5/9/1972: Resolution to impeach President Nixon introduced in the House of Representatives. On 7/24/1974, the Supreme Court would decide U.S. v. Nixon.
[1.] Profs. Adam Scales and Gary Francione from Rutgers Law were on CNN's Michael Smerconish program this morning, explaining why they think that faculty and students need to be able to accurately quote court cases, including when they include slurs—much worth watching, I think. The controversy at Rutgers continues; to my knowledge, the faculty hasn't decided whether to try to institute a policy against such quotes.
[2.] I recently learned about a settlement in the controversy between Tim Boudreau, a Central Michigan University tenured media law professor (and Journalism Department chair) who was fired for accurately quoting "nigger" and "fag" from the opinions in two leading First Amendment cases, and from the record in another leading First Amendment case. I submitted a state Freedom of Information Act request, and got a copy of the settlement agreement.
Prof. Boudreau, who was represented by a lawyer from the Foundation for Individual Rights in Education, withdrew any claims he might have against CMU, retired from CMU (he was apparently eligible for retirement), and in exchange received 10 months' salary and benefits (from Sept. 1, 2020 when he had been fired, to June 30, 2021, the end of this academic year). I think he could well have prevailed had he sued, especially given Sixth Circuit precedent. But litigation is always risky and emotionally draining, and I always understand why people might not want to litigate further. [UPDATE: For FIRE's story about Prof. Boudreau, which goes considerably beyond just this incident, see this post.]
[3.] Connecting the two controversies, here is a letter that Prof. Adam Scales (Rutgers Law School, as noted above), Prof. Nadine Strossen (New York Law School, and former President of the ACLU, 1991-2008), and I sent to the President of CMU arguing in favor of reinstating Prof. Boudreau: Read More
5/8/1884: President Harry S. Truman's birthday. He would make four appointments to the Supreme Court: Chief Justice Vinson, and Justices Burton, Clark, and Minton.
Over the last year, the Covid-19 pandemic has taken hundreds of thousands of lives in the US and around the world. Given the deadliness and contagiousness of the disease, there was a strong case for imposing at least some constraints on liberty to arrest its spread, though it is far from clear that the more severe "lockdown" measures were justified. But the coming of highly effective vaccines has radically transformed the situation. The time has come to free the vaccinated from government-imposed pandemic restrictions on their liberty. Doing so will protect constitutional rights, increase vaccination rates, and eliminate unjust restrictions on liberty.
Recent evidence confirms extensive earlier data showing that vaccination prevents some 95% of all infections (including over 90% of asymptomatic ones), and an even higher percentage of serious illness and death. The evidence also shows that vaccinated people are highly unlikely to spread the disease to others. A person who is not infected by a disease (even asymptomatically) cannot spread it. Thus, a 95% reduction in infection of all kinds also implies a comparable reduction in spread (possibly even greater, since less serious cases may have less viral load).
Vaccines do not provide absolute safety against Covid. But the reduction in both infection and spread is so enormous that they bring Covid risk in line with other risks that we readily accept in "normal" times, without requiring onerous restrictions on liberty to offset it. For example, the rate of death and serious illness among fully vaccinated Americans (132 deaths among over 95 million people, as of April 26), is vastly lower than the death rate caused by an average pre-pandemic flu season (up to about 35,000 deaths in a US population of some 330 million). Even if you think currently available data underestimates the Covid death rate among the vaccinated by a factor of 10, it would still be vastly lower than the death rate caused by the flu. If the flu doesn't justify significantly restricting liberty, neither does Covid for the vaccinated.
Before vaccination, those who claimed that Covid-19 was no worse than the flu were spectacularly misguided—at best. For the vaccinated, however, that analogy actually overstates the remaining risk (both for them, and for those they come in contact with).
In a recent Slate article, legal scholars Kevin Cope and Alexander Stremitzer point out that, in many cases, exemptions for the vaccinated are required by the Constitution:
Here's why governments may be constitutionally required to provide a vaccine passport program for people under continuing restrictions. Under the U.S. Constitution, the government may not tread on fundamental rights unless the policy is "the least restrictive means" to achieve a "compelling" government interest. Even some rights considered nonfundamental may not be infringed without a rational or non-arbitrary reason. Before vaccines, blanket lockdowns, quarantines, and bans on things like travel, public gatherings, and church attendance were a necessary measure to slow the pandemic. The various legal challenges to these measures mostly failed—rightly, in our view. But now, a small but growing set of the population is fully vaccinated, with high efficacy for preventing transmission and success rates at preventing serious illness close to 99 percent or higher.
Facilitating mass immunity—and exempting the immunized from restrictions—is now both the least liberty-restrictive method for ending the pandemic through herd immunity and the most effective one. Imagine a fully vaccinated person whose livelihood is in jeopardy from ongoing travel or business restrictions. She might go to court and argue: "I present little or no danger to the public. So restricting my freedoms and preventing me from contributing to society and the economy isn't rational, let alone the least restrictive means of protecting the public. Since you're not lifting restrictions for everyone, the Constitution requires that I be exempt."
This argument alone should be enough to justify mandating that passports be made available where COVID restrictions are still in place….
This reasoning should lead to the invalidation of the application of Covid restrictions to the vaccinated in any situation where those measures restrict a right subject to heightened scrutiny, whether it be freedom of speech and assembly, freedom of religion, or the right to travel. All three have at times been severely constrained during the pandemic, and courts have often upheld the constraints based on the the severe threat posed by Covid. That threat is now vastly reduced by vaccination.
The same reasoning potentially applies to more contestable rights, such as the right to abortion and gun rights under the Second Amendment (both of which have also sometimes been subject to "lockdown" restrictions). If you believe these aren't "real" constitutional rights (as most liberals do with gun rights and most conservatives with abortion rights), then it may be fine for the government to restrict them without facing more than minimal "rational basis" legal scrutiny (which they would likely pass). But, otherwise, the constitutionality of Covid restrictions on their exercise is undermined by vaccination.
Constitutional rights aside, freeing the vaccinated can actually do more to combat the pandemic than keeping them under restrictions. That is because the promise of liberation from the latter can greatly reduce vaccine hesitancy; and vaccination is by far the best way to stop the spread of the disease.
In a New York Times article, political scientist Lynn Vavreck describes recent survey evidence showing that a guarantee of freedom from masking requirements would greatly increase vaccine uptake among people who were still unvaccinated as of the time the study was conducted (March 24-April 14). Among the total unvaccinated population, this offer increased willingness from 50% to 63%. There were particularly increases among unvaccinated Republicans (from 35% to 53%), African-Americans (49% to 63%), and independents (43% to 56%).
In this context, it is worth noting that Republicans and (to a lesser degree) African-Americans have higher rates of vaccine hesitancy than the general population. Anything that can increase their uptake could do much to end the pandemic sooner rather than later. And, even from a narrow public-health point of view, the benefits of increasing the pace and reach of vaccination among hesitant groups easily outweigh the very small benefits of forcing the vaccinated to continue to mask and social distance.
As Vavreck points out, the promise of liberation from masking and social distancing had a bigger impact on Republicans' hesitancy than the promise of $100 cash payments (which had more impact on unvaccinated Democrats), or endorsements of vaccines by prominent politicians and public health experts. Even an endorsement by Donald Trump had much less impact on Republicans than the promise of freedom from masking mandates.
In addition to protecting constitutional rights and increasing vaccination rates, exempting the vaccinated from Covid mandates is also worthwhile because it increases liberty and human happiness. Constant mandatory masking and social distancing is a severe infringement on liberty and a serious impediment to normal human interactions.
I recognize that the extent of the impact varies greatly. Some may well regard it, as fairly minor. I have no quarrel with those who don't mind wearing masks and find curtailment of in-person activities to be no big deal. But there are many millions of people for whom it is a very big deal indeed. For many of them, even a few additional weeks of it is a severe deprivation, especially coming on top of the prolonged restrictions of the last year. They deserve to have their freedom back sooner, rather than later.
An obvious objection to "vaccine passports" is that it is often difficult to tell the vaccinated apart from the unvaccinated. This is a genuine concern. But the problem is similar to ones that governments and private industry routinely tackle in other contexts. If it is possible for states to provide drivers' licenses to everyone who passes a road test, it should also be possible to send comparably durable and secure vaccination certificates to all those who have gotten their shots.
At the very least, states and localities that still impose restrictions should allow private businesses to lift them if they devise their own "vaccination passport" regimes that meet some minimal security standard. That would provide strong incentives for innovation on that score. Private firms of many types have extensive experience screening customers for various traits. For reasons well explained by Julian Sanchez of the Cato Institute, private vaccine passports pose fewer risks than ones created by government.
The state of Florida should repeal its law banning private vaccine passports, and other states considering similar measures should reject them. such restrictions threaten individual liberty and property rights, and also risk prolonging the pandemic.
Some private businesses and other institutions may choose to continue masking and social distancing rules for the vaccinated, even after government restrictions are lifted. But the pressure of competition is likely to ensure there will be ample alternatives for those who find such requirements onerous.
There is an ongoing debate over whether some types of Covid restrictions were justified even before vaccination. For example, a growing body of evidence indicates that severe lockdowns may have done far more harm than good. The debate over such issues is likely to continue for some time to come. But it should be possible to reach broader agreement on liberating the vaccinated. It's a great way to simultaneously protect constitutional rights, reduce vaccine hesitancy, and expand liberty. Hard to do better than that!
UPDATE: I have made a few minor additions to this post.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Comply first, complain later. That's former U.S. Attorney General William Barr's advice for citizens facing overzealous law enforcement. And that's just what José Oliva, an unarmed, unresisting Vietnam vet, did as federal security officers put him in a chokehold and slammed him to the ground, causing life-altering injuries. José complied, but last year the Fifth Circuit said he can't complain, dismissing his lawsuit because, the court ruled, there is no constitutional remedy for excessive force by federal officers. Now José and IJ are asking the Supreme Court to take a look and reverse. Click here to read more.
- The Federal Advisory Committee Act requires that any committee established to advise a federal agency make its records publicly available. The Drone Advisory Committee (which provided advice to the Federal Aviation Administration about, well, drones) created four subgroups, which provided advice to the committee but never directly to the FAA. Are those subgroups required to make their records available? D.C. Circuit: No. Dissent: There are allegations that the FAA used the subgroups to circumvent the Federal Advisory Committee Act, so they should be deemed advisory committees in their own right.
- Man charged with pepper spraying Capitol police on January 6 seeks to be released before trial. Man: I have non-Hodgkin's lymphoma and thus am at increased risk of contracting COVID-19. D.C. Circuit: Well, now that you've tested positive for COVID-19, you're no longer at increased risk of contracting it. You can ask the district court if the diagnosis itself merits pretrial release. (h/t: @ZoeTillman.)
- Readers may recall Todd Bank, the attorney who set the speed record for torpedoing an oral argument in the Second Circuit in 2019. Second Circuit Grievance Panel: His prize is a public reprimand. (Separately, what's the story behind all these amicus-brief bounce-backs? Perhaps Supreme Court Rule 37.2(a)? Or 37.2(b)? Or 37.6?)
- Allegation: New York inmate first asks, and days later begs, to be seen by a doctor. Still more days later, when he begins passing in and out of consciousness, he is finally taken to the hospital, found to be in critical condition, diagnosed with diabetic ketoacidosis, given a 10 percent chance of survival, placed in a medically induced coma, subjected to multiple surgeries, and kept hospitalized for more than a month. Once back in jail the man files a grievance about his treatment. Prison officials: Sorry, our rules are that you have to file grievances within five days of the event. District Court: And you can't sue, because you didn't follow the grievance procedure. Second Circuit: The Prison Litigation Reform Act requires only that prisoners exhaust "available" administrative remedies, and this one ain't that.
- Inspector at the Nuclear Regulatory Commission is worried about safety at the Diablo Canyon Nuclear Power Plant (which, to be fair, does have the name of a place where things would go horribly wrong). He raises his concerns—and then is denied promotions. Can he get damages based on whistleblower protections? Fourth Circuit: Nope. Congress hasn't waived sovereign immunity for complaints against the NRC.
- Allegation: Texas inmate tells prison guards that he is being threatened by a sexually violent inmate and asks to be reassigned to a different cell block. Fully aware that snitches get stitches, the guards require him to identify the man in front of other inmates. The assistant warden then denies the transfer because he is a snitch. And, in short order, he is assaulted by the violent inmate who tells him he "never should have reported him." He files a lawsuit pro se. District court: Dismissed sua sponte. Fifth Circuit: Being violently assaulted is not a legitimate part of criminal punishment. You're going to look at the merits of this one.
- In 2015, the federal government charged a Houston man with helping one of his friends join ISIS. He pleaded guilty. District court (2018): Eighteen months' imprisonment. Fifth Circuit (2019): The district court wrongly held that the sentencing guidelines' terrorism enhancement did not apply. Remanded for resentencing. District court (2019): Eighteen months' imprisonment. Fifth Circuit (2021): Seriously? No. That's substantively unreasonable. Remanded for another resentencing. Also, in referring to government lawyers (in general) as "chip-on-the-shoulder jerk[s]," "self-important retarded—I take that back; retarded people have a justification[—people]," and "useless government bureaucrats," the district court displayed a level of prejudice against the government. The case is to be reassigned to a different judge on remand. (NB: This is at least the fourth time in recent years that the Fifth Circuit has reassigned cases away from Judge Lynn Hughes.)
- Seventh Circuit: We don't usually grant habeas relief based on statements a prosecutor made during closing argument, but insinuating that the reason a witness recanted his previous testimony was because he was threatened by a private investigator working for a co-defendant—when the testimony doesn't support that—will do it. Dissent: But the testimony does support it, as the state courts reasonably concluded.
- In 1989, a masked man stops three boys biking home from a Stearns County, Minn. convenience store. He forces two of the boys to run away and abducts the third, who is never seen again. Decades later, investigators set their sights on a neighbor who had repeatedly publicly criticized the investigation. He alleges that they search his house and identify him to reporters as a person of interest in retaliation for his criticism. Nothing comes of the search, and several years later—27 years after the abduction—another man confesses to molesting and murdering the boy. Eighth Circuit: The neighbor filed his retaliatory-search claim too late, as he didn't need to wait for the killer to be discovered. (May we suggest a truly excellent podcast on the story?)
- The social-media app Snapchat has a speed filter, meaning users can send pictures of themselves with the speed that they were traveling at the time superimposed on top. Three Wisconsin teenagers, allegedly spurred by this feature, hit 123 mph before running off the road and crashing into a tree. Can their grieving parents sue Snapchat for negligent app design? Ninth Circuit: Well, Section 230 of the Communications Decency Act isn't a bar. That law is about protecting tech companies from defamation claims based on user-generated content, not product liability. The parents are still going to have to prove that the app caused the accident though.
- "This case presents a novel and important question in the law governing retirement benefits: whether the federal Employee Retirement Income Security Act of 1974 (ERISA) . . . preempts a California law that creates a state-managed individual retirement account (IRA) program." The answer, per the Ninth Circuit, is no.
- New Mexico inmate collapses and suffers a seizure while in the prison yard. Other inmates, familiar with her seizure disorder, rush to help her, holding her down on the ground. Guards rush out, mistake the scene for a fight, and mace the good Samaritans, who sue. Tenth Circuit: We saw the video (which lacked audio) and, unfortunately, when a bunch of inmates are holding down a flailing fellow inmate and everyone is screaming, it really does look an awful lot like a fight. The officers acted reasonably.
- Feds investigating suspected drug conspiracy among Leavenworth, Kan. inmates and guards obtain—and keep—recordings of conversations between inmates and their attorneys. The district court determines that the prosecutors involved in the investigation might've violated the Sixth Amendment and holds them in contempt for destroying evidence and failing to cooperate with the court's investigation into the investigation. The court provides a roadmap for the 110 post-conviction claims filed as a result of the misconduct and orders them reassigned to her docket. Tenth Circuit (in a pair of cases): The prosecutors, who were fact witnesses below, lack standing to appeal.
- Twenty-four law-enforcement officers are meant to execute no-knock warrant at 305 English Road, McDonough, Georgia—reportedly the home of a violent drug dealer. But wait! They execute the warrant on 303 English Road, busting in on a septuagenarian with flash-bang grenades. Eleventh Circuit: Qualified immunity for the tactical commander in charge of the operation. (Check out this local-news piece on the incident, which includes body-cam footage.)
- A member of a jury deliberating over the prosecution of a former Congresswoman secretly tells court staff that another juror, Juror 13, is making her and other jurors nervous. Reportedly Juror 13 stated that a higher power told him the defendant was not guilty. The trial judge then questions Juror 13 who admits to saying the Holy Spirit indeed did tell him that, but also reaffirms he's following the court's instructions and carefully examining the evidence. The judge strikes Juror 13, and the rest of the jurors vote to convict. Eleventh Circuit (sitting en banc): There is a substantial possibility that Juror 13 was speaking somewhat metaphorically and could have nevertheless changed his mind in deliberations. New trial ordered. Dissenting judges would have deferred to the trial judge.
- Deaf Florida man with a penchant for local politics discovers that some videos on a local municipality's official website lack closed captioning, and are thus inaccessible to people who are deaf or hard of hearing. He sends the municipality a letter asking them to add captioning, which is ignored. Then his lawyer sends a letter, which is similarly ignored. So the man files suit under the Americans with Disabilities Act. The municipality responds by removing the uncaptioned videos from its website and the trial court dismisses the case as moot. Eleventh Circuit: But it isn't moot, because the plaintiff has a claim for retrospective damages. Concurrence: I agree with the panel's 10-page opinion applying modern standing doctrine. Now here's another 57 pages on why that stuff is mostly b.s. (Ed.: It's actually an interesting discussion by one of the Eleventh Circuit's more entertaining writers).
- DOJ: This Office of Legal Counsel memo—prepared for then-Attorney General William Barr and concerning the decision of whether to prosecute President Trump for obstruction of justice based on the findings in the Mueller Report—was predecisional, and is therefore exempt from FOIA. D.D.C.: Yeah, I'm sure Barr was seriously weighing his options. I've read the document in camera and you basically lied about its purpose and contents. Exemption denied.
In 2016, Ben and Hank Brinkmann, whose family owns and operates four hardware stores on Long Island, bought a vacant, commercially zoned lot in Southold, N.Y., to build a fifth store. But town officials imposed a building moratorium on a mile-long stretch of road centered around the lot and refused to process the Brinkmanns' permit application – all the while granting waivers to others in the area who sought a permit. And then the town authorized eminent domain to seize the property. Officials say they want it for a park, but that is a pretext. The town never engaged in any planning for a park until after the Brinkmanns applied for a permit, and there is a lot for sale next door that would serve equally well. This week, the Brinkmanns sued the town in federal court arguing that the Fifth Amendment forbids pretextual takings under the guise of a public use. Click here to read more.
From Langworthy v. Whatcom County Super. Ct., decided Wednesday by Judge John C. Coughenour (W.D. Wash.):
Plaintiff … sues the Whatcom County courts based on their alleged failures to provide her reasonable accommodations in several proceedings … . Ms. Langworthy alleged that court staff and judges failed to provide her with reasonable accommodations and took adverse actions against her based on her disability. [Substantive analysis of the disability law claims omitted. -EV] …
Ms. Langworthy [also] asks the Court to seal her "medical documentation" and "psychiatric reports" in their entirety and to redact "other portions of the record pertaining to her mental health diagnoses and symptomology" to preserve her privacy and protect her from ongoing discrimination. She suggests that "the Court might order the redaction of Ms. Langworthy's name, and/or specific portions of the record pertaining to privacy interests." … The Court will construe Ms. Langworthy's motion as a request to redact her name (in other words, to proceed anonymously), to seal Docket Number 17, and to redact the portions of her complaints that describe her mental health diagnoses and symptomology.
The Court begins with a strong presumption in favor of access to court records. Kamakana v. City & Cnty. of Honolulu, (9th Cir. 2006). Court records may be sealed only when the public's right of access is outweighed by interests that favor nondisclosure. The party seeking to seal a complaint or portions thereof bears the burden of showing that there are compelling reasons to seal that outweigh the public's interest in disclosure. "The mere fact that the production of records may lead to a litigant's embarrassment … will not, without more, compel the court to seal."
Here is the complaint letter, sent to the head of the FCC, signed by the Baltimore City State's Attorney's Office Communications Director:
This is a formal complaint requesting an investigation into the broadcasting practices and media content distributed by FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network, specifically the content distributed to the public about the Baltimore City State's Attorney's Office (SAO), a government entity, and its lead prosecutor, State's Attorney Marilyn Mosby that upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous.
Under the FCC's rules, "[b]roadcasters may not intentionally distort the news," and "rigging or slanting the news is [deemed] a most heinous act against the public interest." Given that FCC guidance, an investigation into the persistent and slanted broadcasts of WBFF against our office and the State's Attorney would prove that the WBFF administrators are guilty of such "heinous act[s]."
In my capacity at the States Attorney's Office, I have noted that the news coverage of the WBFF persistently follows a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts. Utilizing this pattern of practice in their broadcasts, citizens are not only consistently misinformed about the basis and intent of prosecutorial policies, additionally the merit of criminal convictions are distorted to detract from the public good championed by prosecutors. Most disturbingly, there appears to be an intentional crusade against State's Attorney Mosby, which given today's politically charged and divisive environment, is extremely dangerous.
In assessing the news content generated in Baltimore City, I am struck by the frequency of coverage by the WBFF about the State's Attorney's Office and its head SA Marilyn Mosby. In 2020, there were 248 stories by the WBFF solely about SA Mosby. In comparison, other local news networks ran significantly fewer stories. When assessed over the same period in 2020, Baltimore City stations did the following: WBAL – 26 stories; WJZ – 46; and WMAR – 10. So far in 2021, the WBFF has run 141 slanted stories.
While the frequency of coverage in question by the WBFF would give any reasonable person pause, it is the tone of the coverage that violates the FCC rules. The coverage by the WBFF represents acts that are not merely against the public interest; they also represent acts that are inflammatory against the safety of an elected official. In the public sphere, Fox News is infamous for its bias against people of color, and even more against those who could be deemed "progressive" people of color. Currently, the Fox national news network airs a nightly show with Tucker Carlson, despite recent calls by civil rights groups to terminate his employment because of Carlson's frequent endorsements of white supremacy views. In 2015, the WBFF was forced to apologize for editing a video to make it falsely appear that Black protesters were chanting "kill a cop!"
Less than two years ago, Above The Law ran an interesting column titled, "The Case for Legalizing All Drugs." That column contained the following passage:
When studying the history of prohibition, author Johann Hari discovered that it came about in the middle of a race panic …:
After the Civil War, Reconstruction failed, and what you had were African Americans and Chinese Americans who—rightly—were pissed off….. Many white Americans explained this growing rebelliousness at the start of the 20th century by saying that African Americans and Chinese Americans were forgetting their place, using drugs, and attacking white people….
The official statements are extraordinary. A typical one said, "The cocaine nigger sure is hard to kill." …
Now perhaps some ATL readers and editors viewed that as the day an "atomic bomb" was detonated on this site (to quote the label repeatedly used by the anonymous Lawprofblawg's recent ATL column sharply condemning classroom mentions of the word). Perhaps, like Lawprofblawg, they saw it as the day that the columnist (and the author being quoted) was "attempt[ing] to convey information in the most racist way possible" by accurately quoting an epithet from the historical record.
But we expect that most of them viewed the day as, well, a Tuesday: Just an ordinary day on which someone was engaged in the ordinary activity of accurately quoting a source for the sake of a precise and serious discussion of an important subject.
That is because, much as some might denounce it, the use-mention distinction is fundamental to the way communication operates (so fundamental that we often apply it subconsciously). Lawprofblawg asserts that, "The use-mention distinction is a quaint argument for the side of the utterer, but it means absolutely nothing to the recipient"—but of course the distinction doubtless meant a great deal to readers of the column we quote. If an ATL columnist had used a racial epithet to insult the columnist's political adversary, we expect readers and editors would indeed have been quite upset. (When one of us referred to the "atomic bomb of racial epithets," it was a reference to such uses of the word as an insult.) But the mention of the epithet, to our knowledge, rightly yielded no reaction, on this occasion or on others when ATL posts mentioned the epithet.
Nor is Above The Law unusual in this respect. As our article on the subject noted (pp. 12-14 & 24-25), the use-mention distinction has been routinely, likely even subconsciously, relied on by judges, lawyers, and law professors in literally tens of thousands of opinions, briefs, and articles. The distinction has been relied on in opinions by some of the nation's most respected judges, of all ideological stripes. It has been relied on in articles by many of our eminent academic colleagues, of all races, at both of our institutions. We suspect it has likely been relied on in articles by some of Lawprofblawg's esteemed colleagues, whatever institution he might happen to teach at.
It has likewise been routinely relied on by judges, lawyers, and witnesses speaking in courtrooms, depositions, and the like, in thousands of cases. Lawprofblawg insists that slurs shouldn't be quoted when authors can use "less offensive alternative[s]." But in all or nearly all of these situations, the judge, lawyer, witness, professor, or ATL columnist could have expurgated the word—they just concluded that accurate quoting is better than expurgation (rightly so, we think).
And of course the use-mention distinction is likewise routine in other contexts, such as the law school classroom: Compare (1) a professor noting that Justice Holmes had said, in Buck v. Bell, "three generations of imbeciles are enough"—a commonplace and unremarkable mention of a notorious quote—with (2) a professor calling a student an "imbecile," which likely would be condemned as an unprofessional use.
The same is true with racial insults as well. We haven't (yet) heard much call for expurgating class mentions of the trademark at the heart of the 2017 Matal v. Tam Supreme Court case (The Slants, the name of a band whose albums include, for instance, Slanted Eyes, Slanted Hearts). But if a professor used the word by saying to some Asian students, "Hey, you slants [or slant-eyes], you're whispering to each other too loudly," people would rightly condemn that.
Our article takes the view that this basic principle (mentions fine, uses as insults bad) has no peculiar exception for (1) professors and perhaps students (2) in the classroom and perhaps law school hallways quoting sources containing (3) the words "nigger" and "fag"—just as it has no exception for ATL columnists, judges, lawyers, or witnesses, or for law professors writing law review articles. (We infer that Lawprofblawg would apparently further narrow this exception just to (4) "white" professors, an adjective he thought worth noting seven times in his article; but we think there should be no such exception, regardless of the speaker's color.) Likewise, we take the view that students in the classroom are just as capable of distinguishing uses from mentions as they are when they read opinions, law review articles, or Above The Law columns.
Now we are of course aware that some people, of all racial groups, do argue for such an exception. Again, as best we can tell, they are completely comfortable with the use-mention dichotomy in most situations (even if they don't expressly think of it using the label "the use-mention dichotomy"). But they would have a special rule for classroom mentions of this one particular word, or perhaps of these two words, or sometimes at classroom mentions of racial or anti-gay epithets more broadly.
Our argument is that this is a demand that legal educators should be resisting, rather than enthusiastically embracing or even reluctantly succumbing to. When they graduate, our students will be expected, in a wide range of cases (see pp. 40-42 of our article), to read and hear—and sometimes write and say—these words. The more we view the words as taboo in the law school classroom, the more we reinforce an attitude that will leave our students less prepared to deal with them in practice.
One day, a client may call a newly minted lawyer and say, "I need your help; my son is black, and kids at school keep calling him 'nigger' but the school isn't doing anything about it." The lawyer's reaction shouldn't be, "How dare you say such a word in my hearing?," or even a silent "I'm so upset at my client."
Rather, it should be to calmly help the client, even recognizing that the epithet will doubtless be mentioned many times in the case in interviews, depositions, and the like. Indeed, at least some of the time, if a witness says in a deposition, "John called Mary an 'n-word,'" the lawyer might need to tell the witness, "I realize this might be upsetting, but could you please be more specific about what exactly John said?" (For a few examples of what happens when lawyers are vague on such matters, or let witnesses be vague on such matters, see note 73 of our article.) Teaching law students that the word is taboo will make it harder for students to serve the client well in such a situation.
As we argued in the article, we think that feelings of hurt aren't unchangeable givens, untouched and untouchable by the ways in which their expression is received. Such feelings are, at least in part, affected by the responses of observers.
The more that law schools validate the idea that it's justifiable to feel hurt simply because one hears words quoted from a case, the more the feeling will be embraced, and the more there will be demands to avoid such words. On the other hand, if we tell students that they ought not feel hurt when a term is being mentioned when accurately describing a case—just as respected judges routinely mention it in their opinions for the sake of accuracy, and just as ATL columns do the same—then we can better help them deal with these and other difficult facts calmly, the way one expects effective lawyers to do.
Of course, this is just a sketch of our argument, which our article develops in much more detail, and with much more evidence. We hope readers will find the article interesting; and we hope it will help them to decide for themselves whether professors and students in law school classes may freely discuss court opinions and court filings, without expurgation—or whether some things that are said in the courtroom can't be said in the classroom.
My posts this week, based on a forthcoming article excerpted here, have made several arguments against foreign dictators in U.S. court. Courts need not allow foreign authoritarians to take advantage of access to our judicial system. At the very least, courts could change their approach to the foreign privilege to bring suit, act of state, international comity, and even the FSIA. However, yesterday I concluded that an anti-dictatorship standard was not administrable. The question, then, is how to remedy the original asymmetry—foreign dictators have easy access to court as plaintiffs but can take advantage of protective doctrines when they are defendants.
Today, I propose four different ways to weaken dictators' access to court as plaintiffs and the protections they enjoy as defendants:
To resolve the dictators-as-plaintiffs problem (1) Congress should subject the privilege of bringing suit to the robust procedural protections of a federal Anti-SLAPP statute so that defendants can quickly dismiss oppressive political claims. To resolve the dictators-as-defendants problems, courts should (2) reconsider or eliminate the act of state doctrine; (3) limit the scope of foreign official immunity; and (4) interpret the FSIA exceptions as broadly as they are written, allowing more claims against foreign dictators.
My boldest proposal is to adopt a new Foreign Sovereign Anti-SLAPP statute:
[That] statute would mirror state anti-SLAPP statutes and would allow defendants to demonstrate that a foreign government or its proxy has sued them for political purposes or for exercising rights protected by the U.S. Constitution, either at home or abroad. If defendants can prove this, the burden would shift on to plaintiffs to demonstrate they will prevail on the merits, that they are not attempting to abuse legal process, and, in the case of individuals, that they are not a proxy for a foreign dictatorship. In the meantime, anti-SLAPP procedural protections would kick in.
The statute must address two main definitional problems: (1) what counts as a "political" lawsuit? and (2) what counts as a proxy of a foreign government? On the first question, the statute can draw from current anti-SLAPP standards, the political exception to extradition, and the immigration law standards for political asylum. As discussed above, courts in the extradition context consider whether a foreign government has charged a defendant with a crime that is "political in nature." So called "pure political" offenses involve crimes "like treason, sedition, and espionage, acts directed against the state but which contain none of the elements of ordinary crime." "Relative" political offenses involve common crimes that are "so connected with a political act that the entire offense is regarded as political." This latter offense, in turn, depends on the existence of a "political disturbance" and an offense that was incidental to it. But this standard is still overly narrow and hinges on "violent" uprisings.
An even better model is the political asylum standard, where an applicant "must demonstrate that he faces persecution on account of … political opinion." Applicants satisfy this by showing that a foreign government harmed them for holding a political opinion, including by participating in "act[s] against the government" or protests. And applicants only have to show that holding a political opinion was "one central reason" for the mistreatment or persecution. There are thousands of asylum decisions expounding on this standard, indicating that courts are comfortable defining the existence of "political" acts and subsequent prosecutions (or broader persecution).
Please feel free to write comments on this post on whatever topic you like! (As usual, please avoid personal insults of each other, vulgarities aimed at each other or at third parties, or other things that are likely to poison the discussion.)
From Christie BB. v. Isaiah CC., No. 527802, decided today by a New York intermediate appellate court (Judge Stan Pritzker, joined by Judges John Egan Jr., Sharon Aarons, Molly Reynolds Fitzgerald & John Colangelo):
[The parties] are the unmarried parents of a mixed race daughter (born in 2014). When the child was approximately three months old, the father acknowledged paternity. Pursuant to a July 2017 order, the parties stipulated that they would share joint legal and physical custody of the child, with the child alternating weeks with each parent. The mother commenced the first proceeding seeking to modify the prior order by, among other things, awarding her primary placement of the child, with alternating weekend parenting time to the father. The father answered and filed a counter petition seeking to modify the prior order by awarding him sole custody of the child….
We agree with Family Court that the testimony revealed that "little has changed" since the prior order was entered. Thus, only a minor modification of the prior order was needed in the form of providing, among other things, that the mother's home shall be the child's primary residence for the purpose of where the child attends school. Although testimony revealed that the mother had relocated multiple times, the court found, and the record supports, that the mother currently has stable housing. Additionally, although the mother has moved around, testimony established that the father was planning to move as well.
Furthermore, although the factor of fidelity to prior orders weighs in favor of the father, as the mother failed to attend a required parenting class, this is only one factor. Family Court clearly appreciated and addressed this concern, as evidenced by the fact that the court explicitly ordered that the mother contact the administrator of a parenting class program within one week of the issuance of the order.
Moreover, although communication between the parents is not ideal, it is not so poor as to render a joint custodial arrangement unworkable. In this regard, both parties have the goal of getting back to a place where they work well together. There may come a point in the future where joint custody proves entirely unworkable, but, at this stage, we defer to Family Court's determination that the parties' relationship "is not so acrimonious as to render the award unworkable." It is also noted that this decision to maintain joint custody was supported by the attorney for the child. According due deference to Family Court's credibility determinations and the evidence presented at the hearing, we find that it was in the child's best interests to continue the joint custody arrangement….
Finally, although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway. Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties.
As such, while recognizing that the First Amendment protects the mother's right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.
I think such restrictions on parents' political or religious speech—including courts factoring the parents' speech into a best-interests-of-the-child analysis—generally violate the First Amendment; see my Parent-Child Speech and Child Custody Speech Restrictions. And of course there's nothing constitutionally special about Confederate flags: If courts can pressure parents to stop displaying such symbols, they can pressure parents to likewise stop conveying any other political messages that the court conjectures will be indirectly harmful to the child or inflaming to the other parent.
From a Justice Department press release yesterday:
A St. Paul man was sentenced yesterday to 41 months in prison for his role in the arsons at the Minneapolis Police Department's Third Precinct building.
According to court documents, on the night of May 28, 2020, Branden Michael Wolfe, 23, went to the Third Precinct where a crowd of hundreds had gathered. At one point, the crowd began shouting, "Burn it down, burn it down." Soon after, a fence that was designed to keep trespassers out of the Third Precinct was torn down. Wolfe pushed a barrel into a fire located in the entrance of the Third Precinct headquarters, which had been set by other unidentified co-conspirators, with the intent to accelerate the existing fire.
Wolfe also entered the Third Precinct building and stole several items, including a police vest, duty belt, handcuffs, earpiece, baton, knife, riot helmet, pistol magazine, police radio, police overdose kit, uniform name plates, and ammunition. Wolfe was arrested on June 3, 2020, wearing the police vest, the duty belt and carrying the tactical baton.
"Mr. Wolfe furthered the destruction that took place in Minneapolis last summer by literally adding fuel to the fire. In addition to the arson, Mr. Wolfe stole body armor, weapons, and ammunition belonging to the Minneapolis Police Department," said Acting U.S. Attorney Anders Folk. "This sentence underscores the seriousness of Mr. Wolfe's actions and holds him to account."
"ATF is committed to investigating the civil unrest arsons of 2020 that occurred throughout the Twin Cities," said Special Agent in Charge Terry Henderson, of the ATF St. Paul Field Division. "Arson, being inherently violent, is a serious crime that puts our community members and first responders at risk, and it cannot be tolerated."
"The FBI's mission is to uphold the Constitution, which includes freedom of speech and the right to assemble," said Michael Paul, special agent in charge of the FBI's Minneapolis field office. "Branden Wolfe crossed the line and engaged in criminal activity during the evening the Third Precinct building was burned down last May. People who choose to engage in violent activity during protests may believe they are anonymous, but they are mistaken and will be held accountable for their crimes."
On December 21, 2020, Wolfe pleaded guilty to one count of conspiracy to commit arson. As part of his sentencing, Wolfe was ordered to serve two years of supervised release and pay $12 million in restitution.
Co-conspirators Bryce Michael Williams, 27, and Davon De-Andre Turner, 25, have all pleaded guilty to one count each of conspiracy to commit arson for their roles in the arson at the Third Precinct building. They will be sentenced at a later date.
This case was the result of an investigation conducted jointly by the ATF, the FBI, the Minneapolis Police Department, and the Minnesota State Fire Marshal Division. This case is being prosecuted by Assistant U.S. Attorneys Harry M. Jacobs and David P. Steinkamp.
If you've ever wondered what "equity" means, as distinct from "law," here's a primer I recently posted on SSRN. It's called "A Student's Guide to the Meanings of Equity." Here is the abstract:
Equity remains a significant part of our legal system, but the different meanings of "equity" often cause confusion. This essay distinguishes three meanings of the term: the distinctive treatment of an exceptional case, a moral reading of the law, and the doctrines and remedies developed in the Court of Chancery. By distinguishing these meanings, carefully and without an excess of technicality, this essay illuminates a difficult but important part of law in the United States.
I blogged a few weeks ago about a COVID-related libel and privacy lawsuit by former Electronic Privacy Information Center head Marc Rotenberg against Politico, LLC, Protocol Media, LLC, and Robert L. Allbritton and Tim Grieve (who run Politico and Protocol). One of the things I noted was the possible jurisdictional problem: The lawsuit is in federal court on a "diversity of citizenship" theory, which doesn't work if plaintiff and any of the defendants share the same state citizenship ("state" here including D.C.); and both Rotenberg and, it appeared, Allbritton or Grieve or both were D.C. citizens.
A week ago, Judge Tanya S. Chutkan noted this problem, and ruled:
Plaintiff brings this diversity action against two corporate entities and two individuals. However, the venue, jurisdiction and parties sections of the Complaint do not set forth the facts necessary to establish that this court has jurisdiction pursuant to 29 U.S.C. Section 1332. Plaintiff has not alleged the states where the individual defendants are citizens. Additionally, Defendant has not alleged where Politico LLC has its principal places of business, nor where Protocol Media, LLC is incorporated or has its principal place of business. Accordingly, by May 5, 2021 Plaintiff shall file an Amended Complaint that contains the facts necessary for this court to establish jurisdiction.
Yesterday, Rotenberg's lawyer responded by voluntary dismissing the individuals, and refiling an Amended Complaint asserting that each LLC defendant is "a Delaware corporation." But as best I can tell, that was in error: They are indeed registered on the Delaware Department of State Division of Corporations site, but as LLCs, not as corporations.
"Unincorporated associations, including LLCs, have the citizenship of each of their members," which defeats diversity jurisdiction if any of them have the same citizenship as the opposing party. And the Notice of Removal in a different case against Politico—Patel v. Politico, LLC (E.D. Va. Nov. 26, 2019—notes that Politico LLC is indeed an LLC, and its members include several D.C. citizens. (That case was indeed eventually remanded to state court, precisely because it later turned out that plaintiff there was a D.C. citizen, as were some of Politico's members.) I'm pretty sure that defendants' lawyers will move to dismiss on jurisdictional grounds, and I don't see what Rotenberg's lawyer will be able to say in response.
Of course, Rotenberg's lawyer can re-file in D.C. Superior Court, but that would be mighty perilous: As I've suggested in my earlier posts (on the disclosure of private facts claim and the libel and false light claims), the lawsuit is likely to be an uphill battle. And D.C.'s anti-SLAPP statute makes matters perilous for plaintiffs with weak libel and privacy claims; that statute, like others in various states,
- allows early dismissal of lawsuits based on speech "in connection with an issue of public interest," if the court concludes that plaintiff's claim is legally unfounded;
- generally suspends discovery until the motion is resolved;
- requires expedited hearings and rulings in such cases;
- provides for immediate appellate review; and
- presumptively requires a losing plaintiff to pay the prevailing defendant's attorney fees.
I'm skeptical that Rotenberg will want to risk that, but I might be wrong.
As I have argued over the past three days, U.S. courts are unnecessarily allowing foreign dictators to take advantage of access to our courts. No statute, doctrine, or constitutional principle forces courts to treat foreign dictatorships the same way as other parties. There is no obligation to give authoritarians free access to our courts or protections under the act of state or comity doctrines. Yet, in a forthcoming article, I argue that courts might not want to actively discriminate against foreign dictatorships. Unfortunately, there is simply no easy way for courts to administer a categorical anti-dictatorship standard. Today, I want to focus on three problems with anti-dictatorship discrimination: separation of powers, administrability, and a potential category-error.
Let's begin with separation of powers and administrability concerns, which have particular bite in this context. The standard argument cashes out here: the executive has a wide array of advantages over the judiciary in foreign affairs, including expertise, speed, and flexibility. These matter when it comes to foreign dictators because, as I argue in the paper, "forcing U.S. courts to distinguish between friendly and unfriendly dictatorships, as well as the different shades of authoritarian governments (e.g., competitive authoritarian, hybrid regimes, semidemocracy, illiberal democracy, etc.) would be unfeasible. Courts would have difficulty determining even whether a foreign dictator is a U.S. ally or rival. This problem is best captured by the apocryphal quotation attributed to President Roosevelt that Nicaraguan dictator Somoza 'may be a son of a bitch, but he's our son of a bitch.'"
Even if courts could discern among the worst types of dictators—Kim Jong-Un would be an easy one—they may often disagree with other courts or with the executive, bringing disuniformity to our foreign affairs.
In addition to the separation of powers and administrability problems, there's a potential category-error in this entire effort:
The problem with dictatorial acts is that they fundamentally challenge basic human rights and liberties. But democratic governments can do that, too. That is why U.S. courts have previously refused to enforce libel awards from the United Kingdom … Singapore's authoritarian government may respect certain rights more than Brazil's backsliding democracy. It would therefore be underinclusive to discriminate against foreign dictatorships but allow similarly egregious acts performed by democracies in U.S. courts….
Judging all dictatorships for purposes of all claims would also be substantively overinclusive. There is no need to prevent dictatorships from litigating non-political claims like contract disputes or embassy hit-and-run accidents…. Suppose that Venezuela's authoritarian government enters into a series of contracts with an American construction company that include choice of law and choice of forum clauses that point to U.S. courts. Suppose the company then refuses to perform under the contract but nonetheless retains payment. Surely, U.S. courts should be available for such a claim, even if it is filed in the name of Venezuela's dictator. This is the type of claim where the United States retains an interest in disciplining domestic companies and enforcing the relevant contract laws.
For those who still wish courts could create an anti-dictatorship standard, another reason to be skeptical is that courts actually tried but failed to implement something like it in the context of extraditions. Bilateral extradition treaties allow signatories to "demand and obtain extradition of an accused criminal." But the so-called "political offense exception" allows courts to refuse extradition on the grounds that a foreign sovereign has charged the defendant with "offenses … of a political character."
For decades, some courts and commentators argued that this political offense exception was "designed to protect the right to rebel against tyrannical governments." In other words, it allowed democracies to refuse extradition of political dissidents when a dictatorship requested it. As Thomas Carbonneau argued, "[b]y invoking the political offense exception when confronted with extradition requests from despotic governments, democratic States could proffer protection to political dissenters and thus indirectly promote democratic tendencies."
Some courts tried to operationalize this into a test, looking at whether a dissident's acts "were blows struck in the cause of freedom against a repressive totalitarian regime." Unfortunately, this approach has faltered in recent decades. Indeed, the Ninth Circuit rejected it entirely because it did not "believe it appropriate to make qualitative judgments regarding a foreign government or a struggle designed to alter that government." Instead, the Ninth Circuit has favored an analysis that protects dissident acts that are "political."
The story of the political offense exception counsels, then, that an anti-dictatorship standard may be inappropriate and also unnecessary if there are alternative ways to get at the same problem.
Tomorrow, I sidestep these concerns and propose an array of suggestions that may allow courts to refuse the benefit of international comity to most foreign dictators in an administrable way.
5/6/1776: Virginia Declaration of Rights by George Mason is published. Thomas Jefferson relied on this document when drafting the Declaration of Independence.
Today the Facebook Oversight Board released its decision concerning the termination of Donald Trump's account. I am largely uninterested in the reasoning adopted by this non-judicial body. I view it as little more than a glorified law review article. Indeed, nine of the twenty members are academics. And these academics expressly rejected the jurisprudence I am most familiar with: the First Amendment. Rather, they favored a body of law I know very little about. Eugene observed that the Board gravitated towards principles of international law. When I read the word "proportionality," my eyes glaze over.
The decision also had other European features. The majority opinion is not signed. Nor is there a signed dissent. Rather, the opinion includes a "procedural note"
The Oversight Board's decisions are prepared by panels of five Members and approved by a majority of the Board. Board decisions do not necessarily represent the personal views of all Members.
We are left with a per curiam decision that refers to an unnamed "minority" view. Really, this opinion is not a law review article. Most forms of scholarship are signed. We have no idea who wrote this opinion. We have no idea who disagreed with it. For all we know, Michael McConnell, the lone conservative in the group, dissented. We will never find out. I suppose one of the plus sides is that the authors will be immune from public criticism for their decision. And they will not be trolled online for their actions–unlike virtually everyone else in the world. One of the reasons why tenure protections are afforded is to promote judicial independence. But now, the Oversight Board hides behind a fancy moniker.
Finally, one other note on the substantive issue. For the reasons Eugene explained, I am sensing a schism. More and more libertarians are trending towards the position that social media companies should be treated similar to phone companies. These sites seem to be viewed as different in kind from other types of private entities. These tech giants may be viewed as expressive forums, as distinguished from government-designated public forums. I hope to write more about this issue in due course.
My frequent co-author Randy Barnett wrote some useful threads on this issue.
Libertarian theory needs to be updated to take account of new technology. Natural rights have always been based on the nature of humans and the world in which they pursue happiness. The latter is evolving in fundamental ways, and so too are the threats to liberty. #MyNextBook https://t.co/jFI3NRY2vZ
— Randy Barnett (@RandyEBarnett) May 3, 2021
We clearly don't now have a binary. In addition to common carriers we also have widespread federal, state and local laws barring discrimination in places of public accommodations. These laws are sacrosanct. Both are examples within the third category. https://t.co/7GJkcRvr2c
— Randy Barnett (@RandyEBarnett) May 5, 2021
Here's another libertarian with a similar take: https://t.co/127eVKyfqw
— Randy Barnett (@RandyEBarnett) May 5, 2021
Update: Professor Mike Rappaport wrote a relevant essay in January, titled Can a Classical Liberal Support Big Tech Regulation? Here is a snippet:
In sum, the reasons that justify prohibiting discrimination by monopolists under classical liberalism also often justify prohibiting big tech from discriminating based on political ideology. Such a prohibition would prevent big tech from coercing people as to their political views. While some classical liberals might still oppose a nondiscrimination requirement based on policy, one cannot argue that the requirement violates classical liberal principles.
And earlier today, I appeared on the Fox affiliate in Houston to discuss the Oversight Board's decision.