The Volokh Conspiracy

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

The Volokh Conspiracy

Robert H. Nelson, R.I.P.

On the loss of a prolific scholar and independent thinker.

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In the closing weeks of 2018, we lost one of the nation's most important and independent scholars of natural resource management, land use, and environmental policy. On December 15, Professor Robert H. "Bob" Nelson of the University of Maryland School of Public Affairs died of natural causes while attending a conference in Finland. His voice and insight will be missed.

I first met Bob while he was an analyst at the Department of the Interior's Office of Policy Analysis, where he served for nearly two decades. Once he left Interior to join the University of Maryland, I had the honor to work with him when he became a Senior Fellow at the Competitive Enterprise Institute, where I ran the environmental studies program. I did not always agree with Bob's analysis or his conclusions, but I always learned from his work and our lengthy conversations on a wide range of subjects.

A Princeton-trained economist, Bob had a unique ability to combine economic analysis with cultural and institutional insight. His work spanned federal land management and land-use policy to the influence of religious thought and values on environmental and economic policy. He wrote important works on zoning and private land-use controls, public land management and fire control in national forests. (Spoiler alert: He was no fan of the Forest Service.) For the Property and Environment Research Center (PERC) in Bozeman, Montana (where I am a senior fellow), he also wrote recent studies on the idea of "charter forests" and lessons federal land managers could learn from the states.

Not all of Bob's work was immediately practical and policy focused. A recurring theme in his work was the extent to which America's religious heritage influenced political ideology and policy agendas. He argued that much of contemporary environmental thought is effectively Calvinist (and creationist) in its worldview, as in this cover story for The Weekly Standard. It began:

For ten points, identify the secretary of the interior who once said that his political enemies were out to destroy him because they were "so deeply disturbed by the prospect of religious values entering the national debate" and that they should follow his policies because said policies are commanded in the Bible and reflect a "plan of God." The choices are (a) Cecil Andrus of the Carter administration; (b) James Watt of the Reagan administration; and (c) Bruce Babbitt of the Clinton administration. Most people would assume James Watt is the answer. Wrong. The correct answer is Bruce Babbitt.

It concluded:

For most of its history, environmentalism has been more a substitute for, than a complement to, religious institutions. Environmentalism appropriated a Judeo-Christian message, already deeply ingrained in the national psyche, to a new and largely secular vocabulary. This combination proved immensely attractive to large numbers of people hungry for spiritual values but seemingly unable to find them from more traditional outlets.

One can sympathize with the need to search for new religious answers at a time when the forces of modernity often seem to have undercut the moral foundations of American society. Yet, when government can barely get the potholes filled in the streets, it is still startling to think that the secretary of the interior regards his position as a suitable pulpit for spreading the word of God.

I suspect it was some of this work—and his criticism of federal land management agencies—that led the Unabomber to add Bob to his list of potential targets (a threat that thankfully never materialized).

Environmentalism was not a particular target, for he showed how much contemporary economic thinking suffers from the same failing in a series of books, including Reaching for Heaven on Earth: The Theological Meaning of Economics and Economics as Religion: From Samuelson to Chicago and Beyond. He combined these subjects in The New Holy Wars: Economic Religion vs Environmental Religion in Contemporary America.

Among his last works was the book God? Very Probably: Five Rational Ways to Think about the Question of a God. I have not read this book, but I suspect I would learn much from it. Whether or not I agreed with Bob's conclusions or his analysis, I always found his work to be engaging, wide-ranging and provocative in the best way. He enjoyed ideas and considering new perspectives on old questions, turning over long-dormant rocks to see what might lie beneath. He was the best sort of public intellectual—precisely the sort we have too little of today.

Affordable Care Act

Court Stays Ruling Invalidating the Affordable Care Act Pending Appeal

In the midst of the holidays, Judge O'Connor paves the way for an appeal of his decision concluding all of the ACA is unlawful, while further demonstrating the weakness of his initial decision.

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On Sunday evening, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas took action to facilitate the prompt appeal of his decision in Texas v. U.S. that the so-called individual mandate is now unconstitutional (due to the lack of a tax penalty enforcing it) and the entire Affordable Care Act is likewise invalid because it is inseverable from the mandate. He issued a final judgment on this claim and an order staying the judgment pending appeal.

The order was accompanied by an opinion in which Judge O'Connor reiterated the legal analysis underpinning his decision. In the process, Judge O'Connor offered further evidence of the weakness of his analysis, particularly with regard to standing. Setting aside any procedural questions about Judge O'Connor's latest actions, I believe this opinion illustrates why the U.S. Court of Appeals for the Fifth Circuit should dismiss this case on standing grounds.

In his opinion, Judge O'Connor endeavors to explain why he does not believe the intervenor states will succeed in challenging his decision. This is because the likelihood of success on the merits is one element in the required analysis for whether to issue a stay. This portion of his opinion would seem to be unnecessary, as it can be assumed that a judge believes his or her decision is correct and will be affirmed. Judge O'Connor nonetheless spends twenty pages defending and reiterating the conclusions of his prior decision—and repeating many of the mistakes I've previously identified.

As standing is a threshold inquiry, the balance of this post will focus on Judge O'Connor's expanded standing analysis, which is no better than the standing analysis in his prior opinion, and is directly contrary to applicable precedent (including those cases Judge O'Connor cites throughout the course of his opinion).

The central problem plaintiffs face in Texas v. US is that they face no consequences from failing to comply with the ACA's minimum coverage provision. There is no penalty, financial or otherwise, from the failure to comply, nor do the plaintiffs allege any. This means that they cannot satisfy the requirement that they have suffered an actual or imminent injury-in-fact that is concrete and particularized.

Judge O'Connor attempts to get around this problem by arguing that denying standing "would run headlong into the well-established doctrine that individuals need not first disobey a law to earn standing to challenge it." There is such a well-established doctrine but, contra Judge O'Connor, this applies where there is an actual threat of prosecution or some other legal or practical consequence from failing to comply with the challenged law, and this point is made abundantly clear by the cases Judge O'Connor cites in the accompanying footnote.

The first case Judge O'Connor cites on this point is Steffel v. Thompson, 415 U.S. 452 (1974). As Judge O'Connor claims, this opinion explains that an individual is not required to disobey a law before challenging it, but this is because (as the Steffel court explained) an individual need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights" (emphasis added). Key to the Steffel court's analysis is that the petitioner would expose himself to an actual threat of prosecution by violating the law in question. Under the ACA, however, there is no such threat for there is no threatened consequence from failing to acquire a qualifying health insurance plan, nor do the plaintiffs even attempt to claim otherwise.

The second case Judge O'Connor cites in this footnote, Planned Parenthood of Gulf Coast, Inc. v. Gee, 862 F.3d 445 (5th Cir. 2017) makes the point even more explicitly—and in the precise portion of the opinion Judge O'Connor cites. In Gee, the Fifth Circuit noted "the well-established principle that a threatened injury may be sufficient to establish standing." This is absolutely true. An imminent injury, so long as it is concrete and particularized, is sufficient under Article III—but there must still be an injury. As Judge O'Connor notes, Gee goes on to explain that plaintiffs "need not wait to file suit until PPGC is forced to close its doors to them and all other Medicaid beneficiaries." Yet this is solely a question of timing—whether the plaintiff needs to wait to be harmed before filing suit—and in no way substantiates the claim that an individual may have standing to challenge a law, the violation of which threatens no consequences whatsover.

There are similar problems throughout Judge O'Connor's analysis. For instance, he later claims that plaintiffs have suffered a "constitutional injury" because the law is imposing an unconstitutional obligation upon them, and that this is sufficient to satisfy Article III. Yet Judge O'Connor fails to cite a single case in which the "constitutional injury" constitutes no more than an allegedly unconstitutional government action divorced from any practical or legal consequence for the plaintiff. Rather, the cases Judge O'Connor cites in support of this claim involve laws that imposed some adverse consequence upon those who failed to comply, whether a tangible regulatory burden or denial of a concrete government benefit or a threat of sanction. Moreover, as case after case Judge O'Connor cites makes clear, the actual or threatened imposition of such sanctions is key to the standing analysis.

Judge O'Connor later writes:

The Intervenor Defendants argue the Individual Plaintiffs cannot plead a constitutional injury (or any justiciable injury, for that matter) because the Individual Mandate no longer compels compliance. . . . But standing analysis and merits analysis are fundamentally separate inquiries, and this line of attack conflates them. That is, it rests on the premise that written law, like § 5000A(a), is not binding—which is one of the Intervenor Defendants' premiere merits arguments in this case.

Judge O'Connor is correct that standing analysis and merits analysis are separate, but he completely confuses what is required to establish standing. At the standing stage, plaintiffs must show that they have suffered or will suffer an injury. At the merits stage, they must show that the action causing the injury is unconstitutional. What this means is that the Texas plaintiffs need not show that they are unconstitutionally mandated to purchase insurance in order to show they have standing, but they are absolutely required to allege some actual consequence of their failure to comply with federal law, if not a financial penalty or legal sanction, something that is concrete and particularized to them. That the same fact is relevant at both stages—that the ACA imposes no legal or financial consequence on the failure to purchase insurance—is immaterial.

Under Judge O'Connor's approach to standing, anytime anyone thinks that federal law requires them to do something they would rather not do, they have standing to bring suit in federal court. Perhaps this is how standing should work, and perhaps plaintiffs should not be required to identify any tangible consequence that could befall them should they not comply with federal law, but that is not how decades of Supreme Court and Fifth Circuit precedent have understood the relevant inquiry.

The remainder of Judge O'Connor's analysis repeats the errors of his initial opinion, so I won't reiterate them here. Suffice it to say that now that Judge O'Connor has paved the way for an appeal, I do not expect his analysis to survive.

Short Circuit: A Roundup of Recent Federal Court Decisions

Tonal tightropes, regulatory time bombs, and a Southern soul music rivalry.

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

New on the Short Circuit podcast: Gov't agencies working at cross purposes, police using law enforcement databases for personal reasons, and a sentencing brouhaha. Click here for iTunes.

  • D.C. Circuit (2016): A lawsuit filed by Holocaust survivors against Hungary and its state-owned railway should not have been dismissed; a 1947 peace treaty requiring Hungary to compensate victims doesn't preclude other means of seeking compensation. District court on remand: Nevertheless, case dismissed. The evidence and witnesses are located in Hungary; the case should be tried in Hungarian courts. D.C. Circuit (2018, over a dissent): Reversed.
  • Inmate at Berlin, N.H. prison has his skull broken by other inmates, who then place him in bed, clean him up. An officer doing rounds fails to note the injured inmate is in the wrong cell, which ultimately delays medical treatment by about an hour and a half. Can he sue the officer? The First Circuit says no.
  • Supreme Court (2013): A federal law that requires U.S. nonprofits to adopt policies explicitly opposing prostitution and sex trafficking in order to receive federal funds to combat HIV/AIDS abroad compels speech in violation of the First Amendment. Feds: Sure thing. But the foreign affiliates of those nonprofits must still adopt policies that explicitly oppose prostitution and sex trafficking. Second Circuit (over a dissent): Not so.
  • A suspect's invocation of his Miranda rights is an invocation of his Miranda rights—even if he invokes them in an angry tone, holds the Fourth Circuit, declining to require suspects to walk a "tonal tightrope" in their interactions with police.
  • Allegation: In response to a single incident of misbehavior, a pretrial detainee is placed in solitary confinement for three and a half years until his eventual trial (at which he is acquitted of the most serious charge and sentenced to time served). Which could maybe be a constitutional violation, holds the Fourth Circuit, finding that local officials are not entitled to qualified immunity.
  • In true crime news, the Fourth Circuit spends some 154 pages rejecting the latest request for postconviction relief in a murder case that went to trial in 1979 and whose procedural history requires a footnote stretched across two pages.
  • Various Iraqi nationals living in the United States are ordered removed back to Iraq, mostly because of criminal convictions. Those removals don't happen because Iraq won't take them—until 2017, when diplomacy changes Iraq's mind, meaning long-stalled removals are now imminent. Sixth Circuit, over a dissent: And the federal courts don't have jurisdiction to change that. Take your immigration issues to immigration court.
  • "If I did something wrong, why ain't I in copyright court?" asked recording artist Bishop Bullwinkle, shortly before a court held that he had done copyright wrong. Turns out his viral hit "Hell 2 Da Naw Naw" improperly sampled Bigg Robb's "Lookin for a Country Girl." Faced with a silly procedural objection, the Sixth Circuit affirmed. Come for a tale of Southern soul music rivalry; stay for the holding that "elect" means "choose" or "pick out."
  • Appleton, Wisc. man murders his estranged wife. His defense is that she provoked him, so it's second-degree murder rather than first. The trial judge has to decide if there's enough evidence to allow the defense, but the man doesn't want to disclose more strategy. So the judge listens to the man ramble about the murder privately in chambers; defense counsel is there but not allowed to talk. Judge then rules there's not enough evidence for the man to argue provocation, and he's convicted in the first degree. The man, on habeas: A silenced lawyer violates my right to counsel. The Seventh Circuit, en banc and over a dissent: It's dodgy, but not dodgy enough to give you a new trial.
  • Outgoing Obama administration officials leave "time bomb" for new USDA officials: proposed regulations that increase the agency's regulatory authority (to enforce a "per se" ban on deceptive practices in the meat packing industry absent a showing of potential harm to competition) in a way that courts have long rejected. The new administration cancels the change. Eighth Circuit: Which was not arbitrary and capricious.
  • California law permits police to impound vehicles for 30 days if the vehicle's driver has never been issued a license. Nevertheless, in two separate instances, police in Sonoma County impound vehicles driven by drivers who have been issued licenses (both Mexican, one expired). And both times the driver had a friend with a valid California license who could have taken possession. Ninth Circuit: Damages upheld.
  • And in en banc news, the D.C. Circuit (over a dissent) will not reconsider its decision that D.C. transit officials' rejection of a proposed advertisement that sought to promote religion doesn't violate the Constitution. Nor will the Ninth Circuit (over a dissent) reconsider its decision that prayers at school board meetings violate the Establishment Clause.
  • And in appellate briefing news, defense lawyers have submitted a 15-part, 465-page argument in the First Circuit challenging the conviction and death sentence of "Boston Marathon Bomber" Dzhokhar Tsarnaev. The case, they say, "should not have been tried in Boston."

Duke Law Journal

Do Some Courts Underenforce the Second Amendment?

Data show problems in several Circuits

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This Fall, the Duke Law Journal held a symposium Heller at Ten: A Symposium on From Theory to Doctrine. All of the articles are, at least partially, responses to an article Eric Ruben and Joseph Blocher that analyzed data for all post-Heller cases, from 2008 until early 2016. From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller, 67 Duke L.J. 1433 (2018). Examining data from 1,153 cases, Ruben and Blocher presented a wealth of interesting findings. For example: pro se plaintiffs rarely succeed; Second Amendment claims have a better chance of success claims in civil cases than in criminal ones; and lower courts rarely use historical sources (only 29 from before 1791, and only 42 from 1791-1868).

All of the response articles, including mine, praised the Ruben & Blocher article, and deservedly so. It is a major contribution to the scholarly literature.

My article, Data Indicate Second Amendment Underenforcement, did take issue with Ruben & Blocher's claim that their data prove that the Second Amendment is not underenforced in the lower courts. First of all, Ruben & Blocher have a broad definition of "success," which includes winning on a preliminary motion. So if a plaintiff defeats a motion to dismiss, and later loses on the merits, Ruben & Blocher score the MTD decision as a Second Amendment success. With this broad definition, they find that Second Amendment claimaints succeed 12% of the time, and therefore there is no underenforcement problem. Ruben & Blocher code ten cases collectively from the Second, Fourth, and Ninth Circuits as Second Amendment successes. Yet only a single one of those cases involved a final decision on the merits.

According to Ruben and Blocher, the highest rate of Second Amendment successes have come in right to carry cases. Indeed, the Seventh Circuit, the Illinois Supreme Court, and the D.C. Circuit have all struck laws that prohibited the vast majority of law-abiding adults from carrying handguns for lawful protection. Illinois and D.C. now have fair systems for adults to obtain carry permits after passing safety training and background checks. Yet decisions in other jurisdictions have nullified the right to bear arms in three states or allowed nullification by local governments in part of five more states. When the exercise of a constitutional right is prohibited for tens of millions of Americans, that does indicate an underenforcement problem in at least some jurisdictions.

Ruben & Blocher's datacentric article was not meant to analyze doctrine. But when one does look at doctrine, underenforcement (indeed, nullifcation) becomes apparent in some courts. Contrary to Heller, the Second Circuit uses rational basis in some Second Amendment cases. When the Second Circuit does apply heightened scrutiny, the court examines the sufficiency of the government's evidence, but does not examine whether the other party has rebutted that government evidence.

When applying intermediate scrutiny, some courts do apply the standard rules, such as considering whether there are substantially less burdensome alternatives to the regulation at issue. But some, including the Second Circuit, skip this part of intermediate scrutiny when the Second Amendment is involved.

Other articles in the symposium were by Michael Dorf (pondering former Justice Stevens' proposal to repeal the Second Amendment); Sanford Levinson (criticizing the Supreme Court's "Sphinx-like inscrutability" on important post-Heller issues, including the federal ban on arms possession by illegal aliens); Darrell A.H. Miller (noting the reluctance of lower courts to use originalist methodology); George Mocsary (critiquing the claim that there is no underenforcement problem; noting much lower win rates under heightened scrutiny Second Amendment contexts than for other rights); Adam M. Samaha & Roy Germano (presenting their own study showing that judges vote in favor of gun rights claims at a far lower rate than they vote for other rights: commercial speech, Establishment Clause, anti-affirmitive action, and abortion rights); and Ronald F. Wright & Mark A. Hall (praising Ruben & Blocher's datacentric methodology).

Zoning

Progress in the Struggle Against Exclusionary Zoning

Reforms in multiple jurisdictions could help loosen restrictions on development that infringe on property rights, inflate housing prices, and cut off large numbers of people from job opportunities.

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The impact of exclusionary zoning.

There may not be a lot of good political news these days. But one notable exception that should cheer you up during the holiday season is the gradual progress being made towards cutting back on exclusionary zoning in multiple jurisdictions around the country. Earlier this month, I wrote about how the city of Minneapolis achieved a major breakthrough by abolishing single-family home zoning requirements throughout the city. Since then, Oregon House speaker Rep. Tina Kotek has introduced a bill in the Oregon state legislature that would abolish such mandates throughout nearly the entire state (with the exception of very small communities). Kotek's bill would make Oregon the first state to cut back on single-family zoning requirements to such a great extent, and would do much to alleviate housing shortages by deregulating housing construction statewide. The very fact that this is an initiative proposed by the Speaker of the House increases the likelihood of success.

The City of San Francisco, long notorious for having some of the most restrictive zoning rules in the entire country, recently abolished minimum parking requirements for new construction. This might not seem like a big deal. But such mandates add many thousands of dollars to the cost of new housing construction, and thereby reduce the amount of housing, and raise the price of what is available. San Francisco still has numerous other restrictions that block housing development. But this is a notable step in the right direction, and follows in the footsteps of several other cities that have adopted similar reforms.

It's worth noting that abolishing parking requirements and single-family home zoning mandates would not forbid the construction of either single-family homes or buildings with lots of parking spots. It would merely permit the construction of new housing of other types, which previously had been banned. But, in so doing, these reforms would facilitate a great deal of new construction, and thereby reduce housing prices.

Finally, California state Senator Scott Wiener has introduced Senate Bill 50, a revised version of last year's failed SB 827, which would have greatly reduced zoning throughout much of the state. The new version includes some unfortunate (though perhaps politically necessary) concessions to NIMBYism, such as allowing many communities to get a 5 year exemption from the law, and a ban on developers' demolishing current rental housing to take advantage of the new rules. The latter exemption prevents old housing from being replaced with newer buildings that could house more people or provide better-quality amenities.

Nonetheless, if SB 50 passes, it would still represent massive progress, for much the same reason as SB 827 would have, had it passed. And the new version also has some improvements over the old one, as well, including expanding its scope to cover "jobs rich" communities, as well as those near transit facilities. Whether SB 50 will succeed where its predecessor failed remains unclear. But it's at least a good sign that advocates believe they have a real chance.

Why should any of this interest you, unless you're planning to rent or buy a home in one of the affected communities? The answer is that exclusionary zoning is possibly the most important policy issue most nonexperts have never heard of. In addition to greatly increasing housing costs, it also cuts off many poor and lower-middle class Americans from valuable job opportunities, thereby greatly reducing economic growth and cutting GDP by as much as 9.5%. It is one of the main factors holding back both poor minorities and working-class whites, and preventing millions of Americans from having the opportunity to "vote with their feet" for areas that offer greater opportunity.

The issue unites economists and land-use scholars across the political spectrum. But until recently, progress has been stymied by a combination of public ignorance and resistance by powerful interest groups. But the firewall holding back zoning reform finally seems to be cracking.

Obviously, the struggle is far from over. The reforms discussed above only represent incremental progress, and none go as far as I and other libertarians would want—or even as far as many mainstream liberal economists would want. But they are important steps in the right direction. And the more such efforts succeed, the more they might stimulate imitation in other cities and states. That's a thought that should bring some cheer during the holiday season!

Affordable Care Act

Understanding Why Judge O'Connor Was Wrong to Conclude Plaintiffs Had Standing to Challenge the Penalty-Less Individual Mandate

Judge O'Connor was wrong to conclude that two individuals who would prefer not to purchase health insurance had standing to challenge the law.

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Last week, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas held that the entire Affordable Care Act is invalid. This opinion is flawed on multiple levels, for reasons I explained in this post (and this NYT op-ed). Among other things, Judge O'Connor completely botched the severability analysis to conclude that the entire ACA should be struck down because Congress amended the law to zero out the tax penalty that had been used to enforce the so-called "individual mandate." Yet Judge O'Connor should never have even reached the severability question, as he lacked jurisdiction to hear the states' challenge to the mandate's constitutionality.

Under Article III of the Constitution, plaintiffs in federal court must have "standing" to press their claims. Standing, in turn, requires that the plaintiff have suffered an injury-in-fact that is both actual or imminent and concrete and particularized; that this injury is fairly traceable to the allegedly unlawful action; and that the injury be redressable by a favorable court decision. The party seeking to invoke the federal court's jurisdiction—in this case, the twenty plaintiff states and the two individuals who joined the lawsuit—bears the burden of showing that the standing requirement has been met. Despite Judge O'Connor's conclusion to the contrary (and the Justice Department's inexplicable failure to raise standing in the case), none of the plaintiffs have standing here.

In a prior post, I explained why Texas and the other plaintiff states lacked standing. In his opinion, Judge O'Connor sidesteps the question of state standing, focusing instead on two individuals who joined the lawsuit. The end result should have been the same though, and largely for the same reason: Because an individual who fails to purchase qualifying health insurance faces no legal or practical consequence for their decision, there is no injury, and therefore no standing. It's that simple.

Judge O'Connor tries to get around this conclusion by suggesting that because the plaintiffs believe they are bound by the ACA's minimum coverage requirement, this is sufficient to establish standing. The problem is, there is nothing in standing caselaw to support this conclusion. Judge O'Connor writes:

In warning lower courts not to conflate the "actual-injury inquiry with the underlying merits" of a claim, the Fifth Circuit recognizes that standing can be established where a plaintiff alleges that a federal statute or regulation "deters the exercise of his constitutional rights." Duarte [ex rel. Duarte v. City of Lewisville], 759 F.3d [514] at 520 [5th Cir. 2014]. Here, the Individual Plaintiffs allege just that. They claim "Section 5000A's individual mandate exceeded Congress's enumerated powers by forcing Individual Plaintiffs to
maintain ACA-compliant health insurance coverage." Am. Compl. ¶ 49, ECF No. 27. Intervenor Defendants, meanwhile, contend the Individual Mandate remains a constitutional exercise of Congress's tax or regulatory authority. As a result, the "conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979) (quoting Railway Mail Assn. v. Corsi, 326 U.S. 88, 93 (1945)). The Individual Plaintiffs have therefore sufficiently alleged an injury in fact that sits at the center of a live controversy.

This effort to establish standing might sound convincing to one who is not familiar with the relevant caselaw, but it utterly fails—as even a cursory review of the cases Judge O'Connor cites will show. In each of these cases, the parties seeking to establish standing were potentially subject to significant legal consequences if the laws they sought to challenge were valid as applied to them. And in each case, this threat of sanction was essential to the conclusion that the plaintiffs had standing. So, for instance, in Babbitt (in the very next sentence after the one quoted by Judge O'Connor), the Court explained: "A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement."

This same point is made in Duarte, where the U.S. Court of Appeals for the Fifth Circuit (quoting prior Supreme Court precedent) noted that "it is not necessary that petitioner first expose himself to actual … prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Because the statute at issue threatened real penalties for violating the law in question, the plaintiffs "fears of liability [were] not 'imaginary or speculative.'" As the Fifth Circuit noted subsequently in Contender Farms, L.L.P. v. U.S. Dept. of Agriculture (another case relied upon by Judge O'Connor), it was the "practical impact" of the law at issue in Duarte that "demonstrated a level of interference as to their lives that was sufficient to establish standing to challenge the regulation."

Unlike the parties in Babbitt or Duarte or Contender Farms (or any of other myriad cases that address this point), the individual plaintiffs in Texas v. U.S. cannot claim (let alone demonstrate) that they will suffer any legal liability should they fail to obtain qualifying health insurance, nor do they really try. After all, as the federal government conceded and Chief Justice Roberts explained in NFIB v. Sebelius, "Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS." And now that the required payment is zero, there is no negative legal consequence whatsoever from failing to purchase qualifying insurance.

The plaintiffs attempt to argue that they are injured because they purchased insurance in order to comply with the law, but this does not cut it either, as such self-inflicted harm is never sufficient to demonstrate standing. 4 U.S.C. §8 details how people are supposed to treat the American flag, yet no one could argue they have standing to challenge this provision of the U.S. Code because they sought to comply with this provision at their own expense. The government would like Americans to purchase "minimum essential coverage," and has said so. But unless and until the government imposes a consequence on those who fail to comply, there is no basis for challenging this provision of the U.S. Code. As Nicholas Bagley notes, in order to have standing, "it's not enough that you feel compelled; you must actually be compelled."

In a recent VC post, Professor Josh Blackman suggests some additional arguments in favor of standing here, but none of them are particularly persuasive. First, Professor Blackman notes that there are cases in which plaintiffs are able to establish standing despite the lack of a "pocketbook injury," yet in all such cases there is still an actual or imminent injury that is concrete and particularized. So, for instance, in environmental cases plaintiffs can often establish standing by showing that they regularly use or visit a specific place that is threatened by the violation of federal law. Standing is shown in such cases because the plaintiffs are able to claim that their ability to continue making use of the place in question is threatened, and this loss of opportunity is a cognizable injury (particularly given the statutory recognition of such claims). Note, however, that such plaintiffs are able to allege specific, concrete consequences to them caused by the actions they are challenging—the loss of the opportunity to continue to engage in regular activities at a particular place—something the plaintiffs cannot allege here.

As Professor Blackman notes, the Court found standing without pocketbook injuries in Arizona Christian School Tuition Organization v. Winn and Van Orden v. Perry, but this is due to a well-established (and quite controversial) exception to normal standing requirements that the Supreme Court has recognized in the Establishment Clause context. As the Court made explicitly clear in the passage Professor Blackman quotes:

Standing in Establishment Clause cases may be shown in various ways. Some plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an establishment of religion, such as a mandatory prayer in a public school classroom. . . . Other plaintiffs may demonstrate standing on the ground that they have incurred a cost or been denied a benefit on account of their religion. Those costs and benefits can result from alleged discrimination in the tax code, such as when the availability of a tax exemption is conditioned on religious affiliation.

This is not particularly helpful to the Texas plaintiffs, neither of whom can identify any "direct harm" caused by 26 U.S.C. § 5000A(a). The Winn Court goes on to discuss the "narrow exception" allowing taxpayer standing in Establishment Clause cases under Flast v. Cohen, but this doesn't help the Texas plaintiffs either. Note also the plaintiffs in Winn could not establish establish standing themselves, even under the more lenient standard that prevails in the Establishment Clause context.

In search of authority to support the plaintiffs' standing claims, Professor Blackman quotes Allen v. Wright for the proposition that "'the stigmatizing injury often caused by racial discrimination' can give rise to standing, even where there is a 'noneconomic injury,' so long as that injury is personally suffered by the individual." Fair enough, but this only serves to buttress the point that the Texas plaintiffs lack standing. For while the Court in Allen noted the seriousness of such "stigmatizing injury," it emphasized that the existence of such stigma, by itself, is insufficient for Article III standing. As the Allen Court explained in rejecting this basis for standing:

There can be no doubt that this sort of noneconomic injury is one of the most serious consequences of discriminatory government action and is sufficient in some circumstances to support standing. . . . Our cases make clear, however, that such injury accords a basis for standing only to "those persons who are personally denied equal treatment" by the challenged discriminatory conduct.

In other words, the stigma, by itself, is not enough. So even though the plaintiffs in Allen could plausibly allege that the challenged government policy had economic effects that facilitated racial segregation, the Court found no standing. Thus it's immaterial that the government's declaration that all Americans must have insurance may induce some people to buy health insurance and that this may, in turn, have some effects on health care markets. Such attenuated effects are insufficient under Article III.

Professor Blackman concedes that he "was unable to find any cases where a non-economic injury was asserted in cases concerning the Commerce and Necessary and Proper Clauses," yet he nonetheless argues "whether a given case involves a challenge based on the doctrine of enumerated powers, rather than the First or Fourteenth Amendment . . . ought to be without a difference." As already noted, the Court has flatly rejected this claim in the Establishment Clause context, and in the Equal Protection context direct harm caused by the government action at issue is still required. There may not be many relevant cases involving enumerated powers, but the U.S. Reports are filled with regulatory cases in which plaintiffs allege non-economic injuries, and they all reach the same conclusion: Non-economic injuries may be cognizable, but they must be actual or imminent, concrete and particularized injuries, and they must be the direct consequence of the government action at issue.

In order to demonstrate Article III standing the plaintiffs need not establish the merits of their claim, but they must be able to allege facts that, if true, would be sufficient to satisfy the requirements of Article III. It is this that the Texas plaintiffs utterly failed to do. As a consequence of the 2017 tax bill, 26 U.S.C. § 5000A no longer imposes any legal or practical consequence on those who fail to obtain qualifying health insurance, nor are the plaintiffs able to allege otherwise. They identify no meaningful consequence that will befall them should they drop their coverage, nor does Professor Blackman.

Whatever one thinks of the other arguments in play, or the desirability of the Affordable Care Act, Judge O'Connor lacked jurisdiction to hear this case. It should have been dismissed on standing, and I like to think that the U.S. Court of Appeals for the Fifth Circuit will not repeat Judge O'Connor's mistake.

Short Circuit: A Roundup of Recent Federal Court Decisions

Almond milk, pee tests, and the Lorax doctrine.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. And please enjoy Bound By Oath, our new podcast.

Friends, it does seem as if criminal justice reform has a real chance of being signed into law. Unfortunately, many of the men and women who would see their sentences reduced could still face real problems getting good jobs because of a tangle of state and local occupational licensing rules. IJ's own Andrew Wimer has more on such "collateral consequences" over at Forbes.com.

  • Latin abounds in this D.C. Circuit opinion holding that a nonprofit can't invoke the Freedom of Information Act to peek at President Trump's tax returns. Delight in some in pari materia, expressio unius est exclusio alterius, sui generis, and—for you Bird Law practitioners—rara avis.
  • Fourth Circuit: In approving a pipeline to run through the George Washington and Monongahela National Forests and across the Appalachian Trail, the U.S. Forest Service violated some federal codes and also the code of The Lorax—"speak for the trees, for the trees have no tongues." For the court's announcement of the Lorax doctrine, skip to the final paragraph of the opinion. For a 91-word opening sentence boasting nine initialisms and three abbreviations, scroll back up to the top.
  • Did you know that federal authorities don't need a warrant to comb through your trash looking for evidence? But, according to the Fourth Circuit, they do need to find more than three marijuana stems and empty packages of rolling papers to justify a warrant to search your house.
  • Feminist student group at University of Mary Washington seeks changes to the school's policies on sexual assault, provokes the wrath of fellow students by opposing authorization of male-only fraternities and seeking punishment of the men's rugby team (which had performed an offensive chant at a party off campus). Fourth Circuit (over a dissent): The feminist group's complaint, alleging the school violated Title IX by failing to protect them from student-on-student sexual harassment, should not have been dismissed.
  • For 80 years, Mercer County, W.Va. public schools taught Bible lessons. Agnostic parent's allegation: And when my daughter opted out, the school didn't teach her something else, and the other kids harassed her. I had to send her to a different district! Fourth Circuit: Blessed are the excluded, for they shall obtain standing.
  • Allegation: Houston medical examiner, egged on by police, creates misleading autopsy report; husband is charged with murder of wife, who in fact committed suicide. The examiner's findings don't stand up to scrutiny; charges are dropped mid-trial. Can the man sue the medical examiner? District court: Indeed. No qualified immunity. Fifth Circuit (over a dissent): Vacated. The district court didn't sufficiently explain its reasoning.
  • Motorist receives text, checks her iPhone, and then causes accident, for which she is convicted of negligent homicide. Can Apple be held responsible under Texas law for creating a "neurobiological compulsion to engage in texting"? The Fifth Circuit says no.
  • Trumbull County, Ohio corrections officer regularly demands that 19-year-old inmate expose herself to him, masturbate. (She does.) Can her cellmate (who witnessed the whole thing and felt threatened by the officer after she told him she'd report him) sue the officer for creating a "sexually hostile environment"? The Sixth Circuit says no; that's not actually a thing. (The other inmate is also suing; her case was heard on oral argument earlier this month at the Sixth Circuit.)
  • Man spends nearly three decades in prison for Newport, Ky. murder. Freed in 2015 based on newly discovered DNA evidence, he sues 13 police officers involved in the original investigation. Allegation: The cops tried to frame me, coerced false testimony from a jailhouse snitch, and deliberately suppressed exculpatory evidence. District court: If those allegations are true, then no qualified immunity; the case can proceed. Which is so clearly right, says the Sixth Circuit, that it would be a waste of our quills, ink, and blotting paper to "duplicate the district court's careful work with our own opinion."
  • Illinois prisoner learns prison gang is going to "eradicate" him. He says he warned the staff, but they did nothing to protect him. The staff: We couldn't. He didn't say when or where the beating would happen. Seventh Circuit: Is this Agatha Christie's 1950 novel A Murder Is Announced? The failure-to-protect claim is going to trial.
  • Can a class action lawsuit be brought for not labeling almond milk as "imitation milk"? The Ninth Circuit (in an unpublished decision) says no; the district court was correct to find that "[n]o reasonable consumer could be misled by Defendant's unambiguous labeling or factually accurate nutritional statements" describing almond milk as almond milk. (The district court's ruling is here, via the FDA Law Blog.)
  • Utah state trooper hears about a bank robbery in which the suspect wore a Bud Light hat and checkered shirt. Thirty minutes later and 60 miles away, he hears a report of a suspicious Cadillac sitting in a bank parking lot, the driver of which is wearing a Bud Light hat and checkered shirt. Can the trooper pull over a Cadillac that he later sees on the freeway because Cadillacs aren't often seen in rural Utah? No, says the Tenth Circuit. Dissent: We should take account of all of the circumstances, including the fact that the guy was caught on film robbing the first bank.
  • Castle Rock, Colo. man has debts (for, among other things, purchasing a $65k Camaro and $73k Corvette). So he sends a note, invoice to the U.S. Dep't of Agriculture asking the feds to pay off the debt. Feds: Which was an attempt to defraud the gov't. Man: I was petitioning the gov't, as is my First Amendment right. Tenth Circuit: Conviction affirmed. (His sentence, via Courthouse News: a $500 fine, community service, probation.)
  • Palm Beach County, Fla. school officials require prospective substitute teachers to submit to drug test. (Results are not shared with law enforcement. In 2016, 40 applicants out of 4,965 fail or refuse to take the test.) An unconstitutional suspicionless search? Probably not, says the Eleventh Circuit. No need for an injunction while the suit proceeds.

This month, the Montana Supreme Court held that the state constitution forbids a scholarship program that helped families send their children to the private school of their choice. According to the court, the program (which provided a $150 annual tax credit to individuals and businesses that donate to scholarship organizations) unconstitutionally aided religious schools, even though it was up to families which school to pick. Two single moms who have been relying on the program will appeal to the U.S. Supreme Court (which has jurisdiction because the case involves a question of federal law). Click here to read more.

Islam

No Compulsory Sharia for Greek Muslims, European Court Rules

Greek law had provided (or some Greek courts had ruled) that Greek Muslims' will disputes would be resolved under Islamic law -- but that's forbidden religious discrimination, rules the European Court of Human Rights.

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Greece, like some other countries (such as Israel and India) provides that certain "personal status" disputes—such as those involve family law and the distribution of property at death—are decided by religious courts of the person's religion. In Greece, this used to apply to Jews and Muslims, but since 1946 applied only to Muslims in a particular province.

Such a rule means that how much you inherit under a will may well depend on the testator's religion. Indeed, Molla Sali's husband left her all his property under a will, and in Greek secular courts that will would be enforced as written; but because he was Muslim, Greek courts concluded that Islamic law applied, and under Islamic law the wife would only get one-quarter of the property, regardless of the will. (The provision was legistlatively made optional in 2018, to be used only when the person expressly agreed, but the Greek proceedings in this case happened before then.)

In Wednesday's decision (Molla Salli v. Greece), the European Court of Human Rights held that this was impermissible religious discrimination:

[Molla Salli], as the beneficiary of a will made in accordance with the Civil Code by a testator of Muslim faith, was in a relevantly similar situation to that of a beneficiary of a will made in accordance with the Civil Code by a non-Muslim testator, and was treated differently on the basis of "other status", namely the testator's religion.

Nor was the court persuaded by the argument that this discrimination was justified because it was called for by treaties that protected the rights of Muslim minorities in Greece and Christian minorities in Turkey; among other things, the court concluded that the treaties didn't require Greece to apply Muslim law.

The court expressly distinguished a situation where choice-of-law rules call for application of foreign law, and the foreign law happens to be based on Islamic law: "In such cases, … Islamic law is not applied as such but as the law of a (non-European) sovereign State, subject to the requirements of public-policy" (I take it that the last clause refers to the rule that one country will only apply a foreign country's law when the foreign law does not violate the applying country's important public policies).

The court's decision also doesn't deal with religious arbitration under contractual provisions, since rules allowing such arbitration don't themselves involve governmental religious discrimination. And the court didn't have to reach the separate question whether the Greek legal system's application of Islamic property distribution rules would be invalid because those rules discriminate based on sex (since "[m]ale heirs have double the share in the estate as compared with female heirs"). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: I changed the first two paragraphs to clarify that the compulsory application of Islamic law was only in force in a particular province, where there is a particularly substantial Muslim population, and also to note that the compulsory nature of the rule was repealed in 2018; thanks to commenter Marinned for reminding me about this.

Second Amendment

Supreme Court Should Clarify Second Amendment Test

Challenge to ban on interstate handgun sales would be a good vehicle.

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Today I filed an amicus brief in support of the cert. petition in Mance v. Whitaker. The case is a challenge to the federal ban on interstate handgun sales. But more importantly, it is a good vehicle for the Court to clarify how lower courts should review Second Amendment challenges.

Background: In 1968, the federal Gun Control Act banned interstate retail handgun sales. The statute also banned interstate retail long gun sales, except for contiguous states that enacted legislation authorizing such sales. In 1986, Congress passed the Firearms Owner's Protection Act, which relegalized interstate long sales, provided that the sale complies with the laws of both states.

For purposes of these federal laws, the District of Columbia is treated like a state. There are no gun stores in the District. In order to acquire a handgun, a D.C. resident must visit a store in another state, and pay for the gun there. Then, the store will ship the handgun to the one person in Washington, D.C., who is allowed to transfer the handgun to the D.C. resident. The man holds a Federal Fireams License (FFL), and operates out of a tiny office in the D.C. police building. He has no inventory, and charges a $125 fee for processing the transfer.

Case history: Alan Gura, winning attorney in the Heller case, brought a suit against the interstate sales ban in federal district court in Texas. Plaintiffs are a husband and wife who live in D.C., plus the Citizens Committee for the Right to Keep and Bear Arms (CCRKBA).

The district court applied strict scrutiny, and held that the sales ban violates the Second Amendment. A Fifth Circuit panel reversed. A petition for rehearing en banc was rejected by an 8 to 7 vote.

Amicus brief: The amicus brief was written by Colorado attorney Joseph Greenlee and me. Amici are ten law professors who teach and write on the Second Amendment. Most of them have been cited by the Supreme Court, and they are oft-cited by lower courts as well. The professors are: VC's Randy Barnett (Georgetown), Royce Barondes (Missouri), Robert Cottrol (George Washington), Nicholas Johnson (Fordham),
Nelson Lund (George Mason), Joyce Malcolm (George Mason), George Mocsary (Southern Illinois), Joseph Olson (Mitchell Hamline), Glenn Reynolds (Tennessee), and Gregory Wallace (Campbell). Organizational amici are the Independence Institute, where I work, and the Millennial Policy Center, a think tank where Greenlee is a Fellow.

The brief addresses a problem that has been discussed in a number of previous cert. petitions: many lower courts have been defying Heller. The amicus brief addresses the problem with a broad and systematic review of doctrinal problems and conflicts in the lower courts. Here is the Summary of Argument:

Over a decade after this Court's decision in District of Columbia v. Heller, lower courts are struggling to interpret and apply it.

Lower courts disagree over what test to apply to Second Amendment challenges. Although nearly every federal circuit court has adopted the Two-Part Test, many judges—in the Fifth Circuit and elsewhere—believe the Text, History, and Tradition Test is more appropriate. As they point out, the Text, History, and Tradition Test is the one used in Heller and McDonald v. City of Chicago.

The Two-Part Test is an interest-balancing test; such a test was expressly rejected in Heller and McDonald. It meshes poorly with Heller's list of presumptively lawful gun laws and has created much confusion.

Some major lower court cases have used the Two-part Test to treat the Second Amendment as a second-class right. They defy Heller by using a rational basis test for laws against law-abiding firearms owners and gun stores. They allow the government to prevail on thin or conclusory evidence. They apply a feeble version of heightened scrutiny that does not consider less burdensome alternatives. Each of these problems is manifest in the opinions below in this case.

Assorted lower courts expressly hew to the narrowest potential interpretation of the Second Amendment, pending further precedent from this Court. Development of Second Amendment jurisprudence is abrogated without additional guidance by this Court.

This Court should grant certiorari to state the appropriate test and to clarify issues within that test.

The government's response brief is due January 22, so if cert. were granted, the case would likely be heard in the Fall of 2019.

Campus Free Speech

Universities May Have Duty to Block Students' Access to Sites That Carry Supposedly "Harassing" Statements About Students

A bad decision from the Fourth Circuit, aptly criticized by the Foundation for Individual Rights in Education.

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The 2-to-1 decision is today's Feminist Majority Foundation v. Hurley (the University of Mary Washington case). I'm traveling, and thus won't have time to post a detailed analysis myself, but here's part of the analysis from Samantha Harris at FIRE:

The alarming upshot of the ruling is its suggestion that Title IX may sometimes require colleges to censor or block all students' access to certain internet sites or services based solely on anonymous statements made in an online forum that the university does not control, by people who may not be on campus, or even affiliated with the university at all.

The case … stems from a series of events that roiled UMW's campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate's decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW's men's rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW's response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education's Office for Civil Rights and then, ultimately, a federal [Title IX] lawsuit….

In a ruling that has far-reaching implications for universities' obligation to monitor and address the off-campus, online speech of its students, the [Fourth Circuit] held that because UMW had the "technical capacity to control the means by which the harassing and threatening messages were transmitted" (that is, the ability to block campus network access to Yik Yak altogether) and because they could have taken other actions (such as "mandatory assemblies" or "anti-sexual harassment training") to make clear that sexual harassment by its student body would not be tolerated, the plaintiffs had sufficiently alleged that UMW had substantial control and thus could be liable for the harassment.

IRS

You Can't Use FOIA to Get Someone's Tax Returns

A court rejects a clever effort to obtain President Trump's tax records

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Yesterday, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit rejected an ingenious attempt by the Electronic Privacy Information Center (EPIC) to obtain President Trump's tax records through the Freedom of Information Act (FOIA). Judge Henderson's opinion for the panel in EPIC v. IRS begins:

The Internal Revenue Service (IRS) collects more than money. It acquires and maintains a reservoir of sensitive information about taxpayers. And time was, the President could—for any reason or no reason at all—order the IRS to make that sensitive information public. The arrangement worked out fine for decades. Then the Nixon administration compiled a list of political enemies and ordered the IRS to harass them. The resulting scandal prompted the Congress to enact sweeping legislation to protect taxpayer privacy. The Internal Revenue Code (IRC) now mandates that tax "[r]eturns and return information shall be confidential" unless they fall within one of the statute's narrowly drawn exceptions. I.R.C. § 6103(a).

At first blush, the IRC stands in tension with the Freedom of Information Act (FOIA), which vests the public with a broad right to access government records. 5 U.S.C. § 552(a)(3)(A). One statute demands openness; the other privacy. But as we explain infra, the statutes work well together. Not all records are subject to FOIA requests. An agency need not disclose records "specifically exempted from disclosure by statute." Id. § 552(b)(3). Because the IRC is such a statute, records that fall within its confidentiality mandate are exempt from FOIA.

This case presents the question whether a member of the public—here, a nonprofit organization—can use a FOIA request to obtain an unrelated individual's tax records without his consent. With certain limited exceptions—all inapplicable here—the answer is no. No one can demand to inspect another's tax records. And the IRC's confidentiality protections extend to the ordinary taxpayer and the President alike. Accordingly, we affirm the dismissal of the Electronic Privacy Information Center (EPIC)'s lawsuit seeking President Donald J. Trump's income tax records.

Tel Aviv Tips

Any suggestions for what to do around town?

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I'm teaching a short class at Tel Aviv University on U.S. free speech law (with an emphasis on online speech), and would love to hear tips on what to do around town. Please post below, or e-mail me at volokh at law.ucla.edu.

Defamation

ACLU (N.H.) Challenging Criminal Libel Statute

The Supreme Court, though, has suggested that such laws, if narrow enough, are constitutional.

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Criminal libel prosecutions are rare in the U.S., but not unheard of—I'm gathering data on them now, but so far it appears that they happen about 20 times per year, and often lead to convictions. About a dozen states have criminal libel statutes that have not been struck down by state courts, and most of those are used at least on occasion.

Most of the recent cases I've seen have involved alleged libels in personal disputes (see the case mentioned at the end of this post for an example). My sense is that they are often seen as the only means that the legal system has to meaningfully punish and deter libels said by people who lack money or insurance, and thus can't effectively be required to pay damages (especially when the people they libel themselves lack money, and can't afford to hire a lawyer when there's no prospect of any significant recovery). [UPDATE: Just to be clear, the theory here would be that criminal libel laws should be enforced against middle-class and rich libelers as well as poor ones, but that criminal libel laws have to be available, because a civil-liability-only rule would be ineffective against poor libelers.]

Some cases, though, do involve alleged libels on public matters, or even of public officials, police officers, or probation agents (30% in the most comprehensive analysis, David Pritchard's 1991-2007 Wisconsin study). There was one case in the news earlier this year, the Robert Frese prosecution in New Hampshire, that involves an alleged libel of a police chief. Lots of people are concerned, and understandably so, about prosecutions such as these (as well as about unfounded prosecutions in the pure personal dispute cases). But under current law, criminal libel statutes are constitutional.

Just eight months after New York Times Co. v. Sullivan (1964), which sharply limited civil liability in libel cases, the Supreme Court decided Garrison v. Louisiana (1964), a criminal libel case; and in Garrison, the Court concluded that criminal libel statutes (especially ones applicable to libels of public officials on matters of public concern) had to comply with the same rules as civil liability—mainly that the government had to show that the defendant's statement was (1) false and (2) said with knowledge of the falsehood or reckless disregard of the possibility of falsehood. Because of this, many old, pre-Sullivan criminal libel statutes have been struck down as being too broad.

Yet Garrison did not categorically reject criminal libel laws, so long as the laws are narrow enough to fit Sullivan and its progeny, chiefly by being limited to knowing or reckless lies. Three Justices in Garrison would have entirely abolished criminal libel prosecutions, at least in public official cases—but the majority (led by Justice Brennan) did not. Instead, it expressly held that "The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy"as in civil cases.

Likewise, in Herbert v. Lando (1979), the Court mentioned in passing that "Criminal libel prosecutions are subject to the same constitutional limitations" as civil lawsuits. On the strength of these precedents, the Colorado Supreme Court in People v. Ryan (1991) held that a properly crafted criminal libel law was constitutional, and the Third Circuit sitting en banc in In re Gronowicz (1985) so stated as well.

Just today, the ACLU of New Hampshire announced that it's challenging the New Hampshire criminal libel statute; and the challenge is a full-on attack on criminal libel law generally. (Conor Friedersdorf [The Atlantic] has more.) New Hampshire statute is quite narrow, and consistent with New York Times v. Sullivan; it provides:

I. A person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.
II. As used in this section "public" includes any professional or social group of which the victim of the defamation is a member.

Indeed, the statute imposes a more demanding burden on the government that Garrison and New York Times require: The government must show that the speaker knows the statement is false (and isn't just reckless about the possibility). The statute doesn't include a special rule for libels of public officials—but, under the precedents, it doesn't have to.

The ACLU is arguing that the statute is unconstitutionally vague, because the "will tend to expose any other living person to public hatred, contempt or ridicule" is too subjective; and the Alaska Supreme Court's decision in Gottschalk v. State (1975) accepted that theory.

But I'm skeptical about it: The "tends to expose to public hatred, contempt, or ridicule" test has a long history to it, and the Court has taken the view that a "knowledge requirement of [a] statute further reduces any potential for vagueness." Holder v. Humanitarian Law Project (2010). The definition isn't mathematically precise, but it doesn't have to be, under the Court's precedents. (Note that in Ashton v. Kentucky (1966), the Court did strike down a common-law criminal libel rule on vagueness grounds, but that rule was considerably broader and less precise than the New Hampshire rule.)

Still, it's an interesting case, and it's hard to be sure how the district court (and, on the likely appeal, the First Circuit) will decide the matter. (It's unlikely that the Supreme Court will intervene, though it is possible.) I'll try to follow the case closely, and report on what the courts decide.

Finally, as promised, here is an illustration, the only New Hampshire criminal libel appellate decision in the past 100 years, State v. Baird (1990); it uses the criminal libel statute coupled with a witness retaliation statute as essentially a ban on libeling someone in retaliation for being a witness:

In the late summer and early fall of 1988, the New Hampshire Division for Children and Youth Services (DCYS) was called upon to investigate allegations that the defendant had sexually abused his thirteen-year-old daughter. This investigation led to the removal of the child from the home she had shared with her father, brother, and paternal grandmother, and the filing of an abuse or neglect petition in the Plaistow District Court. At the subsequent hearing, held on November 1, 1988, information which a DCYS social worker had obtained from the daughter was made part of the proceeding. The defendant was present at this hearing and was aware of his daughter's participation in the investigation. He agreed to sign a consent decree admitting abuse of the child, and was prohibited from having any contact whatsoever with his daughter for a period of at least one year.

Roughly two weeks later, however, on November 17, 1988, the defendant drove his twelve-year-old son to school, as he had missed the bus. While in the parking lot of the school, which was also attended by his daughter, Mr. Baird gave the boy several photocopies of a handwritten note and, at the very least, suggested that his son pass them out to the daughter's friends. The note indicated in no uncertain terms that the defendant's daughter had engaged in sexual intercourse with him on numerous occasions.

The exceedingly crude language of the note further implied that anyone wishing to have sexual relations with the child need only call her at a referenced telephone number (that of her foster home) and she would readily comply. The son handed the photocopies of this note to some of the children who rode on the school bus with the defendant's daughter and to the daughter herself. When asked at a later date by a DCYS social worker what had possessed him to cause the circulation of the copies, Mr. Baird explained that "he did it to get even with [his daughter] for what she did to him, that he only said what she was saying anyway."

Based on these facts, the defendant was charged with tampering with a witness or informant in violation of RSA 641:5. That statute provides, in pertinent part, that "[a] person is guilty of a class B felony if … [h]e commits any unlawful act in retaliation for anything done by another in his [or her] capacity as witness or informant…."

At trial, the State sought to establish the essential element of an "unlawful act" by proving that Mr. Baird had criminally defamed his daughter in violation of RSA 644:11, I, by purposely communicating to others information which he knew to be false and knew would tend to expose the child to public hatred, contempt or ridicule…. Mr. Baird's own admission concerning his motivation for having the copies disseminated also was presented to the jury to aid in proving the retaliation element of the offense….

[T]he defendant insists that the State failed to establish the requisite underlying unlawful act of criminal defamation, specifically claiming that it failed to prove that the statements made by Mr. Baird, alluding to his daughter's willingness to have sexual relations with anyone who telephoned her and requested them, were known by him to be false. In response, the State argues that this issue was not adequately preserved for appeal and should therefore not be entertained by the court at this time. Alternatively, it is the State's position that the evidence presented at trial was sufficient to prove Mr. Baird's guilt beyond a reasonable doubt….

While it is true that the prosecution was unable to present to the jury any direct evidence of the defendant's state of mind concerning his knowledge of the falsity of the second portion of the note's contents, it did provide the jurors with ample circumstantial evidence, excluding "all other rational conclusions" to justify their determination that Mr. Baird knew the statements made by him were untrue. First of all, the record indicates that the defendant's daughter was only thirteen years old at the time the offending copies were distributed. She was in sixth grade and did not maintain an active social life. In fact, as the defendant well knew, she was not allowed to date boys and, except for spending time with a girl friend, did not socialize during the week. A reasonable jury could conclude on the basis of this evidence alone that the defendant knew his statement to be false.

The conclusion was further supported, however, by the daughter's own testimony that, if she had received a telephone call following up on the note's suggestion, she would not have complied with the request. The jury, having had the opportunity to assess the daughter's demeanor and credibility at trial, clearly believed her testimony and could justifiably infer from that testimony that her father, who shared a home with his daughter for thirteen years, knew that she would not wish to engage in sexual intercourse with random individuals who telephoned her.

Finally, the jury knew that this child had been sexually abused at the hands of her father and that she had sought help, risking disruption of her life and alienation from her family, by reporting the incident to authorities. The jurors could reasonably infer that the girl, willing to endure the additional trauma of accusing her father in order to insure that the unwanted sexual contact would cease, did not welcome her father's sexual advances and would not welcome those of strangers, and that her father knew this.

"[R]eviewing courts should defer to the jury's determination unless no reasonable person could have come to that conclusion." In this case, based on the totality of the evidence presented, we hold that a reasonable jury could infer that the defendant knew that his statements regarding his thirteen-year-old daughter's willingness to engage in sexual intercourse with anyone who responded to the note were untrue.

    Everyone is Misreporting the Texas BDS Lawsuit

    No, a Texas school district did not require speech pathologist Bahia Amawi to sign a "pro-Israel oath," nor even to promise not to personally boycott Israel.

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    Speech pathologist Bahia Amawi, who works as a contractor for the Pflugerville Independent School District in Texas, has filed a lawsuit claiming that an anti-boycott-of-Israel pledge she was asked to sign violates her First Amendment right to freedom of speech. This was reported first by Glenn Greenwald at the Intercept, who set the tone for the media coverage by claiming, in his typical exaggerated and dishonest fashion, that the lawsuit arose after Amawi "refused to sign an oath vowing that she 'does not' and 'will not' engage in a boycott of Israel or 'otherwise tak[e] any action that is intended to inflict economic harm' on that foreign nation." (Greenwald's headline is even more misleading, and demagogic in a way that undoubtedly appeals to anti-Semites, claiming that Ms. Amawi was required to sign a "pro-Israel oath.")

    There are a lot of things I could say about the law and the lawsuit, but I have some time constraints, so I will just explain why Greenwald's take, repeated ingenuously by reporters apparently too lazy to look up the actual text of the underlying law and what Ms. Amawi was asked to sign, is wrong.

    Texas has a law banning state entities from contracting with businesses, including sole proprietorships, that boycott Israel. As a result, just like local governments require contractors to certify that they adhere to many other state laws, such as anti-discrimination laws and financial propriety laws, they also must certify, in compliance with state law, that their business does not boycott Israel.

    Here is the specific language Ms. Amawi was asked to sign (see appendix A):

    Pursuant to Section 2270.001 of Texas Government Code, the Contractor affirms that it: 1. Does not currently boycott Israel; and 2. Will not boycott Israel during the term of the contract Pursuant to Section 2270.001 of Texas Government Code:

    1. "Boycott Israel" means refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes;and
    2. "Company" means a for-profit sole proprietorship, organization, association, corporation, partnership, joint venture, limited partnership, limited liability partnership, or any limited liability company, including a wholly owned subsidiary, majority-owned subsidiary, parent company or affiliate of those entities or business associations that exist to make a profit.

    Note that, consistent with the language and obvious intent of the law (see the text here, it's even titled "PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL"), the school district certification applies to the business, "it," not the individual "she." Contrary to what I've been reading all over the internet, Ms. Amawi is not being asked to pledge that she, in her personal capacity, will not privately boycott Israel, much less that, e.g., she will not advocate for boycotting Israel or otherwise refrain from criticizing Israel.

    Briefly on the First Amendment issue, it's no different analytically than requiring a contractor to pledge that the business does not refuse to hire Muslims, or Jews, or blacks, veterans, or another state-designated group. [Clarification: "it" means the First Amendment analysis. There are obvious moral, practical, historical, and other differences between boycotting Israel and boycotting members of American minority groups; those differences just aren't constitutionally salient.] The sole proprietor contractor, or the certifying officer for a larger contractor, is still permitted to refuse to invite a Muslim to his house for dinner, or to advocate against Muslims in any way he chooses. The business simply can't engage in action that the state disapproves of. Supreme Court precedent, mostly to my chagrin, seems rather clear that this is constitutional, and that the protected class in question need not be an individual or minority group–in Rumsfeld v. FAIR, the Court held that the law school plaintiffs had no First Amendment right to boycott military recruiters in the face of a federal statute barring recipients of federal funds from discriminating against those recruiters.

    In short, this story is being widely misreported, the hysterical claims that Amawi is being forced to sign a pro-Israel pledge or personally do or not do anything in particular regarding Israel outside the context of her business are false, and the First Amendment lawsuit will almost certainly lose. Moreover, it's nearly impossible to think of a way in which Ms. Amawi's speech pathology business would ever have an opportunity to in any way boycott or otherwise economically harm Israel, rendering this pure political theater.

    *Other localities make this even clearer. The City of Waco's standard contract, for example, states: "CERTIFICATION REQUIRED BY TEXAS GOVERNMENT CODE SECTION 2270.001 By signing below, Company hereby certifies the following: 1. Company does not boycott Israel; and 2. Company will not boycott Israel during the term of the contract."

    UPDATE: Just as I was posting this, a friend of mine posted on Facebook that "individual school teachers are being required to attest that they will not personally boycott Israel as private citizens, even when they are not at work." I can easily see how he thought that given the media's coverage of the lawsuit, and it's yet another example of why one should never, ever trust the media take on a controversy without confirming the original sources. I do it myself sometimes, and generally regret it.

    FURTHER UPDATE: Judging from my social media feed, lots of non-lawyers seem to be under the mistaken impression that certain groups that are protected by civil rights law are so protected because they are "protected classes" under the Constitution. Nope. The Constitution does not ban or provide any remedy for private discrimination (or boycott if you prefer) against any group. If blacks, or Jews, or women, or gays, or Republicans, or whomever receive protection from private discrimination in the United States, it's for one reason, and one reason only: because a legislature at whichever level of government chose to pass legislation protecting a category from discrimination. Thus, for example, there is nothing legally anomalous about Texas protecting Israel from (what's seen as) a discriminatory boycott, but not protecting gay people from employment discrimination based on sexual orientation, because supporting Israel is more popular in Texas than supporting employment rights for gays.

    Once you give government the authority to ban private discrimination (and remember, discrimination in housing, employment, etc., is a subset of "boycott"), and you weaken constitutional barriers to such legislation, the legislation will inevitably apply to whomever can get support of the legislature. Lest readers think I'm just reasoning backwards to somehow justify laws related to Israel, I will note that I wrote about this in my 2003 book, You Can't Say That!:

    The concept of antidiscrimination is almost infinitely malleable. Almost any economic behavior, and much other behavior, can be defined as discrimination. Is a school admitting students based on SAT scores? The U.S. Department of Education has proposed that using such tests in college admissions be considered discrimination against groups that get below-average scores. Is a credit card company denying applications to the non-creditworthy? That's discrimination based on financial status. (Sound absurd? Tell it to the New Zealand Human Rights Commission, a body modeled after American civil rights enforcement agencies, which has determined that refusing service on credit to a customer who is unemployed, has no credit card, earns less than $10,000 (approximately $5,500 U.S.) a year, and does not own a home is illegal discrimination on the grounds of employment status.) Is an employer hiring only the best qualified candidates? Well, that might be discrimination against everyone else!

    The obvious retort from exasperated antidiscrimination activists is that only laws prohibiting "real" discrimination should receive constitutional exemption. Legislatures and courts should not allow the definition of discrimination to expand beyond what is reasonable. The problem is, of course, that there is no consensus about what constitutes "real" discrimination, nor does there appear to be any principled definition that legislatures have followed. What counts as discrimination will always depend on which interest groups have the power to influence legislatures to define their particular goals as antidiscrimination goals, and not on any objective definition of discrimination. [And note, BDS IS literally discrimination against Israel.]

    Already, definitions of discrimination have proven extremely tractable. Some define discrimination as treating the alike unequally based on invidious preferences, but, even outside the controversial area of affirmative action preferences, antidiscrimination law does not always follow this definition. The Americans With Disabilities Act (ADA) defines discrimination not only as the unwillingness to treat the disabled and nondisabled alike, but also as the unwillingness make "reasonable accommodations" for the disabled. In the first enforcement action under the ADA, the government ordered a company to pay for a full-time sign translator for a hearing-impaired student in its review class for the CPA exam, even though the interpreter cost far more than the student's tuition. Undertaking this measure was obviously not treating the hearing impaired student just like everybody else.

    Similarly, Title VII of the 1964 Civil Rights Act's ban on discrimination on the basis of religion actually mandates preferential treatment for religious employees. The statute requires that employers accommodate the religious beliefs and observances of their employees, unless doing so would cause the employer "undue hardship." Some hardship to the employer, which in economic terms constitutes a subsidy to the religious employee, is mandated where necessary. If failure to give members of a group a subsidy constitutes discrimination, then just about any law can be defined as an antidiscrimination statute that is potentially exempt from constitutional limitations. In short, exempting antidiscrimination laws from the civil liberties protections manifested in the Constitution might destroy those protections.

    As a libertarian, I'm sympathetic that there generally should be a right to boycott, even in the context of government contracting. What I am not sympathetic to, however, is the notion that we should expand antidiscrimination laws and contract constitutional restraints on such laws until, and only until, someone figures out that they could apply these laws to causes and institutions the left doesn't like, such as the military (see Rumsfeld v. FAIR) or Israel, at which time we suddenly invent a broad First Amendment right to boycott. That, in essence, is the position the ACLU has taken for the past twenty years or so, and at best it's wildly optimistic about how politics actually works, and at worst it's simply intellectually dishonest. The Supreme Court certainly didn't buy it in FAIR.

    Second Amendment

    Nunchaku Are Protected by the Second Amendment

    So a federal district court held Friday.

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    Friday, New York federal district court Judge Pamela Chen decided—after 15 years of litigation—that the New York state total ban on nunchaku (a martial arts weapon) violated the Second Amendment. (The case is Maloney v. Singas.) ther courts had likewise applied the Second Amendment, and state constitutional rights to bear arms, to other non-firearms weapons, such as stun guns, batons, and knives. But nunchaku seemed rather more unusual, which raised the question whether they are excluded by the Heller language about the Second Amendment protecting weapons that are "in common use."

    No, there is no such exclusion here, ruled the court, relying largely on Heller and a Second Circuit decision applying Heller:

    [A.] There is a rebuttable presumption that " 'the Second Amendment extends, prima facie, to all instruments that constitute bearable arms,' not just to a small subset."…. "The Second Amendment protects only the 'sorts of weapons' that are (1) 'in common use' and (2) 'typically possessed by law-abiding citizens for lawful purposes.'" "Heller … endorsed the 'historical tradition of prohibiting the carrying of dangerous and unusual weapons.'" … Furthermore, it is the government that bears the burden of rebutting the "prima facie presumption of Second Amendment protection" that extends to all bearable arms.

    While the logical implication of the two criteria identified in Heller—"common use" and "typical possession by law-abiding citizens for lawful purposes"—is that the government need only disprove the existence of one or the other criterion to exempt the challenged law from Second Amendment coverage, the Court has concluded that the "common use" factor is ultimately irrelevant and that the government must show that, at a minimum, nunchakus are not typically possessed by law-abiding citizens for lawful purposes. See Caetano v. Massachusetts (stating that the test for whether a weapon falls within the scope of the Second Amendment is "a conjunctive test: A weapon may not be banned unless it is both dangerous and unusual.") (Alito, J., concurring)…

    Here, "the parties do not dispute that nunchakus constitute a 'bearable arm,'" and so the rebuttable presumption that nunchakus are protected by the Second Amendment applies. …

    [B.] The next step … that the Court must determine whether the nunchaku ban impinges upon conduct protected by the Second Amendment, i.e., whether Defendant has proved, by clear and convincing evidence, that nunchakus are not typically possessed by law-abiding citizens for lawful purposes. Admittedly, there is no defined analytical standard for what constitutes "typical possession by law-abiding citizens for lawful purposes." However, … the Second Circuit [has] indicated that to determine a weapon's "typical possession," the Court is "require[d] … to look into both broad patterns of use and the subjective motives of [the weapon's] owners."

    Considering the scant evidence presented, the Court finds that Defendant has not met her burden to exclude nunchaku from the ambit of Second Amendment protection. Simply put, Defendant does not contradict the contention that the nunchaku's primary use, which Defendant concedes is as "a tool from the sphere of martial arts," is a lawful one….

    Furthermore, although the criminality associated with a weapon is not the only relevant inquiry, here, there is virtually no evidence that nunchakus are associated with, or have been used to engage in, criminal conduct since Section 265.01(1) was amended to include nunchaku over forty years ago. The only evidence presented by Defendant as to the unlawful use of nunchaku are five nunchaku prosecutions, two cases of assault and three cases of possession, between December 14, 2014 and January 11, 2017 in Nassau County.

    Moreover, Defendant presents no national data on the unlawful use of nunchaku. Given Defendant's concession that the nunchaku is primarily a tool of martial arts, pointing to these isolated incidents falls far short of Defendant's burden of establishing that the nunchaku's typical use is an unlawful one. [Footnote moved: [Footnote: To allay its concerns about completeness, the Court, on its own, has identified 52 nunchaku-related incidents in the United States since 1974, with the vast majority occurring since 2011. They are listed chronologically, along with the four newspaper articles cited by Defendant in her summary judgment briefing, in an appendix to this opinion. Even if Defendant had offered evidence of these 56 incidents at trial, they do not constitute clear and convincing evidence, or a preponderance of evidence, that nunchakus are not commonly used by law-abiding citizens for lawful purposes.]

    Moreover, unlike a sawed-off shotgun, gun without a serial number, or pipe bomb—weapons that courts have found to be outside the ambit of Second Amendment protection—nunchaku have no special propensity for unlawful use. In fact, its intended use as a weapon for recreational martial arts practice and training appears to greatly outstrip its use in crime.

    The Court rejects Defendant's argument that the Court's "typical use" analysis should be limited to whether the nunchaku is typically used for home self-defense—and should not consider the nunchaku's use in martial arts—because Plaintiff's request for relief is limited to this use. Defendant cites no caselaw to support such a limited understanding of "typical use." See Friedman, 136 S. Ct. at 449 (discussing "self-defense and target shooting" in determining a weapon's "typical use") (Thomas, J., dissenting from denial of certiorari); NYSRPA, 804 F.3d at 256 (considering "lawful pursuits like self-defense and hunting"); Fyock, 779 F.3d at 998 (examining "marketing materials and sales statistics" to determine the "lawful purposes" for which large-capacity magazines are possessed). Defendant's reliance on Heller for this argument is also unavailing, since nowhere in Heller does the Supreme Court state that Second Amendment protection only extends to "bearable arms" that are typically used for home defense, Heller II, 670 F.3d at 1260 ("[T]he Court [in Heller I] also said the Second Amendment protects the right to keep and bear arms for other 'lawful purposes,' such as hunting, but self-defense is the 'core lawful purpose' protected.").

    The Court also rejects Defendant's argument that the nunchaku ban should be upheld because "the dangerous potential of nunchucks is almost universally recognized." "If Heller tells us anything, it is that [weapons] cannot be categorically prohibited just because they are dangerous," since the "relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes." Caetano, 136 S. Ct. at 1031 (Alito, J., concurring). [Footnote: Inexplicably, Defendant states that "[o]bviously, spring-guns and carrying/using mace or stun guns are not constitutionally protected activities" because they are dangerous. This statement is plainly incorrect, at least as to stun guns and mace. In Caetano, Justice Alito explicitly argued that stun guns are constitutionally protected weapons. See also People v. Yanna, 297 Mich. App. 137 (2012) (striking down Michigan's complete prohibition on Tasers and stun guns). Mace is, in fact, legal in all 50 states, and the Court sees no reason why mace would not also be constitutionally protected.]

    Therefore, because Defendant has failed to demonstrate, by clear and convincing evidence, or even by a preponderance, that nunchakus are not typically used by law-abiding citizens for lawful purposes, she has failed to rebut the presumption that the possession and use of nunchaku is within the scope of the Second Amendment's protections.

    [C.] Although the Court has concluded that, under the standard established in Heller, a bearable arm is entitled to Second Amendment protection where the government fails to show that the weapon's typical use is not a lawful one, out of an abundance of caution, the Court also finds that Defendant has failed to show, by clear and convincing evidence, that nunchakus are not in common use. Based on the evidence introduced at trial, at least 64,890 metal and wood nunchaku were sold on the retail market in the United States between 1995 and 2018. Courts have not set a numerical floor for determining what constitutes "common use." In his concurrence in Caetano, Justice Alito found that stun guns were in "common use" because "hundreds of thousands of Tasers and stun guns have been sold to private citizens, who it appears may lawfully possess them in 45 States." Here, at least 64,890 nunchakus have been sold over the past 23 years to private citizens, who may lawfully possess them in 48 states. The Court finds that based on this magnitude of sales—especially given the outright bans on nunchaku (in New York and Massachusetts), the other restrictions placed on nunchaku ownership and use in the states where they may be lawfully possessed, and the apparent incompleteness of Defendant's nunchaku sales data—and the relevant, albeit limited, case comparators, Defendant has failed to establish that nunchaku are not in common use.

    [Footnote: The Court has only identified one case in which a court found that a weapon was not in common use. In Hollis v. Lynch, the Fifth Circuit found that the existence of 175,977 civilian-owned machine guns did not rise to the level of "common use" for three reasons: (1) the number of machine guns was "below [the] more than 8 million AR- and AK-platform semi-automatic rifles manufactured in or imported into the United States [that] the Fourth Circuit held was sufficient for a showing of common use [in Kolbe v. Hogan, 849 F.3d 114, 174 (4th Cir. 2017)]"; (2) unlike the stun guns in Caetano, which Justice Alito found "may be lawfully possessed in 45 states[,] … 34 states and the District of Columbia prohibit possessing machineguns"; and (3) that machine guns represent a "quite low" percentage of all firearms produced or manufactured for the domestic civilian market. Notably, however, the Fifth Circuit did not rely solely on its finding that civilian-owned machine guns were not in common use to determine that the Second Amendment was not implicated; rather, the Fifth Circuit also analyzed the "lawful purpose" prong. Furthermore, as a point of comparison, the number of jurisdictions in which nunchaku are legal, as discussed supra, is 48 states (versus 16 states in Hollis and 45 states in Caetano). In addition, even though the Court does not credit Pellitteri's testimony with respect to the number of nunchakus sold in the United States, the Court has considered his testimony that "nunchucks seem to be the most popular martial arts weapon" with respect to the "in common use" analysis.]

    Thus, even assuming that Defendant need only prove that nunchakus are not in common use to exempt them from Second Amendment coverage, she has failed to do so….

    [D.] Having concluded that Section 265.01(1), as applied to nunchaku, impinges upon Plaintiff's Second Amendment rights, the Court must next determine and apply the appropriate level of scrutiny. Although "Heller did not specify the precise level of scrutiny applicable to [weapons] regulations," id. at 258, it is clear that, at a minimum, intermediate scrutiny applies. Because the blanket ban imposed by Section 265.01(1) as applied to nunchaku easily fails constitutional muster under intermediate scrutiny, the Court need not decide whether intermediate or strict scrutiny should apply.

    The test for determining the proper level of constitutional scrutiny with respect to a Second Amendment challenge has two factors: "(1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law's burden on the right." Given that Section 265.01(1) completely bans the possession and use of nunchaku in New York State, the determinative issue is whether possession and use of nunchaku is an activity that is at the core of the Second Amendment. The centuries-old history of nunchaku being used as defensive weapons strongly suggests their possession, like the possession of firearms, is at the core of the Second Amendment. Nonetheless, even as recreational items, nunchaku may still be at the core of the Second Amendment's protections. The Court, therefore, finds that at least intermediate scrutiny applies to Section 265.01(1)'s ban on nunchaku.

    "Though 'intermediate scrutiny' may have different connotations in different contexts, here the key question is whether the statute[ ] at issue [is] 'substantially related to the achievement of an important governmental interest.'" "The legitimate and compelling state interest in protecting the community from crime cannot be doubted." Therefore, the Court "need only inquire … whether the challenged laws are 'substantially related' to the achievement of that governmental interest." Given the dearth of nunchaku-related crime, discussed [above], and the all-encompassing nature of the New York nunchaku ban, it cannot be said that the "fit between the challenged regulation" and the state interest is "substantial." … "[O]n intermediate scrutiny review, the state cannot get away with shoddy data or reasoning." … "To survive intermediate scrutiny, the defendant[ ] must show 'reasonable inferences based on substantial evidence' that the statute[ ] [is] substantially related to the governmental interest."

    With respect to the nunchaku ban, Defendant has plainly failed to do so…. Defendant has offered virtually no evidence supporting a public safety rationale for a total ban (as opposed to lesser restrictions) on the possession and use of nunchaku in New York State.

    Accordingly, the Court finds that Section 265.01(1), as applied to nunchaku, does not survive intermediate scrutiny and must be invalidated as unconstitutional. However, this ruling merely reflects Defendant's failure to present sufficient evidence and argument to support Section 265.01(1)'s constitutionality as applied to nunchaku and "do[es] not foreclose the possibility that [the government] could in the future present evidence to support such a prohibition[ ]," or some lesser restriction, on the possession and/or use of nunchaku in New York.

    [E.] In light of the Court's finding that Section 265.01(1) as applied to nunchaku is unconstitutional, the Court also invalidates the portions of N.Y. Penal Law § 265.10 … that apply to nunchaku [and that ban manufacturing, shipping, or disposing of nunchaku]….

    Happy Saturnalia!

    We continue the longstanding Volokh Conspiracy tradition of celebrating this ancient Roman holiday.

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    Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy, which we are now continuing at our new home with Reason. Admittedly, it's only a tradition in so far as I have put up a post about it every December 17 for the last several years. But, by blogging standards, that's a truly ancient tradition indeed.

    The Encyclopedia Romana has a helpful description of Saturnalia:

    During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters' clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that "During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside."

    This year, as usual, we have no shortage of strong applicants for the position of Lord of Misrule. The incumbent president and many other politicians of both parties are formidable candidates, indeed. Even more may emerge as the campaign season for the 2020 election heats up.

    Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!

    New Draft Article: "Implementing Carpenter"

    From my forthcoming book, The Digital Fourth Amendment.

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    I recently posted a new draft article, "Implementing Carpenter," on the Supreme Court's blockbuster June 2018 decision in Carpenter v. United States. The article consists of two draft chapters of a forthcoming book, The Digital Fourth Amendment, that will be published by Oxford University Press. I'd love your critical feedback. I found these chapters tough to write, and the line-drawing exercises Carpenter requires very challenging. But I did my best to make them and justify them, and I'd rather you throw rotten fruit at me now instead of when the books comes out. So if you have feedback, please send it on.

    The document I posted has two chapters. The first chapter, The Carpenter Shift, explains how Carpenter takes the Fourth Amendment in a new direction and explains the new state of the law. After explaining the conceptual basis of Carpenter and why it's a considerable departure from prior law, the chapter tries to reduce Carpenter to a doctrinal test. Based on a close read of the opinion and the broader theory of equilibirum-adjustment driving it, the chapter argues that Carpenter applies to non-content Internet records otherwise left unprotected when three conditions are met. First, the records must be new kinds of records of the digital age. Second, the records must not have been generated by meaningful voluntary choice beyond what is necessary to participate in modern life. Third, the records must be of a type that can reveal an intimate window into a person's life.

    The second chapter, Implementing Carpenter, applies those general principles. It first focuses on the challenging question of how to identify a Carpenter search in a particular case. How do you measure a privacy invasion? Does a search occur when an intimate fact was actually revealed in an investigation? Does it occur when the government gets enough records that the revealing of an intimate fact would be expected, the so-called Mosaic Theory? After going through the pros and cons of different approaches, the chapter concludes that the best way to measure an invasion of privacy is a source rule: Any government collection of any amount of Carpenter-protected information, no matter how small or unilluminating in a particular case, should be treated as a search.

    Finally, the chapter applies Carpenter to several important cases. It identifies two kinds of Internet non-content metadata that should trigger Carpenter: to/from information about messaging services such as e-mail and text messages, and monitoring the websites a person visits. When the government wants to conduct surveillance of who a person e-mailed or messaged, or wants to install a monitoring device to see what websites a person is visiting, collecting that metadata should be a Fourth Amendment search. It also identifies a few examples of metadata collection that should not trigger a search: acquisition of voice call metadata, the IP addresses a person was assigned while connected to the Internet, and records of ride-sharing services such as Uber of Lyft. The chapter concludes by arguing that downstream analysis such as datamining should not itself trigger a search, although the prospect of downstream analysis can change whether a particular record is protected under Carprenter and can trigger the Fourth Amendment upstream for all compelled acquisition of that kind of record.

    Comments very welcome. Thanks as always for reading.

    (Cross-posted at Lawfare)

    Understanding the New Obamacare Decision, Texas v. United States: Part II

    [Part of a continuing series of guest posts by Prof. Josh Blackman (South Texas College of Law). -EV]

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    Part I of this series placed Texas v. U.S. in the broader context of the eight years of Obamacare litigation. This second installment will analyze the technical aspects of Judge O'Connor's opinion concerning the individual mandate by responding to five common criticisms about the case.

    [1.] How can the district court declare the individual mandate unconstitutional? Congress already repealed the mandate through the Tax Cuts and Jobs Act of 2017 (TCJA).

    In December 2017, following the enactment of the TCJA, President Trump and congressional Republicans boasted that they repealed Obamacare's individual mandate. They didn't. Rather, the law reduced the ACA's "shared responsibility payment" to $0. Section 5000A(a) of the ACA provides that "[a]n applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month." Starting in 2019, individuals qualified individuals who fail to maintain a certain level of health insurance—known as "minimum essential coverage"—will no longer be assessed a penalty. This first point is not controversial.

    [2.] The individual mandate, with a $0 penalty, is not a mandate at all. What is there left to challenge?

    This criticism is intuitive: how can a mandate continue to exist if there are no legal consequences for disobeying? This argument fails as a matter of law and policy.

    First, the federal government has long taken the position that a mandate, in the absence of a penalty, will still compel some people to purchase insurance. For example, a 2008 Congressional Budget Report—before the ACA was enacted—considered how "[p]ersonal [v]alues and [s]ocial [n]orms," apart from a monetary penalty, also enforce compliance with a requirement to purchase insurance. CBO recognized that "compliance [with the mandate] is generally observed, even when there is little or no enforcement of mandates." Why would a person comply with a legal mandate that is not enforced? CBO observed that "[c]ompliance, then, is probably affected by an individual's personal values and by social norms." For example, "[m]any individuals and employers would comply with a mandate, even in the absence of penalties, because they believe in abiding by the nation's laws."

    In Texas, Judge O'Connor observed:

    Law therefore has an enormous influence on social norms and individual conduct in society…. But the fact that many individuals will no longer feel bound by the Individual Mandate does not change either that some individuals will feel so bound—such as the Individual Plaintiffs here—or that the Individual Mandate is still law.

    Indeed, the two Plaintiffs in this case have taken this exact position. John Nantz declared, "I value compliance with my legal obligations … [t]he repeal of the associated health insurance tax penalty did not relieve me of the requirement to purchase health insurance." Neill Hurley added, "I continue to maintain minimum essential health coverage because I am obligated to comply with the [ACA's] individual mandate."

    Second, enrollment numbers support Judge O'Connor's conclusion. In November 2017, CBO and the Joint Committee on Taxation observed "with no penalty at all, only a small number of people who enroll in insurance because of the mandate under current law would continue to do so solely because of a willingness to comply with the law." The number is no doubt "small," but it is not zero. No matter how small this class is, such virtuous individuals do exist. Therefore, a certain number of individuals are still affected by a penalty-less mandate.

    The mandate still has legal force, even if no penalty accompanies it. (This inquiry is separate from the standing question, which will be addressed in Part #5 below).

    [3.] It's true that in 2019, the penalty will be reduced to $0. But not everyone pays their taxes right away. As a result, the penalty will continue to generate revenue for the foreseeable future. Therefore, the saving construction still holds.

    Many Americans do not pay their tax bills on time, if ever. It is possible, indeed probable, that some taxpayers will defer the payment of shared responsibility payments assessed in 2018 until 2019, 2020, or even later. Moreover, the IRS can collect unpaid penalties on those late payments for years to come. And this theory is not limited to penalties assessed in 2018. Any penalty assessed from 2014 through 2018 could remain outstanding in perpetuity. Under this theory, every repealed tax—not just the ACA—could produce at least some revenue for the government indefinitely.

    Initially, I found this argument persuasive, but ultimately, could not reconcile it with Chief Justice Roberts's saving construction. In NFIB, he explained that "[t]he exaction the Affordable Care Act imposes on those without health insurance"—that is, the penalty that was not actually a tax—"looks like a tax in many respects." The Chief Justice then listed three guardrails in which the "exaction"—that is, the shared responsibility payment—can be construed as a tax. First, "[t]he '[s]hared responsibility payment,' as the statute entitles it, is paid into the Treasury by 'taxpayer[s]' when they file their tax returns." Second, "[f]or taxpayers who do owe the payment, its amount is determined by such familiar factors as taxable income, number of dependents, and joint filing status." Third, "[t]his process" of making the payments, "yields the essential feature of any tax: It produces at least some revenue for the Government… . Indeed, the payment is expected to raise about $4 billion per year by 2017."

    Each of the three guardrails relies an import presumption: the relevant timeframe is the year in which the penalty is assessed, and more likely than not, paid. Next year, the ACA will no longer satisfy the three guardrails. (1) Starting in 2019, 0% of Americans have to pay a penalty; (2) therefore, taxpayers will not owe any penalty when they file their tax returns in 2019; and (3) as a result, the penalty will no longer produce any revenue for the government.

    The first guardrail considered whether the "shared responsibility" is "paid into the Treasury by 'taxpayer[s]' when they file their tax returns." The opinion presumed that the payment is made at the same time as the filing of the tax return. It is a fair reading of Chief Justice Roberts's opinion that he did not have in mind a situation where the payments are made at a different time than the filing of the tax return—perhaps even years later.

    The second guardrail referenced the complicated formula used to calculate the penalty. That provision turns on whether a taxpayer lacks qualified insurance "for any month" in a "taxable year." Once again, the controlling opinion focuses on the timeframe when the tax is assessed. In 2019, and beyond, this inquiry becomes irrelevant.

    The third guardrail likewise supports NFIB's rule against perpetual payments. Chief Justice Roberts wrote that the collection "process yields the essential feature of any tax: It produces at least some revenue for the Government." And that "process" is premised on how the payment is "assess[ed] and collect[ed]," not when (if ever) it is ultimately paid. No tax has perfect enforcement rates.

    In Texas, Judge O'Connor reached a similar conclusion: "It is a well-accepted practice that tax revenue is attributable to the tax year in which it is assessed, not the one in which it is paid." He added, "When individuals file tax returns in April 2019, for example, the taxes they pay and the returns they receive will affect the government's 2018 tax-year revenue." Any "future monies that come in" after 2019 "in will be because the provision once produced revenue for the Government" before 2019.

    Chief Justice Roberts's saving construction was not a mere accounting exercise. Rather, it was a constitutional framework based on certain reasonable assumptions and not an intricate balance sheet. Even with delayed payments, the saving construction no longer holds.

    [4.] Didn't Chief Justice Roberts conclude that the ACA merely offers people a choice: go uninsured, or pay a tax? If the penalty is now $0, people can simply go uninsured, without any consequence.

    In NFIB, Solicitor General Verrilli argued that Section 5000A(a) does not contain a mandate to purchase insurance. Rather the law imposes a tax on those who choose to go uninsured. Marty Lederman articulated this position in a recent Balkinization post.

    Chief Justice Robert's rejected Verrilli's argument in Part III.B of NFIB. He observed that "[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals 'shall' maintain health insurance." In other words, no such choice exists.

    However, in Part III.C, Chief Justice Roberts was willing to accept Verrilli's argument for purposes of the saving construction:

    While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful. Neither the Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law. Brief for United States 60–61; Tr. of Oral Arg. 49–50 (Mar. 26, 2012).

    The ACA never imposed "negative legal consequences" for the uninsured; not in 2010, when the law was enacted, and not in 2019 after the TCJA goes into effect. Chief Justice Roberts found this fact essential to support his saving construction. (I discuss the importance of the Solicitor General's representation on pp. 179-181 of Unprecedented.)

    However, the predicate of the saving construction no longer holds because each of the three guardrails are violated. It is still true, but no longer material, that the law fails to impose "negative legal consequences" for the uninsured. (This question is separate from the standing inquiry which will be discussed in Part #5.) That fact was important to the extent it enabled the Chief Justice to justify the alternative reading of the statute. Now, that reading can no longer be justified, and we are left with an individual mandate that "clearly aims to induce the purchase of health insurance." Such a mandate cannot be supported by Congress's powers under the Commerce and Necessary and Proper Clauses.

    [5.] How does anyone have standing to challenge a mandate without a penalty?

    The second question—whether the mandate has legal force—is often conflated with this fifth question concerning standing. These interrelated inquiries are doctrinally distinct.

    In NFIB v. Sebelius and King v. Burwell, the Plaintiffs claimed an injury because the ACA forced them to pay some additional amount of money they did not otherwise wish to pay. However, Plaintiffs Nantz and Hurley will suffer no financial penalty for going uninsured. Indeed, even before the TCJA, the ACA imposed no legal consequence—criminal of civil—for going uninsured, beyond the assessment of the penalty. (Solicitor General Verrilli made this important representation in NFIB; see Part #4.)

    The so-called pocket-book injury provides the quintessential case for standing under Article III. But it is not the only way. Consider the Establishment Clause. Arizona Christian School Tuition Organization v. Winn recognized that standing "may be shown in various ways," even when no financial cost is incurred is assessed. For example, what was the basis for standing in Van Orden v. Perry? The Plaintiff, according to the District Court, asserted that frequent visits to the law library at the Texas State Capitol brought him in "unwelcome, contact with the Ten Commandments monument." Van Orden found that "the existence of the Ten Commandments monument on the grounds of the State Capitol symbolizes a state policy to favor the Jewish and Christian religions over other religions and over non-believers." This basis for standing was so noncontroversial that neither the Fifth Circuit, nor the Supreme Court bothered to discuss it.

    In the Equal Protection Clause context, "the stigmatizing injury often caused by racial discrimination" can give rise to standing, even where there is a "noneconomic injury," so long as that injury is personally suffered by the individual. For example, a Plaintiff cannot challenge a club's racially discriminatory admission policy unless he applied.

    These lines of cases bolster the standing argument in Texas. Section 5000A(a) imposes a legal obligation on Nantz and Hurley by virtue of their income: they "shall" maintain insurance. Moreover, they are not subject to any exemptions under the law. That injury is just, if not more concrete than the sort of injury claimed in Van Orden and in the Equal Protection Context.

    In Texas, an Amicus argued that any injury is self-inflicted: it is their fault they feel compelled by an unenforceable mandate. The same argument could have been made about Van Orden: he could have simply avoided the state Capitol, or averted his eyes when he passed the monument, or perhaps not taken umbrage at the monument. Nantz and Hurley insist that they are still bound by the mandate, and are directly affected by it. That pleading is enough to cross the standing threshold.

    Admittedly, I was unable to find any cases where a non-economic injury was asserted in cases concerning the Commerce and Necessary and Proper Clauses. In the normal case, a federal regulation will impose a financial cost which would give rise to pocketbook standing. But, once again, the legal challenge to the ACA is without precedent. This absence doesn't trouble me. The restrictions of Article III constrain all exercises of the judicial power, whether a given case involves a challenge based on the doctrine of enumerated powers, rather than the First or Fourteenth Amendment. Indeed, this distinction ought to be without a difference: NFIB recognized that the structural protections of the constitutional are essential to the protection of individual liberty.

    Critics will counter that Nantz and Hurley are wrong—no matter what they think—because there is no actual mandate. Such an argument conflates the standing inquiry with the merits analysis. In Meese v. Keene, the Supreme Court recognized that whether a given law violates the Constitution is "irrelevant to the standing inquiry." Moreover, the lower courts have been "careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." Whether Nantz and Hurley ultimately succeed on the merits is separate from whether they have articulated enough facts at this juncture to identify an injury.

    In any event, there may be an additional injury that Judge O'Connor did not mention. The current iteration of IRS Form 1040 asks an individual if he had minimum essential coverage for all twelve months of the year. If the taxpayer checks "no," he is then required to perform several other calculations. There is no indication yet whether these forms will be amended for 2019. Though, there is reason to suspect that the IRS may still request information about individual coverage, even if there is no penalty associated with it. Such information is essential to calculate penalties under the employer mandate. The time and resourced need to complete these forms may be adequate to articulate an injury for Article III.

    [* * *]

    The third installment will focus on the severability issues in Texas v. U.S.

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