done. The courts made decisions and issued opinions, but no one designated instances of judicial review, reported such events to Congress, or put them down in an official record.

After the constitutional centennial, the Supreme Court's reporter, Bancroft Davis, took it upon himself to compile a list of cases in which the Court had struck down an act of Congress as unconstitutional and included it in a historical appendix to a volume of the Court's opinions in 1889. The Davis list proved to be controversial, and the historical debate over the incidence of judicial review was politicized. Populists and Progressives argued that the Court had rarely exercised the power of judicial review – and thus should rarely exercise it in the future since it was of dubious legitimacy. Conservatives argued that the Court had exercised the power of judicial review more often – and should keep on exercising it in the future to temper the passions of popular majorities. Some argued that John Marshall created the power of judicial review out of whole cloth and that the Court rarely dared exercise the power afterwards. Some went further and denied that even Marbury itself could properly be understood as an example of judicial invalidation of a federal law. Others argued that Marbury was just one of many instances of judicial review and was just one example of a venerable judicial practice.

Near the end of his career Edward Corwin played a big role in putting that debate to rest by compiling a now-canonical list of cases in which the Court invalidated a federal law. But Corwin's list is wrong.

You'll really know the rest of the story if you read Repugnant Laws. You'll get another taste in a future blog post.

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32 responses to “How Often Has the U.S. Supreme Court Struck Down a Federal Law?

  1. The notion that the power of judicial review was “invented” by Justice John Marshall is rather ridiculous. Even before the Constitution was ratified, Hamilton pointed out in Federalist No. 78 that such a power was essential to the very notion of a government of limited and enumerated powers. There was no other way to realistically enforce the Constitutional limits on the Legislative branch other than to permit the judiciary to simply refuse to recognize legislative acts which were contrary to those limits. In Hamilton’s words:

    “Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

    1. “such a power was essential to the very notion of a government of limited and enumerated powers”

      Well, then I guess he should have gotten such a power into the actual text of the Constitution.

      1. It’s right there in Article III – it is part and parcel of the judicial power, which includes the power to say what the law is. Or would you insist that Article III include a complete definition of the precise boundaries of “the judicial power”?

        1. The executive veto is set out as a specific power, its not assumed to be part and parcel of the executive power though it certainly is.

          Judicial striking of Executive approved Congressional acts is a veto power not set out in the Constitutional text.

          1. If you go by the Federalist papers, the veto is not part of the executive power. Instead, it’s a legislative power trusted to the executive. This is because it is involved in the process of making laws instead of the process of carrying out laws. The executive power isn’t the royal prerogative and it shouldn’t be assumed that all powers of the King were part of the executive power.

          2. There’s plenty of things inherent in the executive power that are not spelled out, e.g., executive privilege.

            The idea that the Judicial Power would not include the power to interpret laws is insane.

    2. “There was no other way to realistically enforce the Constitutional limits on the Legislative branch…”

      This is nonsense. One limitation would be to appeal directly to the Legislature (elections). Another would be the many ways in which the Executive can directly counteract the Legislature. The Executive can veto unconstitutional laws, refuse to enforce them, etc. That’s what ambition counteracting ambition was all about. Even Hamilton contemplated a weak, ineffectual court, with an exceedingly narrow ability to exercise judicial review.

      1. “One limitation would be to appeal directly to the Legislature (elections).”

        That assumes that a majority of voters disapproves of an unconstitutional action. However, since a great many of the limitations in the Constitution were designed specifically to safeguard minorities from the tyranny of the majority, relying upon political solutions is misguided. Can you imagine in 1954 if the Court in Brown v. Board of Education said “of course segregated school systems are unconstitutional, but that is what the laws of the state of Kansas (and Georgia, Alabama, Mississippi, Louisiana, Texas, Oklahoma, etc.) requires, and we are powerless to overrule such laws. Let the voters of these states enact the solution.” No, the interference of the judiciary is essential if the Constitutional protections of minority rights are to be effective.

        1. The thing we’re arguing about is the type of government the Constitution created. Besides creating a limited federal government, it also created a majoritarian legislature and gave it enormous power, certainly more power than it gave the judiciary. Again, the intended extent of minority safeguards are the thing we’re debating, not the conclusion you get to simply assert.

          Can I imagine if Brown came out differently? Of course. There’s little doubt that there were certain rights that the 14A was not intended to protect, even among insular minorities. The 15A itself is pretty distinct evidence that the 14A was specifically limited to certain rights, and a very strong argument can be made that it was limited to certain civil rights contemplated in the earlier Civil Rights Acts, none of which guaranteed non-segregated schools. Brown wasn’t obviously correct (as a constitutional matter).

          It’s also a strange example for two separate reasons. First, Brown involved disputes between SCOTUS and the states, so SCOTUS was not being asked to invalidate the laws of a coordinate branch of government. Second, the 14th Amendment contemplates a specific enforcement mechanism in Section 5, and it doesn’t mention the federal judiciary. And of course the only reason the 14A was necessary in the first place, were fears that the same court that decided Dred Scott would invalidate the 1866ish Civil Rights Act(s).

          So, empirically it’s silly to presume that SCOTUS is essential to the protection of minority rights, given its checkered history. But more importantly we know it isn’t essential in the first place, because the Constitution is a document preserving minority rights, and SCOTUS didn’t write it.

          1. The 15A is not evidence of limitations on the 14A. It is evidence of a fear that the mandate of equal protection would not be taken seriously.

  2. Not nearly often enough?

    It’s my perception that the federal courts are much, much more active about striking down state laws than federal.

    1. That’s hardly surprising. SCOTUS is expected to be more deferential to a coordinate branch, the states are busy little laboratories, and because of incorporation and the EP clause, constitutional prohibitions on state action are now broader than limitations on federal action.

  3. “Not nearly often enough?”

    Agreed.

    “It’s my perception that the federal courts are much, much more active about striking down state laws than federal.”

    True, but that’s for modern times. It’s my understanding that the Federal courts didn’t review state laws at all until after the ratification of 14A.

    1. Yes, 14A was in essence a giant federal power grab then hijacked by the courts.

      1. Well, the actions of bigoted Southern conservatives made that power grab entirely justified.

  4. I do enjoy how conservatives in the Conspiracy comentariat all agree that the judiciary is a liberal disgrace, but differ wildly as to what it should be doing.

    ‘Strike down more federal laws!’
    ‘No, do more state laws!’
    ‘No, strike down fewer laws, you activists!’
    ‘No, stop striking down any laws at all!’

    1. We value diversity of thought, we are not lock step ideologues like your side.

      1. Didn’t think you’d the one to try and be cute.

        This isn’t diversity of thought, this is having no ideological throughline other than radicalism.

        1. Not too impressive yet again Dr. Sarcastr0. Conservatives would interpret laws reasonably. Only progressive morons use some sort of “ideological throughline” to produce their desired results.

          1. MKE, I suggest it’s more about differences in the approach to experience.

            Reasoning flaws on today’s conservative side are more likely to be ideological—axiomatic, over-rationalistic, and scornful of a role for experience. Modern conservatives think they can start with ideological premises and deduce facts, including even facts of history. Conservatives also tend to universalize a tribal imperative.

            On the liberal side, the reasoning flaws embrace opportunism, show too great a tolerance for chaos, and are slow to let experience correct bad results of experimental policies. Modern liberals think they can start with present-day morality, apply it to history, and use the result to govern today’s politics.

            Both kinds of reasoning have grown self-satisfied, rigid, and intolerant.

          2. MKE, please read my comment again. I’m not talking about an ideological throughline when it comes to policies.

            I’m saying the only ideological throughline about the role of the judiciary is that everyone hates it. That’s not the sign of a healthy coalition but rather a reactionary one.

            Kind of like your comment saw the word ideological and then posted the usual pablum about ‘your side objective other side bad faith’ rather than thinking about what the words were communicating.

            1. Conservatives would interpret laws reasonably. Only progressive morons use some sort of “ideological throughline” to produce their desired results.

              MKE, if you can spare a moment for self-examination, those two sentences deserve your attention. They show it has not yet dawned on you that the notion that reason ought to be the universal ruler of politics is itself ideological. You may well think it scandalous to suppose otherwise.

              For a different view, I highly recommend a work by the conservative philosopher and historian, Michael Oakeshott, called, Rationalism in Politics and other essays, available in paperback from Amazon. Anyone who counts himself a conservative, but who hasn’t read Oakeshott, will always be at risk of making the kind of un-self-critical mistake you made when you wrote those two sentences.

            2. Conservatives certainly don’t interpret the 11th Amendment reasonably.

      2. Your comment contradicts itself. How do you demarcate between “we” and “your side” if you value diversity of thought? The very fact that you respond to Sarcastro’s comment by inferring he or she is a member of a “side” other than the one you place yourself in means that you employed some criteria for differentiating “sides” and then a quality to assign people to said sides. That this was done based on an anonymous comment expressing thought leads to the conclusion that the expressed thought was the criteria you used.

        I’m sure by now you’ve placed me on a “side” based on my thought. But of course, you value diversity of thought, unlike that “other side.”

        1. You act like Sarcasto just about daily has not posted here for a decade.

          I don’t have to assign him a side.

          “my thought”

          I wasn’t aware you comment involved thought.

  5. “It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803.”

    Odd that this power wasn’t written into the Constitution, isn’t it? That document gives very short shrift to a Supreme Court.

    Also odd that, if the power of judicial review was already well established, that the country went nuts after Chisholm v. Georgia in 1793 and passed the Eleventh Amendment which clipped its wings.

  6. Not sure, but another injunction regarding the border wall. Somehow, every Trump action seems to be heard before a non-white Obama appointee. Very strange coincidence.

  7. Blackstone on (perhaps too much) Coke. The ethic of judicial independence, and the idea that the common learning of the law (which was not precisely precedent, Inns talks, or books, but could be gleaned from them) offered a competence separate from the charms of the sovereign’s power (cf. Weber) takes hold with Coke v. Ellesmere. Blackstone, which became the vade mecum for itinerant colonist lawyers, embraced this challenge to Parliamentary sovereignty, although the principle ended up not taking hold in the UK. But it’s not illogical to think that a legal culture that had grown up isolated from the jurisdiction of the common-law courts would interpose a check on legislative supremacy. (With the benign neglect of Parliament and the lack of jurisdiction of the writs-courts, cases and controversies ran to Privy Council.)

    The interesting thing, though, is the competence asserted. English judges knew the law, so they could confidently speak truth to power. There’s not really a tenable argument to say that the Supreme Court knows the Constitution better than Congress does. It’s become the umpire, not the expert on the rulebook.

    1. Turtle Dove, as low as my opinion of the Supreme Court has sunk, and as willing as I am to rely on politics (meaning Congress, mainly) to make policy, I can’t see how anyone can reach the conclusion that Congress, as a body, is as well-informed on the Constitution as is the Court, as a body. I have met too many congress-people to suppose that.

      1. Certainly not saying that nine Representatives or even Senators picked at random could beat Roberts et al. on a Constitution-themed quiz show. But the institution, with all its institutional resources, certainly knows enough about the Federal Constitution to defeat any claim of unique institutional competence. And I don’t think the modern court is even making the claim of unique institutional competence. They’re claiming to be umpires, which gives them the moral right to judge the case, but its not necessarily the same moral claim that lawyers have historically asserted against political power. Coke thought of himself as an expert, not as an umpire.

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Supreme Court

A New History of Judicial Review

A new history of how the U,.S. Supreme Court has defined and enforced the limits of congressional power

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I'm thrilled to announce that my new book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, is now available for purchase. From the jacket copy:

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington's work reminds us that, for better or for worse, the court reflects the politics of its time.

This project took a long time to bring to fruition, in no small part because I realized our conventional understandings of the history of judicial review are wrong. The book makes use of a new comprehensive catalog of all the cases in which the U.S. Supreme Court substantively reviewed the constitutional validity of an application of a federal statutory provision from the founding of the Court through the retirement of Justice Anthony Kennedy. The Court has been more active in enforcing limits on congressional power, as well as in upholding and extending congressional power, than we have generally recognized. Whose ox have been gored in the process? Dig in to see.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

6 responses to “A New History of Judicial Review

  1. If you begin with the notion that the court is legitimately a political body, you are going to have a very hard time maintaining the notion that any particular powers are reserved for the political branches.

    1. Seems correct to me.

    2. Pretending that the court is wholly a-political when the politicians get to decided who’s on the court is delusional.

      1. Yep. The Progressives think the Constitution means whatever they want it to mean and appoint accordingly. Hopefully Trump will continue to appoint Conservatives (who tend to cling to an original intent approach) but in the end the court is essentially a political body . . . especially when there is a Bill of Rights issue, or so it appears to me.

        1. Sounds like you have an idea of what the Constitution means and want Trump to appoint accordingly…

          1. Yep, take a look.

            “The original meaning (or original public meaning) is how a reasonably intelligent, involved member of the public would have interpreted a provision. Primary evidence of original meaning is how words were used in common discourse and the definitions in contemporaneous dictionaries and legal sources. Circumstantial evidence includes the drafting and ratification conventions, public debates, and so forth.”

            https://tenthamendmentcenter.com/2012/05/21/original-intent-original-understanding-original-meaning/

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Julian Assange

Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters

Under the government's theory in some of the charges, any reporter who knowingly prints certain kinds of government secrets could equally be prosecuted.

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The revised indictment, just handed down today, contains three sets of charges.

1. Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; had the crack succeeded, the leaker would have been harder to identify. I think this poses little by way of First Amendment problems: Journalists and other speakers don't have the right to help others break into offices, safes, or computers, even when the break-in would help reveal important information. And as a practical matter, I suspect that very few reporters actively help their sources crack passwords (even just to hide the sources' own tracks), just as very few reporters provide sources with lock picks or instructions on breaking into safes.

2. Most of the other counts focus on Assange's urging Manning to illegally leak information. Manning did commit a crime by leaking the information in violation of the duty that Manning had voluntarily assumed when going to work handling confidential government data. The government's theory is that Assange himself commited a crime by essentially soliciting Manning's crime.

This is a plausible theory: Usually, soliciting a specific crime—urging a particular person to kill another particular person, or to steal certain kinds of material, or to illegally leak certain kinds of information—is itself criminal, and unprotected by the First Amendment. "Offers to engage in illegal transactions are categorically excluded from First Amendment protection," and that applies to solicitation of such illegal transactions as well (U.S. v. Williams (2008)).

"To be sure, there remains an important distinction between a proposal to engage in illegal activity and the abstract advocacy of illegality"; abstract advocacy is much more constitutionally protected under the Brandenburg v. Ohio (1969) test, which is limited to intentional advocacy or likely and imminent lawless conduct. But specifically asking a specific person for specific documents is not protected by the First Amendment, and parts of the indictment suggest that this is what Assange was doing:

After confirming that ASSANGE thoughtthey had value, on March 8, 2010, Manning told ASSANGE that she was "throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now." ASSANGE responded, "ok, great!" When Manning brought up the "osc," meaning the CIA Open Source Center, ASSANGE replied, "that's something we want to mine entirely, btw," which was consistent with WikiLeaks's list of "Most Wanted Leaks," described in paragraphs 4-5, that solicited "the complete CIA Open Source Center analytical database," an unclassified (but nonpublic) database.

To be sure, some of the charged solicitations were aimed at the public as a whole, and not just at Manning, e.g.:

To further encourage the disclosure of protected information, including classified information, the WikiLeaks website posted a detailed list of "The Most Wanted Leaks of 2009," organized by country, and stated that documents or materials nominated to the list must "[b]e likely to have political, diplomatic, ethical or historical impact on release… and be plausibly obtainable to a well-motivated insider or outsider."

As of November 2009, WikiLeaks's "Most Wanted Leaks" for the United States included the following:

a. "Bulk Databases," including an encyclopedia used by the United States intelligence community, called "Intellipedia;" the unclassified, but non-public, CIA Open Source Center database; and

b. "Military and Intelligence" documents, including documents that the list described as classified up to the SECRET level, for example, "Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);" operating and interrogation procedures at Guantanamo Bay, Cuba; documents relating to Guantanamo detainees; CIA detainee interrogation videos; and information about certain weapons systems.

But it seems to me that calls to leak specific documents, even aimed at the public at large, would still be covered by the solicitation exception, rather than being mere abstract advocacy—just as calls to kill particular people or bomb particular buildings would be punishable solicitation, even if general abstract advocacy of revolutionary violence isn't.

This having been said, I suspect that many a reporter has urged a source to leak particular documents, whether they are national defense secrets, trade secrets, confidential documents that are covered under some private nondisclosure agreement, or something like that. Perhaps all of this is solicitation of crime, or at least tortious inducement of breach of contract or something like that (if the leak isn't itself criminal but just civilly actionable). Perhaps reporters shouldn't be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.

3. But the most striking counts are counts 15-17, which allege, in relevant part:

From in or about July 2010 …, [Assange], having unauthorized possession of, access to, and control over documents relating to the national defense [such as leaked Afghanistan and Iraq war activity reports and State Department cables], willfully and unlawfully caused and attempted to cause such materials to be communicated, delivered, and transmitted to persons not entitled to receive them.

Nothing in this count turns on Assange's having helped or solicited Manning's leaks. Rather, it relies simply on Assange having published (in violation of 18 U.S.C. § 793(e)) material that he knew was improperly leaked and was related to the national defense within the meaning of the statute. To convict on these counts, a jury wouldn't have to find any complicity by Assange in the initial leak.

And reporters do routinely publish information that they know was illegally leaked by someone. In Bartnicki v. Vopper (2001), the Court made clear that third parties are generally free to publish material that they know was illegally gathered (there, by an illegal interception of a cell phone call), at least so long as the publishers weren't themselves involved in the illegal gathering (and so long as the speech is on matters of public concern). That would presumably apply to other kinds of improperly gathered or leaked information as well.

But the government's theory appears to be that this doesn't apply to illegal leaks of national defense information. (The Pentagon Papers case (1971) didn't resolve the issue, because it just overturned injunctions against publishing leaked information; a majority of the Justices left open the door to possible criminal prosecutions for such publication.) And indeed in U.S. v. Rosen (E.D. Va. 2006), the district court rejected a First Amendment challenge to the prosecution of two American Israel Public Affairs Committee (AIPAC) employees, who received illegally leaked information and then forwarded it to various journalists:

[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of [national defense information]. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure.

This position cannot be sustained. Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The charges were eventually dropped, though, so the case didn't yield an appellate precedent. The Assange case, I expect, will be much more likely to go up on appeal, and to draw broad public attention. It might thus affect prosecutorial and media practices much more than Rosen did.

Whether and when the First Amendment bars this sort of third-party, arms-length publication of national defense information is a complicated question. (Compare the statement in Near v. Minnesota (1931) that "No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops," and note that the government argues that the publications jeopardized specific people identified in some of the documents as having helped America and its allies—but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.) Here, though, I just want to explain what is at stake in the new Assange indictment, which is much broader than the old one.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

61 responses to “Theory of Revised Julian Assange Indictment Could Apply to Ordinary Reporters

  1. A standard requiring a particularized showing of actual or likely damage to national security would make for a better balance. The old-fashioned notion of “intent” could also be revived.

  2. Re counts 15-17: I’d be curious to see your analysis of Douglas’ concurrence in the Pentagon Papers case. Using statutory construction, he argued that relevant statute bars “communication” which he claims in this statute is distinct from “publishing”.

    1. That distinction is, not to put too fine a a point on it, idiotic. Which means that it is consistent with most things Douglas wrote.

      1. Yep. Dumbest important legal figure in history.

  3. Well, since lawyer-client privlege and not allowing the government to endlessly filch through one’s papers don’t apply when the powerful seek to harm their political enemies, even though that’s why that stuff exists, why the hell not? No First Amendment for you if those in power rrrrrrrreally want to prosecute you.

    I mean as long as there are at least 6 or more r’s in “really”, that is. And there are 8 in this case. Wow!

  4. In regard to soliciting particular items, I would have thought it would fail Brandenburg’s imminence and liklyhood prongs. Both in that such a solicitation does not seem especially likely to deliver the goods and even if it does there is no time frame for doing so.

    1. Under U.S. v. Williams, the solicitation exception is a separate exception from the incitement exception (or, if you prefer, a special case of the separate speech-integral-to-criminal-conduct exception). It does not have an imminence prong — soliciting someone to kill someone months in the future would be punishable — and it probably doesn’t have a likelihood prong, either.

  5. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  6. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  7. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  8. “Perhaps reporters shouldn’t be allowed to urge such illegal behavior. But at least the theory in these counts, more than the one mentioned in item 1 above, might indeed affect a good deal of newspaper behavior.”

    Indeed, but that’s a commentary on the way the journalistic profession has come to think itself above the law, not a reason to make urging specific illegal conduct legal.

    On 15-17 you’ve got a better case. I think it would go better for Assange if the leaks in question had been less voluminous and indiscriminate. It certainly appears that, if somebody gave him the number and location of troops in battle, or the nuclear launch codes, or something of that character, he’d publish it.

    Personally, I’m somewhat concerned about the extra-territorial nature of the prosecution: Acts that took place outside the territory of the US, and the person being prosecuted isn’t even a US citizen. I don’t see how our legal system properly has jurisdiction over him.

    1. Concerning the extra-territorial issue…

      I liken this to prosecuting foreign terrorists, drug dealers, and those involved in financial crimes.

      When the U.S. Government, corporations, or persons are victims, we can seek justice through our extradition treaties – and therefore bring the foreign person under our jurisdiction.

      1. Extradition will be the hurdle to clear before moving on to First Amendment considerations, and such requests from the US to the UK have taken as long as 13 years to resolve. Along the way they must pass the dual criminality test, now common in extradition treaties. More problematic here might be the political exceptions, where either the offense is political in character or the prosecution is politically motivated. The law concerning political offenses was laid out by the House of Lords in T v Secretary of State for the Home Department [1996] UKHL 8 (in an asylum context rather than extradition) as

        The general proposition, which I believe is binding on this House as a matter of English law, is known in the literature as the “incidence” theory. The essence of this is that there must be a political struggle either in existence or in contemplation between the government and one or more opposing factions within the state where the offence is committed, and that the commission of the offence is an incident of this struggle.

        which could very well encompass the activities of Wikileaks. I’d also point out that similar considerations have worked in the opposite direction when in the early ’80s the US refused to extradite members of the IRA accused of murdering British soldiers on the grounds that the murders were political offenses.

      2. I think the extraterritorial issue is more complex than that. True, if you plot some action directed against the United States, even if you are a foreigner located abroad, then there is a basis to assert jurisdiction over you. If Al Qaeda members plotted acts of terrorism in a cave in Afghanistan to be done in the U.S., then sure.

        But here, the third group of crimes (as presented by Professor Volokh), do not involve activity directed against the U.S. Someone else leaked classified information, with no assistance, connivance or encouragement from Assange. The crime here is publicizing information the govt. has classified as confidential. So in effect the govt. is imposing a duty on someone to keep its classified material confidential. That can work for a U.S. citizen or someone in the U.S. How does it work for a foreign citizen located abroad?

        IOW, the issue here is legislative jurisdiction, not personal jurisdiction.

        Consider a hypothetical. Someone in the CIA sends highly classified material in an email to someone else in the CIA. The wrong email address gets entered by mistake (darn that Outlook) and the email gets sent to a foreign citizen having no connection to the U.S. Is the foreign citizen obligated to keep it quiet? If he then discloses it on Wikileaks, can he be prosecuted? How does Congress have authority to require him to keep it secret?

        Not saying this is so clear, but I don’t think it is the same thing as directing criminal activity to the U.S. (like what is in the first and second groups of counts against Assange.)

        1. “Consider a hypothetical. Someone in the CIA sends highly classified material in an email to someone else in the CIA. The wrong email address gets entered by mistake (darn that Outlook) and the email gets sent to a foreign citizen having no connection to the U.S. Is the foreign citizen obligated to keep it quiet?”

          Or to turn it around, a KGB agent accidentally emails Dan Rather the secret file detailing how Trump is a long term Russian mole. Rather publishes the info. Do the Russians get to prosecute Dan Rather?

        2. When you ask “can he be prosecuted”, what authority are you looking to?
          The US continues to resist the ICJ infringing on its sovereignty so other than limits from treaties and the loose restrictions of customary international law what Congress can and can’t legislate is determined by US law, and its answer to your question is that as long as Congress evinced an intent that the law have extraterritorial effect then it does.
          If you are looking for a higher justification then I’d say that disclosure of classified information is presumptively harmful to the state, and it is a reasonable principle that the state may punish those who harm it. Of course, that doesn’t mean that any other state is obligated to aid in that punishment.

          1. Punish, yes, but that doesn’t mean our courts would have jurisdiction. Might be viewed as more in the domain of military action.

            1. Humberto Alvarez-Machain was accused of complicity in the murder of a US DEA agent, and was tried in the United States even though he was a Mexican citizen and the alleged crime occurred in Mexico. He did move for dismissal, but based on the lack of due process when he was abducted in violation of a US-Mexico extradition treaty.

    2. I would think it is because there can be multiple places a crime can occur. And at least in count 1 and the solicitation counts those locations would include the location of the other individual involved (i.e. Manning).

  9. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  10. Two points:

    1. “. . . but consider also the value of allowing news outlets to act as a check on government conduct, which is especially important precisely when it comes to matters of war and peace.)”

    The press has no constitutional authority to act as a check on governmental conduct.

    2. Concerning the BARTNICKI reference, I would say that wouldn’t apply here because in BARTNICKI, the disclosure was of private (albeit potentially sensitive) conversations – not federal statutory-protected information.

    1. He said “value”, not “authority”. All the “authority” journalists have they get from the 1st amendment, and it’s no more and no less than anybody else has. (They tend to be in denial about that.) But it isn’t non-zero, it’s pretty substantial.

      Wikileaks has had substantial “value” in acting as a check on government conduct, because they’ve exposed some rather serious governmental malfeasance, such as rampant domestic spying. I’d hate to see them abolished for that reason, though it would be nice if they showed a bit better selectivity about what to publish.

  11. Does the reasoning in this indictment depend on a presumption that the executive enjoys an unlimited power to make government information and policy secret? Seems like you have to assume that everything the government says is secret is properly so, and that can’t be challenged either facially or as applied.

    1. Only material that is lawfully classified by a specified classification authority (original or derivative), is considered classified.

      It’s a structured process and no one can willy-nilly say, “This is classified because I say so.”

      Additionally, because the information is the property of the U.S. Government, the U.S. Government can make any rules it wants about how to protect information and under what conditions it can be released.

      1. “the U.S. Government can make any rules it wants about how to protect information and under what conditions it can be released.”

        At least, they can in regards to the conduct of federal employees and NDA signees. Such people acknowledge in writing that they’re subjecting themselves to the rules, and strictly liable if they violate them.

        In as far as rules applicable to the general populace, they’re rather more limited.

        1. The laws for the protection of classified information are equally applicable whether a person signs an NDA or not.

          Yes, a person who signs an NDA may receive a harsher penalty, but the law is the same.

          1. 18 USC §798 does apply to all persons with respect to classified cryptographic and communication intelligence information, but not other classified information.
            Meanwhile §1924 criminalizes the unauthorized removal or retention of all classified data, but only when an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States.
            So, you are correct that the effect of these laws don’t depend on an NDA, but a less careful reader of your assertion could understand you to imply that it is a crime for any person to disclose any classified data, and that is not the case.

            1. True on § 798 and we’d have to review what was released to see if it’s applicable.

              Also § 641 states: Whoever receives, conceals, or retains the same [i.e. US records] with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted–. . . . Shall be fined under this title or imprisoned not more than ten years, or both. . . .

      2. So you don’t think government documents, however secret, are the property of the American people?

    2. And yes, there are procedures to challenge classifications, how whistleblowers should protect classified information, how to release classified information to members of Congress, etc.

  12. So, in addition to largely having the goods on Assange (sets one and two as related by the author) the DOJ is also trying to re-litigate the Pentagon Papers via set three.

    Yeah, I’m not surprised, but I also will not be surprised when they (again) lose that fight.

    Although, I would add, maybe ethical journalists being concerned with threats to the freedoms presented by charges like set three should exercise a little better judgement and no get involved in actions like sets one and two.

    Assange is giving them another bite at the apple. Blame him as well as them.

    1. Assange sucks, but I don’t know that I’d pile the DoJ using his suckiness to push their preferred legal narrative on him.

      1. Well, people with common sense should.

    2. “ethical journalists ”

      No such creatures exist.

      Invaders of privacy, defamers hiding behind “actual malice”, destroyers of lives for awards and raises.

      1. Life as a marginalized malcontent, and lifelong loser of the American culture war, must be tough. My condolences.

  13. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  14. re: the assessment of Count 18, I respectfully think Prof Volokh is missing an important element. Prohibiting the providing information on how to do something is a clear First Amendment problem, even if the something is itself prohibited. That is, in fact, one of the principle defenses used in the 3D-printed-guns cases. It’s also the reason that we can get information about disfavored policy arguments such as legalizing drugs or abortions (on both sides of the debate).

    Information on how to crack a password is and ought to remain available on the Internet because there are many legitimate uses for that information. The use of that information for illegal purposes should fall on the illegal user alone, not on the provider of the information.

    1. How do I pick a lock?

      How do I pick this lock?

      Answering the latter is of concern.

    2. “. . . even if the something is itself prohibited. . . .”

      But in this case, the information wasn’t prohibited, it was protected.

      1. Perhaps my choice of words was unclear. The “something” in Assange’s case was cracking a password to break into someone else’s computer file. Breaking into someone else’s computer is prohibited. Nevertheless, providing information on how to crack a password should be protected.

        By the way, I reject ThomasD’s attempt to distinguish the First Amendment protection of information based on specificity. If that were the rule, then a youtube video about how to pick a generic lock would be legal but all the videos about how to pick a Masterlock Series 6835 would be illegal. That is not the rule and ought not to become the rule.

        1. No, the specificity is more than that. Someone says, I want to break into a house, can you send me information about how to pick the lock. That is aiding and abetting a crime, and I don’t think the First Amendment covers it.

  15. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  16. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  17. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  18. […] much of the important news and information Assange provided.” — Eugene Volokh’s latest: “Under the government’s theory in some of the charges, any reporter who knowingly […]

  19. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  20. Thank you Prof. Volokh for a really great summary of this situation. This posting is a fine example of why many of us read the Volokh Conspiracy every day. It’s readable, it’s supported by facts and analysis, and it covers a wide territory in two screens of text.

    Great.

  21. Since this case depends so critically on who is or is not a member of the press for 1st amendment purposes, what are the precedents? Is there a definitive legal definition of who is a journalist?

  22. I have long been concerned by the “press” and “journalists” asserting for themselves some special privilege in the First Amendment. I believe they stand in the place of the general public and have no more nor any less rights that anyone else. In that they stand as guardians of freedom of speech for the rest of us, especially since so much of the mainstream media consists of large multinational corporation well able to defend their “rights”.

    The age of Social Media makes it plain that any person may publish anything they have or obtain.

    If it is legitimate to criminalize knowingly passing on information legally classified and knowingly illegally obtained, the “press” may have a right not to be prevented from publishing that information but should face consequences for doing so and defending their decisions including challenging the legitimacy of the classification after the act.

    Members of the “press” have in the past asserted special privileges on the basis of the public’s “right to know” that included criminal acts such as trespassing, it is hard to see how that serves the cause of freedom of expression or places any limit of the actions of the “press”.

    1. Comments like this one generally come from folks with a political bone to pick. They don’t like which stories mainstream media print, and they don’t like which stories mainstream media choose to reject, so they want mainstream media taken down a peg.

      Such comments generally come from people who don’t understand that they depend heavily on information that an institutional press has the capability to discover and publish, but which an unaffiliated citizen journalist could almost never discover, let alone adequately publish. Which would be true even if the person doing the reporting were the same journalist, but working in different circumstances. To facilitate news gathering, the institutional nature of an institutional press matters greatly. To facilitate news usefulness, the enhanced publishing power of an institutional press matters greatly.

      This rsteinmetz (and Eugene Volokh) kind of commentary should never be mistaken for a defense of press freedom. On the contrary, it aims to narrow the scope of press freedom, to keep it limited to what one person can do on the internet, from his keyboard. In the process, it frees government officials, and business leaders, and other powerful figures, from the heightened scrutiny which only institutional publishing can deliver.

      That gets touted as a way to keep press freedom on the basis of equality. Never mind that it works the other way—opening a gulf of inequality between ordinary people and figures with power in society, for whom escape from institutional press scrutiny is personally empowering, and much to be welcomed.

  23. […] journalists avoid, such as publicly soliciting classified material (on the WikiLeaks website), asking for specific documents, and offering to help a source conceal his identity by cracking a government password. But these […]

  24. […] as very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  25. […] very few reporters provide sources with lock picks or instructions on breaking into safes,” argues law professor Eugene Volokh. He can even see some merit in the theory that Assange solicited […]

  26. I would be far more willing to accept the concept of “national security” being at risk if they didn’t do this kind of thing to every single fucking person who leaks information about anything.

    Snowden? Yeah. There should be ZERO ability to prosecute someone who leaks information about something that is patently unconstitutional. Fuck the FEDGOV. Until someone we can actually trust with the truth comes forward and reveals All the governments comings, goings, secrets, and everything but the actual national security risks, we should just assume the government is lying about everything.

  27. I think the appropriate rule is quite simple.

    If I illegally pass you classified information and you then take it to the Chinese embassy and hand it to them we are both guilty of espionage and should be prosecuted and punished.

    If I illegally pass a New York Times reporter classified information and he then writes an article disclosing it that is then published in the New York Times and a copy of the New York Times is then delivered to the Chinese embassy then I, the New York Times, and every individual knowingly involved in publishing that information is guilty of espionage and should be prosecuted and punished.

    Laundering classified information through the press instead of handing it directly to our enemies does not somehow immunize those involved from espionage charges.

    1. Your complete faith in the government is impressive.

      Have you ever heard about the Pentagon Papers?

  28. “Count 18, which was the one charge in the initial indictment, alleges that Assange tried to help then-Bradley Manning crack a computer password; … I think this poses little by way of First Amendment problems”

    It’s almost certainly a selective prosecution.

Please to post comments

State May Punish "Faithless Electors," Wash. Sup. Ct. Rules

The court upheld a $1000 fine imposed by state law on Presidential electors who refused to vote as the voters instructed.

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Today's decision (In the Matter of Guerra) relies heavily on the U.S. Supreme Court decision in Ray v. Blair (1952), which upheld a state requirement that electors pledge to support the party National Convention's nominees: "Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge." The Washington court summarized:

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge.

Justice Gonzalez dissented:

The State's authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector's discretion. In dissent, Justice Robert H. Jackson raised concerns about an elector's freedom to exercise independent judgment as originally intended. I share his concerns. He opined, "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices."

There is a meaningful difference between the power to appoint and the power to control. "A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power." The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.

 

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108 responses to “State May Punish "Faithless Electors," Wash. Sup. Ct. Rules

  1. Seems to non-lawyer me that it ought to be obvious that electors have discretion; otherwise, why go to all the trouble to insert them into the middle if they have no free will? Why not just apportion the votes directly and skip the whole extra step?

    I recall there is some legal theory that says if a legislature used some expression or term sometimes, but not other times, that the difference must be construed as intentional, not a mere goof that courts are free to “correct”.

    1. “Seems to non-lawyer me that it ought to be obvious that electors have discretion; otherwise, why go to all the trouble to insert them into the middle if they have no free will?”

      One reason to have electors is to avoid having to keep holding elections for the voters to select a winner, if none of the original candidates secures a win. Suppose you have a Presidential election in which three candidates each earns one third of the electoral votes. You COULD call the election a wash, and schedule another one and ask the people if anyone wants to change their mind or suggest another (compromise) candidate, but that’s a big endeavor, and takes time and money and effort. It’s much easier to get the 530-ish electors back together to do that than to ask the entire country (plus, the electors are gathered together for the purpose.)

      This doesn’t come up much in our current setup with two major parties… all the elections between two candidates produced a winner with enough electoral votes to win outright on the first ballot. There have been some third-party candidates who got electoral votes, but not enough to deny a clear victory.

      Yes, the system does give us “winners” who got less than half the votes cast. But the system was designed to be flexible enough to handle more than two candidates. (Remember, the Constitution was written for a country that took months to traverse by horseback, not one that you can catch a jet and see a different ocean the same day.)

      1. IOW, the electors have discretion only when they would otherwise be deadlocked?

        That must be in the penumbras of the Constitution.

        If the framers had meant that, they would have written it. There’s a lot of vagueness in a lot of the Constitution, but I don’t recall any other sections so specifically vague about such a specific twist.

        1. “If the framers had meant that, they would have written it”

          That’s an interesting theory.

      2. What are you talking about? If electors are bound they can’t “change” a vote. And the Constitution takes it away from electors if there is no majority and gives it to the House (President) and Senate (Vice President). They don’t gather electors again and have another vote.

        1. ” If electors are bound they can’t ‘change’ a vote.”

          If.

      3. Except that’s not the way the EC works. Electors only cast one vote. Then it goes to the House.

        1. I took him to imply that ifffff the electors think they will be deadlocked, then they have permission to change their vote. Either way makes no sense.

        2. “Except that’s not the way the EC works.”

          If only someone had pointed out that the two-party solution we landed on rendered all this potential flexibility moot. If only.

        3. Actually, it gets a bit more interesting here. It does go to the House. But the House is restricted to voting for the 3 candidates who obtained the most electoral votes.

          So, not only can the electors change their vote, causing a deadlock, they can also change the choices the House has.

    2. There can be a middle position where the electors are normally bound but are released under some circumstances.

      In decreasing order of urgency:

      1. The nominee dies in the period between when the ballots are printed for the popular vote and when the electoral votes are cast.
      2. The nominee is determined to be ineligible to hold office.
      3. The nominee releases his/her electors from their pledge (something a nominee headed for third or fourth in EVs might want to do).
      4. The nominee didn’t release the electors but is clearly not going to win a majority of EVs anyway.
      5. The nominee tweets stuff revealing himself to be unfit for office.

      OK maybe the 5th one is marginal.

      1. On the one hand, the electors may be seen as representational, like other parts of the American government. Electors are chosen to represent the voters of the state(s).

        On the other hand, maybe it’s more like contract (or at least, detrimental reliance)… I voted for X elector because he SAID he’d vote for Y candidate, then he broke faith and voted for candidate Z instead. I never would have voted for X elector if they’d said they’d vote for Z up front.

        1. If you go with the representation model, then “faithless” is could be exactly what I want from my rep. If by some miracle Johnson had won my state in 2016, and his electors held the balance in the Electoral College, then I’d want them them to bargain their votes for whatever concessions they could obtain.

      2. #2, How is this happening at the point the electors are supposed to be voting. If someone thinks one of the candidates is ineligible, that is a challenge that should be brought before the primaries/national conventions.

        1. It’s a hypothetical. So, hypothetically, the evidence didn’t surface until after the election. Look, sometimes a guy dies between the time the ballot is printed and the election; then still wins the election. Take the hypo as it is and work within it.

  2. If electors/officials are “faithless” and should be punished for ignoring the voters in their state in general, does that mean we should also punish electors/officials who ignore the voters in their state because of politically motivated ‘popular vote’ compacts?

    1. That is literally the opposite of the logic of this judgment.

      1. Not necessarily. Remember that the ‘popular vote’ compacts include a commitment to give all the electors to whichever candidate got a majority – or in some states, even only a plurality. In a split state, that (arguably) disenfranchises all the people who didn’t vote for the winner.

        1. Correct me if I’m wrong but the implication of the Compact is that all votes for a state would go to whoever won a plurality even if every single person in the state voted for someone else. If that isn’t disenfranchisement of a state what is?

          1. There is no right to vote for President. That is simply the mechanism each state uses. But the Constitution doesn’t require an election to choose electors.

            1. Correct. The Constitution says the Electors will be chosen in a manner chosen by the state legislatures.

              If the state legislature decides their Electoral votes go to the national popular vote winner instead of who won the vote in their state it’s constitutional.

              1. I’m talking about what should be done according to the moral precepts behind what happened here not what should be done if the Constitution was the be all end all, in which case the Compact wouldn’t exist in the first place.

                1. It’s a pretty carefully tuned moral precept that holds state-by-state majorities are great but national majorities are not.

                  I do think the EC is good policy (despite it currently hurting my side electorally), but making a moral stand on it seems like motivated reasoning.

                  1. Because the Constitution forms an alliance of States. United States. There has never bee a National Election. A national vote did not ratify the Constitution. A national popular vote does not amend the Constitution. A National popular vote has never been taken for any reason. The Bill of Rights protects citizens from the power of a Federal Govt, AND it protect the STATES, from the power of the Federal Govt. States are sovereign. Everything about the establishment, and operation of the Federal Govt is centered on the PEOPLE, or THE STATE. To abandon a cornerstone of our form of governance in favor of rule by the tyranny of the national majority, ignores protections as laid out in our founding principles.

                    1. “Because the Constitution forms an alliance of States.”

                      The alliance of the States existed before the Constitution was ratified, drafted, or even conceived. The Founders tried a government with a weak central government, and it failed only a little more than a decade in. Then they had to make the central government stronger AGAIN 75 years after that.

                      In the original formulation of the United States, the states were charged with protecting the rights of citizens from encroachment by the federal government. This didn’t work. So it was flipped, and the federal government was charged with protecting the rights of citizens from encroachment by the states.

                    2. This is just sophistry.

                      First, Constitutional does not mean moral. Show your work, don’t just worship the Founders.

                      Second, you are not being originalist. The EC as it operates now is certainly not part of any Founder’s vision. Outcome-oriented choice of reasoning. Your argument intentionalist at best.

                      And even then, you’re saying because the Constitution apportions power by the states sometimes, it does so here. That is not in evidence.
                      The Constitution has places in it for the nation, the people, states, districts. And then it was amended and power was shifted away from the states.

                      The EC as constituted isn’t some load-bearing part of any system intentionally created or not to maintain our republic.

                      Again, I think it is good policy. And you make a fine policy argument if I waive away your grandstanding and see an argument about state’s particular character beyond the sum of their parts. But your soapbox is tuned very much too high.

                    3. If “States are sovereign” they can pick their own electoral votes however they want. And if they’d prefer a national vote, who are you to tell them otherwise? If STATES are so important, it is “a cornerstone of our form of governance” that they be allowed to set the rules.

              2. “If the state legislature decides their Electoral votes go to the national popular vote winner instead of who won the vote in their state it’s constitutional.”

                Article I, Section 10 of the United States Constitution provides that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.”

                1. There’s no consideration, no negotiation. This isn’t a compact it’s all unilateral.

                  Unless you’re going to find something in the purpose of the Constitution. Or maybe a penumbra?

                  1. If they CALL IT a “Compact”, it must be a compact, right?

                    This is for all the right-wingers who want to dissassociate with the Nazis because they have “Socialists” in their name. Those darn socialist lefty Nazis!

                  2. We have to look at the substance, not mere form.

                    Each “unilateral” law only become effective when a sufficient number of other states pass the same “unilateral” law.

                    Its a mutual agreement by adherence, hence it needs Congressional approval. Think of it like a penalty that would be unconstitutional except it is really a tax so ok.

                    1. Its a mutual agreement by adherence.

                      That’s really a reach, Bob. That’s not how that works at all.

                      It’s not a stealth law if it’s something states have been given discretion to do anyhow.

                    2. The discretion is limited by other sections of the Constitution.

                      I assume that you believe it unconstitutional for a state to require all electors to be Christians.

                    3. Yeah – this isn’t requiring all electors to be Christians. There’s no discretion to do that.

                      If it is undisputed that individual states can on their own choose to go with the national popular vote, they can do so contingently.

                      This isn’t anything like what that clause speaks to. Not formally, not functionally, not as to it’s purpose, nor to it’s text. You’re becoming like the right-wing caricature of the liberal activist judge, wherein the policy comes first and the legal rationalization comes second.

                    4. “There’s no discretion to do that. ”

                      Nor is there to violate the Compact clause.

                      “If it is undisputed that individual states can on their own choose to go with the national popular vote, they can do so contingently.”

                      If the contingency is an agreement by another state to do the same, it is a Compact requiring Congressional approval.

                      Ever hear of “implied contract”?

                    5. If the contingency is an agreement by another state to do the same, it is a Compact requiring Congressional approval.

                      That’s not a compact. You’re just making that up.

                    6. “Nor is there to violate the Compact clause.”

                      Nor is it a violation for a state to say “we’re going to do this, if X happens”.

                      “Ever hear of “implied contract”?”

                      Sure. That’s something different from what you’re talking about, but yeah, I’ve heard of it.

                      As pointed out upstream… you can volunteer to do something, even promise to do it, but that doesn’t make it a contract. Contracts are ENFORCEABLE voluntary agreements to do something.

                2. What difference would it make? If the Court declared the agreement unconstitutional, that wouldn’t change the result. Article I, Section 10 may make it impossible for participants to enforce the agreement, but SCOTUS can’t tell any individual state how to assign its electoral votes. If they all voluntarily comply with the compact, the results would stand.

                  1. If the “winner” controlled the new Congress, nothing except the specter of illegitimacy.

                    A Congress controlled by the opposing party could however approve the “losing” candidates slate on the basis of the illegality of the act or just not count the electoral votes so as to throw it into the House.

                    1. Jesus, Bob. What do you think that would do for the legitimacy of the election?

                    2. Oh no the specter of illegitimacy according to Bob from Ohio, how will the republic survive?

                      If Congress is determined to ignore its obligation to count electoral votes, it doesn’t need to wait for the NPVIC to take over.

                    3. Just responding to the proposition posed by NToJ.

                      If the Supreme Court finds that the state laws violate the Compact Clause and states just ignore it, then expect the opposition to ignore those states.

                    4. @Bob from Ohio,

                      If no one is seeking to enforce the compact, how does it get to SCOTUS in the first place? Even if the compact is constitutionally unenforceable, states are still entitled to pick their electors in whatever manner they see fit. If all the states voluntarily comply with the agreement, there’s nothing for a plaintiff to challenge. Even if Nevada and California cannot agree to pick electors based on the national popular vote, Nevada can decide on electors on the basis of a national popular vote, as can California.

                      But let’s assume SCOTUS declares some state’s law unconstitutional. Ok. That state still proceeds with putting up electors who vote a particular way. What then? You say the “opposition” won’t count their votes. On what basis?

                    5. “If the Supreme Court finds that the state laws violate the Compact Clause”

                      Who, exactly, has standing to sue over that?

  3. How will this WASC ruling affect the dumb, stupid, and ridiculous “National Popular Vote” law that the Governor just signed?

    1. Most voters favor abolishing the electoral college. So not so dumb. stupid, or ridiculous.

      1. regexp
        1. Just b/c most voters support X does not mean that X is, in fact, not dumb, stupid, and/or ridiculous. Until a decade ago, most voters would not have supported gay marriage, decriminalization of pot, etc.–all stupid positions (IMO) held by a healthy majority of voters.
        2. In this particular case, I do favor doing away with the electoral college, either directly via constitutional amendment or indirectly via some sort of national popular vote compact passed by a sufficient number of states. Can’t see it happening within the next many decades…hard to imagine enough smaller states voluntarily doing away with a lot of their influence.

        1. “Just b/c most voters support X does not mean that X is, in fact, not dumb, stupid, and/or ridiculous.”

          It’s a good indicator.

          “Can’t see it happening within the next many decades…hard to imagine enough smaller states voluntarily doing away with a lot of their influence.”

          Iowa and New Hampshire will cling to the current system. Who else do you see in a similar status? As it is now, candidates routinely ignore most of the states, except for hitting up the donor class for cash, and sometimes not even doing THAT in person.
          States that have a fairly obvious majority of partisans of one stripe or the other get skipped, and states with less than 10 electors do, too, unless the candidate happens to be passing through on the way to a big swing state.

          Will changing to what amounts to a national popular vote make candidates stop in Wyoming or Delaware, and focus on issues specific to those states? Probably not. But I don’t see how they get even more ignored…

          1. It is easy to argue Trump could have gotten a lot more of the popular vote if he had spent more time in CA and NY instead of WI, MI, and the other medium/small states where he won by a cat’s whisper. By the same token arm chair QBs point out Hillary screwed the pooch by not ever going to WI thinking it would be an easy win.

            Trump has claimed his campaign was based on winning the EC, not the popular vote and before the election his position was for a popular vote winner, not an EC winner.

            Bottom line is the US had to grant more power to the smaller states than their population justified in order to get them to join the US. We are stuck with that now unless you want to risk states leaving. Imaging LA leaving and every ship going down the Mississippi having to pay homage to the state government there; or Texas and Montana leaving and oil production taking a hit.

            I don’t see the EC going away.

            1. “Trump has claimed his campaign was based on winning the EC, not the popular vote and before the election his position was for a popular vote winner, not an EC winner.”

              Trump has ALSO claimed that he WAS the popular winner, once you delete enough “illegal votes” to make him the popular winner. He’s known to be a somewhat unreliable source for facts.

              “We are stuck with that now unless you want to risk states leaving.”

              Didn’t we settle that issue in 1865?

            2. “We are stuck with that now unless you want to risk states leaving.”

              Nobody is going to leave because the electoral college is abolished. It’s a popular position. Certainly not so unpopular that any state is going to get existential over it. And since this is allegedly a power play between large and small states, why didn’t you frame it in terms of CA and NY leaving if the EC isn’t abolished?

              1. “CA and NY leaving if the EC isn’t abolished?”

                We can hope.

                1. Good luck with that.

      2. Most of those “voters” reside on the coast and are ass-mad when they don’t get everything they want, when they want it.

        1. As opposed to the non-coastal “voters” who don’t reside on the coast, but are ass-mad when they don’t get everything they want, when they want it?

      3. would you like it if china and india suddenly got to outvote everybody in the WTO and all other intergovermental agencies and eventually whatever world governing body would follow and decide what happens in america because they have the most people? Sounds pretty dumb to me but apparently a lot of people are for this going by the underlying logic they support.

        1. AA making the elitist argument against the popular vote, wherein Pennsylvania and Ohio are the elites…for some reason.

          There are arguments for the EC. This ain’t it.

          1. Don’t see it as elitist at all. Having to worry about your political support in a bunch of states means you can’t swing too hard in any direction. Otherwise we’d see Democratic candidates only supporting the big city Democrat policies and Republicans only supporting Southern policies. As it is, Trump has to try and keep Rust Belt Democrats while not pissing off the Republican core too much, just as Obama couldn’t just appeal to the activist left and had to capture moderate Democrats.

            1. It’s not a bunch of states though. It’s a very small subset curated more by luck than anything else – an aristocracy by chance. Those states are not skeptical moderates; have never been since I’ve been politically conscious.

              We see the candidates spend all their time in like 5 states now (Pennsylvania, Florida, Wisconsin, Michigan, Ohio), hence the supremacy of agricultural subsidies and ethanol and such silliness. Your scenario is no worse than what we have now.

              I think it is good policy to respect the identities each state has separate from their population. But don’t pretend that switching to the popular vote would make Presidential electoral strategy any more degenerate than it is now.

              1. “We see the candidates spend all their time in like 5 states now (…Wisconsin…), ”

                Not all candidates!

                1. Disappointed because the Socialist candidate didn’t come to your town?

                2. 😀

                  Shoulda seen that one coming!

              2. Sarcastro : We see the candidates spend all their time in like 5 states now (Pennsylvania, Florida, Wisconsin, Michigan, Ohio)

                You’ve already forgotten about Iowa, North Carolina, Colorado, New Hampshire, Arizona, Georgia, Minnesota, Nevada, Maine (where Trump spent some time trying to scrabble up the 2nd district and finished up not far from winning the state itself) You’ve also forgotten that amidst all the Florida excitement, Bush 43 unexpectedly snatched West Virginia which proved critical.

                California was hotly contested not long ago. Texas in hoving into view for the Dems, while Ohio is probably disappearing over the horizon. New Hampshire, Virginia and Colorado were safe red and Missouri was a swing state, very recently.

                Swing states change around.

                1. “Swing states change around.”

                  But not the fact that candidates tend to ignore the 40+ non-swing states unless they’re showing up to ask for money to spend in the swing states, and sometimes they don’t even do THAT in person.

          2. I agree with gormadoc – that argument isn’t about elitism. It’s about protecting minorities. In AA’s example, the minorities are all the people who live anywhere besides China and India. In the Electoral College, the minorities are the residents of the smaller states.

            1. You need to explain why a given minority subset deserves privileged treatment. Otherwise it’s just an aristocracy.

              Saying a minority group needs it otherwise it’ll get drowned out by the majority is insufficient to distinguish a given minority group from literally any other way you might slice the population.

              1. In an ideal world God/Darwin would sort people out into accurate categories and suspend them in space and an political candidate would go out in front of them laying out a platform which caters to a reasonably wide set. But without that we have the states which is imperfect but better than selecting something based entirely on what Los Angeles/NYC want.

                1. If you’re going to go by the ‘persecuted by the coasts’ sentiment, you need to look at the current status quo and explain why giving those five states similar power but without the populational imprimatur is better.

                  I’m not saying you can’t, but you will need to show your work beyond yelling about the coastal elites.

                  1. Coastal megalopolises do have a lot more power than ‘swing states’. Maybe not in every way the megalopolises want but if Pelosi wanted to do a one on one swap with Trump of Ohio for California I’m sure he’d accept. In some ways they have even more power than they should (ie by buffing their numbers with massive infusions of illegals), inbuilt biases, self-reinforcing network effects in innumerable areas including economy, infrastructure, grants etc (whats called privilege in other contexts) and would have even more influence if they stopped rubber stamping every Dem that came their way.

                    1. You started well, but you veered off onto ‘the coasts have bad values and shouldn’t get a say’ territory pretty quickly. Do you think Ohio has more merit than California somehow?

                      I’ll buy the argument that we already have a lot of policies that favor high population and that the EC acts as a counterbalance. But it’s rather revealing your hand to say that coastal cities deserve less representation because they’re just structurally more close-minded than the rust belt.

                      The massive infusion of illegals bit is some sad nativist paranoia, but I’ll leave it lie as off topic for now.

                2. ” without that we have the states which is imperfect but better than selecting something based entirely on what Los Angeles/NYC want.”

                  How is selecting what Podunk wants inherently selecting what Los Angeles/NYC want? Because you live in Podunk?

                  1. editing error.

                    How is selecting what Podunk wants inherently better than selecting what Los Angeles/NYC want? Because you live in Podunk?

            2. The population of different states presumably makes a choice to live where they do. If you switch to a new election system that disadvantages, say, Rhode Island, what stops Rhode Islanders from pulling up stakes and becoming, say, New Yorkers or Virginians? It’s certainly unfortunate that electoral politics might influence or even force such movement, but economic opportunity already has much the same effect.

              In 1789, we needed to convince the small states to join, and that meant that we had to make assurances that they wouldn’t get swamped by the bigger, more powerful states they were joining as equals. But they’re in, and the Big Unpleasantness settled the question of whether states could decide to leave. The slave states got assurances about the slave economy before they joined, and right after the Big Unpleasantness, the slave economy went away, as they feared it would.

  4. If you want to broaden the Electoral process, nationalize what Nebraska does.
    Each house district is one electoral vote and each state is worth two.

    1. It’s bad enough gerrymandering affects congressman, now you want to affect the Presidency too?

      1. I concur. the fighting over gerrymandered districts would be intense.
        I have a simple solution to reduce gerrymandering:
        Put the minority party in each state in charge of drawing the district maps, with the proviso that existing Reps would still be the same district as redrawn.

    2. To avoid the danger of gerrymandering and the resulting lawsuits, proportional distribution of electoral votes would be better. The candidates who reached threshold percentage of a State’s popular vote (e.g., 15%) would receive a proportional number of electoral votes.

      1. Democrats would never accept that because it would instantly neuter the electoral power that California, New York, and Illinois possess by distributing electoral votes to Republicans. It would reveal once and for all that a lot of these states are dominated politically by a few urban megapoles that piss on the rest of the state.

        1. “Democrats would never accept that because it would instantly neuter the electoral power that California, New York, and Illinois possess by distributing electoral votes to Republicans.”

          It’s not one-sided. The big cities in blue states can’t capture the electoral votes of the rural parts of the state any more, but the rural areas in red states can’t swamp the blue voters in the cities of those states, either.

          The real problem is that since voters like to go 48% to one party, 46% to another, and 6% split among fringe candidates, protest votes, and the like, it’s more likely that the Electoral College fails to produce a majority winner, and elections go to the House. You think gerrymandering is bad now, just WAIT until the Presidential elections depend on who owns the House.

      2. ” The candidates who reached threshold percentage of a State’s popular vote (e.g., 15%) would receive a proportional number of electoral votes.”

        How does that work in Wyoming or Alaska, with their 3 electoral votes each? Would getting 16.8% of the popular vote get you an elector?

        1. Depending on how the rounding rules are set by the state and how the state chooses to resolve the allocation when there are more than two candidates, yes, that could theoretically happen. Why do you think that’s a bad thing?

          1. ” Why do you think that’s a bad thing?”

            It doesn’t solve the problem, it just kicks it down the road a little bit.

            The objection to winner-take-all is that minority party members don’t, effectively, get to vote. This leads to cases where the guy who got fewer votes wins the election, because some votes count for more than other votes. (I can win 50.1% of the votes in 270ish electors worth of states, and 0% in the others, and win the election with 40% of the votes cast compared to the other guy’s 60%.
            Switching that the proportionally awarding the electors makes the problem smaller, but doesn’t make it go away. I can STILL barely win in some districts, and totally lose in the others, and win the election even though more voters wanted the other guy.

            If I think that the guy who wins the election should be the guy who got more votes than the other guy, then that should be how the election is decided. If some factor says that the system should be more complicated (as EC supporters claim), fine… but spell out why that factor should allow the guy fewer people chose, and how the altered method for winning te election serves that factor. “That’s the way we’ve always done it” is not an argument to keep doing it that way.

    3. Hey Smooth,
      Is that not what the electoral college does now? One electoral vote for each House district and one electoral vote for each Senator? Similar to the way that the Congress was originally set up with the House representing the people and the Senate representing the State?

      1. No. Here the state winner gets two votes and the popular winner in each district gets one. Most states are winner-take-all.

  5. Might have been easier just to say that the civil penalty was for making the false representation that in every conceivable circumstance, they would vote for their team. Given that the state must select a handful from among its millions, requiring sworn rabid partisanship seems to bear a reasonable relation to the desired ends. “Boost for Birdsburg” placards optional.

    A more interesting case might be whether a state has the power to appoint electors sworn to withhold their vote in protest, or to cast a protest vote.

  6. I haven’t double checked this but my state Senator told a meeting that this session they changed the law so that any elector who doesn’t vote according to state government wishes gets replaced by someone who will. Replacement is a different thing from a fine though many of the same arguments could be adduced.

  7. I would suggest the voters of the State of Washington to pass a ballot proposition permitting any voter to sue any elected official for failing to act consistently with his campaign pledges.

    The Washington Supreme Court’s reasoning applies equally to all state officials. If the Constitution permits any state officials to be punished for failing to keep their campaign pledges, why not punish all of them?

    1. Why stop there? Why not make lying a tort, in any circumstance?

      “Ladies and gentlemen of the jury, testimony will show that on or about Jun 15, 2022, the defendant did say to my client that she did not look fat in the jeans she was wearing at the time. She did then proceed to wear those jeans in public, incurring humiliation and scorn from multiple onlookers. We cannot let this heinous act go unpunished. YOU, the jury, cannot let this go unpunished…”

      1. IIUC opinion is not fact and therefore not a basis for bringing a law suit. Beauty (fatness) is in the eye of the beholder!

        1. You are correct that if you apply today’s law to the hypothetical, you would get a different result than the (not entirely seriously) suggested change would produce.

  8. ‘Faithless Electors’ should be a ‘Fugazi’ cover band.

  9. Only a thousand dollar fine? Washington is part of the popular vote State Electoral compact. If I were an elector, I’d pay the 1000 and vote based on who won my state, not who won California.

    By the way, despite the claims Hillary won the popular vote, she didn’t. She got 48.2%. The constitution requires a majority of the Electoral College or it goes to the house. I’d be pretty upset with a system that elects the President on a popular vote and doesn’t require a majority, but we don’t want a system that throws every election to the House either.

    Best to keep things they way they are.

    1. ” I’d be pretty upset with a system that elects the President on a popular vote and doesn’t require a majority”

      Depends on how many candidates. Primary elections can have any number of candidates; sometimes a clear winner doesn’t have a majority in a crowded field. If Presidential elections had a dozen candidates, 25% might be a winning percentage.

      1. It doesn’t matter how many candidates are running, either one gets a majority (>50%) or one does not. If not then the Constitution has a process to resolve said lack of majority.

        1. “It doesn’t matter how many candidates are running”

          You’re assuming that what the Constitution prescribes as the procedure for holding elections matches 100% with what would make me upset. This assumption is incorrect.

          Seeing as how a hypothetical change to the Constitution is directly implied by quoted text, this is doubly foolish.

  10. I think the dissent is more correct here. An Elector is a Federal office, imo. Electors are chosen by the states, but they aren’t state officials. The majority opinion is akin to saying the states could prosecute or remove Senators or Representatives from office for not doing what the state government tells them to do.

    1. ” An Elector is a Federal office, imo.”

      I think that’s a stretch. You’re seeing them as similar to Senators, but I don’t. You send a Senator to Washington, and they stay there for six years. You send an elector to wherever the heck electors meet, and they stay there for a couple of days, then they come back home to the state.

    2. However the State(s) determine the rules that apply IAW the Constitution. I would also note that if a State so passes, they can remove a Senator/Representative, aka impeachment.

  11. I agree that, regardless of whether an Elector holds a federal or a state office, neither the federal government nor the state has power to interfere with an elector’s free choice, not to replace a duly appointed elector because state officials son’t like the way the elector voted.

    The word “elector” is also used to describe people who vote for members of Congress and state legislatures. If state officials can punish or disqualify electors because they don’t like their votes or they disagree with the opinion of some other body on one issue, the constitution’s text articulates no reason why they can’t do so for the other. State legislatures appoint electors for President and determine the qualifications of electors for Congress. If the appointment power includes power to control an elector’s vote once appointed, there is no logical reason why the qualification power shouldn’t either.

    I disagree with Ray and think it should be overruled for the reasons in Justice Jackson’s dissent. And even given Ray, a power appoint does not extend to a power to control conduct once appointed.

    If states want faithfulness, they should put the electors’ names on the ballot and let the voters decide which ones they want to select. It is the states that are being dishonest by not even identifying who voters are actually voting for.

    1. “neither the federal government nor the state has power to interfere with an elector’s free choice”

      Another view is that the elector’s free choice is exercised when they declare which candidate they support and get listed on the ballot under that name. Voters who voted for them under that representation feel cheated if/when the elector goes off and votes for someone else. If you view it as a contract (or at least, like a contract), then there’s no conflict.

      Imagine if someone enters a party X primary, manages to win, then goes on to win the general election, and THEN says “Oh, by the way, I’m actually party Y”. Are the members of party X justifiably angry? Is there an argument that they consumed the resources of party X under deceptive circumstances, and ought to be liable to party X for those costs?

  12. I’m siding with Washington on this one.

    Art II, Sec 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . .

    How can anyone argue you can appoint someone to a position but not set ANY conditions on the appointment?

    Suppose a state said an appointment is conditional upon the Elector remaining in good standing (e.g., defined as have no current warrants), or must be a citizen of the state, etc.

    No problem here.

    1. How can anyone argue you can appoint someone to a position but not set ANY conditions on the appointment?

      But this is not a condition on appointment, it’s a regulation about how you must exercise your office after you have been appointed to it.

      Thus for example, Trump might nominate, the Senate might confirm, and then Trump might appoint, a federal distruict judge. Trump might specify in whatever deed of appointment that is deployed, that the appointment is conditional on the judge always ruling in Trump’s favor in any case in which Trump is a party.

      The condition would be entirely without legal effect.

      Presumably in this case, the Elector has a federal cause of appeal, on constitutional grounds, and I’d be a bit surprised if this decision stood. It seems akin to a State fining a US Senator for voting in Congress contrary to the demands of some State law.

      1. “But this is not a condition on appointment, it’s a regulation about how you must exercise your office after you have been appointed to it”

        We have lots of these. They’re called “laws”. As an example, federal judges are appointed for life. But, when it comes to sentencing, sometimes mandatory minimums apply. You know, a regulation about how the judge may exercise their office after they have been appointed to it.

        1. IMO a good case could be made that voting is different from other duties like sentencing. The word itself implies making a choice, and that the choice could be different from another voter facing exactly the same options and information.

          Like Lee Moore said, it would be strange to fine a US congressman or even a state legislator for voting incorrectly. If they have to vote a certain way on a issue, why hold a vote on it in the first place? It boils down to whether one thinks the Electoral College was supposed to be a decision making body, or was only a way to respect federalism and the interests of smaller states.

          1. “If they have to vote a certain way on a issue, why hold a vote on it in the first place?”

            It’s a holdover from the days when communication speed was limited to “man-on-horseback” speed. The states all hold their elections on the same day, have time to get it all sorted and counted, then they send the electors to deliver the results on a second day. You’re inserting “voting” into their job description and then inferring meaning from that, but they are “electors”, not “electoral voters”. Think of them as messengers tasked with carrying the message “the voters of my state want X to be President” rather than as representatives tasked with independent decision-making authority. If they need to use representatives with authority for independent decision-making, there’s a whole House of them to make the decision.

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Free Speech

Todd Levitt, "Badass Lawyer," Loses a Third Libel-Related Appeal (with an Emotional Distress Claim)

"In this day and age, one must accept the possibility that one might be recorded in public. That possibility heightens when one chooses to engage in vitriolic behavior."

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Longtime readers of the blog may recall Todd Levitt, the self-described "Badass Lawyer."  As I wrote back in 2016, Levitt's main client pool was apparently students from Central Michigan University, so he tried to cultivate an edgy image (hence the "Badass" title), and promoted it through YouTube videos and a Twitter feed. This led to three lawsuits:

1. In the first, he sued a CMU student who created a parody of his Twitter feed; a trial court threw out Levitt's libel lawsuit, and the Michigan Court of Appeals affirmed, concluding that the feed was indeed a parody and thus not libelous. (I argued in the case on behalf of amici, with the help of my invaluable local counsel Michael F. Smith.)

2. In the second, he sued local media outlets for reporting on an award that he had "won," in the context of reporting on the first case:

In August 2014, The Morning Sun … published an article discussing Levitt I with the headline, "[L]awyer suing student admits to fake award[.]" … The article stated that plaintiff created the website "topcollegelawyers.com," and that the website announced plaintiff as the winner of a College Lawyer of the Year award.

It's rarely a good sign for a libel plaintiff when part of the Court of Appeals opinion in his case begins with:

Substantial truth is an absolute defense to a defamation claim.

The court went on:

In this case, although it is technically true that plaintiff did not "admit" that the College Lawyer of the Year award was "fake" or admit in a court document that he "awarded" the "'top college lawyer' recognition … to himself," we conclude that these inaccuracies do not alter the complexion of the affair and would have no different effect on the mind of the reader than would the literal truth….

[P]laintiff admitted that he commissioned the topcollegelawyers.com website and created the College Lawyer of the Year award to generate profits. He further conceded that he established the criteria for the award, chose the persons who comprised the committee that selected the award recipient, won the award, and then broadcast this as an accomplishment on a marketing website.

3. But wait, there's more, don't answer yet, just look at what else you get: Levitt then sued various people for their supposed misconduct stemming from the first two incidents. On Tuesday, the Michigan Court of Appeals rejected those claims as well; here's a sample of the analysis:

The heart of Levitt's [intentional infliction of emotional distress] claim appears to be the audio recording of the incident with [Kenneth] Sanney. Specifically, plaintiff objects to [Gordon] Bloem submitting the recording with [Bloem's] Request for Investigation to the Attorney Grievance Commission. Similarly, plaintiff argues that it was egregious for James Felton [the father of the student whom Levitt sued in the first case] to share the recording with "anybody who wanted it."

Read More

Video of NYU Panel on Hate Speech on Social Media

I discuss with Nadine Strossen and Jacob Mchangama what the Internet has come to

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Earlier this month, I was on a panel entitled "Hate Speech on Social Media: Is There a Way to a More Civil Discourse?" at the NYU Arthur L. Carter Journalism Institute with Nadine Strossen and Jacob Mchangama. We discussed a host of issues including free speech before and after the advent of the Internet, social media platform liability, the effectiveness of counterspeech, fake news and its effects on democracy, and other themes. Interested readers can watch the full event here.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

30 responses to “Video of NYU Panel on Hate Speech on Social Media

  1. There’s always this fantasy that people are nice. They aren’t.

    There’s one way to get to a more civil discourse in public… when the participants want it to be, it will be, and until then, it won’t. Back in the olden times, when Internet access was limited to mostly just college students at research universities, there were flame wars amongst the nerds, with some wondering why people couldn’t be nicer on Usenet. Today, the nature of human interaction on the Internet is… about the same.

    1. Humans have been killing each other since…the first time.

      It’s ridiculous to thing the internets has anything to do with hate or civil discourse.

      The only thing different now is, instead of yelling at my neighbor across the street, I can yell at my neighbor across the country or across the ocean, and have other people who agree with me yell at him/her/hir too.

      1. “It’s ridiculous to thing the internets has anything to do with hate or civil discourse.”

        Well, no… there are a couple of things the Internet does change. One thing is that people can find other people that share niche interests, instead of remaining isolated. This is fine for people who otherwise wouldn’t be able to share their love of first-generation Doctor Who or some band you never heard of, less fine when it’s people who think shooting up schools and offices is a neat idea.
        Another thing is the potentially global reach, which you allude to. It’s one thing when you yell at your neighbor over the fence… nearly everybody can ignore it. Converse, if you say mean things about Taylor Swift on Twitter… LOTS of people will make it their business.

        But there’s only two ways to increase civility in popular discourse on the Internet… once is to develop increasingly civil human beings (no progress on that front, AFAICT) and the other is to exclude incivil people from Internet access or Internet communities (a third approach is to limit one’s one access, which changes nothing about what’s happening online but substantially alters one’s reactions to what’s happening online.

      2. The interwebs allow you to spew bile at others anonymously (and at very low cost of transmission) that could not be done so easily in the past, which does contribute to degrading civil discourse.

        1. This is the critical factor, I suspect. The anonymous nature. Sure, in real life, there will be the rare person is enough of a jerk to publicly say horrible things to a coworker, neighbor, etc. But you can’t swing a dead cat on the internet without hitting a dozen people who are willing to say the most awful things to anyone who dares disagree with them . . . and 99.9974% of those comments are made anonymously.

          1. I’ve seen some speculation that, for some fraction of humanity, the usual social filters that stop us from screaming in each others’ faces like poo throwing monkeys just don’t engage when the interaction isn’t face to face.

            So you’ve got people who are going to be civil whether or not they’re online, but there’s just a certain number of people who can’t keep it together if there isn’t a face in front of them to remind them they’re dealing with another human.

            Then, of course, you’ve got the group who have adopted vicious attacks as a deliberate strategy to advance their causes. I suspect they’re the real problem.

            1. “I’ve seen some speculation that, for some fraction of humanity, the usual social filters that stop us from screaming in each others’ faces like poo throwing monkeys just don’t engage when the interaction isn’t face to face. ”

              There’s also a substantial subset of the population that can’t read social cues at all, or do so very poorly. Sometimes they hide away to avoid antagonizing people, and sometimes… they don’t.

    2. There’s one way to get to a more civil discourse in public… when the participants want it to be, it will be, and until then, it won’t.

      This isn’t at all true. Civilization is the story of setting up incentive structures to keep humans acting better than they otherwise might. This is a new arena for that fight; we don’t know the rules yet. But that doesn’t mean the effort is doomed. We’ve tamed worse temptations.

      1. ” Civilization is the story of setting up incentive structures to keep humans acting better than they otherwise might.”

        Then the barbarians come, and raze the city.

  2. I suspect – more than suspect – that many of these “private rules” promulgated by social media platforms are done to kow-tow to the governments where these platforms operate – “look, we’re doing the censoring you want, please don’t go after us!”

    Which raises some delicate issues about “state action v. private action.”

    1. You still have the option of withdrawing from a site that censors in a way you object to, and building your own site(s) that censors according to your preferences.

      1. …followed by the option of dealing with govt regulators breathing down your neck.

        1. The Internet routes around blockages.

      2. Technically, this is quite true.
        Anyone with a couple of $10 billions can attempt to set up a competitor to Facebook or Twitter. They might even have a little success, before Google delists them or Cloudflare drops their DNS.

        In reality, though, it’s close to impossible. Notice that with all the money Microsoft has spent on Bing, they’ve only managed to score 20% of the English query market… and that’s WITH browser and OS tie-in. No one has managed any inroads against Facebook or Twitter in the English market – the best competitors have managed is about 0.1% of the Facebook/Twitter userbase.

        1. (If you’ll allow a little snark)…
          Bing is (in)famous in our home for “forcing” itself onto our computer. All of a sudden, Bing will have become my default search engine. I’ve never selected this–it’s always something that judge magically happens. I go into Firefox, deselect it, and things will be fine for 1-6 months, when it will happen again.

          So, I refuse to ever use Bing on religious grounds. Two friends have experienced the same thing, with similarly negative reactions.

          I totally get that your Bing reference was not the main point of your post. But this reply did allow me to vent my spleen a bit, and–given Bing’s actions (yes, I know Bing is not an actual actor)–I am happy to do my part to lower Bing’s market share even more.

          Whew. That felt good!

          1. Agreed; Google may be a monopoly, but Bing is malware.

            I wouldn’t even be troubled about Google being an effective monopoly, if it weren’t that they were exploiting it, and not just for financial gain. I have repeatedly noticed when doing politically fraught searches, that on some topics Google will just relentlessly not serve up the relevant result, but instead bury it several pages down below stuff that is clearly not responsive to the search. Some things you’re looking for on Google, you can’t find them unless you have an extensive quote to use in the search string.

            Then you go do the same search on DuckDuckGo, and the relevant result you were looking for just pops right up.

            Mind, this is only on politically fraught topics; I’m not fond of the way Google has dumbed down their parsing of search strings, but they’re still technically the better search engine if what you’re searching for isn’t political. That’s the only reason I still use them.

            1. A monopoly that you can easily avoid, and that you only continue to use because you believe it’s better in most respects, isn’t a monopoly. It’s just your preference.

        2. That’s not entirely true. There have been other major social media sites that have come and gone. Do you remember MySpace? It’s what Facebook supplanted.

          Also, historically speaking, Facebook and Twitter are still a relatively recent phenomena. Our culture and law are still feeling out the rules and norms for interaction. I expect yet more swings from harsh censorship to unrestrained speech over the coming years until we find the balance we like. Whether that will be regulating Facebook, Twitter and Google like common carriers, people threatening their ad and other revenue streams to force a modicum of political balance and civility, or anything else, is still far too early to ascertain.

          1. “That’s not entirely true. There have been other major social media sites that have come and gone. Do you remember MySpace? It’s what Facebook supplanted.”

            The PC industry dates back to 1981 (if you use the introduction of the IBM PC) or the late 70’s (if you use a different microcomputer to mark the start). In that time, there’s plenty of cases of one product more-or-less completely supplanting another one. PC-DOS killed CP/M. WordPerfect killed WordStar, and then was itself crushed by Word. 1-2-3 and Excel. Netscape Navigator to Internet Explorer to Chrome. Novell NetWare to Windows NT.

            The argument “but they’re big and established” doesn’t mean they can’t be replaced.

        3. “Anyone with a couple of $10 billions can attempt to set up a competitor to Facebook or Twitter.”

          So can anyone else with nothing but some friends who know how to code, a lot of time, and lots of cheap computing power.

          “In reality, though, it’s close to impossible.”

          It’s been done. Quit whining about how hard it is. If you don’t want it badly enough to put in the work, you don’t want it badly enough, end of story.

          1. No, it hasn’t been done.
            MySpace, despite being one of the first, never managed to scrape up even 1% of Facebook’s current traffic, much less Facebook’s peak traffic.
            This is not 1981 anymore, and getting 1000 users from a con passing your software around on floppies doesn’t make you one of the most popular applications on the planet.

            The fact you think that all it takes to create a website with a billion daily visitors and store/retrieve petabytes of data is “some friends who know how to code” shows you don’t know a damn thing about programming, servers, web traffic, or anything else in the industry.

            1. “No, it hasn’t been done.
              MySpace, despite being one of the first, never managed to scrape up even 1% of Facebook’s current traffic, much less Facebook’s peak traffic.”

              But Facebook did, right? Facebook has had more than 1% of Facebook’s current traffic, right? You might even say they managed to hit 100% of Facebook’s current traffic?

              If your argument includes claiming that Facebook doesn’t exist, I’m going to continue treating your argument as laughable.

              “The fact you think that all it takes to create a website with a billion daily visitors and store/retrieve petabytes of data is ‘some friends who know how to code’”

              That’s how Microsoft got started. Or, in your world, does Microsoft join Facebook in never having been invented?

              “you don’t know a damn thing about programming, servers, web traffic, or anything else in the industry.”

              I think I’m still ahead of you, since I, apparently unlike you, know that Facebook exists.

              1. Wow, you are an idiot.

                Here’s a hint: This is not 1981 any more. This is not 2004 anymore. The circumstances of the here and now are not like they were decades ago.

                Facebook and Twitter are firmly entrenched giants in an established market. MySpace, like Friendster, was one of many early social networks. It started a WHOLE YEAR before Facebook, which gave it the initial appearance of being large. But it never dominated, and the entire market of social networks was still emerging.

                Your suggestion is much like claiming that any two guys in a garage can compete with Boeing and Airbus, because that’s all it took in 1920 – ignorant and foolish.

                1. “Wow, you are an idiot.”

                  Are ALL idiots smarter than you, or just me?

        4. ” Notice that with all the money Microsoft has spent on Bing, they’ve only managed to score 20% of the English query market… and that’s WITH browser and OS tie-in.”

          So, if the existing services are perceived as badly as you imagine they are, people will flock to your newer, better product in uncounted millions. You’ve just established that being strongly entrenched, backed by a huge company, and available to billions of users isn’t enough to own the market.

  3. Does NYU often hold panels on things that don’t exist?

  4. Let’s just get rid of all the liberals. That will fix the problem.

  5. Yeah, the there’s way too much speech that I hate on social media. The answer, of course, is to give me the ability do ban people’s accounts on twitter.

    1. Meh. If you can convince the owners of Twitter that they should do so…

      There’s a couple of possible lines of attack. First, you go after the speech you hate that’s flat-out lies. Then, you go after the speech you hate that’s actually threatening violence. Then you go after the speech you hate that’s ideologically unpalatable to you by linking it to speech that everybody hates. For people on the left, you point out the similarities of the speech you hate to the speech of Nazis (actual ones, I mean, the ones from Germany in the 30’s and 40’s). For people on the right, you point out the similiarities of the speech you hate to the speech of Communists (actual ones, I mean).
      That last one, you have to be very careful and stay on message very tightly. If you accuse everything on the left as Communist or everything on the right as Nazi, you quickly get tuned out. You have to accurately show links that are meaningful and relevant.
      Of course, this sucks if you actually are a Communist or a Nazi, but then again, if this is how you discover how unpopular your ideas are, it’s about time.

  6. Professor Manta,

    Thank you very much for sharing your video. It was horrifying to hear you had received hate mail, and considering that frame of mind, took another look at a comment I had made previously. It was in very bad taste, considering the current circumstances, of which I am now aware. As I’m sure you are aware, the joke was made to appeal to our common humanity, and was not intended as a threat of any kind. We are all deserving of respect and dignity. Please accept my apology.

    Thanks,
    Jordan

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Free Speech

Court Throws out Lawsuit Against Tor for Providing Anonymous Routing

Tor, a leading service for anonymously accessing the Internet, is shielded by 47 U.S.C. § 230.

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From a decision yesterday by U.S. District Court Judge Dee Benson in Seaver v. Estate of Cazes (D. Utah):

This action arises from the death of G.S., a 13 year-old boy, caused by ingesting the illicit drug U-47700. The parents of G.S. have brought suit against the website that sold the drug to G.S., the service provider that created the network through which G.S. was able to access the website on the dark web (Tor), and the mail service that sent the drug to G.S. Plaintiffs have brought claims for strict products liability, negligence, abnormally dangerous activity, and civil conspiracy….

Tor provides software for enabling anonymous communication and transactions on the internet. To use the Tor Browser, an individual must visit Tor's website to download the software. When downloaded, installed, and used by an end-user such as G.S., the Tor Browser automatically starts Tor background processes and routes Internet traffic through the Tor network, which relays traffic through a worldwide network. The Tor network provides security to a user's location and Internet usage to anyone conducting network surveillance or traffic analysis.

The Tor Browser operates through a group of volunteer-operated servers whose users employ the Tor network by connecting through a series of virtual tunnels, or relays, rather than making a direct connection. Tor estimates, on average, between 350,000 and 400,000 directly connecting users in the Unites States over the past three months. Information regarding the location of these users and relays is not publicly available. Via its website, Tor invites users to run a relay in order to help the network grow….

Plaintiff's claims are barred by the Communications Decency Act, 47 U.S.C. § 230 …. The CDA provides that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The CDA further provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." Through these provisions, the CDA "creates a federal immunity to any state law cause of action that would hold computer service providers liable for information originating with a third party." … The purpose of this immunity is to "facilitate the use and development of the Internet by providing certain services an immunity from civil liability arising from content provided by others."

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