The Volokh Conspiracy

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

The Volokh Conspiracy


Patient Privacy and Transgender Medical Professionals

An interesting incident from England, as reported by the Sunday Times.


The Sunday Times (Nicholas Hellen) reports:

A woman who requested a female [National Health Service] nurse to perform her cervical smear test was "embarrassed and distressed" after a person with stubble and a deep voice summoned her for the intimate procedure.

The nurse's view, apparently, was, "My gender is not male. I'm a transsexual." But the patient objected, writing:

[It was] weird where somebody says to you: "My gender is not male" and you think: "Well, what does that even mean? You are clearly a man." …

[The nurse] had an obviously male appearance … close-cropped hair, a male facial appearance and voice, large number of tattoos and facial stubble ….

People who are not comfortable about this are presented as bigots and this is … kind of how I was made to feel about it.

The NHS apologized to the patient, according to the Central and North West London NHS Foundation Trust:

We apologised to this patient for the recording error and because the staff member accepted they didn't manage the situation appropriately; the patient needed to feel listened to. Trust policy is to consider seriously all requests for clinicians of a particular gender.

Here's my thinking on this: Medical care facilities are generally legally allowed to accommodate patients' preference for male or female doctors or nurses for various intimate medical procedures, and it's good that they do so for those patients who have such a preference (and I realize that not all patients do). In the U.S., for instance, even when sex-based job assignments are generally forbidden, they are allowed when sex is a "bona fide occupational qualification," and such privacy considerations are indeed viewed as BFOQs. To quote Veleanu v. Beth Israel Medical Center (S.D.N.Y. 2000)—a nonprecedential decision, but one that summarizes well the view of courts,

[T]he Court assumes that defendants harbored a plan for women-only health facilities and that they endeavored to accommodate patients' requests to see female doctors. That a medical entity may seek to respond to some medical treatment requests of its female patients—an expression of preference particular to the health care field—does not, of itself, indicate that it discriminates against male doctors. Veleanu has not introduced any evidence to substantiate any connection. An OB/GYN physician, like Veleanu, provides intimate and sensitive personal care to a women's body.

Because such care implicates the patients' privacy rights, personal dignity and self-respect, the Court believes that health care presents unique circumstances that may justify reasonable efforts to accommodate a patient's expression of preference of doctor by gender, and that female patients may have a legitimate privacy interest in seeking to have female doctors perform their gynecologicalexaminations. Indeed, other district courts have consistently recognized that privacy interests may justify adjustment of sex-based requirements for certain jobs. See Jones v.. Hinds Gen. Hosp., 666 F.Supp. 933 (S.D.Miss.1987) (hospital could terminate female nurse assistant in favor of male orderlies on the basis of gender in order to preserve privacy interests of male patients); Norwood v. Dale Maintenance Sys., Inc., 590 F.Supp. 1410, 1416-17 (N.D.Ill.1984) (allowing opposite sex attendant into washrooms while in use is intrusion on personal privacy warranting sex-based hiring policy); Backus v. Baptist Med. Ctr., 510 F.Supp. 1191, 1194 (E.D.Ark.1981), vacated as moot, 671 F.2d 1100 (8th Cir.1981) (hiring of male nurse would invade the privacy of obstetrical patients in hospital where nurse was obliged to perform sensitive and intimate tasks); Fesel v. Masonic Home of Delaware, Inc., 447 F.Supp.1346, 1353 (D.Del.1978), aff'd, 591 F.2d 1334 (3d Cir.1979) (gender-based hiring permitted for nurses in retirement home). While this Court need not address the permissible bounds to which this principle may carry, the Court finds that Veleanu has failed to raise an inference of discrimination based on either of his first two points.

By the same logic, a woman patient (for example) should be able to ask for a nurse who is physically a woman, rather than just for a nurse who self-identifies as a woman. Even if discrimination against transgender employees is legally treated the same as sex discrimination, some such discrimination is rightly allowed to protect privacy.

Of course, I recognize that some might think that privacy interests aren't a legitimate basis for discrimination (perhaps because they think that privacy concerns are just a social convention that should be rejected), and that the woman patient should just accept having the cervical test done by an employee who self-identifies as female but is apparently physically male. But if you think that, then it seems to me that you have to reject the privacy-based BFOQ altogether, and take the view that women patients must also accept having the tests being done by an unambiguously male employee.

Volokh Conspiracy

Can California Stop Employers From Consenting to Federal Immigration Inspections?

An interesting federalism question raised by a new law that goes into effect on Monday.


On Monday, January 1st, a new California law will go into effect designed to give undocumented immigrants some protections from federal immigration enforcement. The new law, called the Immigrant Worker Protection Act, includes the following new text:

(a) Except as otherwise required by federal law, an employer, or a person acting on behalf of the employer, shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor. This section does not apply if the immigration enforcement agent provides a judicial warrant. . . .

(c) This section shall not preclude an employer or person acting on behalf of an employer from taking the immigration enforcement agent to a nonpublic area, where employees are not present, for the purpose of verifying whether the immigration enforcement agent has a judicial warrant, provided no consent to search nonpublic areas is given in the process.

Because "[t]he authority to control immigration . . . is vested solely in the Federal Government," Truax v. Raich, 239 U.S. 33, 42 (1915), California is ordering employers not to consent to federal immigration officers. Under the statute, an employer that voluntarily consents to a federal immigration inspection is subject to a civil fine. Another part of the same new statute enacts a new section of the labor code, Section 90.2, requiring California employers to notify employees ahead of time if federal immigration agents are coming to check employees' employment eligibility.

But wait, can a state interfere with federal immigration enforcement like that?

The short answer is, I don't know. This isn't my area, and I don't want to venture a guess with as little knowledge as I have. But my sense is that there's at least a serious question about it, and I thought I would say a bit about what I know and invite comments from those who know more.

Enforcement of immigraton law is up to Congress, not the states, and state law provisions that conflict with Congress's system of immigration enforcement are invalid under the Supremacy Clause. I gather the key case is Arizona v. United States, 567 U.S. 387 (2012), which considered whether federal immigration law preempted an Arizona state law designed to add extra state enforcement mechanisms. In Arizona, the Supreme Court held that state law provisions punishing failure to comply with federal alien-registration requirements, prohibiting unauthorized aliens to seek or engage in work in the State, and authorizing state arrests for federal offenses were preempted on the ground that they conflicted with the federal enforcement scheme and "create[d] an obstacle to the full purposes and objectives of Congress." Id. at 410. On the other hand, the Court declined to hold a state provision preempted that required state officers to make efforts to determine immigration status of stopped individuals absent a showing that "enforcement of the provision in fact conflicts with federal immigration law and its objectives." Id. at 416.

California's law seems sort of the mirror image of the Arizona law. While the Arizona law tried to add more enforcement of the immigration laws, California is trying to limit enforcment of the federal immigration laws. As I understand preemption doctrine, the key question is whether "the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Arizona, 567 U.S. at 399. Further, "[w]hat is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects." Id. at 400.

I'm not sure how to apply these principles to the new California law. I'm a novice when it comes to preemption doctrine. The federal immigration laws are complex, and I'm wary of trying to work my way through them. So I'll leave the analysis to others with more background. To the extent it matters, though, there seems to be no clear statutory authority on point giving immigration officials inspection powers. The immigration agencies have various programs on inspections, see for example here, here and here. But my novice's sense is that these programs enforce the immigration laws without elaboring on the scope of powers given for that enforcement.

One interesting part of the picture is that the California law was expressly pitched as a means to undermine federal immigration policy. This is from the press release introducing the bill:

Amid escalating reports of the Trump Administration's indiscriminate raids on immigrants' homes and heart-wrenching stories of parents being snatched away from their children, Assemblymember David Chiu (D San Francisco) was joined by workers from the Service Employees International Union (SEIU) California and the California Labor Federation to unveil legislation that represents California's latest and boldest challenge yet to Trump's hateful agenda against immigrants. AB 450 affirmatively protects workers from immigration enforcement through workplace raids, many of which unlawfully violate worker rights. For example, past raids occurred under the auspices of narrow individual arrest warrants that ICE used to question and detain every single worker at a worksite, including U.S. citizens and workers lawfully present—violating their basic constitutional rights.

"Trump's threats of massive deportations are spreading fear among California workers, families, and employers," said Assemblymember Chiu, a son of immigrants and a former civil rights attorney. "AB 450 declares California's determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity. I'm proud to author this legislation which goes beyond California's existing defense of immigrants to offer new legal protections for individuals in our workplaces."

Can this "boldest challenge" to federal immigration policy withstand a preemption challenge? I'm guessing we'll find out, but in the meantime I hope others who know this area might offer more informed perspectives in the comment thread.

Volokh Conspiracy

The Best Way to Rule for Carpenter (Or, How to Expand Fourth Amendment Protections Without Making A Mess)


(Cross-posted from Lawfare)

Last month, the Supreme Court held argument in Carpenter v. United States, the pending case on whether the Fourth Amendment protects cell-site records. There seemed to be at least five votes sympathetic to ruling for Carpenter. At the same time, there was very little agreement about how to get there. What line should the Court draw, and based on what rationale? No clear answers emerged.

In this post, I want to identify what I think is the best way to rule for Carpenter. To be clear, I don't think this approach is the best way to rule. My amicus brief explains why I think cell phone users have no Fourth Amendment rights in their historial cell-site records. But if the Court wants to go the other way, there are better and worse ways to do that. This post identifies what I think is the best way to rule for Carpenter that would cause the fewest headaches going forward. To put it in law clerk terms, this is the thinking you do when your judge tells you, "Thanks very much for sharing your views. Now write it the other way."

Here's my bottom line: If the Court wants to rule for Carpenter, it should hold that individuals have Fourth Amendment rights in records solely useful to the government to identify that individual's physical location. In the language of modern Fourth Amendment law, government collection of location records, the sole government function of which is to reveal a person's physical location, infringes that person's reasonable expectation of privacy.

Because historical cell-site records are solely useful to the government to identify an individual's physical location, accessing those records without a person's consent would be a search. The Court should reach this result by relying on two traditional models of Fourth Amendment protection, what I have called the private facts model and the policy model.

This is a long post, so here's a road map. I'll start with an overview of the Fourth Amendment toolkit; then articulate and justify my proposed rule; next turn to the models that should be used to justify the rule; and then consider whether the Court should also decide the reasonableness issue of how much cause is sufficient to justify cell-site collection.

I. The Fourth Amendment Toolkit

I'll start with the big big picture. The Carpenter argument suggests that a majority of the Justices want to engage in what I have called equilibrium-adjustment. As I have explained, the Supreme Court sometimes responds to perceptions that technological change has greatly altered government power by adopting a new legal rule to restore the prior equilibrium. I personally don't think Carpenter is the right case for equilibrium-adjustment, as I think you need to take each technology on its facts. But the Justices seemed to want to rule more broadly. If I read the tea leaves correctly, a majority wants a new rule to account for how technology makes it easier for the government to know a person's location. They perceive that technologies like GPS surveillance and cell phones have expanded government power under the old legal rules, and they want a new legal rule to help limit that power. It's classic equilibrium-adjustment.

But how? To do that, you need to start by understanding the four basic rationales the Court has used to justify Fourth Amendment protection. Opinions draw from these four rationales—or as I have called them, four models—often mixing and matching different rationales in different cases. When the Court applies the probabilistic model, it considers the likelihood that a person's stuff or information will remain free of outside inspection. When the court applies the positive law model, it considers whether a source of positive law outside the Fourth Amendment prohibits the government's evidene collection. When the Court applies the private facts model, it makes a judgement that certain information should be deemed private (or not) and protected (or not) accordingly. Finally, when the Court applies the policy model, it justifies its holding based on the policy implications of doing so.

Okay, so that's the background. Let's move on to the two big questions. First, what should the rule be? And second, what model or models should the Court use to justify the rule?

II. The Rule—What Is Protected?

If the Court wants to rule for Carpenter, I think the best rule would be that the Fourth Amendment gives individuals Fourth Amendment rights in records solely useful to the government to identify that individual's physical location at a particular time. The question would be objective: Is that category of record something that ordinarily is solely useful to the government to determine a person's location? If the nature of that kind of record means that it is of a type ordinarily only of government use to identify a person's physical location, then it is protected by the Fourth Amendment unless there has been consent to the search. On the other hand, if government collection of that kind of record ordinarily has a non-location purpose, then this special rule would not apply and the third-party doctrine would continue to apply.

Why that rule? I think it identifies the concern the Justices have about physical location tracking and adjusts for that kind of record. Granted, it's tricky to craft a rule that is just focused on location tracking and that is relatively clear for lower courts to apply. The problem is that there are hundreds of different kinds of non-content records out there that are currently deemed unprotected under the third-party doctrine. Many of the records can allow some kind of inference to be drawn about a person's location in at least some cases. And when those records are in the hands of third parties, the third parties usually have a purpose other than to identify location.

At the same time, relatively few of those records are solely useful to the government for purposes of determining a person's location at a particular time. Most records have other uses. In an investigation, obtaining records of a credit card purchase shows the purchase (even if it may also suggest the person was at the store). Obtaining records of numbers dialed from a home phone shows the call (even if it also suggests the person was home). Tailing a person in the physical world shows who they are, what they are doing, and who they are with (even if it also reveals their location). In contrast, GPS tracking from the Jones case is solely useful to the government for purposes of determining a person's location. And historical cell-site records are solely useful to the government for purposes of determining a person's location, too.

A decision that engages in equilibrium-adjustment for the category of records solely useful to the government for purposes of determining a person's physical location would be relatively focused on the problem motivating the adjustment and would be relatively clear in most cases to apply. The idea wouldn't be to say that a person has a reasonable expectation of privacy in their location in some abstract sense. That's too high a level of generality. And it raises all sorts of weird questions about public observation. Instead, the idea would be that government collection of location records—records solely useful to the government to learn a person's physical location—infringes a reasonable expectaton of privacy when the person has not first consented to it.

(As an aside, if you think there are records that reveal location but are also generally useful to the government for a secondary reason but that should also be protected, you could also imagine a rule that focuses on whether the records are predominantly useful for location information. But off the top of my head, I don't know what those records would be. And a solely useful test seems significantly clearer.)

I'll be the first to admit that there are cases that will present difficult judgment calls under my proposed rule. Part of the problem is that identifying the nature of a record can itself get complicated. Records tend to include two categories of information: The event that triggered the creation of the record, and one or more facts about that event that were expressly or impliedly in the record. So you need to consider, what determines the nature of the record: the triggering event or the fact? And if the latter, which fact? And what determines the use of the record: Use in that kind of case, use in criminal cases generally, government use in all instances? In some cases, the answers won't be obvious. But I'm making only a comparative claim. Compared to other possible rules that I can think of in a hypothetical decision ruling in Carpenter's favor, my proposed rule seems less tricky than the alternatives.

Along these lines, the Court should also squarely reject the mosaic theory of long-term versus short-term monitoring. It's totally unworkable. Any rule the Court adopts should apply across the board without distinguishing between long-term or short-term collection. Records that are protected should always be protected, at least assuming no consent or some other exception.

I gather one consequence of my proposed approach would be that the Court would likely need to overturn United States v. Knotts, the 1983 beeper case. You could maybe try to keep Knotts alive on the theory that the beeper was trying to locate a drug lab, not the location of any particular person. But if you (plausibly) see beeper signals as a category of record that ordinarily is solely useful to the government to determine a person's location, then Knotts would have to go.

If so, I think that's no big deal. Most Knotts-like cases today already come out the other way under the trespass holding of Jones, making Knotts of uncertain practical importance today. And more broadly, having to overturn Knotts is consistent with how equilibrium-adjustment often works. As technology and social practice change, and a fact pattern that was once rare becomes very common, the need for equilibrium-adjustment changes, too.

III. The Rationale—Why Is It Protected?

As I discussed above, the thinking behind my proposed rule is that it is tailored to the technological change driving the equilibrium-adjustment. With that said, the Court's opinion must still use the models to justify the rule. And in particular, it needs to choose which models to use. This is an important choice, as it determines the framework lower courts will use to apply the Fourth Amendment in related cases. The Supreme Court picks the models in the few cases, and those models become the tools lower courts use by analogy in similar cases that lower courts will encounter. As I wrote in my Four Models paper:

Fourth Amendment decision making relies heavily on analogies, which means that legal reasoning adopted in one factual setting will tend to be adopted in similar factual settings. In a system of coexisting models, this dynamic allows the Supreme Court to pick the model most likely to accurately identify police practices in need of constitutional regulation in the setting of that particular case. Lower courts faced with new cases will reason by analogy to the Supreme Court's precedents, and through analogical reasoning will incorporate and adopt the models used in the Court's most similar decisions. The result is a system of localized models: different models will control different types of cases depending on which model best draws the line in each particular type of case.

So which models work best in Carpenter? In my view, a ruling in favor of Fourth Amendment protection would best rely on the private facts model and the policy model. In contrast, it shouldn't rely on the probabilistic model or the positive law model.

Here's my thinking.

First, reliance on the policy model is relatively straightforward. Most Supreme Court opinions on the reasonable expectation of privacy test have relied on the policy model. This is where the Court could make arguments about equilibrium-adjustment discussed above.

Second, the private facts model is often a good choice in technology cases. In areas of new technology, the details of how the information is collected can be contingent and unstable. Focusing a rule on the kind of information that is collected, rather than the details of how it is collected, is often a more stable and consistent approach. By relying on the private facts cases (see here at pages 512-14), the Court could say that these new technologies give the government new powers to track a person and thus learn very sensitive things about them; that the general category of information solely useful to the government to determine a person's location raises special privacy concerns; and that therefore, under the private facts cases, a person has a legitimate expectation of privacy in those records.

I've already written at length why I think the positive law model and probabilistic model are the wrong ones to use in Carpenter. I argue against using the positive law model here, and I argue against the probabilistic model in part three of this post. A common theme of my criticisms is that, in areas of new and evolving technology, the positive law and probabilistic models are too contingent and unstable to rely on. Legislatures often change the positive law governing new technology. Social understandings of technology and its uses can change over time. A decision that relies heavily on the positive law model or the probabilistic model therefore risks considerable confusion.

That's true both as to the effect of changing positive law and social understandings on the facts of Carpenter and, perhaps more importantly, on the facts many other cases that are coming down the pike. If the Court rules for Carpenter, the flood gates will open for claims of similar treatment with many other records. Indeed, the gates may have opened already with this cert petition on IP addresses filed earlier this week in the Silk Road case that anticipates a ruling for Carpenter. If the Court wants expanded Fourth Amendment protections, it will want a stable basis for both Carpenter and future rulings by lower courts in related areas. The policy model and the private facts model are the best way to provide that. The probabilistic model and positive law models are not, in my view.

IV. Whether to Take on Reasonableness

A final question is whether the Justices should also answer the standard for constitutional reasonableness—and if so, how they should rule. Is the reasonable suspicion required by the Stored Communicatiosn Act sufficient or is probable cause required? If probable cause is required, is a warrant needed? In an ordinary case, you'd think the Justices would decide that set of issues if they rule for Carpenter on whether he had rights at all. The reasonableness issue was preserved below; it was within the scope of the cert grant; and it was fully briefed by the parties before the Justices.

At the same time, there are some good practical reasons not to decide that issue in Carpenter. Because the Court granted cert without a split, there has been no percolation of the issue in the lower courts. The issue barely came up at oral argument, as the Justices were heavily focused instead on the threshold question of whether the Fourth Amendment applies.

Further, it's not an easy issue. It's plausibly path-dependent on the scope of the (as of yet unknown) search rule. A narrower search rule is more consistent with a higher reasonableness standard, while a broader search rule is more consistent with a lower one. Perhaps different location records merit different reasonableness standards. And either way, there are some tricky implementation questions.

I don't have strong views on this. But it may make more sense to leave the reasonableness standard for another day if no key votes are needed on the that issue to get to a majority opinion on the search question.

Further, the scope of the good faith exception arguably makes the need for a ruling on reasonableness somewhat less pressing than it would ordinarily be. A lot of this area of law is already the subject of statutory protection. Under the good faith exception of Illinois v. Krull, the exclusionary rule does not apply to searches authorized by statute unless the authorizing statute is "clearly unconstitutional." That obviously applies to access to historical cell-site records predating any ruling in Carpenter. Carpenter won't get out of jail. And neither will anyone whose records were obtained before the Carpenter case was handed down.

But if the Court decides that Carpenter was searched but declines to rule on reasonableness, I would think the exclusionary rule won't apply ex post either. Because the ruling will leave unclear whether applying the SCA's rule to cell-site records is unconstitutional, the statute won't be "clearly unconstitutional" in that application. Some officers and agencies will be cautious and won't rely on the statute, at least if they have more cause, in light of the uncertain Fourth Amendment standard. But the exclusionary rule shouldn't apply going forward under Krull unless and until there are rulings on reasonableness saying that more cause is required.

Volokh Conspiracy

Hillary Clinton Is "Most Admired" Woman by Americans

Reports a Gallup poll -- which also reports that a whopping 9% of respondents so labeled her (and her favorability-unfavorability rating is 36%-61%).


The Gallup summaries are here (9% say they admire her most, above any other woman), and here (36% favorable rating, 61% unfavorable). The first summary mentions the limitations of the survey:

The 9% who name Clinton is the lowest percentage she has received since 2002, when 7% named her in another close first-place finish. Clinton won the title this year in the same poll she registered a personal low favorable rating. This indicates she remains top of mind for enough people who like her to be named more than any other woman in response to the open-ended question, finishing ahead of some women who may be better liked overall but are not as prominent in people's minds.

But this makes me wonder about the significance of the "most admired" label in the first place—and makes me wonder how many people who hear just the headline soundbite ("Barack Obama, Hillary Clinton Retain Most Admired Titles") might end up getting quite the wrong impression.

Another way of noting this: Donald Trump is listed as the second-most-admired person in the country—or you can say the most-admired current political leader (thus excluding Barack Obama, who beats Trump by 3%). But given that only 14% of American voters say they most admire him, and his favorable-unfavorable rating is at 38%-56%, would it be particularly enlightening to label him as "Most Admired Current Political Leader"?

Volokh Conspiracy

Should You Lose Your Liquor License Partly Because You Rudely Criticized Police?

Yes, said San Antonio police officers, arguing that a bar's license shouldn't be renewed -- "those remarks show what kind of people Bottom Bracket's owners really are and that they should not be allowed to operate a bar."


In Texas Alcoholic Beverage Commission v. Baines Bradshaw & Smith LLC, 2017 WL 6554588 (Tex. Off. Admin. Hgs. Dec. 12), the Commission was seeking to block the renewal of the Bottom Bracket Social Club's liquor license, on the grounds that "the place or manner in which Bottom Bracket would operate the premises would be against the general welfare, health, peace, morals, and safety of the community, and the public sense of decency."

Part of the Commission's argument was that Bottom Bracket had illegally sold alcohol during a previous suspension; the Administrative Law Judge agreed that this happened, but concluded that under the circumstances this called only for an extra 20-day suspension. ("[T]he ALJ finds credible Mr. Bradshaw's testimony that he and the other co-owners misinterpreted the suspension order and did not intend to violate it. This is also supported by Agent Cantrell's testimony that every other time during the suspension that he checked on Bottom Bracket, it was closed.") There were also various alleged problems at the bar in the past, but the ALJ concluded that the earlier suspension had already adequately punished the bar owners, and that "There is no evidence of other problems with Bottom Bracket since the suspension period, which suggests that the owners of Bottom Bracket learned lessons from their suspension."

But the ALJ also noted another element of the Commission's argument:

In his … testimony, Detective Moffett emphasized that one of the other members of the vice unit observed that one of Bottom Bracket's owners wrote "fuck the police" and "fuck the TABC" on a Facebook post not long after the August 2014 incident. According to Detective Moffett, those remarks show what kind of people Bottom Bracket's owners really are and that they should not be allowed to operate a bar.

Detective Moffett added that he told Mr. Bradshaw after the August 2014 incident that he was not going to tolerate any more adversarial actions or comments. He testified that he informed Mr. Bradshaw that instead of issuing a verbal warning or writing a citation, he would take Mr. Bradshaw into custody for any violations found at Bottom Bracket. At hearing, he provided the example that he arrested Mr. Bradshaw because he found a locked exit door at the bar. According to Detective Moffett, Mr. Bradshaw did not react appropriately to his arrest, but instead tried to point out his arrest to customers and stated it would not hurt his business. Yet Detective Moffett also testified that Mr. Bradshaw did not resist arrest.

The ALJ concluded that he "does not view statements that express negative views of SAPD or TABC, even profane statements, to be the basis for denying a permit. Nor does the ALJ view objecting to (but not resisting) custodial arrest for a violation that would otherwise have been the basis for a citation as the kind of behavior that warrants the refusal of a permit based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency." And he added:

[The State Office of Administrative Hearings] has no jurisdiction to address constitutional claims, and Bottom Bracket has not made one. That said, the ALJ is concerned about the request to deny a permit based on speech that criticizes police. See, e.g., City of Houston v. Hill (1987) ("the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers"); United States v. Poocha (9th Cir. 2001) (yelling "fuck you" or "that's fucked" at police officers during an arrest constituted protected speech).

A well-founded concern, it seems to me.

Volokh Conspiracy

College Presidents Say: "Hate Speech Is Not Free Speech"

But there's no "hate speech" exception to the First Amendment.


Here's a letter from the Higher Education Council of San Antonio, signed by various San-Antonio-area university officials, including the presidents of Texas A&M-San Antonio and UT-San Antonio:

American colleges and universities have always embraced diverse points of view, leading to a multitude of new discoveries and cultural understanding. Higher education is a phenomenal place for minds to be challenged, to inquire, explore, discover and question the status quo.

But from time to time, American colleges and universities are subject to witness hate speech or activity that is disguised as free speech. Such has been the case in recent weeks at several colleges and universities in San Antonio and throughout Texas.

As members of the Higher Education Council of San Antonio (HECSA), we—the presidents of colleges and universities throughout this community and supporters—feel that it is important for us to speak out and make a distinction between diversity of thought and disingenuous misrepresentation of free speech. We further attest that hate speech has no place at our colleges and universities. Inappropriate messages, banners and flyers that are meant to provoke, spread hate, or create animosity and hostility, are not welcome or accepted.

Teaching, research, and critical thinking are the founding pillars of higher education. Each and every day, we witness incredible learning opportunities for our students, faculty, staff and community members.

San Antonio's colleges and universities are stronger and more diverse than ever before. During the upcoming tricentennial, there are many events, activities and symposiums being planned at our colleges to honor the city's multicultural heritage, as well as current and future residents. San Antonio colleges and universities have played an enormous part in the city's history. We are proud to have been a part of this great accomplishment and will further ensure that it continues to be our focus in the next 300 years.

Please join us in celebrating the power of higher education in the lives of San Antonio residents!

But of course there is no hate speech exception to the Free Speech Clause, as the Supreme Court unanimously reaffirmed this year in the Slants case. Private universities aren't legally bound by this (except in California, where a state law applies Free Speech Clause rules to them); but public universities, such as Texas A&M and UT, certainly are. And while universities aren't barred from condemning speech they disapprove of, this statement—especially if read by students who aren't up on First Amendment law—strikes me as suggesting that the universities will actually punish such speech (since it's not "free speech," and since it's not "accepted"). Yet such punishment of "[un]welcome" viewpoints would be unconstitutional.

Of course, in common with most such statements, this one doesn't even try to define "hate speech," and the words it uses to describe the concept help show how perilously broad and vague it can be. "Inappropriate messages" are apparently not "accepted if they "are meant to provoke." Creating hostility is also forbidden; presumably they don't include all hostility (hostility to President Trump? hostility to alleged racists?), but mean hostility based on race, religion, national origin, sex, sexual orientation, and so on—but that would still cover, say, harsh condemnations of various religious views (Muslim, evangelical Christian, Scientologist, etc.), expression of traditional religious views about homosexuality, and much more (perhaps opposition to "multicutural[ism]"?). "Diversity of thought" they seem to value, but diversity of thought on these subjects appears to be too much (at leaast if it's "[i]nappropriate" and "meant to provoke").

And what exactly does "disingenuous misrepresentation of free speech" mean here?

Volokh Conspiracy

California Prosecuting Man for Insulting Posts on Islamic Center's Facebook Page

The government's theory would equally criminalize insulting posts on a NRA page, or on a pro-Trump organization's page, or on a Communist Party page.


In September 2016, Mark Feigin posted five insulting comments on the Islamic Center of Southern California's Facebook page (before he was finally blocked by the ICSC from commenting):

  • "THE TERROR HIKE … SOUNDS LIKE FUN" (written in response to the Center's "Sunset Hike" announcement).
  • "Islam is dangerous—fact: the more muslim savages we allow into america—the more terror we will see -this is a fact which is undeniable."
  • "Filthy muslim shit has no place in western civilization."

California is now prosecuting him for posting these comments, on the theory that they violate Cal. Penal Code § 653m(b):

Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device … to another person is … guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

The posts, the California AG's office argues, were "were made with the specific intent to annoy and harass the members of the ICSC," because Feigin "was not trying to engage in any kind of political discussion but instead trying to vex members of the ICSC with his thoughts about their religion." The posts are criminal because they constitute "repeated harassment from those who wish to mock and disparage their religion," and, "[r]ather than attempt to engage in discussion or debate," are "cruel and pointedly aimed at dismissing an entire religion and those who practice it."

What could be more "intolerable" than for [the] ICSC Communications Director … to check the ICSC's Facebook page and discover that someone has written "PRACTICING ISLAM CAN SLOW OR EVEN REVERSE THE PROCESS OF HUMAN EVOLUTION" as the Defendant in this case did …. Or how about … "Filthy muslim shit has no place in western civilization." This is exactly the kind of repeated, annoying, and harassing electronic communication that PC 653m(b) is meant to deter. Protected speech? Political speech? Defendant's posts on the ICSC Facebook page are neither of those things.

And the government's argument makes clear that it's going after Feigin for the content—indeed the viewpoint—of his speech: "The mere content and nature of the posts establish that they are not made in 'good faith' as Defendant would suggest but are meant to annoy and harass." "Defendant is not seeking uriderstanding or guidance, instead he is posting in order to annoy and harass those who have beliefs with which he vehemently abhors." The Facebook's page public accessibility "does not translate into requiring ICSC or its members to sustain repeated harassment from those who wish to mock and disparage their religion." "Rather than attempt to engage in discussion or debate, Defendant's posts are cruel and pointedly aimed at dismissing an entire religion and those who practice it." Nor is the government's argument limited to vulgar epithets ("Filthy muslim shit"), though even those epithets are constitutionally protected when said outside the context of face-to-face "fighting words"; it applies just as much to the nonvulgar criticisms.

Of course, there's nothing in the government's logic that limits it to comments posted on the Islamic Center's page, or for that matter on the Catholic Church's page or the Westboro Baptist Church's page or the Church of Scientology's page. If the government is right, and the statute applies to posts on organizations' pages, then it would apply to any repeated harshly critical posts

  • on an NRA page "intended to annoy" NRA employees,
  • on a pro-Trump page "intended to annoy" its operators,
  • or on any other ideological organization's page.

The "during the ordinary course and scope of business" exception might exclude consumer complaints, but the government's theory is that this exception doesn't apply to this sort of criticism that is "cruel and pointedly aimed at dismissing an entire religion and those who practice it"—logic that would apply equally to criticism of political as well as religious ideologies. Nor can the courts constitutionally conclude that harsh insults of the NRA are "in good faith" and similar harsh insults of Islam are not.

This can't possibly be consistent with the First Amendment; indeed, in U.S. v. Popa (D.C. Cir. 1999), the D.C. Circuit set aside a telephone harassment conviction of someone who left seven racist messages on the voicemail of then-U.S.-Attorney Eric Holder; and the court focused on the "political message" of the speech, and not on Holder's status as a government official. Given that insults targeted to a particular person, related to a political message, are thus constitutionally protected, so are more general insults aimed at an ideology and all its adherents, whether that ideology is Islam, Scientology, conservatism, gun rights, or anything else. Laws aimed at preventing unwanted repeated messages to particular private citizens shouldn't be applied to messages sent to ideological organizations (or to public officials). And this is especially so when it comes to annoying Facebook posts, which the organization can simply block.

Caleb Mason at Brown White & Osborn LLP—which many of our readers may know as the firm at which Ken White (Popehat) is one of the partners—has filed motions to dismiss the charges; I hope the court indeed promptly throws them out as unjustified under the statute, forbidden by the First Amendment, or both. But if the courts accept such charges, expect to see many more people, left, right, and otherwise, prosecuted for posting insulting messages on many groups' web pages.

(I should note that Feigin is also being charged with making a threatening phone call to the Islamic Center; but that is a separate count, based on separate conduct, and it's far from clear that Feigin was actually the person who made that call, as this CNN story [Scott Glover] describes. The Center employee who received the call claimed that it sounded like Feigin's voice, which he heard when making a call to test the theory that the caller was the same person who wrote the Facebook posts. But the employee also continues to claim that the call sounded like the voice of someone who had left a different message on the Center's voice-mail the day before—and that person has been proved to be someone other than Feigin.

Nor do the police have any phone records linking the threatening call to Feigin: They waited seven months before trying to get the records, and by then Citrix, which operated the calling number as part of its GoToMeeting teleconferencing system, had purged its records. This is why this post focuses on the Facebook posts, which Feigin did make, and not on the separate threatening phone call charge.)

Volokh Conspiracy

Starting Sentences with "And," "But," or "Or"

Nothing wrong with it.


I'm writing some material about transitions for the Intensive Editing Workshop I'm teaching at UCLA in January, and it reminded me about the mythical "rule" saying that you can't start sentences with conjunctions, such as "and," "but," and "or."

As Merriam-Webster's Dictionary of English Usage notes, starting a sentence this way doesn't violate any established usage or grammar practices. Nor will it make your writing seem unidiomatic and jarring, at least if you're writing for lawyers: Back when Lexis let you search for capitalized words, I ran a Lexis search for caps(but) in the Supreme Court database, and found over 900 results from 2000 to 2011. A similar search in the New York Times database found over 1100 results in just one week. Nor is this just some newfangled kids-these-days degradation; the Constitution contains sentences that begin with "and" and "but," as do the works of Dickens and many others.

Moreover, starting a sentence this way is useful: An initial "and," "but," or "or" is a good transition that shows the relationship of this sentence to the previous one, with as little formality and complexity as possible. The usual alternatives, such as "however" or "moreover" strike me as stuffier, though sometimes "moreover" adds an emphasis that "and" doesn't.

When I last blogged about this, a commenter objected on the grounds that "they're called conjunctions for a reason"—presumably meaning that conjunctions must conjoin two parts of a sentence. But like many appeals to supposed logic when it comes to language, this appeal assumes the conclusion. The term "conjunction" does suggest that a word is connecting two things, but it doesn't tell us that those two things must be parts of the same sentence. Why can't a conjunction serve as a transition that logically connects two consecutive sentences?

Now if you just find these locutions aesthetically displeasing, and want to avoid them in your own writing, there's not much I can say about that. But I see no basis for faulting others' use of them, or for editors' trying to categorically edit them out.

Volokh Conspiracy

Atheist Arrested in Bangladesh—Atheism Might Be Banned in Egypt

Two recent stories in the news, plus a third item about Malaysia.


Agence France Press reports:

Bangladesh police arrested a 25-year-old social media activist [Asaduzzaman Noor, known as Asad Noor] as he tried to leave the country on charges that he defamed Islam and the Prophet Mohammed, authorities said Tuesday….

'The charge against him is that he hurt religious feeling by mocking Prophet Mohammed and made bad comments against Islam, the prophet and the Koran on Facebook and YouTube,' [Inspector Mohammad Shahidullah] said.

Noor apparently faces up to 14 years in prison from the government, and perhaps worse from others: Atheist bloggers in Bangladesh have recently been murdered by mobs.

Also, according to (Brian Whitaker) and The Daily Independent (Nigeria), Egypt is set to make it a crime to be atheist in Egypt (not just to express atheist views in public, which is already punishable). If any of our readers can read Arabic, and can check the sources linked to by Al-Bab (here and here), I'd love to hear back about that.

UPDATE: The Star (Malaysia) (Loshana K Shagar) reported in November,

Atheism should not be allowed in Malaysia for any citizen as it contradicts both the Federal Constitution and the Rukunegara, said Deputy Minister in the Prime Minister's Department Datuk Dr Asyraf Wajdi Dusuk….

"… [A]nyone who tries to spread ideologies and doctrines that promote atheism and similar beliefs, which tarnish the sanctity of other religions, can be charged under the Sedition Act," he said.

Thanks to reader Careless for the pointer.

Political Ignorance

Public Ignorance and GMO Foods

Fear of GMO foods is an example of the broader problem of political and scientific ignorance.



In a recent Washington Post op ed, Purdue University president and former Indiana Governor Mitch Daniels highlights the dangers of the campaign to ban or severely restrict genetically modified (GMO) foods:

Of the several claims of "anti-science" that clutter our national debates these days, none can be more flagrantly clear than the campaign against modern agricultural technology, most specifically the use of molecular techniques to create genetically modified organisms (GMOs). Here, there are no credibly conflicting studies, no arguments about the validity of computer models, no disruption of an ecosystem nor any adverse human health or even digestive problems, after 5 billion acres have been cultivated cumulatively and trillions of meals consumed….

Today, their scientific successors are giving birth to a new set of miracles in plant production and animal husbandry that cannot only feed the world's growing billions but do so in far more sustainable, environmentally friendly ways. And though the new technologies are awe-inspiring, they are just refinements of cruder techniques that have been used for centuries.

Given the emphatic or, as some like to say, "settled" nature of the science, one would expect a united effort to spread these life-saving, planet-sparing technologies as fast as possible to the poorer nations who will need them so urgently. Instead, we hear demands that developing countries forgo the products that offer them the best hope of joining the well-fed, affluent world….

For the rich and well-fed to deny Africans, Asians or South Americans the benefits of modern technology is not merely anti-scientific. It's cruel, it's heartless, it's inhumane — and it ought to be confronted on moral grounds that ordinary citizens, including those who have been conned into preferring non-GMO Cheerios, can understand.

Reason science writer Ron Bailey has some additional thoughts on Daniels' op ed and the enormous benefits of GMO foods here; see also this helpful review of the evidence by William Saletan of Slate. The point is not that all GMO foods are always good for you, but that there is no reason to treat GMO products as a class differently from more conventional food supplies.

As Bailey and Daniels note, the scientific consensus holding that GMO foods are no more dangerous than "natural" ones has not prevented large parts of the general public from concluding that GMO foods are somehow problematic, and should be either banned or severely restricted. Fear of GMO foods is part of the more general problem of widespread political and scientific ignorance. For example, surveys indicate that some 80 percent of Americans support the idea of mandatory labeling of "foods containing DNA," (see also here), even though DNA is the basic genetic building block of life, and is contained in nearly all foods. Not surprisingly, the percentage that believe DNA worthy of mandatory warnings is very similar to the percentage (84 percent) who endorse mandatory labeling of foods "produced with genetic engineering."

Much of what I said in my 2015 analysis of the DNA question is readily applicable to the ongoing debate over GMO foods:

The [DNA] survey result is probably an example of the intersection between scientific ignorance and political ignorance, both of which are widespread. The most obvious explanation for the data is that most of these people don't really understand what DNA is, and don't realize that it is contained in almost all food. When they read that a strange substance called "DNA" might be included in their food, they might suspect that this is some dangerous chemical inserted by greedy corporations for their own nefarious purposes.

Polls repeatedly show that much of the public is often ignorant of both basic scientific facts, and basic facts about government and public policy. Just before the 2014 elections, which determined control of Congress, only 38 percent realized that the Republicans controlled the House of Representatives before the election, and the same number knew that the Democrats control the Senate. The public's scientific knowledge isn't much better. A 2012 National Science Foundation survey even found that about 25% of Americans don't know that the Earth revolves around the sun rather than vice versa. Issues like food labeling bring together political and scientific knowledge, and it is not surprising that public opinion on these subjects is very poorly informed….

Political ignorance is not primarily the result of stupidity. For most people, it is a rational reaction to the enormous size and complexity of government and the reality that the chance that their vote will have an impact on electoral outcomes is extremely low. The same is true of much scientific ignorance. For many…, there is little benefit to understanding much about genetics or DNA. Most Americans can even go about their daily business perfectly well without knowing that the Earth revolves around the sun….

Unfortunately, this is a case where individually rational behavior leads to potentially dangerous collective outcomes. While it doesn't much matter whether any individual voter is ignorant about science or public policy, when a majority (or even a large minority) of the electorate is ignorant in these ways, it can lead to the adoption of dangerous and counterproductive government policies.

In this case, public ignorance can be exploited to promote efforts to ban or restrict GMO foods. For relatively affluent Americans and Europeans, that mainly means our food would be more expensive and less diverse than it could be otherwise. For many poor people in the developing world, it could mean worsening poverty, malnutrition, or even starvation. Even mere mandatory labeling of GMO foods can cause harm by increasing costs, misleading consumers, and exacerbating information overload.

In addition to simple ignorance, there is also a problem of bias in the evaluation of information. Both ordinary people and politicians have a strong tendency to overvalue any political information that fits their preconceptions, while downplaying or even rejecting anything that cuts against them. Some forms of policy-relevant scientific ignorance are particularly prevalent on the right, such as denial of the existence of global warming. Fear and suspicion of GMO foods, by contrast, is most common on the left. Both tendencies reflect the way in which these positions are congenial to adherents of particular ideologies. For example, fear of GMO foods dovetails with more general left-wing suspicion of corporate interests and with some strands of environmentalism.

Some might argue that voters should not defer to the views of experts on scientific questions such as GMO safety or global warming. After all, the experts might be biased or just simply wrong. While we should not just blindly defer to experts, there is good reason for a presumption in their favor in situations where the experts are opining on matters within their professional sphere, there is a broad expert consensus that cuts across ideological lines, and there is no good reason to believe that the experts (as a group) are somehow corrupt. I discussed the issue of when we should (and should not) defer to experts in more detail here and here.

Volokh Conspiracy

James Zogby: Calling Hummus "Israeli Food" = "Cultural Genocide"

Zogby is a Democratic National Committee member, Chair of The [Bernie] Sanders Institute, and founder and president of the Arab American Institute.


Tyler O'Neil (PJ Media) reports, with copies of the tweets (which began with a Rachael Ray tweet); it apparently wasn't a joke on Zogby's part.

I should say that there's nothing wrong with pointing out that something which we label as coming from place X actually comes from place Y instead. Many ethnic groups are proud about what they see as their inventions, and want to get credit for them. (Sometimes such corrections as to origin are themselves mistaken, and often the true origin of a food or some other discovery is actually hard to track down, though that's a separate matter.)

But let's keep a sense of perspective here: There's nothing remotely connected to "genocide" here—if anything, it's demeaning to actual genocide (or even to lesser crimes) to use such a label here. I don't like the term "cultural genocide" at all, precisely because mass murder is very different from other things; but at least that term has some plausible claim to analogy when a government tries to coercively extirpate (often with threat of prison or physical abuse) some cultural practice, for instance if it bans the use of some language or cultural practices by a minority group. There's no plausible claim to analogy here.

Volokh Conspiracy

Oregon Court Holds That Statements Opposing Same-Sex Marriage Weren't Illegal Threats of Discrimination

A separate holding from today's Klein v. BOLI (Sweetcakes by Melissa case), from the Oregon Court of Appeals.


Besides being ordered to pay $135,000 in damages for refusing to make a cake for a same-sex wedding, the Kleins—owners of Sweetcakes by Melissa—were also found to have violated Oregon's ban on announcing an intention to discriminate in the future. That statute, ORS 659A.409, provides,

it is an unlawful practice for any person acting on behalf of any place of public accommodation … to publish, circulate, issue or display, or cause to be published, circulated, issue or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of the place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of race, color, religion, sex, sexual orientation, national origin, marital status or age ….

In the Oregon Court of Appeals' words, "the statute makes it unlawful to threaten to commit unlawful discrimination," and the Oregon Bureau of Labor & Industries concluded that the Kleins violated the statute by making three statements:

  1. "[I]n the February 2014 interview with Tony Perkins, Aaron described his brief conversation with Rachel at Sweetcakes that led to him telling her, '[W]e don't do same-sex marriage, same-sex wedding cakes.'"
  2. In the same interview, "Aaron related an earlier conversation that he had had with Melissa regarding the prospect of legalized same-sex marriage; in that conversation, according to Aaron, he and Melissa agreed that they could 'see it is going to become an issue but we have to stand firm.'"
  3. A handwritten sign "was taped to the inside of Sweetcakes' front window, which read, in part, 'Closed but still in business…. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart.'"

The court noted that a ban on threats of discrimination is constitutional: The Supreme Court's decision in Rumsfeld v. FAIR (2006) noted that "Congress may, for example, require employers to 'take down a sign reading 'White Applicants Only."" But the court concluded that these three statements did not amount to punishable (or enjoinable) threats of discrimination:

In the final order, BOLI reasoned that the above statements, considered in "text and context," were properly construed as "the recounting of past events," but also "constitute notice that discrimination will be made in the future by refusing such services." As a result, BOLI's final order included language ordering the Kleins "to cease and desist" from making any communication "to the effect that" they would discriminate in the future "on account of sexual orientation." The language in the order precisely tracks the statutory language in ORS 659A.409, quoted above….

Aaron's statements in the February 2014 interview[, however,] can be reasonably understood only one way: as describing past events. BOLI's order states that Aaron "did not say only that he would not do complainants' specific marriage and cake but, that respondents 'don't do' same-sex marriage and cakes." But regardless of whether his words can be understood to refer generally to same-sex marriage and cakes, BOLI ignores the context in which he made that remark during the interview. Aaron was asked by the interviewer, "Tell us how this unfolded and your reaction to that." He responded by describing what had happened on the day of the refusal, including, "I said, 'I'm very sorry, I feel like you may have wasted your time. You know we don't do same-sex marriage, same-sex wedding cakes.' And she got upset, noticeably, and I understand that." Viewed in that context, Aaron's recounting of those historical events cannot be understood as a statement that he would deny service in the future.

Likewise, Aaron's recounting, during the interview, of past conversations that he and Melissa had engaged in before the denial of service cannot reasonably be understood as an assertion of their plans to discriminate in the future. Aaron was asked by the interviewer whether the controversy with the complainants had caught him off guard, and he responded, "[I]t was one of those situations where we said 'well I can see it is going to become an issue but we have to stand firm.' " That statement plainly recounted his past thinking and cannot reasonably be construed as the kind of threat of prospective discrimination that ORS 659A.409 prohibits.

That leaves the note taped to the Sweetcakes window …: "Closed but still in business. You can reach me by email or facebook. or Sweetcakes by Melissa facebook page. New phone number will be provided on my website and facebook. This fight is not over. We will continue to stand strong. Your religious freedom is becoming not free anymore. This is ridiculous that we cannot practice our faith. The LORD is good and we will continue to serve HIM with all our heart [heart symbol]."

BOLI concedes that the statement could refer to their intention to stand strong in their legal fight, but argues that it "also could refer to the denial of services to same-sex couples." We are not persuaded that, given the ambiguity in the note, it can serve as an independent basis for BOLI's determination that the Kleins violated ORS 659A.409—and, indeed, BOLI did not purport to rely on the note alone. As explained above, in overturning the ALJ's determination regarding ORS 659A.409, BOLI relied heavily on statements in the Perkins interview—taken out of context—to conclude that the Kleins had communicated an intention to discriminate in the future. When those statements and the note are viewed in their proper context, the record does not support BOLI's conclusion that the Kleins violated ORS 659A.409. We therefore reverse that part of BOLI's order.

Volokh Conspiracy

Bakers Lose in Oregon Case, But Wedding Singers / Painters / Photographers Might Win

The Oregon Court of Appeals upholds a $135,000 damages award imposed on Sweetcakes by Melissa for its owners' refusal to make a cake for a same-sex wedding.


Today's Klein v. Oregon Bureau of Labor & Industries upholds a $135,000 damages award imposed on Melissa & Aaron Klein (owners of Sweetcakes by Melissa) for refusing to make a wedding cake for a same-sex ceremony. The court acknowledged that people who create or perform First-Amendment-protected expression (such as singers, composers, painters, or sculptors, and I would add photographers to that list) might have a First Amendment not to create such expression that they find objectionable, even when they hire themselves to the public:

[T]he services of a singer, composer, or painter … [might] fit the definition of a "place of public accommodation" under ORS 659A.400. One can imagine, for example, a person whose business is writing commissioned music or poetry for weddings, or producing a sculpture or portrait of the couple kissing at an altar. One can also imagine such a person who advertises and is willing to sell those services to the general public, but who holds strong religious convictions against same-sex marriage and would feel her "freedom of mind" violated if she were compelled to produce her art for such an occasion. For the Kleins, this is that case. BOLI disagrees that a wedding cake is factually like those other examples, but the legal point that those examples illustrate is that existing public accommodations case law is awkwardly applied to a person whose "business" is artistic expression. The [Supreme] Court has not told us how to apply a requirement of nondiscrimination to an artist.

We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI's order can be understood to compel the Kleins to create pure "expression" that they would not otherwise create, it is possible that the Court would regard BOLI's order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995) (application of public accommodations statute violated the First Amendment where it "had the effect of declaring the sponsors' speech itself to be the public accommodation," thus infringing on parade organizers' "autonomy to choose the content of [their] own message"); see also Riley v. National Federation of the Blind (1988) (explaining that "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech," and subjecting such regulation to "exacting First Amendment scrutiny")….

But the court concluded that even customized wedding cakes aren't inherently covered by the First Amendment speech compulsion doctrine:

[T]he question is whether that customary practice, and its end product, are in the nature of "art." As noted above, if the ultimate effect of BOLI's order is to compel the Kleins to create something akin to pure speech, then BOLI's order may be subject to strict scrutiny. If, on the other hand, the Kleins' cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon's interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI's order need only survive intermediate scrutiny to comport with the First Amendment. See United States v. O'Brien (1968) ("[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.").

[T]he Kleins' argument that their products entail artistic expression is entitled to be taken seriously. That being said, we are not persuaded that the Kleins' wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression. In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins believe them to be pieces of art. See Nevada Comm'n on Ethics v. Carrigan (2011) ("[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like to convey his deeply held personal belief—does not transform action into First Amendment speech."). For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others. Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as "expression" rather than as food.

Although the Kleins' wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently "art," like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins' customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins' expression. Rather, they are products of a collaborative process in which Melissa's artistic execution is subservient to a customer's wishes and preferences. For those reasons, we do not agree that the Kleins' cakes can be understood to fundamentally and inherently embody the Kleins' expression, for purposes of the First Amendment.

We also reject the Kleins' argument that, under the facts of this case, BOLI's order compels them to "host or accommodate another speaker's message" in a manner that the Supreme Court has deemed to be a violation of the First Amendment. In the only such case that involved the enforcement of a content-neutral public accommodations law, Hurley, the problem was that the speaker's autonomy was affected by the forced intermingling of messages, with consequences for how others would perceive the content of the expression. Hurley (reasoning that parades, unlike cable operators, are not "understood to be so neutrally presented or selectively viewed," and "the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole"). Here, because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive. It would be a different case if BOLI's order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer ("God Bless This Marriage," for example) that they found offensive or contrary to their beliefs….

In short, we disagree that the Kleins' wedding cakes are invariably in the nature of fully protected speech or artistic expression, and we further disagree that BOLI's order forces the Kleins to host, accommodate, or associate with anyone else's particular message. Thus, because we conclude that BOLI's order does not have the effect of compelling fully protected expression, it does not trigger strict scrutiny under the First Amendment.

The court concluded that the order was therefore only subject to (at most) intermediate scrutiny under the First Amendment—a relatively government-friendly test—and it passed such scrutiny because of the government interest in "prevent[ing] the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry." But the court again noted that the analysis might be different for professionals who are asked to create First-Amendment-protected expression:

Again, it is significant that BOLI's order does not compel the Kleins to express an articulable message with which they disagree; rather, their objection is to being compelled to engage in any conduct that they regard as expressive.

And earlier, it noted that this may extend even to bakers, if they were baking something that would be understood as art by viewers:

To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker's or chef's own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins … must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so.

That would extend, I think, to the bakers' refusing to write particular text on the cake, as one of the earlier quotes notes ("because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive").

I think this analysis is generally right, though I might quibble with a few details in the long opinion (available in full here). Whatever you think about such applications of antidiscrimination law (or about the particular damages award in this case) as a matter of policy, or of broader conceptions of liberty, the First Amendment bars compulsion of speech, not of all conduct. And while "speech" for First Amendment purposes has long included symbolic as well as verbal expression, it doesn't include all human behavior, even human behavior that can be seen as "artistic"—for more on that, see Dale Carpenter's and my Masterpiece Cakeshop amicus brief.

The court also rejected the Kleins' religious exemption claim, holding that under Employment Division v. Smith (1990) the Free Exercise Clause doesn't require such exemptions from generally applicable laws. (The Oregon Constitution's religious freedom provision has been interpreted the same way, and Oregon doesn't have a Religious Freedom Restoration Act.) It did hold for the Kleins on a somewhat different (but related) matter, which I discuss in a separate post.

Property Rights

Seattle Bans Landlords From Screening "Qualified" Tenants

The city's goal is to curb "unconscious bias." But the policy is based on dangerous premises, and is likely to harm tenants more than it benefits them.


Seattle, Washington.

The Pacific Legal Foundation, a pro-property rights public interest law firm, recently filed a lawsuit challenging a Seattle law that forbids landlords from picking and choosing among potential tenants. The purpose of the new regulation is to combat implicit or subconscious bias by landlords:

Seattle is apparently breaking new ground by requiring landlords in the city to rent their housing units to qualified applicants on a first-come, first-served basis….

The goal is to ensure prospective renters are treated equally, according to Councilmember Lisa Herbold, who championed the policy. When landlords pick one renter among multiple qualified applicants, their own biases — conscious or unconscious — may come into play, she says….

Proponents of the policy hope it will reduce discrimination.

Ann LoGerfo, a directing attorney with Columbia Legal Services who pushed for the policy, offered an example: A landlord with two qualified applicants picks a name he associates with his own ethnicity, rather than a name that sounds foreign to him.

Deliberate discrimination on the basis of race, sex, ethnicity, religion, and related classifications is already forbidden by state and federal laws, such as the Fair Housing Act of 1968. But the Seattle law, in an attempt to combat subconscious discrimination, would eliminate landlords' ability to choose among potential tenants to a vastly greater extent. If an applicant meets minimal criteria, he or she must be accepted on a first-come, first-served basis, even if there are other applicants who have much better qualifications.

It is surely true that landlords sometimes engage in subconscious discrimination. Indeed, the same is true of a wide range of people engaging in all kinds of transactions. It does not follow, however, that eliminating landlord choice is the right answer. Doing so is likely to harm tenants more than it benefits them. If landlords cannot rank potential tenants based on factors such as reliability, credit history, their treatment of previous rental properties, and so on, the predictable result is that they will either put fewer properties on the market to begin with, charge higher rent, increase security deposits, or some combination of these and other measures that make rental housing more costly. This likely to be particularly true of landlords who own properties in poor and minority neighborhoods, where landlords believe the risk of nonpayment or other problems is likely to be unusually high.

Obviously, landlords' decisions about potential tenants are sometimes misguided, both because of unconscious bias and for other reasons. But if there is a substantial population of tenants whose reliability current landlords are underestimating, that's a potentially valuable profit opportunity for wiser landlords or new entrants into the housing market. Cities can strengthen such beneficial competition (and otherwise make housing more easily available to the poor and lower middle class) by reducing zoning restrictions that make it difficult to build new homes and massively inflate the cost of housing in many cities. Seattle itself is one of the best examples of this phenomenon. If the city wants to increase housing opportunities for minorities and the poor, it should cut back on zoning rather than adopt regulations that are likely to make rents even higher than is already the case.

The Seattle law illustrates an important downside of trying to use government regulation to offset the subconscious cognitive biases of the private sector: there is little, if any reason to believe that voters and politicians are less biased than the people whose behavior they are trying to regulate. Much of the time, they are likely to be more so. Because the chance that any one vote will make a difference in an election is extremely small, voters have very little incentive to combat their biases, and often instead act as "political fans" who evaluate information in highly prejudiced ways. Politicians are not much better. In the case of Seattle, political leaders, likely influenced by ideological bias, have adopted a policy that is likely to harm the very people it is supposed to help.

By contrast, landlords and other market participants are likely to lose money if they let their decisions be influenced by irrational bias. That does not mean they will always avoid such influence; far from it. But their incentives to do so are much stronger than those of politicians and voters. Relying on the political process to cure cognitive biases will often lead to more biased decision-making rather than less.

At this point, it is difficult to say whether the PLF lawsuit against the Seattle policy will succeed or not. Their landlord clients' main claim is that the new law is a "taking" of landlords' property that requires compensation. Such a claim would likely fail under the Takings Clause of the Fifth Amendment. Current Supreme Court precedent (which, in my view, is misguided) makes it very difficult for property owners to prove that a regulation counts as a taking unless it has destroyed virtually all of the property's economic value. However, the case against Seattle is being litigated under the Washington state constitution, which state courts have interpreted as giving stronger protection for property owners. The motion for summary judgment drafted by PLF discusses the relevant precedent.

Whether or not Seattle's policy is illegal, it potentially sets a dangerous precedent. If the state can impose severe restrictions on liberty and property rights in order to curb subconscious bias, there would be few meaningful limits to its power. Very few if any types of decisions are completely free of cognitive errors of this type. They can occur in almost any economic or social transaction.

UPDATE: In the original version of this post, I should have noted that the Seattle law does allow landlords to set initial minimal criteria for potential tenants seeking to rent a given property. But once the criteria are set, the landlord must take all "qualified" tenants on a first-come, first-served basis. I have revised the post to make this clear, and also altered the title to that effect.

UPDATE #2: In principle, landlords could eliminate most questionable tenants by setting the initial minimal qualifications very high (e.g.—requiring a perfect credit rating or the like). But aside from risking leaving apartments empty, this would tend to screen out a disproportionate number of poor and minority renters—precisely the population that the Seattle law is supposed to help.

Volokh Conspiracy

University of Chicago Law Review Special Issue on Justice Scalia

Featuring the Solicitor General of the United States, Judge Amy Barrett, many others, and ... me.


The University of Chicago Law Review has just published a special issue devoted to the late Justice Antonin Scalia, who was a professor at Chicago for years until he became a judge (and then, of course a Supreme Court Justice). It includes short rembrances by friends and former clerks of the Justice, and a series of scholarly articles on Justice Scalia's work.

The table of contents is below:

Volume 84 Special Issue: Justice Antonin Scalia (1936–2016)

In Memoriam

Some Reflections on Justice Scalia
Lillian R. BeVier

Justice Scalia: Constitutional Conservative
Noel J. Francisco

Coots, Loons, and Civility
Taylor A.R. Meehan

The Education of a Law Clerk, with Thanks to Justice Scalia
Andrew J. Nussbaum

The Forthrightness of Justice Scalia
Ryan J. Walsh


Congressional Insiders and Outsiders
Amy Coney Barrett

Originalism as a Constraint on Judges
William Baude

Scalia in the Casebooks
Brian T. Fitzpatrick & Paulson K. Varghese

Justice Scalia's Other Standing Legacy
Tara Leigh Grove

Confronting Crawford: Justice Scalia, the Judicial Method, and the Adjudicative Limits of Originalism
Gary Lawson

Remembering the Boss
Jonathan F. Mitchell

Originalist Law Reform, Judicial Departmentalism, and Justice Scalia
Kevin C. Walsh


Your Information Is Criminal! Incompetent! Unchaste!

What does the phrase "libel of information" mean?


I just came across the phrase "libel of information" for the first time, and had to look it up. In case you were as ignorant of this as I was, the answer offered by Black's Law Dictionary is:

The complaint or initial pleading in an admiralty or ecclesiastical case.

But as best I can tell from glancing at some of the cases that use the term, it also more generally refers to the initial pleadings in a civil forfeiture case. The term is pretty common in old cases and even appears in some current statutes; but it has recently fallen, as they say, into desuetude—a Westlaw query uncovers only 4 references since 2000.

Now you know, and knowing is half the battle.

Volokh Conspiracy

No Lawsuits for Negligent Lobbying

A woman is injured in a car accident supposedly because of bad roadway design decision (a dangerous cut in the median) -- so she sues business that had lobbied county to make that decision.


From today's Florida Court of Appeals decision in Sewell v. Racetrac Petroleum, Inc.:

Crystal Sewell lost control of her vehicle and hit a palm tree after her car was allegedly cut off by an unknown vehicle that took a left-hand turn from a gas station and abruptly joined the lane of traffic in which Sewell was traveling. In doing so, the unknown vehicle traveled through a cut in the concrete median provided for traffic. Sewell sued Racetrac Petroleum, Inc., the corporation that owned, developed, and operated the gas station, in large part because Racetrac created a dangerous condition when it lobbied the local county government to create the cut in the median to promote access to its property….

In 1977, Racetrac agreed to purchase the property only if the governing agencies approved the cut in the median. In obtaining approval from Miami-Dade County, Racetrac submitted one traffic study that used the Institute of Transportation Engineers Trip Generation category for "Convenience Market with Gas Pumps." Sewell alleges that "there were other categories … that would have been more applicable to Racetrac." Racetrac also submitted another traffic study that should have been based on a different set of its existing stores. Sewell further alleges that Racetrac, through "bribery and corruption," obtained the support of its application from City of Homestead officials, although, as the complaint admits, "city officials don't get to decide whether the median gets removed or not (county officials do)." …

[T]he decision of whether or not to improve roadways or upgrade traffic control devices often pits the interests of some users of the roads against the interest of others. For example, businesses and commuters may want traffic control devices that speed up and facilitate the flow of traffic. Neighborhood groups, on the other hand, may want traffic control devices that slow or divert traffic. The process for making these decisions involves the quasi-political balancing of the competing and conflicting needs of different parts of the community with the limited resources available. For this reason, the law recognizes that these matters involve the "judgmental, planning-level decisions" by the political branches of government "which are not actionable."

By petitioning Miami-Dade County to obtain the cut in the median, Racetrac entered into this planning process. As a participant in this process, Racetrac could advocate freely—even fiercely—for its own interests. Racetrac did not have a relationship with Sewell (or others like her) that would create in Racetrac a legal duty to tailor its petition to protect Sewell and other competing road users.

At best, Sewell alleged Racetrac submitted expert traffic studies that were extremely one-sided and unprofessionally skewed to support its application to have the median cut. Such allegations, without more, are not actionable. This is not a case in which Sewell alleges Racetrac petitioned the government for the primary purpose of intentionally or maliciously harming Sewell or others like her. For this reason, Racetrac's application to have the median cut, whether riddled with misrepresentations or not, constituted "the statements of a citizen to a political authority regarding matters of public concern" shielded by a "qualified privilege" that has "existed in the law of Florida for many generations and [has] served to provide broad protection for freedom of speech."

At some point, Sewell's main theory may well run afoul of the body of law that grants immunity under the First Amendment to those petitioning government, whether or not their motives are self-seeking or even unethical…. "The NoerrPennington doctrine grants First Amendment immunity to those who engage in petitioning activity." …

As a practical matter, to recognize Sewell's main legal theory would mean, for example, that homeowners could be sued for false statements "negligently" made as part of a petition for specific traffic control or traffic calming devices like speed bumps or traffic circles which make roadways safer for some users but potentially more dangerous for others. When the risks of unintended consequences are fully weighed, this case presents an instance where … it would be "unwise for the judiciary to expand causes of action to reach conduct clearly beyond the scope historically recognized by law." …

[We therefore] hold that a person who petitions the government for a road improvement outside of his or her property has no legal duty to guard against the government making a decision that will create an allegedly unreasonably dangerous road condition.

Sounds right to me.

The majority allowed Sewell to go forward, though, with a different theory:

Sewell's second theory of liability concerns Racetrac's duty to manage signs and pavement markings on its own property to protect its customers and the public from the danger of cars exiting the property by turning left and using the existing cut in the median to go eastbound on Northeast 8th Street. The complaint alleges that Racetrac knew or should have known that its conduct in this regard presented an unreasonable danger. This theory is viable under the existing case law recognized in [past precedents] (holding that an owner can be liable if negligent design of its parking lot and placement of a stop sign caused accident with passing motorist). An owner can be liable for actions it takes or fails to take on its own property that cause vehicles to exit in a manner that the owner knew or should have known creates an unreasonable danger to vehicles on the adjacent roadway.

There are also a couple of fairly detailed concurring-and-dissenting opinions, which you can read here.