Goodbye Roberts Brief. Hello Barrett Brief.

Critics of the Independent State Legislature doctrine may as well put Justice Barrett's face on the cover of their briefs.

For what felt like an eternity, advocates (present company included) would write briefs directed at Justice Kennedy, the swing vote. Erwin Chemerinsky would joke that he would put Kennedy's phot on the cover the brief, if he could. The so-called Kennedy briefs would discuss concepts such as federalism, dignity, and other related balancing tests.

After Justice Kennedy's retirement, we said goodbye to the Kennedy briefs, and advocates pivoted to the Roberts Briefs. Those filings would focus on the Court's institutional role, and preserving some semblance of the separation of powers. Alas, the Roberts Briefs had a brief shelf life. With Justice Ginsburg's passing, the Chief was no longer the fifth vote. Instead, briefs would target the other two getable votes: Justices Kavanaugh and Barrett.

At present, the most obvious Barrett briefs focus on the independent state legislature (ISL) doctrine. Consider Rick Hasen's posting on tonight's ruling from North Carolina:

If J. Kavanaugh ultimately goes along with the Alito reasoning, it will take only one more Justice to agree in order to overturn over two centuries of practice involving interpretation of state election law by state courts. Chief Justice Roberts' dissent in the Arizona redistricting case from 2015 put him very much in sympathy with Alito's position on the merits; he might demur for prudential reasons, but who knows? And Justice Amy Coney Barrett is a complete mystery, as she has not weighed in on this. I expect the major action is going to be building a strong record, based upon originalist style scholarship, that the independent state legislature theory, as currently understood, is contrary to the original understanding of the Constitution. There's a strong case to be made, and it will be one of the first tests to see how serious Justice Barrett takes such historical arguments.

You get that? ACB can only agree with Justice Alito, and rule in favor of the ISL, if she ignores the Constitution's original meaning. Under the Constitution's original meaning, the maps drawn by the NC Supreme Court should stand. And advocates can put Barrett's face on the cover.

Comments

[LawTalkingGuy]

Let’s see what evidence there is for the proposition that state legislatures somehow exist completely a priori to state constitutions and cannot be constrained by state constitutions (or state statutes that prior state legislatures have passed). Here’s notable conservative legal luminary, former Gorsuch clerk, and current part-time Twitter troll Mike Davis:

https://twitter.com/mrddmia/status/1500988693049401348?s=21

[MatthewSlyfield]

"Let’s see what evidence there is for the proposition that state legislatures somehow exist completely a priori to state constitutions and cannot be constrained by state constitutions"

Except that's not the proposition raised by Independent State Legislature Doctrine.

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5885&context=flr

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years that followed. During the 2020 presidential election cycle, however, several Justices issued opinions demonstrating an interest in recognizing and enforcing the doctrine.

[LawTalkingGuy]

This doesn’t refute my point that this is somehow a power that exists a priori to state constitutions. It assumes a legislature exists regardless of if the state constitution creates one at all and grants it power no matter how a state wants to empower or limit it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I'm a bit baffled by this whole thing (IANAL), but I don't think you're right with "It assumes a legislature exists regardless of if the state constitution creates one at all"

The Constitution guarantees each state has a republican form of government. Doesn't that require a state legislature? And because the legislature doesn't exist until the state constitution is accepted/ratified/whatever, your statement doesn't seem to make any sense.

[LawTalkingGuy]

Not necessarily. There could be a system where government operations were mostly devolved to elected local governments under the state constitution and the few state legislation that exists was only enacted through popular initiative.

[MatthewSlyfield]

"and the few state legislation that exists was only enacted through popular initiative."

https://www.merriam-webster.com/dictionary/republic

a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law

I State power is exercised primarily by popular initiative (referendum) that is not a republican form of government.

[Sarcastr0]

That's been held a nonjusticiable issue.

[Dilan Esper]

The Guaranty Clause is definitely nonjusticiable (so, for instance, you can't strike California's initiative process down as unconstitutional because it constitutes direct democracy rather than republicanism), but that doesn't mean that if a state abolished its legislature, that would be nonjusticiable. Given the Constitution's repeated references to state legislatures, and without regard to the independent legislature theory, the Constitution certainly presumes that there will be state legislatures. So I would assume a state abolishing the legislature would, in fact, be struck down by SCOTUS.

[MatthewSlyfield]

Yes it does. The power doesn't per-se exist before the state constitution it simply derives from a source outside the state constitution.

"It assumes a legislature exists regardless of if the state constitution creates one at all and grants it power no matter how a state wants to empower or limit it."

It doesn't assume it. Other parts of the US Constitution require it.

https://constitution.congress.gov/browse/essay/artIV_S4_1_1_2/

Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Yes, the US Constitution places limits on what state constitutions can do in terms of forming the state government.

[LawTalkingGuy]

Guarantee clause doesn’t explicitly require it, it assumes it exists. And yes the power does pre exist before the state constitution, because a state constitution is the only way a
state legislature can exist, and yet here’s this plenary power just floating out there for legislatures that haven’t even been constituted yet.

[Kazinski]

Well it kind of does exist independently of the state constitution. If a state revises it's constitution and decides to go with just a governor and a supreme court, what happens?

The republican government clause kicks in and the federal government imposes a legislature on the states in some form.

[bratschewurst]

The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution.

Isn't all state legislative power is exercised under the federal Constitution?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[ReaderY]

No. States existed and had soverieign prior to, and retain residual sovereignty independently of the Federal Constitution. While they surrendered significant powers to the Federal Government, what they did not surrender they retained. A state is not a mere department of the federal government. It is a (partially) independent sovereign.

The irony of the Independent State Legislature Doctrine is it gives federal judges control over how states run their affairs.

[MatthewSlyfield]

It's not just the independent legislature doctrine. Several provisions in the US constitution place limits and/or requirements on how states run their affairs.

See Article IV, Section 4

[Lee Moore]

The irony of the Independent State Legislature Doctrine is it gives federal judges control over how states run their affairs.

Their affairs ?

The whole point is that the election of federal officials is a federal affair, the rules for which are set out in the federal Constitution. The federal Constitution assigns various rights and responsibiities to State bodies. Instead of assigning election rules to the State Legislature, the federal Constitution could just as well have assigned the responsibility to the State Supreme Court. None of that would offend against the State's sovereignty, because the positions being filled are federal.

Indeed for Congressional elections, which is what is in question here, the Constitution expressly allows Congress to overtrump State election rules.

France, as a sovereign nation, has to elect its members of the European Parliament using the methods and rules prescribed by the EU. But unless it were a member of the EU, France wouldn't have any independent power to elect members to the European Parliament. Thus having to stick to EU rules for electing people to EU bodies doesn't impinge on French sovereignty. The right to elect people to EU bodies is a privilege external to France's state sovereignty, deriving from membership of the wider club.

The question is whether, when the federal Constitution assigns a federal responsibility specifically to the State Legislature, rather than to the State in toto, other State bodies, eg the State judiciary or Executive, may take over the task, consistent with the federal Constitution.

And the answer is obviously not. Just as it was in the Arizona Redistricting case, when SCOTUS decided to ignore the obviously correct answer in order to arrive at a politically convenient answer. Even the infinitely malleable Chief Justice made fun of that one.

[DaveM]

At the conceptual level I think you've got the assignment backwards. It's a federation of states, not a central government partitioned into states.

[David Nieporent]

Thus having to stick to EU rules for electing people to EU bodies doesn't impinge on French sovereignty

No, that's wrong. The EU could say, "If you don't do it this way, you don't get to elect people to EU bodies." But what the EU can't do is grant power to a French government agency to act in ways that the French constitution doesn't allow. That would indeed impinge on French sovereignty.

And the answer is obviously not.

No, the answer is obviously not obviously not. Because for more than two centuries, nobody thought that this was the answer. Everyone has always understood that delegating the power to the state legislature meant the state legislative process.

For centuries, state legislatures have passed laws regarding the conduct of elections — and every time, the governor has signed (or vetoed) those laws. Nobody ever seriously suggested that a governor's veto was ineffective because the state legislature was granted the unilateral power by the US Constitution. Nobody ever seriously suggested that the governor's signature was unnecessary because the state legislature was granted the unilateral power by the US Constitution. And the same applies to state judiciaries.

[Lee Moore]

Nieporent : But what the EU can't do is grant power to a French government agency to act in ways that the French constitution doesn't allow. That would indeed impinge on French sovereignty.

Wrong again :

https://www.lawteacher.net/free-law-essays/administrative-law/doctrine-of-supremacy-of-european-union-administrative-law-essay.php

“EU law is absolutely supreme even over provisions of national constitutions.”

Now you could claim, as have others before, that this doctrine is an unjustified power grab by the European Court of Justice. Much as you might claim that the US Constitution means X when SCOTUS says it means Y. But then you'd lose in the ECJ just as you'd lose in SCOTUS. Of course, the ECJ is in a weaker position than SCOTUS in getting its judgements enforced particularly when it is ruling against Germany rather than against Malta.

Moreover if you knew anything about the EU you would know that the EU issues regulations daily, which have direct effect in the Member States, which the executive branches of the Member States are legally bound to enforce, whatever their national laws or constitutions might say. The EU has no nonsense about lacking a commandeering power.

But whether it's an unjustified ECJ power grab or not, the US case is much simpler because it's in black and white in the federal Constitution. :

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[DaveM]

To elaborate:

"The whole point is that the election of federal officials is a federal affair, the rules for which are set out in the federal Constitution. The federal Constitution assigns various rights and responsibiities to State bodies. "

To think of the federal Congress as "assigning" responsibilities to the states is just an incorrect way to read the Constitution, in my view. It may be a small error, but like a journey that starts just 1 degree off-center, following it will eventually place you miles away from the correct destination.

Article II phrases these kinds of directives like this: "Each State shall appoint, in such Manner as the Legislature thereof may direct..." Clearly, it's an agreement among states that consider themselves partners in a federation, not sub-components of a central government.

[Lee Moore]

To think of the federal Congress as "assigning" responsibilities to the states is just an incorrect way to read the Constitution, in my view. It may be a small error, but like a journey that starts just 1 degree off-center, following it will eventually place you miles away from the correct destination.

A small error a bit like confusing the federal Congress with the federal Constitution you mean ?

Article II phrases these kinds of directives like this: "Each State shall appoint, in such Manner as the Legislature thereof may direct..." Clearly, it's an agreement among states that consider themselves partners in a federation, not sub-components of a central government.

What part of "shall" are you finding difficult ? It's a command.

Certainly the States existed prior to the federation, and they agreed to enter into a federation, under the rules specified in the federal Constitution. These rules are binding on the States, they are not optional. And precedent indicates that withdrawal from the federation is a tricky business.

There's no mystery. The States existed prior to the federation. Under the federation they agreed, irrevocably, to be bound by the rules of the federation, including the specification of the federations powers as against the powers reserved to the States. So there's an excellent argument in many cases, where the federation claims implied powers over the States, that that violates the federal Constitution. But in the matter of electing federal officials that argument is hopeless. Not only ae the federal rules and responsibilities clearly and expressly provided, but the power conferred is a federal power that could not pre-exist the federation. Because it's the power to specify the method of electing federal officials.

[Mike Hansberry]

Add to your points the supremacy clause: "the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. "

The above should set aside the "but the state constitutions says" argument.

[LawTalkingGuy]

Also she might be turned off by Alito applying the Purcell principle to Alabama maps but not to NC/PA ones. He’s acting in such a ridiculously hackish way it’d be embarrassing for her to be on that side at all. Even Kavanaugh has grasped that you can’t announce what is essentially a blanket abstention rule for maps in election years then switch three weeks later.

[QuantumBoxCat]

In his dissent, Alito writes:

The question presented is one of federal not state law because the state legislature, in promulgating rules for congressional elections, acts pursuant to a constitutional mandate under the Elections Clause. Cf. Bush, 531 U. S., at 113 (Rehnquist, C. J., concurring) (compliance with the Electors Clause “presents a federal constitutional question”).

In his concurring opinion in Bush, Rehnquist wrote:

A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.

Nice try Samuel......

[LawTalkingGuy]

Good catch

[Lee Moore]

What do you imagine has been caught ?

[Holden C]

Let's talk about Section 230, a dangerous, outdated law that amounted to nothing more than government sponsored cyber-terrorism against individuals.

It is absolutely appalling that the so called "Professor" Eugene Volokh has DONE ABSOLUTELY NOTHING to help the USA address the increasingly common issue of cyber-stalking and online harassment. In fact, he is trying to make victims of cyber-stalking and cyber-harassment even more vulnerable by trying to strike down all legislation that would protect them.

Rather, Eugene Volokh has tried his best to HARM victims of cyberstalking by trying to argue, incorrectly and foolishly, that online harassment and cyberstalking is "Free Speech".

Eugene Volokh doesn't understand the nature of the internet and should not be opining dangerous statements on "Free Speech" when he hasn't experienced truly malicious cyber-stalking himself.
His life experience is not adequate to be opining about "Free Speech" and online abuse, since he has not experienced online abuse and does not really understand the damaging (and permanent) potential of internet speech.

Eugene Volokh, in his many "papers", completely ignores the impact of cyberbullying, cyber-harassment, doxing, and stalking to the VICTIMS of malicious mentally-ill cyber-stalkers and sociopaths. Instead, he works hard to protect the rights of these mentally ill criminals and leave victims with no legal recourse to regain their lives and stop this atrocious behaviour. In essence, Eugene basically supports the criminals.

Who in their right mind thinks "Free Speech" should be abused by plainly malicious individuals who are often mentally ill and are purposely using the internet to harm the victims by revealing private, personal information (doxing) or slandering them online, or posting their personal private pictures?

Rather than help the courts in the USA understand that cyber-harassment is NOT protected speech, Eugene Volokh has taken money ("bribes") from Google, Big Tech to peddle the false notion that harassment websites dedicated to tormenting a victim are "Free Speech" and "one-to-many speech."

Plainly, Eugene Volokh's First Amendment absolutism is EXTREMELY dangerous for America because it allows cyberstalking, cyber-harassment, doxing, and online abuse to flourish.

Eugene also tries to make it as difficult as possible for cyber-harassment victims to file a civil suit against their perpetrators using a "pseudonym", to protect their privacy from even further harm. Rather than sympathizing with the unfortunate and undeserved situation of the victims, Eugene tries to argue that for the victim to file pseudonymously would be somehow "unfair" to the malicious defendant, a psychopath who DESERVES to be held accountable for his criminal and harassing behaviour.

Eugene Volokh reminds me of a wolf in sheep's clothing. He has an ulterior agenda apparently, to de-regulate Big Tech so they can maximize profits at the expense of making Americans totally unprotected from cyber-harassment, doxing, and cyber-stalking by mentally ill individuals online.
You see, it's simple. Eugene advocates for no internet regulation, and ignores online abuse. This benefits Google and Big Tech, who don't have to pay fines for not removing harmful and abusive content. They save money, and perhaps pay Eugene kick-backs behind the scenes.
Eugene has publicly admitted that his "Google is a publisher" paper is funded by Google. Way to go for impartiality. Don't bite the hand that feeds you, Eugene. Of course the paper magically "concludes" that Google is protected by First Amendment. Geez, did Eugene expect all of us to be blind?

It is VERY highly likely that Eugene Volokh gets paid by Google and Big Tech behind the scenes. That's why all of his papers "happens" to fall on view that Big Tech should not be regulated, ever. This is clearly wrong, and dangerous.

Refute me, Eugene Volokh. Everything I said was fact. This is my protected "Free Speech." You have no legal action against me, even if you wanted to.

Worse of all, Eugene has attempted to DELETE and CENSOR my truthful posts ABOUT him as he found it "harassing", while denying the same recourse to thousands of REAL online harassment victims across the country and protecting the rights of their harassers. So Eugene has exposed his dishonesty and biased - if someone posts TRUTHFUL information ABOUT him that casts him in an unfavourable light, he WANTS it CENSORED, but when it happens to millions of other Americans, he claims they DO NOT deserve legal recourse and that the postings are FREE SPEECH.

Tell me, what is Eugene Volokh's solution for victims of mentally ill cyber-stalkers who continuous post private, personal information about victims online in an attempt to harass, disturb, cause emotional distress, or control their victims? What is Eugene Volokh's solution for victims of these crimes to get the harassers to stop, get the harmful content removed, and allow the victims to return to their normal lives? Does he even give a shit? Does he even consider that the First Amendment may be outdated for the internet age, where anybody with any type of axe to grind or slight against an individual can post anything harmful online to affect the lives of the victims?

The dangerous part of Eugene Volokh's analysis is he COMPLETELY ignores the mental impact to the victims of online harassment, he pretends like cyberstalking isn't even a thing. Free Speech absolutism without taking into account privacy interests, right of victims to be free from harassment, etc... is DANGEROUS. The result of Eugene Volokh's Free Speech Absolutism is that victims of malicious online harassment will NEVER be able to get legal recourse from their attackers, who can post any personal or embarrassing or private information with NO legal repercussion, maliciously, to ruin lives. This is apparently the world that Eugene Volokh wants.

I'm sorry, but Eugene Volokh's First Amendment absolutist interpretation is simply dangerous for humanity and America, and is totally incorrect and one-sided. In Eugene's dangerous world, victims of cyber-harassment cannot ever get relief from their attackers, ever. That's how Eugene wants it to be, unless of course, the victim is himself.

[DaivdBehar]

Holden, do you any evidence of direct or indirect funding by big tech or by the Chinese Commie Party of Volokh or of any other law professor?

[DaivdBehar]

Holden, did you review the real cause of your distress, the Supreme Court?

Review this decision.

https://en.wikipedia.org/wiki/Elonis_v._United_States

[Holden C]

DaivdBehar, you idiot, it doesn't take a genius to see Eugene Volokh has consulted for Big Tech and his papers are quote, "funded by Google".

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2055364 ("white paper commissioned by Google")

Do you honestly think America is better off when you allow online criminals to hurt victims with no legal recourse for the victims?

The governments of the UK, Australia, China, Hong Kong, Japan, Korea, Taiwan, Canada, New Zealand, etc... are all taking online harassment seriously and imposing legal liability on the platforms for failure to remove harmful content.

It's mind boggling that the United States of America would allow these abuses to continue under the false guise of "Free Speech." I'm sorry, but doxing others, harassing them online, posting their name and personal pictures without consent, is NOT free speech man. Get your head out of your ivory tower and get a grip of reality.

Unfortunately, Eugene Volokh seems too cushy with Big Tech, the hands that feed him, to be opining on these issues impartially. Notably, never once in his analysis does he talk about the need to address cyberstalking, cyberharassment, and cyberbullying, real world crimes that hurt real people. He is so full of his "Free Speech" idealism that he fails to see the world doesn't work in an idealistic manner. Eugene Volokh, and you, need to get your heads out of your idealistic asses and understand how the world actually works and propose practical solutions.

[DaivdBehar]

Holden. That is a good citation of Google funding of Volokh. Do you have any more, perhaps, more recent than 10 years old?

[Holden C]

DaivdBehar

What is your solution for victims if they are being stalked, harassed, doxed, and targeted maliciously over the internet by mentally-ill individuals trying to expose personal information to cause them harm?

It's a simple question. It's a very common crime that affects a lot of people. What is your solution? Propose a solution.

[DaivdBehar]

If a PFA is not effective, one may suggest seeking an involuntary commitment of the stalker. Fill out the application with evidence of a threat and of mental illness like psychosis. The person will be detained and evaluated. A judge can condition release on treatment of psychosis and on not doing the stalking. Evil people are covered by this remedy. Ass kicking is the proper remedy for evil.

These are effective and specific to the petson. They do not infringe on liberty. 230 was to protect an early industry. It is no longer needed and is obnoxious and unfair.

[DaivdBehar]

Then take a gun safety course. Post a tiktok of your disassembling and assembling and loading the gun in 60 seconds.

[DaivdBehar]

Victims are alone. There are 25 million common law crimes, 5 million are violent. Only 10% are prosecuted. There are 100 million internet crimes. None are prosecuted by the worthless lawyer profession. The average bank robbery is hard, risky, nets $4000. The average identity theft is easy, safe and nets $5000. You are on your own. The lawyer profession is worthless. Eugene knows that, but is in denial.

[DaivdBehar]

Holden. Cyberstalking is covered by harassment and terroristic threat laws. These are being misused by vicious, vindictive feminists against productive males. The lawyer profession is totally feminist biased and seeks to plunder the assets of the productive male.

Here is an analysis by the ACLU of an expansion of these Draconian laws in PA. The proposed changes would have you, Holden, in prison for 7 years, just for repeated postings, even if Eugene never saw them.

https://www.aclupa.org/en/legislation/sb-703-cyberstalking

[Holden C]

I'll also remind you that a while ago, Eugene Volokh was almost close to viewing Revenge Porn as "Free Speech." How would Eugene Volokh respond if a hacker posted naked photos of him online for the world to see? Would this be an exercise of "precious, sacred, free speech"?

You Free Speech absolutist lib-tards and neoliberalists are stupid and insane. You basically are proposing let's allow criminal online behaviour.

[DaivdBehar]

Holden. I do not find the human body to be offensive, nor do I find depictions of sexual intercourse to be offensive. I have proposed suing any party that uses nude images as a pretext to damage the plaintiff. For example, I support suing the police department or the school board for firing a naked employee. I find the female body to be very fetching and deserving of admiration. Admiration of a naked teacher is not damaging. Do you support suing those who respond to such posting with adverse decisions?

Are you an anti-porn feminist, Holden?

[DaivdBehar]

Holden. I am sensitive. Queenie has diagnosed me as autistic across the internet. That is a mental handicap. I felt really hurt and threatened by your calling me an idiot. What recourse should I have?

[Holden C]

DaivdBehar

What is your solution for victims if they are being stalked, harassed, doxed, and targeted maliciously over the internet by mentally-ill individuals trying to expose personal information to cause them harm and to affect their life in negative ways, with clear malice and intent?

It's a simple question. It's a very common crime that affects a lot of people. What is your solution? Propose a solution.

[DaivdBehar]

If a PFA fails, apply for an involuntary commitment with testimony of harmful behavior and symptoms of mental illness. The person will be detained and evsluated. Most judges outside Democrat jurisdictions will go along with a recommendation of care by an examining psychiatrist. Evil is not mentally ill. An ass kicking is appropriate. Take a gun safety course. Post a video of your disassembling and assembling and loading a gun. If the stalker comes around shoot out a knee, to deter. The police will arrest you, not the criminal. You will be sued by the criminal. The lawyer always sides with evil for rent seeking. We are in hell thanks to the super toxic, vile lawyer profession. They are even protecting Putin and his family.

[Holden C]

DaivdBehar, Elonis v. United States was a stupid ass decision by a stupid ass judge, John Roberts, a First Amendment fetishist who does not care or understand the internet. Justice Alito's and Thomas's dissent clearly showed there are far more grounded with the reality of internet harms and crimes than Free Speech absolutist lovers like John Roberts who completely ignored the fundamental harms of online harassment.

It is also sad that Elonis was charged with cyberstalking yet again after the Elonis court case.

https://www.mcall.com/news/police/mc-nws-anthony-elonis-cyberstalking-20210802-egcejopnu5d2bhx7azpndt5wxe-story.html

Clearly, the Supreme Court made a stupid error or letting a guilty, mentally ill cyberstalker off the hook. The end result is society suffers, because these criminals are not punished by law for their crimes and they are emboldened to hurt other victims because they feel protected by the First Amendment.

America is making a massive mistake in interpreting cyberharassment and cyberstalking as protected by the First Amendment. A lot of people are going to be killed or forced to suicide because they cannot escape online abuse. This is despicable. Eugene Volokh, by supporting cyberstalkers, literally has blood on his hands.

[DaivdBehar]

What do you think about a serious asskicking of stalkers by the friends and family of the victim? Which do you think will work, endless legal procedures or 2 beatings and a bullet?

[DaivdBehar]

Elonis was srnt to prison by the federal court after the Elonis decision. You got the result you wanted despite the Supreme Court decision.

I suggest a review of the medical record before starting a relationship. But then that would be doxxing in the most intimate way.

[OtisAH]

How long do your manic episodes usually last?

[DaivdBehar]

Your remark is straight from the KGB Handbook.

[OtisAH]

Shove off, loser.

[wolfefan]

Hello Josh. I'd be more interested in your views of what some are describing as Alito's apparent contradiction in his views on this issue depending on the ideological makeup of the legislature involved. IANAL but as an outsider it looks pretty hacktastic to me, which is why I'd appreciate some input from you and others here. Is there a distinction that can be legitimately drawn between the cases?

[LawTalkingGuy]

Barely. So let’s accept Kavanaugh’s idea that the Purcell Principle can apply to redistricting cases ~10 months before an election. Therefore: federal courts shouldn’t be issuing decisions on maps now at all. Alito thought this was right three weeks ago.

So what changed?

Alito might say: ah this only applies to federal courts ruling on federal issues, we are talking about the ISL doctrine and are halting at a state court decision to enforce the ISL.

The problem with this is obvious: SCOTUS is definitely a federal court. So apparently this time-based abstention principle only applies to federal courts applying federal law (VRA)….but not a certain federal court applying federal law (ISL) to override rulings firmly grounded in state law.

[wolfefan]

Thanks, LTG!

[Holden C]

It is absolutely appalling that the so called "Professor" Eugene Volokh has DONE ABSOLUTELY NOTHING to help the USA address the increasingly common issue of cyber-stalking and online harassment. In fact, he is trying to make victims of cyber-stalking and cyber-harassment even more vulnerable by trying to strike down all legislation that would protect them.

Rather, Eugene Volokh has tried his best to HARM victims of cyberstalking by trying to argue, incorrectly and foolishly, that online harassment and cyberstalking is "Free Speech". He completely ignores the reality that mentally ill sociopaths, stalkers, and harassers purposely use the Internet to try to stalk and ruin lives of innocent victims.

Eugene Volokh doesn't understand the nature of the internet and should not be opining dangerous statements on "Free Speech" when he hasn't experienced truly malicious cyber-stalking himself.
His life experience is not adequate to be opining about "Free Speech" and online abuse, since he has not experienced online abuse and does not really understand the damaging (and permanent) potential of internet speech.

Eugene Volokh, in his many "papers", completely ignores the impact of cyberbullying, cyber-harassment, doxing, and stalking to the VICTIMS of malicious mentally-ill cyber-stalkers and sociopaths. Instead, he works hard to protect the rights of these mentally ill criminals and leave victims with no legal recourse to regain their lives and stop this atrocious behaviour. In essence, Eugene basically supports the criminals.

Who in their right mind thinks "Free Speech" should be abused by plainly malicious individuals who are often mentally ill and are purposely using the internet to harm the victims by revealing private, personal information (doxing) or slandering them online, or posting their personal private pictures?

Rather than help the courts in the USA understand that cyber-harassment is NOT protected speech, Eugene Volokh has taken money ("bribes") from Google, Big Tech to peddle the false notion that harassment websites dedicated to tormenting a victim are "Free Speech" and "one-to-many speech."

You can see that many of Eugene Volokh's papers are funded by Google (https://www.theatlantic.com/technology/archive/2012/05/should-googles-search-results-be-protected-by-the-first-amendment/257468/). He is not a unbiased legal analyst, but rather someone likely to be taking direct bribes from Google and Big Tech to pander incorrect and dangerous Constitutional interpretations that falsely argue for lack of regulation for Big Tech. In return, Big Tech saves money and pays Eugene Volokh a kickback.

Plainly, Eugene Volokh's First Amendment absolutism is EXTREMELY dangerous for America because it allows cyberstalking, cyber-harassment, doxing, and online abuse to flourish.

Eugene also tries to make it as difficult as possible for cyber-harassment victims to file a civil suit against their perpetrators using a "pseudonym", to protect their privacy from even further harm. Rather than sympathizing with the unfortunate and undeserved situation of the victims, Eugene tries to argue that for the victim to file pseudonymously would be somehow "unfair" to the malicious defendant, a psychopath who DESERVES to be held accountable for his criminal and harassing behaviour.
Eugene Volokh reminds me of a wolf in sheep's clothing. He has an ulterior agenda apparently, to de-regulate Big Tech so they can maximize profits at the expense of making Americans totally unprotected from cyber-harassment, doxing, and cyber-stalking by mentally ill individuals online.

You see, it's simple. Eugene advocates for no internet regulation, and ignores online abuse. This benefits Google and Big Tech, who don't have to pay fines for not removing harmful and abusive content. They save money, and perhaps pay Eugene kick-backs behind the scenes.

Eugene has publicly admitted that his "Google is a publisher" paper is funded by Google. Way to go for impartiality. Don't bite the hand that feeds you, Eugene. Of course the paper magically "concludes" that Google is protected by First Amendment. Geez, did Eugene expect all of us to be blind?

It is VERY highly likely that Eugene Volokh gets paid by Google and Big Tech behind the scenes. That's why all of his papers "happens" to fall on view that Big Tech should not be regulated, ever. This is clearly wrong, and dangerous.

Refute me, Eugene Volokh. Everything I said was fact. This is my protected "Free Speech." You have no legal action against me, even if you wanted to.

Worse of all, Eugene has attempted to DELETE and CENSOR my truthful posts ABOUT him as he found it "harassing", while denying the same recourse to thousands of REAL online harassment victims across the country and protecting the rights of their harassers. So Eugene has exposed his dishonesty and biased - if someone posts TRUTHFUL information ABOUT him that casts him in an unfavourable light, he WANTS it CENSORED, but when it happens to millions of other Americans, he claims they DO NOT deserve legal recourse and that the postings are FREE SPEECH.
Tell me, what is Eugene Volokh's solution for victims of mentally ill cyber-stalkers who continuous post private, personal information about victims online in an attempt to harass, disturb, cause emotional distress, or control their victims? What is Eugene Volokh's solution for victims of these crimes to get the harassers to stop, get the harmful content removed, and allow the victims to return to their normal lives? Does he even give a shit? Does he even consider that the First Amendment may be outdated for the internet age, where anybody with any type of axe to grind or slight against an individual can post anything harmful online to affect the lives of the victims?

The dangerous part of Eugene Volokh's analysis is he COMPLETELY ignores the mental impact to the victims of online harassment, he pretends like cyberstalking isn't even a thing. Free Speech absolutism without taking into account privacy interests, right of victims to be free from harassment, etc... is DANGEROUS. The result of Eugene Volokh's Free Speech Absolutism is that victims of malicious online harassment will NEVER be able to get legal recourse from their attackers, who can post any personal or embarrassing or private information with NO legal repercussion, maliciously, to ruin lives. This is apparently the world that Eugene Volokh wants.
I'm sorry, but Eugene Volokh's First Amendment absolutist interpretation is simply dangerous for humanity and America, and is totally incorrect and one-sided. In Eugene's dangerous world, victims of cyber-harassment cannot ever get relief from their attackers, ever. That's how Eugene wants it to be, unless of course, the victim is himself.

Volokh, you have no legal action against me because I'm using the First Amendment that you fiercely advocate against you to expose the truth.

[ReaderY]

I have real difficulties with Alito on this.

1. He appears to be willing to apply the Percell Principle if it results in a win for his team, but mysteriously unwilling to do so if it results in a loss.

2. Alito doesn’t propose any rule or hard criteria for applying the Independent Stste Legislature Doctrine. It’s more of I’ll apply it in a really egregious case. And an example of “really egregious” is, remarkably, when a state constitution has judicially enforcible limits on permissable gerrymandering (and really egregious gerrymandering at that). That in term gives rise to the suspicion that “really egregious” means “results in my team losing.”

3. Alito signed on to a statement that states retained the right to reign in their legislatures through their constitutions and courts, and now appears to be flatly renegging.

4. Alito has gone from saying the federal constitution doesn’t prohibit gerrymandering, notm erely to endorsing the idea that it actively protects it, but to saying that having a problem with gerrymandering is something suspicious and likely to be based on partisan motives. I thnk looking at the North Carolina Supreme Court with this level of partisan paranoia really suggests the attitude really is that if it helps his team, fine, no problem, but if it helps the other team, he will look at it with all the suspicion and paranoia that only a zealous partisan advocate can muster, and find something neferous in it any wat he possibly can.

Conveniently not having any standards, conveniently applying abstention principles like Purcell only when abstention helps his team and not when it doesn’t, all suggest that this is what’s goong on.

I share some of Alito’s previously expressed conservative constitutional views. But this isn’t constitutional conservativism. This is using ones judicial office to help ones prefered party gain power. That’s not constitutiona conservativism. That’s anti-constitutional radicalism. I don’t care what party it is.

[mikeybates]

There is no paranoia needed; merely an interpretation of events. The NC Supreme Court has a 4-3 Democratic majority and drew a Democratic gerrymandered congressional map. The basis was that the NC Constitution says that elections must be "free," which means that a party is entitled to proportional representation in seats. Of course, this defies our electoral system, which is not based on proportional representation.

Never mind, though. Both NC and OH are likely to have new and improved courts in a year, and this can fixed without the Supreme Court needing to get involved.

[ReaderY]

Thank you for confirming what I said above. Of course to a partisan zealot such as yourself the only possible explanation of the NC Supreme Court’s action was pure partisanship. If a decision results in your party losing, what other explanation can there be? The fact that the Supreme Court had come close to ruling that the Federal Constitution requires something similar - the decision was 5-4 - the fact the majority opinion soecifically said states were free to limit gerrymandering by state constitutions and courts - all this is of course completely irrelevant. Can’t let the Dems win, now, can we? So if a lower court decision favors them, it must be malicious, nefarous, and somehow unconstitutional. It’s obvious on its face there can be no other explanation.

[mikeybates]

In NC and PA, Democratic courts have imposed proportional representation; in IL and NJ, Democratic courts have not. The actual legal provisions at issue are virtually identical. So what explains the differences in results? Well, look at which party drew the maps and you have your answer.

As I say though, it doesn't really matter for politics, other than to cause more money to be spent on judicial elections.

[Sarcastr0]

You can't just say 'this time it was abusive, that time it was okay' without a clear procedural way to distinguish.

Otherwise it's just partisan claptrap.

[Holden C]

Eugene Volokh, would you care to respond and tell the world why you systematically ignore online abuse, doxing, cyber-stalking, and cyber-harassment as real crimes that they are, destroying victims' lives and allowing online criminals, stalkers, mentally-ill pervs and deviants to continue to interfere with the lives of victims by using the internet?

Why do you systematically ignore these problems in your analysis, and try to do everything you can to leave victims of cyber-stalking with no legal recourse? Why are you trying to get rid of all laws that would criminalize cyberharassment for the crime that it is?

Why are you trying to harm victims and leave them with no solution for their suffering? Why are you so obsessed with the idealism of Free Speech that you are blinded to the reality that other people have rights too that deserve to be balanced against Speech, like Right to Privacy, Right to be Free From Harassment and Stalking, and other human rights? Why do you purposefully ignore this? Is Google giving you money to ignore this on purpose?

[Holden C]

Eugene Volokh,

What is your solution for victims if they are being stalked, harassed, doxed, and targeted maliciously over the internet by mentally-ill individuals trying to expose personal information to cause them harm and to affect their life in negative ways, with clear malice and intent?

It's a simple question. It's a very common crime that affects a lot of people. What is your solution? Propose a solution.

[Kazinski]

I don't have much doubt the NC supreme court's decision is political, and I'm hoping it shoots them in the foot.

The more democratic (or Republican) majority districts their are, the weaker they are. And tis may not be a good year to dilute democratic strength.

[Nisiiko]

Of course it's not political. When Democrats do it, they're acting with utter goodness, just trying to do what's fair.

When Republicans do it, it's evil gerrymandering.

[dwb68]

Its a trap. Barrett is silent for a lot of reasons (like "too busy writing opinions to have an independent opinion whether we should take this case"), not because she disagrees. 99% chance she will agree with Alito et al.

[bernard11]

So to recap.

What some are trying to do is take a little-noted phrase in the Constitution and advance a novel interpretation that just happens to benefit their side.

To this non-lawyer the whole thing is grossly corrupt. Especially the part where a bunch of lawyers pretend it's just a legal dispute and has nothing to do with election results, when that's all that's involved.

The scheme is simple and plain:

Gerrymander state legislatures.
Authorize state legislatures to override their voters and select electors the legislators want.
Install Trump as President no matter what.

IOW, a coup based on constitutional readings made by a RW partisan SCOTUS.

The whole thing is disgusting.

[Sarcastr0]

Your take is correct. It's incredible, republic-killing with barely a fig leaf of rationalization.

Everyone knows what's going on. Alito and Thomas are really awful for doing this.

disappointed in many of the *commenters* here for buying into this atextual non-originalist lawless crap, much less a Justice much less two of them.

I did not have high expectations for Alito, but Thomas used to be a loon, not a tool.

[bernard11]

And we have too many people acting as if they are watching a basketball game.

[Dilan Esper]

That's not really right. The independent state legislature theory got 9 votes in Bush v. Palm Beach County.

I dislike it, enormously, as a matter of constitutional interpretation (and I thought and said at the time that Bush v. Palm Beach County was a crazy decision) but it has a lot more legitimacy than people are saying it does.

[Sarcastr0]

That's not how I read that case - that case involved the Supreme Court second guessing a state court's interpretation of it's state constitution.

It did not involve a finding that the state court had no jurisdiction, or anything like that.

[bernard11]

Dilan,

You illustrate my point exactly.

Here is what I think you would agree is a marginal, at best, argument being used to basically overturn the results of popular votes in some states.

It's obviously completely results-oriented BS, yet somehow we are supposed to take it all seriously and stroke our chins and wave our thumbs and act like it's all some sort of deep intellectual question.

Fuck that.

We have a system where the state voters choose the electors. It's a stupid way of picking a President, but OK. This is an effort to make it even more stupid.

I refuse to take it seriously.

[Rev. Arthur L. Kirkland]

" And we have too many people acting as if they are watching a basketball game. "

Hockey, not basketball. First, they prefer hockey. More important, if it were a basketball game they'd be too busy making "urban" and "monkey" cracks (and lamenting how Chuck Cooper, Earl Lloyd, Bill Russell, and Wilt Chamberlain ruined the sport) to mention anything about election law.

[Intelligent Mr Toad]

RE: "Critics of the Independent State Legislature doctrine may as well put Justice Barrett's face on the cover of their briefs."

And - honestly - who among us hasn't dreamed about doing that?