The Volokh Conspiracy

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

Not a joke (cf. "Russia is the homeland of the elephants," which refers to the Soviet government's habit of claiming that all great things came from Russia); from the National Geographic (Rebecca Dzombak):

Because people in the Volga-Don region bred horses for domestication and quickly began migrating to new places with them, this new line of horses soon spread from western Europe to eastern Asia and beyond.

The migration "was almost overnight," says [molecular archaeologist Ludovic] Orlando, whose study was published on October 20 in Nature. "This was not something that built up over thousands of years."

"As they expanded, they replaced all the previous lineages that were roaming around Eurasia," he says. The domestic horse we know today "is the winner, the one we see everywhere, and the other types are sort of the losers."

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I was filing a friend-of-the-court brief recently—hold on, this will get relevant—and was corresponding with the counsel for the parties: Federal Rule of Appellate Procedure 29(a)(2) requires that the brief either be accompanied with a motion for leave or "state[] that all parties have consented to its filing," so I e-mailed the parties asking, "Would you consent to the filing of the brief, so that we can file it without drafting an accompanying motion for leave?" The side we are supporting responded promptly with "Appellees consent," but the other side responded with "No objection."

No objection? Wait, is that consenting to the filing? Or just saying that they won't file an opposition to our motion for leave, if we file a motion? I wasn't going to tell the judges that the parties "have consented" when one of them merely wasn't objecting.

So I responded with, "just to confirm, may I note that as your consenting to the filing of the brief." Not hearing back, I e-mailed again, "Sorry to trouble you, but I just wanted to confirm that you indeed consent." Then I got back, "Yes that's fine," and I figured that was enough.

By sheer coincidence, I was planning on kissing a woman that day …. No, actually, that wasn't it (these days, I only kiss my wife, and we aren't on Rule 29(a)(2) terms); but I do remember, back in the day, 35 years ago now, I was talking to an older female friend of mine about a woman I had indeed asked for permission to kiss, and my friend told me quite firmly that women didn't like to be asked about that.

And now to Huma Abedin: The Guardian reported, based on its review of Abedin's not-yet-released memoir,

[Headline:] Longtime Hillary Clinton aide Huma Abedin describes sexual assault by US senator …

Abedin details her alleged assault while describing her work for Clinton when the former first lady and future secretary of state and presidential candidate was a US senator from New York, between 2001 and 2009….

[A]fter describing a Washington dinner attended by "a few senators and their aides" but not Clinton, Abedin writes: "I ended up walking out with one of the senators, and soon we stopped in front of his building and he invited me in for coffee. Once inside, he told me to make myself comfortable on the couch."

She says the senator took off his blazer, rolled up his sleeves and made coffee while they continued to talk.

"Then, in an instant, it all changed. He plopped down to my right, put his left arm around my shoulder, and kissed me, pushing his tongue into my mouth, pressing me back on the sofa.

"I was so utterly shocked, I pushed him away. All I wanted was for the last 10 seconds to be erased."

Abedin writes that the senator seemed surprised but apologized and said he had "misread" her "all this time". As she considered how to leave "without this ending badly", she writes, the senator asked if she wanted to stay.

"Then I said something only the twentysomething version of me would have come up with—'I am so sorry'—and walked out, trying to appear as nonchalant as possible." …

Abedin later followed up that she did not consider it sexual assault (and also that the senator was someone she "knew and … was very comfortable with"), and I think that's right: An unwanted open-mouthed kiss, generally isn't considered sexual enough to be sexual assault. (California law, for instance, defines misdemeanor "sexual battery" as touching "the sexual organ, anus, groin, or buttocks of any person, and the breast of a female" "against the will of the person touched, … for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.")

At the same time, this did make me wonder: Is this indeed something that should be seen as at least improper behavior (whether or not illegal), or just as a nonculpable misreading of the signals that led to an awkward situation? My general sense of "the rules," at least back when I was dating in the mid-1980s to early 2000s, was what one might call "gradual escalation": Some degree of acquaintance (could be very short, if the meeting was in certain kinds of contexts) and conversation, followed by kissing, followed by more touching, followed by undressing, followed by sex of various sorts; instead of asking for overt permission, one of the parties (usually the man, but could be the woman) would try the next step, and then see if that was rebuffed.

Skipping steps (e.g., kissing a total stranger, touching breasts without kissing or something like that in between, etc.) was bad, trying a rebuffed step (in the absence of some indication of greater interest) was bad, but merely trying the next step and learning that it wasn't wanted was seen as potentially awkward but not reprehensible. If you want to map this to the legal rules, one might think of (say) kissing someone after what you thought was an interaction that reflect some interest as involving a known risk that the kiss wouldn't be welcomed, but in context it wasn't seen as a "substantial and unjustifiable risk" and thus wasn't what the criminal law would call "reckless."

I personally liked the idea of more express consent; I don't think much would be lost in life if that were the norm in romantic contact and not just in appellate briefing. My sense, though, is that just was quite far from the custom.

But that was just my recollection, so I decided to ask several close female friends of mine, whom I've known for decades, for their thinking on the subject; with their permission, I quote their responses. They are obviously not a random sample of the population. But I can confidently say that they are intelligent, thoughtful, educated, independent women, who I expect have found themselves the object of romantic interest from a considerable number of people, and whose judgment I much respect. They are also a politically and professionally mixed group (though with lawyers overrepresented, of course), and they have a mix of marital statuses: married, divorced, and never married.

Here are their answers, lightly edited and excerpted, using numbers instead of names for privacy reasons:

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The Supreme Court is about to hear Whole Woman's Health v. Jackson, one of two cases filed against Texas' SB 8 anti-abortion law that are currently before the justices. The case focuses on the procedural issue of whether abortion providers and others can challenge the law in federal court, given that all enforcement is delegated to private "bounty hunter" litigants, who stand to get awards of $10,000 or more if they prevail. Current Supreme Court precedent usually requires plaintiffs filing a pre-enforcement lawsuit against a state government for violating constitutional rights to target a specific set of officials who can be enjoined by the court. In this case, it initially appears there are no such potential defendants, because no state official is allowed to enforce the law.

For reasons I summarized in an earlier post about the SB 8 litigation, if this subterfuge is allowed to stand, it would create a road map for avoiding judicial review for other state violations of constitutional rights. Simply confine enforcement to private litigants, and you're good to go!

Fortunately, an amicus brief filed by the Firearms Policy Coalition (which got involved because of the potential threat to Second Amendment rights), offers a simple way to resolve the problem (see also Jonathan Adler's post about the brief):

Laws that deter or chill the exercise of constitutional rights violate those rights. Such deterrence or chill constitutes a present harm for which litigants can seek present redress without having to absorb the tremendous costs and risks of putting their heads on the proverbial chopping block by violating those laws and hoping for eventual vindication. Even where the risk derives from prospective litigation initiated by private parties invoking state law, such risks are still the product of state action in adopting and implementing the law. Whether the relevant state actors are the "deputized" potential plaintiffs and/or the court officials and jurists that wield the power of government at every stage of the litigation process, the chilling of protected conduct is the consequence of invoking state power to such ends, wholly apart from the outcome in any particular case. Indeed, the Texas law is designed precisely to have that effect, biasing the playing field in a manner that likely violates due process, the right to petition, and various other provisions of the Constitution wholly apart from its restriction on abortion. In such circumstances, there should be no serious barrier to enjoining any and all state actors or agents who facilitate or play a role in such a farce.

For purposes of dealing with laws like SB 8, state courts and private litigants "deputized" to enforce the law can be considered state actors, and therefore subject to injunction. State courts are no less bound by the federal Constitution than other state government employees, and should be no less subject to injunction when they violate constitutional rights - or threaten to do so.

I would go a step further than the FPC brief and suggest that, when faced with something like SB 8, a federal court should simply be able to enjoin the state government as a whole, rather than focus on a specific set of officials (or "deputized" private litigants). As explained in my previous post on SB 8:

Even if we do not know which individuals, if any, plan to enforce an unconstitutional law, or have the authority to do so, a court should be able to issue a general injunction precluding enforcement of that law by anyone who might otherwise be in a position to undertake that task.

If it turns out that no one is willing or able to enforce it, then the injunction will be unnecessary, but also won't do any harm; it would, in that scenario, forbid something no one was going to do anyway. But such a general injunction could play a valuable role in forestalling violations of constitutional rights in situations where it is difficult to predict in advance who the violators will be.

The FPC brief highlights a reason why this approach is consistent with the text of the Fourteenth Amendment. It follows logically from the text of the Privileges or Immunities Clause:

[T]he Fourteenth Amendment would seem to supersede any previous potential state sovereign immunity as against violations of the federal Constitution. Looking at the Privileges or Immunities Clause, for example, a State may not "make or enforce any law which shall abridge the privileges or immunities of citizens of the United
States." U.S. CONST., amend. XIV.

Notice that the text forbids "making" laws that abridge privileges or immunities of citizens, as well as "enforcing" them. The entity that makes the laws is the state legislature, and this provision opens the door to injunctions that do whatever is necessary to render any such unconstitutional enactments null and void. As the FPC brief points out, many conservatives, including Supreme Court justices Thomas and Gorsuch have long argued that the Privileges or Immunities Clause is the right vehicle for "incorporating" the Bill of Rights against the states. And other rights protected by the Fourteenth Amendment (including any constitutional right to abortion) also surely qualify as privileges or immunities for enforcement purposes.

The most obvious criticism of this approach is that it would open up states to a variety of potentially frivolous lawsuits. Perhaps so. But federal courts have a variety of tools for swiftly disposing of frivolous suits, including using Federal Rule of Civil Procedure 12(b)(6), which allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." Judges don't need to tolerate assaults on judicial SB 8 in order to prevent frivolous litigation.

The FPC brief is also notable for its succinct and powerful summary of why preenforcement challenges to laws violating constitutional rights are so important (see pp. 4-10 of the brief). As it points out (pp. 9-10), SB 8's structure may make it even more of a menace than other laws intended to "chill" the exercise of a constitutional right.

In my previous post on this case, I emphasized that my critique of SB 8 is not about the issue of whether Roe v. Wade should be overruled or limited, or whether there is a genuine constitutional right to abortion. Rather, my concern is preventing SB 8 from creating a dangerous road map for undermining judicial protection of a wide range of constitutional rights:

My strategy would not preclude the Supreme Court (or other courts) from simply ruling against abortion rights (or other constitutional rights claims) on the merits. If the Court wants to overrule Roe v. Wade because a majority of justices think it's a terrible decision, they can still do so. The same goes for Citizens United, decisions protecting gun rights, and so on. The purpose of my proposal is not to freeze any particular precedent in place, but to forestall the use of private enforcement mechanisms as a tool for evading judicial review of laws that threaten constitutional rights, and in the process creating dangerous "chilling effects."

That's a goal worth pursuing regardless of what you think of Roe v. Wade and abortion rights. Even if you welcome Texas' circumvention of Roe, you might not be so happy to see the same tools used to threaten constitutional rights you care about more.

UPDATE: I should note this approach will not resolve the companion case of United States v. Texas, which addresses the question of whether the federal government is allowed to file a lawsuit challenging SB 8. But that case becomes far less important if the Whole Woman's Health case is resolved in the way described above. Whether the federal government can file preenforcement lawsuits in such cases matters less if there are a wide range of private parties who can do so.

Here's their statement from yesterday; I expect it's short precisely because it was posted on the weekend, when some people have days off:

FIRE is deeply concerned by a report in The New York Times that the University of Florida has barred three professors from participating as witnesses in a voting rights lawsuit against the state of Florida.

FIRE has said it before, and we'll say it again: The profound civic importance of fair trials requires the ability of fact and expert witnesses to come forward to testify truthfully without fear that their government employer might retaliate against them. Public university faculty are no exception. We call on UF to reverse course immediately.

UF should be aware that Plymouth State University's ill-considered decision to punish faculty who had testified in a trial ultimately cost the state of New Hampshire's taxpayers $350,000. FIRE warned Plymouth State then, and we're warning UF now: If you pick a fight with the First Amendment, you will lose.

Here's FIRE's summary of the Plymouth State incident:

On July 31, 2018, Plymouth State University (PSU) punished two professors for their participation in a criminal proceeding. PSU adjunct professor Nancy Strapko testified as an expert witness for Kristie Torbick, a high school guidance counselor convicted of sexual assault, and professor emeritus Michael Fischler sent a letter to the court during Torbick's sentencing. After their participation was publicly criticized in the months leading up to Torbick's sentencing in early July, PSU refused to rehire Strapko and suspended Fischler from teaching until he completes Title IX training. On September 7, FIRE sent a letter to PSU reminding the university that professors' expression on matters of public concern is protected by the First Amendment, and that citizens should not be disciplined for speaking on behalf of those facing the criminal justice system. On February 15, 2019, PSU settled with Strapko, agreeing to pay her $350,000 to avoid a lawsuit over her firing and agreeing to release a public statement acknowledging the importance of witnesses participating in the criminal justice process.

For my longer analysis, see this post.

Free Speech Campus Free Speech

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In the challenge to S.B. 8, the United States has placed a lot of weight on In re Debs (1895). So much so that they barely make arguments based on Grupo Mexicano and Armstrong. The Solicitor General has likely determined that the best way to win this case is to rely on a very unique aspect of federal power that would not disrupt other longstanding conventions concerning equitable jurisdiction. This century-old precedent warrants a careful look.

With perfect timing, Aditya Bamzai and Sam Bray posted a new paper to SSRN, titled Debs and the Federal Equity Power. (Sam blogged about it last night). Here, the authors write that Debs "has a good claim to be the most controversial equity decision ever reached by the Supreme Court." Now, the article is not about United States v. Texas, but it does address one of the threshold issues in the case.

Part III.B (pp. 32-38) considers "the possible limiting principles available for nonstatutory equitable relief"--the exact sort of relief the Solicitor General seeks in U.S. v. Texas. Bamzai and Bray sketch three possible limiting principles.

First, the sole limit would be that if "no adequate remedy" is available at law, then "a federal court has the power to remedy that defect, at least when a constitutional right is at stake." To paraphrase Marbury, "[w]herever there is a constitutional right, we might say, there is a remedy." (Of course, William Marbury never got a remedy because the Court lacked jurisdiction.) The authors write that with first approach, "there may not really be a limit." Indeed, this capacious view mirrors the approach advanced by the Grupo Mexicano dissent.

Second, in the absence of a statute, "a plaintiff would have to show some other equitable cause of action." The authors reject this theory, and argue there was no "cause of action" in Debs. (I have written about this issue before, and will respond to this aspect of Bamzai and Bray's analysis in another writing).

Third, equity may be available "to protect a proprietary interest (or in some formulations, a personal or proprietary interest)." The authors derived this principle from Debs, as well as from Ex Parte Young. Seth Barrett Tillman and I have described the basis for equitable jurisdiction in Young in very similar terms:

In Young, the government was regulating the railroad company. Such disputes about contested rights and duties involving property (e.g., interpleader) also lie at the very core of historical equitable jurisdiction. Specifically, the Young plaintiffs sought to prevent future state action regulating their own property. To accomplish this goal, they invoked the court's equitable jurisdiction to sue their company, its directors, and state officers before those state officers could regulate the plaintiffs' own property through an imminent coercive lawsuit.

Of these three approaches, Bamzai and Bray favor the third, property-centric approach.

On p. 35, the authors turn to U.S. v. Texas.

More specifically, the traditional limiting principles are especially apt in a context, such as United States v. Texas, where the United States is bringing a nonstatutory claim for equitable relief. This is so for two reasons. First, precisely because the claim is nonstatutory, it does not have the narrowing and focusing that comes from the statute. This is the wisdom of the traditional property connection with the statutory exception. Second, if the basis for the suit by the United States is a reach back almost 130 years for a litigation superpower, under In re Debs, it is more than appropriate for the historic limits on that superpower to be brought along as well. Retrieve the power, retrieve the limits.

And what are those limits that must be retrieved?

In a case where there is no statutory basis for injunctive relief, the plaintiff should be required to connect her claim to some proprietary interest (or, in some formulations, personal or proprietary interest). Although there are ways in which the sovereign has broader power in equity, this is not one of them.

And how do those limits apply to U.S. v. Texas?

Thus Debs should be read as authorizing suits by the United States to protect the rights of U.S. citizens when that suit can be connected to some kind of proprietary interest—whether a proprietary interest of the sovereign itself, or the proprietary interests of the public that are protected in the abatement of a public nuisance.

In Texas, the definition of a public nuisance can be found in Title 5 of the Health and Safety Code, Chapter 343. Most of the public nuisances concern unsafe premises and garbage.

How does Bamzai and Bray's analysis apply to the Solicitor General's case? The answer turns on what exactly are the "proprietary interests" of the United States. The Solicitor General argues that "the United States has a sovereign interest in preventing States from nullifying this Court's decisions by thwarting judicial review." (p. 16). I have long argued--and I think Bamzai and Bray would agree--that this sort of interest is far removed from the types of suits long permitted at equity. There should be at least some connection to property. Bamzai and Bray write:

Equity is not static, and yet the Court has also rejected an approach to federal equity powers that is completely presentist. The historic landmarks of the equity tradition, including cases like Gee and its antecedents, are relevant today precisely because of the basis of federal equity power. So the mere fact that the property connection has faded in recent cases, does not decide its applicability, at least as long as the Court is committed to the approach of Grupo Mexicano.

Under Grupo Mexicano, this sort of equitable case was not known in the High Court of Chancery.

However, the Solicitor General presents an alternate argument: "The United States also has authority to sue because S.B. 8 interferes with the activities of the federal government in violation of principles of preemption and intergovernmental immunity." (p. 27-28). For example, the Bureau of Prisons has the responsibility to arrange for abortions if an inmate requests one. This sort of interest seems much closer to the type of "proprietary" property interest in Debs that Bamzai and Bray discuss.

Still, even if DOJ has an interest to vindicate these interests in equity, the court could not "strike down" the entirety of S.B. 8. At most, the court could issue an injunction stating that S.B. 8 could not be enforced in a way that would interfere with these federal proprietary interests. For example, if a Texas clinic performs a post-six-week abortion for a federal inmate, that clinic could not be sued. An injunction could be crafted along these lines to vindicate the interests of the United States, while leaving the remainder of the law in effect. S.B. 8's intricate severability clause supports this result.

Ultimately, the Court could issue a narrow ruling for DOJ with respect to its proprietary interests, that would still maintain the remaining status quo for S.B. 8 for the foreseeable future.

The job of a modern American university—and the purpose of its guarantees of academic freedom—is to promote the development and dissemination of expert knowledge, including opinions based on that knowledge. And that's so regardless of whom the knowledge reflects well or badly on.

Say a University of California professor's research uncovers that California government policy is bad for business, compared, to, say, the policy of Texas. Publishing that research may drive businesses away from California, thus harming the California economy and indirectly the University of California itself. Yet it's the professor's job to publish it nonetheless. In the long term, disclosing these policy problems may help California, because identifying the problem is a necessary step towards fixing it. But in any event, the professor's job is to discover and disclose the truth.

Or say the professor uncovers what he believes to be problems with the UC itself—for instance, that its approaches to race-based affirmative action or to athletic scholarships or to educational policy are unsound in various ways. And say he testifies to Congress or the legislature about it.

That might be bad for the university, at least in the short term, in that it may reduce federal funding or state funding or alumni donations or applications from prospective students. Or it might simply undermine, by criticizing, the policies that the Chancellor or the Regents or the Legislature seek to pursue. Or it might be used against the university or the state in litigation. But his job is to tell it like it is.

That's why the University of Florida's action here strikes me as wrong. To quote Politico (Gary Fineout & Marc Caputo):

Florida's flagship university is under fire for violating the free speech rights of three professors it blocked from testifying in a lawsuit challenging the state's new law voting restrictions.

Top University of Florida officials asserted that it was a conflict of interest for professors to testify in the lawsuit because they're state employees. It's a notable turnaround in university policy, which for years allowed professors to testify in lawsuits against the state—including one that unsuccessfully challenged the state law that restricted voting rights for convicted felons.

The University's ostensible rationale is that "Outside activities that may pose a conflict of interest to the executive branch of the State of Florida create a conflict for the University of Florida." But this wrongly assumes that the job of university professors is to promote the interests of the Florida government in particular litigation, or to promote the interests of the University in particular litigation, or at least not to express views that run contrary to the Florida government's or University's.

And of course this rationale would justify restrictions not just on expert witness work, but to state or federal legislative testimony, to op-eds, to scholarly articles, and the like. Indeed, it might apply to speech that "may pose a conflict of interest to the executive branch of the [United States government]" as well: After all, state universities get a great deal of funding from the federal government, and the federal government might well want to impose similar constraints on university professors whom it directly or indirectly funds, if it sees Florida is being allowed to do so. And it would apply to speech that suggests the impropriety of the University administration's policies at least as much as to speech that suggests the impropriety of the state or federal governments' policies. That's a rule of academic subservience to political institutions' policies, not of academic freedom.

Indeed, if anything, expert witness work in court should be seen as especially protected from restriction. It provides extra information to courts resolving legal claims. It is considered in the relatively calm and thoughtful environment of the judicial process. It is subject to rebuttal by the state's own expert witnesses. And presumably the state of Florida should have a broader interest in following the law, including federal law when it trumps state law (see the U.S. Constitution's Supremacy Clause). Professors' conveying their expert knowledge to judges is thus especially valuable to the pursuit of truth (as well as to the administration of justice), though I think the same should apply to other forms of commentary as well.

Unsurprisingly, courts have indeed rejected such restrictions on expert testimony by faculty members. In Hoover v. Morales (1998), the federal court of appeals for the Fifth Circuit expressly struck down Texas policies which "prohibit[] state employees"—including, in that case, university employees—"from acting as consultants or expert witnesses on behalf of parties opposing the State in litigation":

The notion that the State may silence the testimony of state employees simply because that testimony is contrary to the interests of the State in litigation or otherwise, is antithetical to the protection extended by the First Amendment.

The Fifth Circuit held the same, sitting en banc, in Kinney v. Weaver (2004), where college instructors in a program that trained police officers were retaliated against for providing expert testimony against a police department in a case:

Free Speech Academic Freedom

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The S.B. 8 cases present the Supreme Court justices with an interesting dilemma, apart from the questions of abortion and precedent. However the Court resolves Whole Women's Health v. Jackson and United States v. Texas, it risks setting a precedent that has implications for issues beyond abortion. In effect, the justices have to decide which genie they prefer to let out of the bottle.

Concluding that neither private parties nor the federal government may file pre-enforcement challenges to a law structured like S.B. 8 invites state legislatures to replicate its various features in laws targeting other constitutionally protected rights. This is the concern raised in the brief filed by the Firearms Policy Coalition I highlighted earlier. Gun rights are the most likely target of such laws, but we could imagine others (including spending on political speech). This is one of the genies.

Concluding that the federal government may file suit in equity to challenge and enjoin and law like S.B. 8, without express statutory authorization, on the other hand, could unleash a different genie. Allowing the federal government's suit would open the door to further such litigation in defense of constitutional rights that the current Administration prefers. What might this look like? We got a preview during the Trump Administration when Attorney General Bill Barr suggested DOJ would consider actions to challenge state COVID-19 restrictions that infringed upon religious liberty or other interests. Barr's statement turned out to be bluster. But if the Supreme Court green lights DOJ's brief here, the next administration could use that precedent to challenge state laws. This is another genie.

Concluding that private parties may sue to enjoin enforcement of S.B. 8, such as by suing all judges or courts as a class, could also unleash a genie, as it would have the potential of greatly expanding pre-enforcement challenges on constitutional grounds. It could even have the effect of establishing a de facto constitutional right to pre-enforcement review, despite the contrary holding of Thunder Basin Coal v. Reich.

The point of this post is not that any one of these resolution is better or worse than the others. Rather, it is simply to observe that the Court is in a challenging position. Given how S.B. 8 was carefully crafted to frustrate pre-enforcement judicial review, authorizing such review risks unleashing one genie. Yet refusing to authorize such review will effectively unleash another.

In a bit of strange-bedfellows briefing, Erik Jaffe has filed a merits brief for the Firearms Policy Coalition in Whole Women's Heath v. Jackson on the side of the petitioners. As with the FPC's amicus brief supporting certiorari, this brief warns that barring pre-enforcement litigation against S.B. 8 could threaten other constitutional rights, as other states might enact similarly structured laws to that limit gun possession, political speech, or other constitutional rights.

From the beginning of the merits brief:

This case in its current posture is not about any debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no position on such questions, which are before this Court in other cases. Rather, this case is about how far a State may go in deterring the exercise of any and all individual constitutional rights, as such rights are determined by this Court's cases. Texas's novel scheme for infringing upon and chilling the exercise of the right to abortion under this Court's Roe and Casey decisions, if allowed to stand, could and would just as easily be applied to other constitutional rights. That result is wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of any other hotly debated constitutional right, such as the right to keep and bear arms.

1. Laws that deter or chill the exercise of constitutional rights violate those rights. Such deterrence or chill constitutes a present harm for which litigants can seek present redress without having to absorb the tremendous costs and risks of putting their heads on the proverbial chopping block by violating those laws and hoping for eventual vindication. Even where the risk derives from prospective litigation initiated by private parties invoking state law, such risks are still the product of state action in adopting and implementing the law. Whether the relevant state actors are the "deputized" potential plaintiffs and/or the court officials and jurists that wield the power of government at every stage of the litigation process, the chilling of protected conduct is the consequence of invoking state power to such ends, wholly apart from the outcome in any particular case. Indeed, the Texas law is designed precisely to have that effect, biasing the playing field in a manner that likely violates due process, the right to petition, and various other provisions of the Constitution wholly apart from its restriction on abortion. In such circumstances, there should be no serious barrier to enjoining any and all state actors or agents who facilitate or play a role in such a farce.

2. If Texas's scheme for postponing or evading federal judicial review is successful here, it will undoubtedly serve as a model for deterring and suppressing the exercise of numerous constitutional rights. New York is already experimenting with private enforcement of anti-gun laws and will no doubt gladly incorporate the lessons of this case to insulate its future efforts to suppress the right to keep and bear arms. Other States will not be far behind. Indeed, a private bounty scheme could easily be modified to target persons who marry someone of the "wrong" sex or color, criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues, or engage in any other protected but disfavored conduct. And, if Texas's avoidance of pre-enforcement review succeeds, there is no reason to think the deterring penalties couldn't be made even more draconian. The precedent this law sets as a model for deterring the exercise of any and all rights amply illustrates why it is impermissible.

3. There are a variety of paths for allowing a preenforcement challenge to proceed in this case. The simplest path is the one suggested by petitioners – a suit against those state employees and officials most instrumental in giving force and effect to the threat Texas levels against the exercise or facilitation of federal constitutional rights. Any concerns with ripeness are misplaced given that the imminent threat of litigation, even if not the specific litigants, is palpable and already having an immediate deterrent effect. That litigants have yet to exercise their delegated authority to sue under this scheme makes no more difference than if a prosecutor had yet exercised his or her authority to bring charges under a facially unconstitutional statute.

Alternatively, this Court could recognize the option of a suit against a defendant class of all persons empowered to act under the Texas law. If Texas is going to delegate the government function of enforcing the law to its residents, then those residents should also be subject to collective suit as the agents or functional contractors of the State. Finally, if this Court views any of its precedents as a barrier to suit here, the solution is simple: expand the court-created work-around in Ex parte Young or just overrule Hans v. Louisiana to allow direct suit by a State's citizens against a State that "make[s] or enforce[s]" laws violating the privileges or immunities of those within their State. Such cases strayed from the text, structure, and logic of the Constitution and their errors should not be compounded by driving the train of misdirected precedent off the cliff proposed by Texas.

It's an aggressive brief, but one that makes some important points.

The case is Agyapong v. Taylor (E.D. Va.), filed Friday:

Plaintiff is [a 5-time-]elected MP of Ghana's Parliament …. As an MP, Plaintiff is the Chair of the Parliamentary Committee of Security, Defense, and Intelligence. Plaintiff is also, by appointment by the President of Ghana, the Board Chair of Ghana Gas Company Limited….

[Defendant Taylor] is the founder of [Defendant Loud Silence Media]. Mr. Taylor also operates and hosts a program on LSM via its YouTube Channel, 'Loud Silence TV,' and Facebook Platform, 'With all due respect - Loud Silence Media.' The latter show is streamed on many other platforms as well….

LSM identifies itself on its Facebook and YouTube platforms as a media outlet that brings "the latest in relevant culture, human interest, and entertainment stories live from the front lines in Ghana …" LSM is popular on YouTube and Facebook and has over forty-seven thousand (47,000) subscribers on YouTube and almost three hundred and forty thousand (340,000) followers on Facebook. Its shows are also streamed by other media and individual accounts on Facebook and YouTube….

Since July 2021, Defendants have falsely stated via the LS platforms that Plaintiff is a criminal and have falsely attributed numerous crimes to Plaintiff including "murder," "drug dealer and drug addict," "immigration fraudster," and "theft."

I can't speak to the merits of the libel claim, but it's an interesting counterpoint to the other recent lawsuit over libels related to West Africa. And I do think this claim isn't going anywhere:

Count III (Virginia Computer Crime's Act) (In Violation of Virginia Code § 18.2-152.7:1) …

Virginia Code § 18.2-152.7:1 (Harassment by computer) makes it a crime for any person, with the intent to coerce, intimidate, or harass any person, to use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act….

Defendants have repeatedly used a computer to post online the false publications described above in an effort to continuously harass Plaintiff….

I don't see how the allegations would be covered by the statute (which in any event doesn't appear to create a civil cause of action). And if such speech about a person (rather than just unwanted speech to a person) were covered, then I think the statute would be unconstitutionally overbroad.

Free Speech Libel Harassment

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10/31/1963: Cleveland Police Detective patted down, and arrested John W. Terry.

Corpus linguistics is the scholarly technique of searching historic databases to gather information on the use of important words or phrases. In the pending U.S. Supreme Court on the Second Amendment to right to bear arms, New York State Rifle & Pistol Association v. Bruen, a pair of amicus briefs purport to apply corpus linguistics to the Second Amendment. The briefs say that they prove that individuals have no right to bear arms, and that even if such a right exists, it is tiny. This post examines the claims in the briefs.

This post is co-authored by Campbell University law professor Gregory Wallace. Professor Wallace and I are two of the five co-authors of the just-published third edition of the textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (Aspen, Wolters Kluwer). Professor Wallace wrote the textbook's section on corpus linguistics and spoke at a colloquium on the subject at the Duke Center for Firearms Law.

One of the amicus briefs is on behalf of three professors of linguistics—Dennis Baron (U. Illinois), Stefan Th. Gries (U. Cal. Santa Barbara), and Jason Merchant (U. Chicago)—and one law professor, Alison LaCroix (U. Chicago), who has written about corpus linguistics and founding era documents. It was filed by attorneys for Morrison & Foerster. The other brief is by and for Washington, D.C., attorney Neal Goldfarb. Goldfarb describes himself as "an attorney with an interest and expertise in linguistics, and in applying the insights and methodologies of linguistics to legal interpretation." His brief asks the Supreme Court to call for supplemental briefing on the corpus linguistics issues and to hold the Bruen case over to the next Term for argument on those issues. The arguments in both briefs are similar.

To be clear, we do not criticize corpus linguistics as a methodology. Volokh Conspiracy Professor Randy Barnett is, according to both the Goldfarb and Professors briefs, a pioneer in the field of corpus linguistics. But at the time, he did not identify as a corpus linguist; he just thought he was doing legal research.

Professor Barnett believes that the original meaning of the Second Amendment includes a right to bear arms for personal defense. In the New York State Rifle & Pistol Association case, he joined an amicus brief to that effect, filed by Kopel and other lawyers.

The persuasiveness of corpus linguistics claims depends on understanding words in context, considering all relevant sources, and classifying usages accurately. Some corpus linguists do so better than others.

The key precedent in United States v. Texas is likely to be In re Debs. Aditya Bamzai (UVA) and I have just posted a paper called "Debs and the Federal Equity Power." If you're following the case, you'll be interested.

(And apologies to readers who have been missing the posts on equity and United States v. Texas—writing this paper is why my blogging about the case petered out a week ago.)

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Kisses, Huma Abedin, and Gradual Escalation

The Firearms Policy Coalition Offers a Simple Way to Resolve the Texas SB 8 Case

Foundation for Individual Rights in Education on the University of Florida Matter

Debs in the Heart of Texas

Univ. of Florida Blocks Professors' Expert Witness Work in Case Against Florida Government

Which Genie Will the Supreme Court Let Out of the Bottle?

The Firearms Policy Coalition Targets S.B. 8 on the Merits

Ghanaian Legislator Sues Prominent Video Commentator for Libel

Today in Supreme Court History: October 31, 1963

Corpus Linguistics and the Second Amendment

The Key Precedent in United States v. Texas

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