The Volokh Conspiracy

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

The Volokh Conspiracy

Free Speech

Police Officer's Intentionally Blocking Citizen Videorecording Could Violate First Amendment


From Magistrate Judge Nina Y. Wang in Irizarry v. Yehia (D. Colo.), decided yesterday:

"[N]ews gathering is an activity protected by the First Amendment." … [T]his right is not limited to professional journalists or established media companies: "The First Amendment right to gather news is, as the Court has often noted, not one that inures solely to the benefit of the news media; rather, the public's right of access to information is coextensive with that of the press." …

With these principles in mind, the court agrees that "[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs.'" Mr. Irizarry alleges that he recorded government officials performing their official duties in a public space [in this case, engaging in a traffic stop -EV] for the purpose of disseminating the collected information to the public. Indeed, Mr. Irizarry describes himself as a "journalist who regularly publishes stories about police brutality and conduct or misconduct."

He further alleges that Officer Yehia intentionally turned on all of his lights and positioned himself in front of Mr. Irizarry to purposefully obstruct Mr. Irizarry's ability to record the DUI stop. Plaintiff further alleges that Defendant took these actions in response to his recording, as he readjusted his position to make sure he was obstructing the camera view of the sobriety test and, after being criticized for such actions, "pulled out a large, extremely bright flashlight and began to shine it in both the plaintiff's camera as well as Mr. Brandt's saturating the camera sensors." …

Taking these facts as true as it must at this juncture, the court concludes that Mr. Irizarry has alleged sufficient facts at this stage to sufficiently allege a First Amendment violation based on either a theory of prior restraint or retaliation, i.e., that he was recording police conduct in a public forum and Officer Yehia's conduct did not amount to a reasonable time, manner, or place restriction….

The court concluded, though, that in this case the law wasn't sufficiently clearly established, and therefore Officer Yehia was entitled to qualified immunity:

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Climate Change

States Seek to Intervene to Prevent Settlement in Kids Climate Case Ninth Circuit Already Ordered Dismissed

The district court has ordered a settlement conference in Juliana v. U.S., even though the Ninth Circuit held federal courts lack jurisdiction to hear the claims.


Seventeen state attorneys general are seeking to intervene in Juliana v. United States, the so-called Kids Climate Case, in order to make sure the federal government from settling a case it has already won.

The underlying legal claims in Juliana are audacious, to say the least. Specifically, the plaintiffs claimed that the federal government has violated their substantive due process rights to life, liberty, and property, and failed to uphold its "public trust" obligation to hold certain natural resources in trust for the people and for future generations, by facilitating the continuing development and consumption of fossil fuels. While the district court warmly embraced these claims, they did not fare so well with appellate courts.

The U.S. Court of Appeals for the Ninth Circuit ordered the case dismissed in 2020 because the plaintiffs lacked Article III standing, and then rejected the plaintiffs' petition for rehearing en banc. Nonetheless, the district court is holding on to the case.

As I noted here, the plaintiffs filed a motion seeking to amend their complaint in March. Although the Justice Department has maintained (correctly, in my view) that the district court lacks jurisdiction to do anything but enter a motion to dismiss, the Judge Aiken seems to feel otherwise. In response to the plaintiffs' motion, Judge Aiken scheduled oral argument on the motion, and ordered the parties attend a settlement conference.

The states' motion for intervention is a precautionary move, meant to protect against the possibility of a collusive settlement between the plaintiffs and a potentially sympathetic Biden Administration.

From the motion's introduction:

Recent events leave the States of Alabama, Alaska, Arkansas, Georgia, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia (the "Proposed Defendant-Intervenors," or the "States") with no choice but to move for limited intervention in this case to ensure their interests are not undermined through settlement of a dispute that this Court lacks jurisdiction to adjudicate. The States request limited intervention to argue that, pursuant to the Ninth Circuit's clear holding, Plaintiffs lack Article III standing to bring their claims and that therefore any settlement of those claims in this Article III Court is improper. Specifically, the States seek to intervene for the limited purposes of opposing Plaintiffs' motion for leave to amend and file a second amended complaint (Doc. 462); participating in settlement negotiations; and, if necessary, objecting to any proposed settlement. The States do not intervene to litigate the merits of Plaintiffs' claims; rather, the States argue that any such adjudication is barred by Article III. And the States do not waive their Eleventh Amendment sovereign immunity, but instead expressly reserve it. . . .

Because Defendants decisively prevailed in this litigation, their agreement to participate in any post-mandate settlement discussion necessarily raises concerns. At best, they will preserve their victory; at worst, they will arrogate to themselves policymaking powers that the People entrusted to their elected representatives, not the Department of Justice, and in so doing harm the States and their citizens. Based on the federal government's approach to other high-profile litigation in the time since the Ninth Circuit's mandate issued, the States have cause to believe the latter is likely

In effect, the states are filing to help ensure that the district does what it should: Dismiss Juliana as the Ninth Circuit instructed. It is an aggressive move, to be sure, prompted by the unusual obstinacy of the district court.

"A Narrative We Thought We Knew Is Not the Reality"

Words worth remembering.


For the full Politico story, see here; for Glenn Greenwald's summary, see here, though I thought I'd quote an excerpt:

For more than a year, it has been consecrated media fact that former President Donald Trump and his White House, on June 1 of last year, directed the U.S. Park Police to use tear gas against peaceful Lafayette Park protesters, all to enable a Trump photo-op in front of St. John's Church. That this happened was never presented as a possibility or likelihood but as indisputable truth. And it provoked weeks of unmitigated media outrage, presented as one of the most egregious assaults on the democratic order in decades.

This tale was so pervasive in the media landscape that it would be impossible for any one article to compile all the examples. "Peaceful Protesters Tear-Gassed To Clear Way For Trump Church Photo-Op," read the NPR headline on June 1. The New York Times ran with: "Protesters Dispersed With Tear Gas So Trump Could Pose at Church." CNN devoted multiple segments to venting indignation while the on-screen graphic declared: "Peaceful Protesters Near White House Tear-Gassed, Shot With Rubber Bullets So Trump Can Have Church Photo Op."

You can decide for yourselves how important, or not, this particular story was itself in the grand scheme of things. But it's a good reminder to be skeptical, whether one is a news reporter or a consumer of news reporting. Thanks to InstaPundit for the pointer.

The Supreme Court Reins in the CFAA in Van Buren

A very important ruling.


The Supreme Court handed down its first big decision construing the Computer Fraud and Abuse Act last week, Van Buren v. United States Van Buren is a major victory for those of us who favor a narrow reading of the CFAA.  It doesn't answer everything.  But it answers a lot.  And it frames the debate over how the CFAA applies going forward on what I think is ultimately the right question.

First, some context.  The CFAA criminalizes unauthorized access to a computer.  For years, the big question raised by the CFAA is what counts as an unauthorized access. The statute speaks of two ways of violating the statute—"access without authorization" and "exceed[ing] authorized access"—but the cases had not drawn sharp distinctions between them and the government's briefs often had just spoken of 'unauthorized access' as an undifferentiated whole.  And the basic concept of authorization was largely up for grabs.  What makes an access unauthorized?  Is that hacking in?  Is that violating terms of service? Or just visiting a computer in circumstances the computer owner wouldn't like?

Before Van Buren, we really didn't know.  The facts of Van Buren presented a perfect opportunity to shed light on that.  Nathan Van Buren used a government database for personal reasons after being told he could only use it for work reasons.  Was he engaging in authorized access (because he had access to the database), or was he engaging in unauthorized access (because he was violating the access policy)?

Van Buren goes a long way toward answering those questions.  In the Court's view, the CFAA is all about gates.  "Access without authorization" and "exceed[ing] authorized access" both call for the same basic test: A "gates-up-or-down inquiry."  To violate the CFAA, a person needs to bypass a gate that is down that the person isn't supposed to bypass. As the court puts it, a person needs to enter "particular areas of the computer— such as files, folders, or databases—that are off limits to him."

Under this view, the two ways of violating the statute work together. The prohibition on "access without authorization" bans entering a computer one is not authorized to access, "targeting so-called outside hackers—those who access a computer without any permission at all."  The prohibition on "exceed[ing] authorized access bans "entering a part of the system to which a computer user lacks access privileges." That language "target[s] so-called inside hackers—those who access a computer with permission, but then exceed the parameters of authorized access by entering an area of the computer to which that authorization does not extend."

As the Court puts it, "liability under both clauses stems from a gates-up-or-down inquiry—one either can or cannot access a computer system, and one either can or cannot access certain areas within the system." Van Buren didn't violate the statute because he was provided access to the database; the workplace rule wasn't a closed gate. (Some of the quoted language above is from the Court's description of the petitioner Van Buren's interpretation of the CFAA, rather than the Court's explicit statement of its view, but the Court then says it is persuaded by Van Buren's interpretation and that it is the best reading of the statute. I think means we can treat the Court's description of Van Buren's interpretation as its own.)

The Court also suggests that the basic gates-up-or-down inquiry might rest on authentication, such as bypassing a password gate by giving the correct user credentials.  Here's the language, in Footnote 9, which it presents in the course of explaining why the Court is persuaded by Van Buren's gates-up-or-down interpretation:

Van Buren's gates-up-or-down reading also aligns with the CFAA's prohibition on password trafficking. See Tr. of Oral Arg. 33. Enacted alongside the "exceeds authorized access" definition in 1986, the password-trafficking provision bars the sale of "any password or similar information through which a computer may be accessed without authorization." §1030(a)(6). The provision thus contemplates a "specific type of authorization—that is, authentication," which turns on whether a user's credentials allow him to proceed past a computer's access gate, rather than on other, scope-based restrictions. Bellia, A Code-Based Approach to Unauthorized Access Under the Computer Fraud and Abuse Act, 84 Geo. Wash. L. Rev. 1442, 1470 (2016); cf. A Dictionary of Computing, at 30 (defining "authorization" as a "process by which users, having completed an . . . authentication stage, gain or are denied access to particular resources based on their entitlement").

Let's pause and step back. What does it mean?

First and foremost, this is a major victory for those of us who favor a narrow reading of the CFAA.  It settles that the CFAA is fundamentally a trespass statute.  The basic wrong is bypassing a closed gate, going where you're not supposed to go.  The CFAA does not make it a crime to break a promise online.  It does not make it a crime to violate terms of service.  The statute is all about gates: When a gate is closed to a user, the user can't wrongfully bypass the gate.

But wait, you're wondering: What counts as a "gate" that is "down"?  When I first read Van Buren, I was a bit bummed that it didn't answer that as clearly as I hoped.  On one hand, Footnote 9 seems to suggest that authentication might be key.  But on the other hand, Footnote 8 seemed to leave open what might count as a closed gate.  Here's Footnote 8:

For present purposes, we need not address whether this inquiry turns only on technological (or "code-based") limitations on access, or instead also looks to limits contained in contracts or policies. Cf. Brief for Orin Kerr as Amicus Curiae 7 (urging adoption of code-based approach).

My first reaction to this footnote was puzzlement. Isn't the basic issue in Van Buren whether a policy (here, not to use a work database for personal reasons) matters?  How can the Court reject the government's view that the policy controls and yet also leave open whether liability looks to policies? How do you reconcile Footnote 8 with the rest of the opinion, especially Footnote 9?

There are a few ways of reconciling Footnote 8 with the rest of the opinion.  My best sense at this point runs something like this: With Van Buren casting the CFAA a trespass statute that is all about gates, figuring out what counts as a closed gate on the Internet can be complicated. As I argued in my article Norms of Computer Trespass, once you see the CFAA as a trespass statute, "the challenge for courts is to distinguish provider-imposed restrictions and limits that are at most speed bumps (that cannot trigger trespass liability) from the real barriers to access (that can)."  As Norms explains, the line between real barrier and mere speed bump can be subtle. It can rest on "shared views about what invades another's private space and what doesn't."  It's not just about technology, but also on social understandings of technology.

One way to read Van Buren—not the only way, but the way that seems most plausible to me at this point—is that it does the major conceptual work of reining in the CFAA by casting it properly as a trespass statute.  It now leaves to lower courts the largely interstitial work of figuring out the hard line-drawing of what exactly counts as enough of a closed gate to trigger liability.  The authentication test suggested in Footnote 9 is one way to do it.  And I personally tend to think it's the right way; for what it's worth, it's the test I argued for in Norms of Computer Trespass. But whatever the specific right answer is, the Court has now directed lower courts to the right question.

In the end, Van Buren doesn't answer everything.  But it answers a lot.  And I think it  focuses the lower courts on the right set of questions going forward.

(Cross-posted at Lawfare)

A Case with "All the Trappings of a Bingeworthy (or Cringeworthy) Primetime Soap Opera"


So Judge Joshua D. Wolson describes the Counterclaims in yesterday's decision in Barbounis v. Middle East Forum (E.D. Pa.):

But drama does not a federal case make. Spoiler alert: the Middle East Forum has not offered evidence to make out its claims against Lisa Barbounis, and she is entitled to summary judgment on each one….

MEF has presented a deluge of facts regarding Ms. Barbounis's dramatic personal life and how she spent her free time away from MEF, but none of those facts establishes that she breached a duty of loyalty to MEF or made fraudulent misrepresentations to it. Thus, Ms. Barbounis is entitled to summary judgment on those claims.

For some of the drama (including allegations—which are only allegations—of "five, six hundred dollars of cocaine [used] every evening"), see here.

Why Legislation Prohibiting States from Contracting with those Who Boycott Israel and Businesses that do Business in Israel Can't Be Distinguished from other Antidiscrimination Law

Professor Debbie Kaminer and David Rosenberg Explain


Many states have passed laws prohibiting the states from contracting with business that boycott Israel and people and entities that do business in or with Israel. In practice, the vast majority of targets of such boycotts are not Israel itself, or even Israel-owned businesses, but are American companies and individuals with ties to Israel.

Various lawsuits are working their way through the courts challenging these laws as a violation of freedom of expression. One barrier to these lawsuits is that the plaintiffs need to distinguish the anti-boycott (BDS) laws from "traditional" antidiscrimnation laws. Plaintiffs have tried, and some courts have bought their arguments. I find these arguments thoroughly unpersuasive; boycotts are not only a form of discrimination, they are more onerous than most sorts of discriminates. Someone who "discriminates" against, say, gay employees might refuse to employ them unless they worked for lower wages than non-gay employees. Someone who "boycotts" gay employees would refuse to employ them at all.

Meanwhile, the anti-boycott laws are narrower than typical antidiscrimination laws, in that they only prevent the boycotters from getting government contracts, but otherwise leave them free to discriminate against Israel-connected individuals and businesses.

I've blogged about this a bit in the past, but I just came across a good discussion of the issue by Professors Debbie Kaminer and David Rosenberg of the Zicklin School of Business, Baruch College, published at 55 U. Rich. L. Rev. 827, that specifically addresses the claim that anti-BDS laws are an entirely different animal than other antidiscrmination laws:

Opponents of anti-BDS legislation argue that the legislation differs substantively from traditional antidiscrimination laws in a number of important ways. They claim that ordinary antidiscrimination laws protect broad categories of people–for example prohibiting discrimination based on race, religion, or sex–while anti-BDS legislation focuses specifically on Israel and those who do business with Israel. Therefore, they contend that this legislation is illegal content or viewpoint discrimination. Additionally, they argue that unlike with other forms of discrimination, there is no compelling or even valid government interest in prohibiting discrimination against Israel and those who do business with Israel. This section will address these claims, explaining how none of the distinctions are persuasive.

Opponents often argue that antidiscrimination statutes are distinguishable from anti-BDS legislation since these traditional statutes generally regulate economic behavior and apply to broad classes of people with the goal of providing equality of opportunity. This is often, but not always, true….

[T]here are … numerous examples of antidiscrimination statutes that regulate economic behavior but do not apply to broad classes of individuals. For example, the Age Discrimination in Employment Act ("ADEA") prohibits discrimination against employees who are forty or older. It therefore does not apply to employees regardless of age, but only prohibits discrimination against employees of specific ages. Regardless of the term used, it is legal under ADEA to "boycott" or "refuse to deal with" or "discriminate" against employees who are less than forty years of age. Various state laws are even narrower in that they have both upper and lower age limits on discrimination. For example, in Indiana it is only illegal to discriminate against or boycott employees between the ages of forty and seventy-five and in Missouri it is only illegal to discriminate against or boycott employees between the ages of forty and seventy.

The same is true of statutes that prohibit disability discrimination in employment. While the Americans with Disabilities Act protects a broad class of individuals since it applies to "qualified individual[s] with a disability," many state statutes protect employees with very specific medical conditions. For example, Vermont explicitly protects individuals who are HIV positive from employment discrimination, North Carolina specifically protects employees from discrimination based on sickle cell trait and hemoglobin C trait, and Washington explicitly protects employees with positive HIV or Hepatitis C tests from discrimination. These state statutes do not protect a broad class of individuals and thus permit employers to "boycott," "refuse to deal with," or "discriminate" against individuals with some medical conditions but not others. Therefore, while many antidiscrimination statutes do apply to broad categories of individuals, it is inaccurate to state that all do or that broad application is always required for an antidiscrimination statute to pass constitutional muster.

A related distinction made by opponents of anti-BDS legislation is that these statutes represent an impermissible content-based restriction since those opposed to BDS are singled out because of their political positions. As one commentator argued, traditional antidiscrimination laws "don't care why someone refuses service–as part of a political movement, out of animus, due to fear of losing customers, or for no reason at all." The problem with this argument is that it inaccurately presumes that all boycotters are doing so to express a viewpoint.

Clearly some boycotters are participating to express opposition to Israeli policies, but many others have non-expressive reasons for participating in the boycott. As one commentator explained, "Companies may boycott Israel to curry favor with Arab states or out of mere anti-Semitism. They may hope to avoid harassment from the BDS movement or simply cave in to pressure from Palestinian groups." Perhaps the lack of viewpoint discrimination is most evident in the case of Airbnb, which initially announced it would not list rentals in the Israeli West Bank but reversed its position in response to a number of lawsuits. Airbnb announced that its initial decision to participate had been entirely apolitical, and that it was opposed to boycotts of Israel.

Similarly, legislators may have a politically neutral interest in passing anti-BDS legislation. States have a valid interest in mandating that contractors buy the best and least costly goods, regardless of the country in which they are manufactured. If the best available software is made by an Israeli company, a state has a valid non-ideological reason for wanting its contractors to buy that software. Further, at least one commentator has argued that anti-BDS legislation is content-based since it singles out only Israel and does not apply to firms refusing to do business with any other country. However, this ignores the reality that trade laws regularly treat commercial dealings with various countries differently without implicating freedom of speech.
Finally, opponents of BDS legislation argue that these statutes are substantively different from traditional antidiscrimination statutes since they address no compelling interest or even a "legitimate antidiscrimination interest in suppressing BDS activity."

Yet it is unclear why all the numerous protected categories in various antidiscrimination laws are somehow objectively more worthy of protection. For example, a number of states explicitly prohibit discrimination against smokers, and Connecticut prohibits discrimination against medical marijuana users despite the fact that marijuana is illegal under federal law. New York currently prohibits discrimination based on thirteen protected categories. Clearly, state legislators have significant discretion in determining who businesses should be prohibited from "boycotting" or "discriminating against."

Additionally, traditional antidiscrimination laws are regularly extended to protect categories closely connected to traditionally protected groups. For example, when sexual orientation is the protected category, courts have prohibited discrimination against same-sex weddings, since these events are closely associated with gay and lesbian people. While race is a traditional protected category, New York has extended this by defining race as "traits historically associated with race, including but not limited to, hair texture and protective hairstyles." Similarly, discrimination against Israel is closely associated with Jews since Israel is the only Jewish-majority country in the world, and the BDS movement began at an extraordinarily anti-Semitic conference. Sixty-nine percent of American Jews say they are either very emotionally attached (thirty percent) or somewhat emotionally attached (thirty-nine percent) to Israel. These statutes also prohibit boycotts against those who do business with Israel, which would include the forty-three percent of American Jews who have gone to Israel.

11th Circuit Divides About Whether Design of Palm Beach Mansion is Protected by the First Amendment

We "affirm on the First Amendment claim because there was no great likelihood that some sort of message would be understood by those who viewed Burns's new beachfront mansion"


Yesterday, a divided 11th Circuit panel decided Burns v.Town of Palm Beach. This case presented an ongoing issue at the intersection of property law and constitutional law: is architectural design protected by the First Amendment.

Judge Luck's majority opinion summarizes the facts:

Donald Burns wants to knock down his "traditional" beachfront mansion and build a new one, almost twice its size, in the midcentury modern style. The new mansion, Burns says, will reflect his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions. The new two-story mansion will have a basement garage, outdoor pool and spa, cabana, and exercise room.

To build his new mansion, Burns had to get the approval of the Town of Palm Beach's architectural review commission. . . . 

Applying its criteria, the architectural review commission denied Burns's building permit. The commission found that his new mansion was not in harmony with the proposed developments on land in the general area and was excessively dissimilar to other homes within 200 feet in terms of its architecture, arrangement, mass, and size.

Burns sued the town, claiming that the criteria the commission used to deny his building permit violated his First Amendment free speech rights and his Fourteenth Amendment rights to due process and equal protection.

Here is a photograph of Burns's current 10,063 square foot mansion.

But in 2013, Burns decided he wanted to knock down the "traditional home" so he could build a new mansion in the midcentury modern style to convey the evolution of his personal philosophy. He wanted his new mansion "to be a means of communication and expression of the person inside: Me." He picked a design of international or midcentury modern architecture because it emphasized simple lines, minimal decorative elements, and open spaces built of solid, quality materials. According to Burns, the midcentury modern design communicated that the new home was clean, fresh, independent, and modern—a reflection of his evolved philosophy of simplicity in lifestyle and living with an emphasis on fewer personal possessions. It also communicated Burns's message that he was unique and different from his neighbors.

And here is the revised plan:

Burns initially submitted a plan to the town council that proposed demolishing his existing 10,063 square foot mansion and building in its place a 25,198 square foot mansion in the midcentury modern design. His emphasis on fewer personal possessions included two stories and a basement containing a five-car garage, wine storage area, and steam room. The first floor would have an open-air entry, guest rooms, dining room, kitchen, family room, powder rooms, and living room. The open-air entry would lead to the pool, spa, and cabana. The second floor would have more guest rooms, an exercise room, and the master bedroom.

The majority found that Burns's design was not protected by the First Amendment, nor were the Town's criteria unconstitutionally vague:

We conclude that summary judgment was not granted too early and affirm on the First Amendment claim because there was no great likelihood that some sort of message would be understood by those who viewed Burns's new beachfront mansion. We also affirm the summary judgment on the Fourteenth Amendment claims because the commission's criteria were not unconstitutionally vague and Burns has not presented evidence that the commission applied its criteria differently for him than for other similarly situated mansion-builders 

The dissent disagreed:

In my view, the First Amendment -- the most powerful commitment to think, speak, and express in the history of the world -- does not permit the government to impose its majoritarian aesthetic whims on Burns without a substantial reason. The First Amendment's protection of the freedom of speech is not limited to the polite exchange of words or pamphlets. It is not limited -- as the majority suggests -- to public displays clearly related to the narrow issues of the day. It protects art, like architecture, and it protects artistic expression in a person's home as powerfully as in the public sphere, if not more so. 

The majority and dissent even squabbled about the nature of the architectural review commission:

Judge Marcus writes:

The question in this case is whether a government commission created by the Town of Palm Beach with the Orwellian moniker "ARCOM" may prevent Burns from expressing his philosophy and taste through the architecture of his home and create a work of art on land he owns solely because a majority of the members of the Commission do not like the way it looks 

The majority responds.

The dissenting opinion uses the name "ARCOM" for the architectural review commission and then calls the name it uses "Orwellian." Dissenting Op. at 72. If by Orwellian the dissenting opinion means any government agency that administers regulations impacting our lives, then the architectural review commission is as Orwellian as the state board of therapeutic massage, the local dog catcher, and every one of the alphabet soup of departments and agencies and bureaus in Washington, D.C.

Yes, Orwellian. All of the above.

This case should be included in property law casebooks.

Over the past year, the Supreme Court Public Information Office "Clipped Approximately 10,000 News Articles Related to the Court and the Justices, Roughly Half of Them Tweets"

I am horrified to think there are 5,000 tweets worth clipping for the Justices.


At the end of this term, Kathleen Arberg will retire as the Supreme Court's Public Information Officer. She has been in that position for nearly four decades. Marcia Coyle interviewed Arberg for the Supreme Court Insider newsletter. It is a fun piece. Arberg offers some fascinating insights into how the PIO has evolved over the decades. However, there was one disquieting tidbit:

In the past year, we've clipped approximately 10,000 news articles related to the court and the justices, roughly half of them tweets, just one indication of the growth in variety and breadth of coverage.

I am horrified to think there are 5,000 tweets worth clipping for the Justices. Most of Twitter is an absolute cesspool of hot takes and visceral reactions. These fleeting ephemera should be forgotten as soon as they are released–not clipped for Supreme Court Justices.

But on a deeper level, I am troubled by the notion that the Justices need tweets and articles about them clipped. The media is overly hostile to conservative jurisprudence. Advocates posing as journalists routinely try to shame the Court to eschew conservative results. The Justices should be impervious to this pressure. But no. Many of the Justices are desirous of public approval, and feed on mainstream media accolades. And the PIO proactively feeds this habit. The so-called Greenhouse Effect is exacerbated within the Court.

If this post is ultimately clipped by PIO, I hope every Justice deletes it. What I say, and what others say, should not matter to how justice is dispensed.

Free Speech

Sealing and People Covered by Domestic Violence Protective Orders


McCoy v. Colorado Dep't of Human Services, decided June 4 by the Tenth Circuit (Judge Joel Carson, joined by Judges Scott Matheson & Mary Briscoe), upheld the dismissal of a pro se lawsuit, but said this about the plaintiff's motion to seal:

In its final order the district court restricted the public's access to the filings and orders on its docket and redacted McCoy's address. Those restrictions remain in effect in district court. We take judicial notice that the district court has also sealed at least three other cases brought by McCoy involving similar subject matter.

We provisionally sealed the entire appeal. But we issued an order directing McCoy to show cause whether and why her address and/or the filings in this appeal needed to remain sealed. She has filed a response.

"A party seeking to file court records under seal must overcome a presumption, long supported by courts, that the public has a common-law right of access to judicial records. To do so, the parties must articulate a real and substantial interest that justifies depriving the public of access to the records that inform our decision-making process."

McCoy asserts that she and her children are survivors of domestic violence and human trafficking, are the subject of state-court protective orders, and are at risk of being killed if they are located. The docket, the record, and the filings in this appeal reflect her street address, and the panel has determined it is appropriate to redact that information. To the extent McCoy seeks to seal other information in this case, however, she has failed to satisfy her burden. We therefore order as follows:

  1. The clerk of this court shall unseal this appeal.
  2. The record on appeal and any documents separately filed under seal (g. her motion to proceed IFP in this court) shall remain under seal.
  3. The clerk shall redact McCoy's address, including her telephone number and email address, from the court's docket and from orders, pleadings, and correspondence filed in this appeal, including accompanying envelopes.

The Legitimacy of Conventional Criminal Law

Our preferences for statutory criminal law should be reexamined.


For many contemporary criminal law theorists, statutory law is supposedly the gold standard. Many believe that statutory legislation is more democratic than having common law crimes. Some maintain that statutory law is a necessary element of the principle of legality or required by political theories of punishment. And compared with common law crimes, many believe that statutory law is superior because it provides ex ante notice of prohibited conduct, whereas the scope of common law crimes is only clarified through ex post decisions.

But our current preference for statutory crimes is a mistake. Statutory crimes are neither inherently more legitimate nor do they necessarily provide better notice. The current view relies on idealized notions of democratic lawmaking.

Start with legitimacy. Majoritarian approval is not necessary to make statutory law in our system. Legislators do not act as perfect agents of their constituents' views. They may get captured by special interests. Or they may decide that it is in their electoral interests to vote with an impassioned minority over a more apathetic majority. Regardless, legislative approval does not inherently imply democratic legitimacy.

Nor is majoritarian support sufficient to make statutory law. Within legislatures, proposed bills face many nonmajoritarian vetogates. Executives can veto bills that enjoy majority support. The federal Senate is malapportioned, and the rules permit the minority to filibuster. Leadership and heads of committees can kill bills that would otherwise pass the legislature. Legislatures have limited legislative time and often full calendars. In many states, the legislatures are part-time, leading to heavily compressed schedules. The result is that many laws with majoritarian support do not get passed, and existing statutes lacking such support do not get amended or repealed.

Because statutory criminal law is difficult to repeal or amend, even with majoritarian support, it faces an analogous objection to the dead-hand objection in constitutional law: from a democratic perspective, why do we care if a legislature passed a crime, particularly if the legislature approved the law at some time in the distant past? Many old laws remain on the books, and some are desuetudinal. But many are actively enforced. The Controlled Substances Act is 40 years old, as is the Gun Control Act. Prosecutions under these laws compose a large fraction of all federal criminal prosecutions. If both laws came up to a vote today, neither law would likely pass in its current form. Why does legislative approval decades ago confer legitimacy today?

Legal conventions serve many functions. One principal function is to correct for defects in the formal legal system, including those related to legitimacy. In the British system, one might ask what gives a (hereditary) monarch the right to wield executive power? (The famous Monty Python skit asking this question is here.) The answer is that, in modern Britain, the monarch does not actually exercise such power. The British constitution vests de facto executive power in a government accountable to the voters.

Conventional criminal law similarly corrects defects with statutory criminal law. My article does not offer a full theory of criminal law, but I assume that, at least in part, what makes an act properly punishable is that the action breaches societal norms. (This is obviously an oversimplification. I do not contend that any conduct that breaches societal norms is inherently criminal conduct. In the article, I qualify this claim substantially.) But societal norms change, and they change faster than legislatures can respond given all their constraints.

Criminal law conventions provide an answer to the problem of criminal law's legitimacy in the face of changing norms. We recognize many old criminal statutes as legitimate criminal law because the community presently recognizes as wrongful the conduct that these statutes prohibit. When societal values evolve, various political and legal checks (which I will detail more in tomorrow's post) constrain prosecutorial discretion around contemporary community norms. These checks effectively result in an unwritten common law that supplements the statutory law and corrects its defects.

This answer is superior to relying on legislative inaction. Some might contend that Congress's decision not to amend or repeal a law implicitly reflects Congress's acknowledgement that the law is legitimate in its current state. But this ignores how difficult legislating in our system is. Inaction does not connote continued approval.

Another objection to unwritten criminal law is that it leaves individuals without notice about what the law is. Statutes, they contend, provide better notice to the community about what conduct is allowed and what is prohibited compared with unwritten law.

I think this objection is mistaken. People learn de facto unwritten criminal law through observation and partaking in shared culture. We know that adultery is not a real crime because no one has ever heard of anyone being arrested for it, despite the fact that infidelity is not uncommon. Drivers learn the real speed limits by observing how family and friends actually drive. The value of written law in providing notice is overstated. Few people read statute books to learn what is lawful (and most who do are probably interested in specific regulatory offenses). Moreover, many statutes are broad, vague, or implicitly rely on unwritten common law concepts (e.g., "malice aforethought," "fraud," or an "attempt").

As I close, let me provide one major qualification to my argument. I do not claim that the existence of criminal law conventions solves all of criminal law's legitimacy problems. As Adrian Vermeule notes, "[c]onventions are equilibria," and sometimes society settles on equilibria that are "normatively abhorrent." Some paradigmatic historical examples are customs of not prosecuting whites who killed African Americans in the South and the underenforcement of domestic violence crimes. Criminal law conventions do not insulate criminal law from societal defects. To the contrary, criminal law conventions rely on indirect means of enforcement (e.g., political pressure), and societal defects may hamper those enforcement mechanisms. A disenfranchised population cannot elect new prosecutors, pressure city councils to curb police abuse, or demand that legislatures rewrite the law.

But while conventional criminal law may not be perfect, it is better and more legitimate than a purely statutory system. The criminal codification project promises more than it can deliver: clear laws prohibiting specific conduct drafted ex ante by democratically-accountable and responsive legislatures. That is not the real world.

Statutory laws are never perfectly drafted. Small errors or changing times can create large overcriminalization problems. Legislatures often lack the time to maintain their criminal codes, and many legislators are incentivized to placate special interests when drafting laws. Modern statutory systems exist in nonideal conditions. These legislative defects are not readily fixable. Rather than wish them away, we would be better advised to continue developing our unwritten customs and traditions to correct the defects in our written law.

The Bizarre Effects of Anchoring

Research with trial judges shows that arbitrary numeric reference points have a powerful effect on their decisions.


What is the average price of a textbook in the nearest college campus bookstore? Before you answer, is it greater or less than $7,128.53?

Most people quickly agree that the average price of a textbook is less than that absurdly high amount. But contemplating that outrageous number affects judgment. When first given an absurdly high numeric reference point people make higher estimates of the average price of a textbook then when they are not first provided with this reference point.

Psychologists call this phenomenon "anchoring." Amos Tversky and Daniel Kahneman first demonstrated that people tend to rely on numeric reference points when making numeric judgments. Doing so is a helpful and useful mental shortcut. If you are going to buy a new car with a sticker price of $36,345, you know that you likely will not pay that amount. You might negotiate that number down and there might be additions not listed. The sticker price, however, provides a good estimate of the final price. Anchoring is a thus useful way to estimate how much you will pay for the car. Problems arise when anchors influence judgment even when they are meaningless or arbitrary.

Psychologists have shown that all manner of numeric reference points influence numeric judgments, no matter how bizarre or fanciful. In one study researchers asked undergraduates to identify the year that Attila the Hun was defeated. In this study researchers first asked their subjects whether Attila the Hun was defeated before or after the year corresponding to the last three digits of their phone number plus 400 (A.D.). Then they asked subjects to identify when Attila was defeated. (For the record, Attila suffered his only defeat at the Battle of the Catalaunian Plains in 451 A.D.). The students certainly knew that their numbers had nothing to do with Attila the Hun, but their guesses correlated remarkably with their phone numbers.

Psychologists have proposed three main theories to explain the influence of anchoring. Tversky and Kahneman believed that people adjust inadequately from the anchor. They proposed that cognitive effort is required to adjust mentally the anchor down (or up) to the correct estimate and that people commonly fail to put in enough cognitive effort. If so, the starting point would thus affect the final estimate. Other psychologists suggested that once people entertain the possibility that the anchor is correct, their evaluation of that anchor guides how they arrive at the actual estimate. For example, when people contemplate whether the price of the average textbook exceeds $7,000, they call to mind examples of inordinately expensive textbooks. Although even the most expensive books are not that pricey (not yet!) considering whether that inordinately high number is accurate calls to mind expensive examples of textbooks, which in turn influence their estimate of the average price.

Finally, others suggest that anchors temporarily alter perception, creating an illusion of judgment. Just as an adult can seem small when standing next to an elephant and large when standing next to a cat, anchors induce people to perceive reasonable estimates as either too large or too small in comparison. Having just considered whether the average price of a textbook exceeds $7,000, an estimate of $150 seems too small. All three of these influences might be at play because anchoring is a potent and reliable phenomenon.

Judges commonly must make numeric estimates when determining damage awards, criminal sentences, bail amounts, or civil fines. Suggestions from lawyers, statutory damage caps, or insurance policy limits can anchor judges' decisions. Using experimental methods with sitting judges as research subjects, we have found that anchors have profound effects on judges.

In one of our studies, federal judges who first considered a frivolous motion to dismiss for failure to meet the jurisdictional amount of $75,000 in a diversity action in federal court awarded 29% less in a serious personal injury case than judges who did not have to rule on the motion. We found that offers made during settlement discussions in a civil case anchored judges' ultimate awards—even though we reminded these judges that discussions during settlement talks are inadmissible.

We also showed that damage caps influenced civil damage awards of American, Canadian, and Dutch judges. In a criminal context, judges anchored on sentences in unrelated cases; that is, after sentencing a defendant in a minor case to several months in prison, judges then sentenced a more serious offender to far less time than when the order of the cases had been reversed.

Every anchor we tested influenced judges. We thus began experimenting with an outlandish anchor. We created a hypothetical case for judges in which we described a roadhouse (or a "club") that had violated a local noise ordinance. Our materials stated that the roadhouse had put a band out on an outside deck late into the evening on a couple of occasions in its opening week, disturbing nearby residents. We asked 526 judges from seven different jurisdictions to identify an appropriate fine that would be sufficient to deter future misconduct and appropriately reflect the "degree of disruption" that the roadhouse had caused to its neighbors. For half of the judges, we identified the facility as "Roadhouse 58", named after its street address; for the other half of the judges, we called it "Roadhouse 11,866," also named after its address.

Roadhouse 11,866 would be well advised to either remain quiet at night or change its name. The median fine judges levied on Roadhouse 11,866 was $1,683, as compared to $1,000 against Roadhouse 58. The difference between the groups was significant. (Mann-Whitney test, z = 2.03, p =.04.) Although the address was irrelevant, it clearly drew the judges' attention. Seven of the judges evaluating Roadhouse 11,866 levied a fine of $11,866!

Making numeric evaluations is difficult. No natural metric exists to convert a qualitative degree of pain and suffering into a quantitative dollar value, nor a sense of desert into a number of years in prison. Judges (and juries) must nevertheless perform this task constantly. Research on anchoring suggests that the task will be influenced by misleading influences like irrelevant anchors.

What can be done? The only sure-fire cure for the influence of misleading anchors is to avoid learning about them, but that is impossible in many cases. Counter-anchors are not effective either, as research suggests that decision makers will focus on one of the available anchors. Well-crafted constraints like sentencing guidelines can contain the influence of irrelevant anchors, although they might introduce other structural problems. Reasonable anchors hold some promise. Recent research by Valerie Hans and Valerie Reyna suggests that people are more apt to be influenced by meaningful, reasonable anchors than misleading, unreasonable ones. To the extent judges can either avoid exposure to anchors, rely on sensible guidelines, or identify reasonable anchors, they can avoid some of the erratic influence of anchors.

Our full article on anchoring in judges: Jeffrey J. Rachlinski, Andrew J. Wistrich & Chris Guthrie, Can Judges Make Reliable Numeric Judgments? Distorted Damages and Skewed Sentences, 90 Indiana L.J. 695 (2015).

Tomorrow: Gains and Losses:  The Arbitrary Effect of Decision Frame.