Short Circuit: A Roundup of Recent Federal Court Decisions

Flea collars, bachelors, and data scraping.

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

Michigan friends, we're heading to Plymouth on Friday, May 20 for a forum on the Michigan Constitution, featuring litigators, scholars, and retired Michigan Supreme Court Justice Stephen J. Markman. RSVP today!

• During the 2016 presidential election, campaign-finance watchdog files a complaint with the Federal Election Commission, alleging that the Clinton campaign and the Correct the Record PAC failed to properly disclose coordinated expenditures. The FEC dismisses the complaint by an evenly divided vote and the watchdog sues. The district court then dismisses the suit for lack of standing. D.C. Circuit: Which was error. The group has suffered an informational injury (though what value the information has in 2022 is anyone's guess).
• Former California Congressman Devin Nunes sues Georgia-headquartered, Delaware-incorporated CNN in Virginia for allegedly defamatory claims made in New York about Nunes' conduct in Austria. The case is transferred to New York, but still governed by Virginia choice of law, and the New York court determines that, under Virginia law, California law governs the claims. The California Congressman objects that Virginia law would have applied New York law. Second Circuit: Virginia law would have applied California law. Dissent: Virginia law would have applied New York law. Or maybe D.C. law.
• Drug kingpin commits "an array of crimes worthy of a James Bond villain," including dealing arms and technology to Iran and North Korea, attempts at minor warlordism in Africa, and plotting a coup in the Seychelles. Once the DEA caught up with him in Liberia in 2012, he immediately cooperates, resulting in a 25-year sentence. Three of his underlings are convicted of murdering a Filipino real estate agent and sentenced to life in prison. But wait! The feds didn't hand over certain classified docs, including impeachment evidence against the kingpin, until after trial—and only at the Second Circuit's behest. Brady violation? Second Circuit: No, there was so much evidence against these guys that they would've been convicted anyway. Also Second Circuit: But some parts of the convictions can't stand due to the vagueness of the law. Remanded for resentencing.
• West Virginia used-car dealers file motion to suppress evidence obtained during search, and four years later a court agrees that the state trooper who applied for the warrant omitted important facts and made misleading statements and dismisses the criminal charges (failing to disclose to customers that their cars had been totaled before being refurbished) with prejudice. Fourth Circuit: But it's too late for them to sue the trooper over the unconstitutional search. They should have sued while the criminal case was still pending.
• Allegation: While nurses treat his alarming symptoms (burning in lungs, bad cough, recurrent fever, loss of 40 pounds) with cough drops and Tylenol, North Carolina inmate's internal organs are being damaged by a flesh-eating organism. The delay in proper treatment nearly costs him his life. Fourth Circuit: And his suit against the nurses, which he filed from prison without counsel and didn't initially name the nurses as defendants, was nonetheless filed on time. Case un-dismissed.
• After gunshots are heard in the vicinity, driver of car full of teens, seeking to get away, does not stop for Balch Springs, Tex. police officer, who shoots at the car five times, killing a 15-year-old passenger. Fifth Circuit (over a dissent): No qualified immunity. Whether the car was accelerating toward or away from a second officer is a question for the jury. (A criminal jury convicted the officer of murder, though discretionary review of his appeal has been granted.)
• After the Biden administration released a memo outlining the Department of Homeland Security's immigration priorities, the states of Arizona, Montana, and Ohio filed suit in Ohio to enjoin its implementation. The district court issued a nationwide preliminary injunction and the feds sought a stay pending appeal. Sixth Circuit: Stay granted. It's not clear how the states are harmed by the memo or that it is even reviewable, and the states would probably lose on the merits anyway. Self-Concurrence (by Chief Judge Sutton): Stop issuing nationwide injunctions.
• Traffic tickets are big business in Chicago. The city issues around 3 million tickets per year, which resulted in $1.8 bil in driver debt last year, and revenue from tickets generated 7% of the city's operating budget in 2016. When the car owner's parking-ticket debt accumulates, the city often impounds the car and attaches a lien for unpaid tickets and fees. These costs often exceed the value of the car and ability of the owner to pay, leaving many to declare bankruptcy. Seventh Circuit: And that lien is avoidable in bankruptcy, meaning that the owner may not have to pay the debt to get her car back.
• Does it violate Minnesota's anti-harassment law for a nonprofit to send postcards urging local businesses not to advertise in a particular local paper because the paper also runs ads for strip clubs and pornography? Nonprofit: Well, that law was enforced against us in 2019 for sending out our postcards, and it sure seems to restrict our speech. So we'd like the federal courts to vindicate our First Amendment rights. Eighth Circuit: Except the law doesn't actually apply to what you want to do, so you lack standing to challenge it. Dissent: Except . . . the law was literally enforced against these guys three years ago. For doing precisely what they want to keep doing.
• On remand from the Supremes, the Ninth Circuit once again finds that a data analytics company whose business model depends on scraping info from LinkedIn users' public profiles is entitled to a preliminary injunction and continued access to that data while LinkedIn's suit seeking to block the scraping proceeds. (LinkedIn users who don't want their profiles scraped can change their privacy settings.)
• Oregon state senators duck out of the senate chamber in 2019 to stop the body from having a quorum. Members of the majority party threaten to have them arrested. To which one of the quorum-breaking senators responds with comments like "[s]end bachelors, and come heavily armed." Which leads the majority leadership to require him to give 12 hours' notice before visiting the capitol. Which leads to the senator's suing a bunch of other senators and staff. Which the district court dismisses. And which the Ninth Circuit reinstates: Could be the 12-hour-notice requirement was retaliation against this guy for engaging in protected speech.
• Allegation: In 2020, construction company transfers employees from one job site in San Francisco where there have been lots of COVID-19 infections to another job site, where plaintiff, also an employee, also gets infected and brings the virus home to his wife, who has to be hospitalized for more than a month. Ninth Circuit: And we have some questions about state law we hope the California Supreme Court will clear up.
• Man escapes from San Joaquin County, Calif. jail highway work crew, is on the lam for over three weeks before officers and a K-9 catch up to him. Ninth Circuit: Viewing the facts in plaintiff's favor (except those clearly contradicted by bodycam footage), the dog's initial bite did not violate the Eighth Amendment, but any post-handcuff beatings and bitings (if they happened) clearly did, so no QI. Dissent: "I would affirm the district court in full, toss aside [the] excessive force and failure-to-intervene claims, and revel in the sound quality of modern computer speakers."
• After jerking environmental group around for more than a decade (and finally being mandamused!), the EPA denies a petition to cancel the registration for a pesticide used in flea collars. Ninth Circuit: We ordered you to provide a "reasoned" explanation, and the explanation you provided is not that. Do it again.
• Utah Highway Patrol officer pulls over a car with Kansas plates. After talking with the driver, he returns to his patrol car and calls for a K-9 unit. The K-9 eventually shows up and alerts on the car, and the resulting search turns up some fentanyl and a kilo of cocaine. But did the officer have reasonable suspicion to extend the stop? Tenth Circuit: No. The only things the officer cites are: the presence of a duffle bag in the back seat, the presence of air freshener in the center console, and the facts that the driver did not roll his window down completely, could not locate his rental agreement, and paused briefly before answering questions about his trip. The cop had a hunch, and hunches aren't enough. Suppress the evidence.
• Sometimes you read an opinion about the federal government's designation of a critical habitat for the New Mexico Meadow Jumping Mouse and you spend the whole time wondering, "But what does the New Mexico Meadow Jumping Mouse look like?" Not so with this helpfully illustrated opinion from the Tenth Circuit.
• Allegation: Kansas inmate's lawsuit over a prison staffer labeling him a snitch is dismissed because his access to the law library is severely restricted while he's in solitary confinement. Tenth Circuit: His new claim over the denial of access to the library should not have been dismissed.
• Eleventh Circuit: Not only does the nonprofit group Speech First have standing to challenge the University of Central Florida's discriminatory-harassment and bias-related-incidents policies, it's entitled to a preliminary injunction on the former (and the district court should consider a PI for the latter on remand). Concurrence: "A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum."
• And in en banc news, the Eleventh Circuit will reconsider its decision and perhaps its precedent regarding the Prison Litigation Reform Act's "three strikes rule," which prohibits pro se prisoners from filing lawsuits in forma pauperis if they have previously had three lawsuits dismissed for failure to state a claim. Under its earlier ruling, now called into question, the Eleventh Circuit held that lawsuits dismissed for failure to exhaust administrative remedies count as strikes.
• And in amicus brief news, IJ is asking the Eighth Circuit to uphold a district court ruling that denied absolute immunity to a Missouri state judge who, on two occasions, jailed two minor siblings because they declined to go home with their mother, preferring instead their father. (On one of those occasions, the judge personally put the children in a cell for over an hour, even though court had closed for the day, they hadn't been held in contempt, and weren't parties to any proceeding.) It's no exaggeration to say the doctrine of judicial immunity is a bit of a bugaboo amongst your otherwise even-tempered Short Circuit staff; for starters, it's irreconcilable with Section 1983, which was passed with the intent to create a civil remedy for bad-acting state judges.
• And in additional amicus brief news, IJ is asking the Ninth Circuit to reverse the dismissal of a suit alleging that, without giving orders or warnings, Stockton, Calif. police surrounded and beat a crowd of Cinco de Mayo revelers (who at most were guilty of jaywalking), broke the plaintiff's leg with a baton, and then filed false reports so that he was charged with resisting arrest. The district court said his suit was barred because the plaintiff entered a pre-trial agreement, pleading no contest in exchange for having the charge dismissed. But the Supreme Court has been clear that litigants in his shoes are allowed to proceed.

Gov't officials should not be able to sue their critics into submission. But that's what the Village Attorney of Mt. Pleasant, Wisc. is trying to do, claiming a local activist, Kelly Gallaher, caused him "emotional distress" when she called him out on an inaccurate statement he made to the media. (He said that an ordinance passed earlier this year (extending the terms of Village Board members from two years to three) had been discussed for years when in fact there was very little public notice.) In an attempt to avoid the crippling costs of defending the meritless defamation suit, Kelly acceded to the Village Attorney's demand that she retract her—accurate—claims. But he filed suit anyway, and this week Kelly and IJ joined forces to vindicate Kelly's First Amendment right to criticize the gov't and put a bully in his place. Click here to learn more.

Comments

[wolfefan]

Re: the Stockton, CA Cinco de Mayo case, I kind of liked the guy with the broken leg being allowed to proceed in his shoes. There's a joke there someplace although I'm not clever enough to articulate it.

[santamonica811]

Thanks to the link to the "mouse" case, I learned a new word today: "extirpate."

[BillyG]

Way to go 9th actually holding an agency (EPA) responsible.
WTH 8th? (1st amendment case) the dissent has it summed up perfectly.
10th: Nice to see the 4th amendment mean something again.

[MatthewSlyfield]

"WTH 8th? (1st amendment case) the dissent has it summed up perfectly."

I don't think the majority opinion is necessarily as bad for the plaintiffs as you suggest. If they are smart, they will go forward and if Minnesota brings another enforcement action against them they can raise the 8th circuit decision (the law doesn't apply to what they are doing) as a defense.

[BillyG]

Good point. I wonder how that would play out.

[tkamenick]

Federal court interpretations of state law are not binding on state courts.

[Krayt]

Does it violate Minnesota's anti-harassment law for a nonprofit to send postcards urging local businesses not to advertise in a particular local paper because the paper also runs ads for strip clubs and pornography? Nonprofit: Well, that law was enforced against us in 2019 for sending out our postcards, and it sure seems to restrict our speech. So we'd like the federal courts to vindicate our First Amendment rights. Eighth Circuit: Except the law doesn't actually apply to what you want to do, so you lack standing to challenge it. Dissent: Except . . . the law was literally enforced against these guys three years ago. For doing precisely what they want to keep doing.

Anti-harrassment as legal silencing of the other side trying to cancel a naughty newspaper.

Anti-harrassment, cancellation for me, but not for thee.
It's about power and silencing your opponents, as everyone knew all along. So long, First Amendment.

[Rev. Arthur L. Kirkland]

The dissenter in the Ninth Circuit police conduct case (a district court judge sitting by designation), the one who not only emphasized the sound quality but also wrote at length about how the body camera video disproved the plaintiff's claims, acknowledges he is legally blind.

Relying on evidence he can't see to exonerate police officers? What a cop succor.

[TwelveInchPianist]

Neat pun with the anti-gay slur there, Arthur.

[Rev. Arthur L. Kirkland]

I do not see the gay angle in that context. You seem to have brought that one to the party yourself.

It is a great pun. But not everyone has a sense of humor.

[Queen Amalthea]

One can only imagine what type of discrimination or hate Commander Data would see in a comment like 'Trump is going to let Russia screw us.' Anti-gay? Anti-national origin? Anti-sex? Only limited by his algorithms I guess.

[Rev. Arthur L. Kirkland]

Like those who are drowning, they flail and froth, lurching toward anything that might provide fleeting hope of a different result, neither knowing nor caring whether anything of substance is involved in each spasm.

I can only imagine how sad, desperate, terrifying, and hopeless it must be in their position.

(If that double dose of Wyman inclines anyone to watch "The Quiet One" -- a documentary currently available from several sources -- all of this will have been worth it.)

[TwelveInchPianist]

"I do not see the gay angle in that context."

Sigh. It seems that many people don't. Perhaps Anderson Cooper can explain:
"Anderson Cooper Gently Explains to Alec Baldwin Why a Certain Slur Is Anti-Gay"

Or maybe this article from the National Association of LGBQ journalists can explain it:

"The term “cocksucker” is a homophobic taunt that is wrong in the locker room and the playground, but is especially wrong for the workplace. Public figures get in trouble for using homophobic terms that are arguably less offensive."

If you need to be further educated, there's plenty of other material.

And remember, if you have trouble reading, many browsers have a feature that will dictate the article for you.

[TwelveInchPianist]

Geez, Arthur, for a guy who gets in such a tizzy of Professors reading MLK passages that contain the word "nigger", you sure seem to enjoy spouting your own anti-gay slurs, anti-sematic tropes, and your own frequent use of racial slurs.

[Michael P]

To a (quite good) first approximation, all leftist complaints about bigotry and prejudice are projection.

[Rev. Arthur L. Kirkland]

Keep flailing, clingers. I kind of enjoy watching bigots sputter and bluster. It reminds me of how much progress better Americans have effected over conservatives' objections since the days when bigots were open, common, loud, and proud.

[TwelveInchPianist]

Do you enjoy it as much as you enjoy racial slurs, anti gay slurs, and antisemetic tropes?

[Rev. Arthur L. Kirkland]

I do not use racial slurs. You lie about this because you are defensive in this regard.

Right-wingers, such as Prof. Volokh and his carefully cultivated collection of conservative comments, use a vile racial slur regularly -- more than once a month at this white, male blog (and that is counting by posts and comment threads, not by each individual use of the vile racial slur). Prof. Volokh generally chooses circumstances involving plausible deniability; his fans are less cautious, flinging vile racial slurs gratuitously and mean-spiritedly, often in response to a signal from Prof. Volokh that the Volokh Conspiracy welcomes usage of a vile racial slur.

A vile racial slur. Published more than one a month, over a period of years, at an ostensibly academic but undeniably conservative, white, male blog. To some degree, that says much of what any reasoned, educated, modern America needs to know about the Volokh Conspiracy.

I understand why the Blackmans and Heriots, and most Conspiracy fans, are drawn to this boorish, unbecoming activity. That the Somins, Posts, Adlers, and Kerrs acquiesce in this low-grade conduct, however, seem inexplicable.

[TwelveInchPianist]

"I do not use racial slurs. You lie about this because you are defensive in this regard."

Lol. You use it every time you type it into the search box to see who else has been using it.

The word is mentioned on the VC to quote MLK, to quote James Baldwin, to quote court decisions, etc. It's mentioned in the discussion of history, law, language, and cultural mores. This is what you are objecting to.

You, on the other hand, spent the last several years whimpering because you weren't permitted to direct an anti-gay slur at people you disagree with. You wanted to insinuate that people who had a different view of police use of force than you were gay, and you are butthurt to this day that you weren't allowed to do so.

And just the other day you claimed that Jewish law professors were beholden to the state of Israel.

You're the real deal, Arthur. A true bigot. That's why the smarter leftists on this blog don't claim you. The "bigotry" that you whine about one the VC is just you projecting PC bullshit.

[Rev. Arthur L. Kirkland]

" You use it every time you type it into the search box to see who else has been using it. "

That is a lie.

You are a liar. And a disaffected, bigoted, worthless right-wing loser -- precisely the target audience of this white, male, bigot-friendly, right-wing blog.

Keep up the 'liberals are the real racists' and 'Democrats are the real bigots' arguments. That is the level of discourse to which the Volokh Conspiracy has fallen.

You and Prof. Volokh deserve each other. He regularly uses a vile racial slur and attracts a readership steeped in multifaceted right-wing bigotry; you try to defend him by lying about others.

[Davy C]

You're really going to complain about slurs and the level of discourse? You? The guy who gratuitously insults everyone here multiple times per day? Heck, you don't even need slurs; you use "white" as a pejorative directly!

[Rev. Arthur L. Kirkland]

If you can't recognize the difference between white and a vile, reprehensible racial slur -- you are just the type of reader this white, male, right-wing blog is looking for!

What is wrong with insulting racists? Or gay-bashers? Or xenophobes? Or misogynists? Or bigots in general? Do you prefer to appease them, embrace them, coddle them, cuddle them?

[Brett Bellmore]

"You wanted to insinuate that people who had a different view of police use of force than you were gay, and you are butthurt to this day that you weren't allowed to do so."

LOL. That's just a bit ironic to say, if you think about it...

Still, entirely true.

[Queen Amalthea]

He knows it when it's described to him...

[Rev. Arthur L. Kirkland]

I can't withdraw that comment or remove its use of the term I have been directed not to use. Because no Conspirator wrote the post, I figured I was reading something from the main Reason web page rather than from the Volokh Conspiracy. I was wrong. I apologize for violating the proprietor's rules, which he is entitled to enforce.

If it helps, the judge I was criticizing is a Democrat.

[not me]

You've been commenting here for how many years, and haven't realized that Short Circuit is a recurring feature at the VC every Friday?
I mean, I know reading comprehension isn't your strong suit, but really...

[Rev. Arthur L. Kirkland]

I understand that, at this blog, my education and literacy are attributes of shame and discredit, while the true fans are considered the real smart ones.

I hope you enjoy those documentaries.

[Noscitur a sociis]

1. The dissent was based on the audio recordings, not video.

2. To what extent do you think the visually impaired are disqualified from serving as judges?

3. Will the fact that this post isn't censored or deleted allow you to stop complaining that your "cop succor" post got removed and inspire you to move on to more constructive comments?

[TwelveInchPianist]

"Will the fact that this post isn't censored or deleted allow you to stop complaining that your "cop succor" post got removed and inspire you to move on to more constructive comments?"

Well, the judge he was criticizing was a Democrat, so the fact that this "cop succor" post doesn't get deleted is just more evidence of ideologically motivated censorship.

[Rev. Arthur L. Kirkland]

Noscitur a sociis at 1:
"1. The dissent was based on the audio recordings, not video."

Dissent at 23:
"Because audio and video recordings captured by police body
cameras firmly contradict those assertions"

Dissent at 23:
" . . . I conclude that the district court properly . . . reject[ed] Hughes’s testimony on . . .whether Hughes . . . made a gesture of surrender . . . "

Dissent at 23:
". . .video recordings captured by police body cameras firmly contradict those assertions . . . "

Dissent at 23:
"As is evident from the views we express, the body
cameras captured a critical sequence of events. That
sequence is best appreciated when the videos are viewed in
tandem."

Dissent at 23:
"On the footage, we see and hear Hughes . . . failing to surrender"

Dissent at 23:
"We see Cain bounding through the doorway, straight for Hughes’s torso, and Officer Michael Rodriguez ambling in behind the dog."

Dissent at 23:
"The relevant footage from Officer Molthen’s camera is
different in character from that captured by the other body
cameras; . . . Officer Molthen’s body—and, as a result, the video from his camera—was for the most part pointed away from the scrum."

Dissent at 23:
"By pairing the audio from Officer Molthen’s footage with the same sounds recorded by other officers’ body cameras, a full timeline emerges."

Dissent at 23:
"the Court could have dispensed with any number of the inferences it relied upon when analyzing the video . . . The video itself is black-and-white and grainy,"

Dissent at 23:
"Nor does the video appear to explicitly show Harris “cross[ing] a double yellow line.” . . . Rather, it is the vague glow and apparent leftward pitch of Harris’s taillights that suggest that he did so."

Other than that, though, great comment!

(Sometimes, checking the original is worthwhile.)

[TwelveInchPianist]

And if he was unable to review the video, how on earth was he able to review the record?

Why do we let the visually impaired function in society at all!

Right, Arthur? You ridiculous bigot.

[Rev. Arthur L. Kirkland]

It's probably time to try to hand your fans a lifeline, Prof. Volokh. They're foundering. As are all right-wingers' hopes for a conservative future in America.

[Dilan Esper]

This entire thing is silly. I think it was Justice Harlan who was close to blind when the obscenity cases were coming into SCOTUS in the late '60's, and Justice Marshall called play-by-play for him at the film screenings.

Of course a legally blind judge can judge. They have clerks who can let them know what the video shows.

[Noscitur a sociis]

Judge Vitaliano isn't exactly cryptic about how it's the audio portion of the recordings that, in his view, refutes the plaintiff's claims:

The relevant footage from Officer Molthen’s camera is different in character from that captured by the other body cameras; after all, by the time Officer Molthen entered the house, Hughes was already on the floor struggling with Officer Michael Rodriguez and others. More than that, Officer Molthen’s body—and, as a result, the video from his camera—was for the most part pointed away from the scrum. But the audio recording from this officer’s footage is essential to a full understanding of the encounter. It culminates in the transcendent, unmistakable whir of handcuffs snapping shut, followed by an officer’s remark, “I got one.” Then, seven seconds later, a second such snap is heard, followed by an officer’s announcement, “Code Four. In custody.” Almost instantaneously, Hughes’s pained shouts and the officers’ barked instructions both ceas

In fact, he expressly says so again:

Whether it be images from video footage, as in Scott, or sounds on video footage, as here, if but one inference from common experience explains them, there is no genuine dispute of material fact as to that issue, and there is nothing further for a factfinder to find.

Other than that, though, great comment!

[Rev. Arthur L. Kirkland]

I doubt you are a lawyer.

[Rev. Arthur L. Kirkland]

For an ostensibly legal blog, this blog generates unusually low-level discussions concerning law.

[David Welker]

I find it interesting how "progressive" cities end up using the poor as a cash cows, as the Chicago story illustrates.

It is nearly as though their rhetoric about economic inequality isn't very meaningful in practice.

[Rev. Arthur L. Kirkland]

I have always enjoyed how the conservative backwaters end up using the poor for . . . well, just about everything, because that's about all that remains after generations on the wrong end of bright flight strips a dying community of all of its smart, ambitious, worthwhile young people, leaving behind a depleted human residue.

[Queen Amalthea]

I'm pretty sure this isn't limited to 'progressive cities.'

[FivebySixThree]

However shouldn't they strive to do the exact opposite?

City and county governments regularly prey on the poor simply because they know their options to object are limited or non existent. Power tripping bureaucrats don't fare well versus those who can drag them into court though I suspect there are some who would relish abusing their position to teach the upstart resident a lesson.

Between fines, fees, and licensing, the poor are kept poor.

[wolfefan]

All levels of government should strive to do the exact opposite, without regard to the ideology or the politics of those in office.

[Brett Bellmore]

If you look at the political demographics of cities, it would be hard for it not to be. I'm sure all the Republican run big cities would do the same, if you could find any.

[TwelveInchPianist]

“ and finally being mandamused!”

Interesting. It seems like the English participle form is becoming more and more common.

[Stephen Lathrop]

But not yet mandamused.

[Voize of Reazon]

Attributed to Queen Victoria who resisted the power of the courts to direct the Crown, saying "We are not mand-amused".

[Krayt]

Lol, someone just female dogged af Behar for verbing it.

[Stephen Lathrop]

"[s]end bachelors, and come heavily armed."

Which is interpreted as protected speech.

I suppose the degree of surprise that delivers depends on whether the person considering it is highly experienced in 1A law. It occurs to me that maybe the 1A law on threats of that sort ought to be adjusted.

Seems like the boundary location between a remark like that one and a so-called true threat will not usually be evident to someone not well-schooled in the law. Which suggests in turn that folks not well-schooled in law who say things like that might often intend them as threats to be taken seriously. Which seems as a practical matter to make existing law almost incomprehensible. How is anyone supposed to know whether as a signifier of personal danger such a remark is a true threat or not?

Consider the question how great is the liberty interest protected by calling such a threatening utterance legally harmless? Does the ability to use without legal peril words encompassing literal deadly violence add much to liberty interests? How much would liberty interests be damaged by instead drawing the true threats exclusion closer to the side of public safety, to rule out mention of deadly violence?

I suggest little or no damage. On the other hand, the revised line of distinction would be one easily taught, easy to remember, less surprising to laymen, and probably would somewhat ease the minds of recipients exposed to such threats.

Maybe that set of advantages would serve speech liberty better than the legal status quo on true threats. What is the argument to the contrary?

[Michael P]

Area man yells at First Amendment clouds. Again.

[Stephen Lathrop]

Michael P, you have done well. You picked up on a once-popular style of critique no more than 7-years outdated. See if you can add substance.

We both understand that true threats are not protected. The definition of a true threat is currently arbitrary to the point of obscurity. I suggested a change, to make the definition a practical guideline for the kind of people—belligerent, tumultuous people—to whom it applies. Explain what you would improve, and why.

For instance, you could say, "I think it improves public discourse to leave folks at liberty—when they wish to threaten each other with violence—to do so in as many ways as possible."

But your thinking may be otherwise, and you may prefer to say something else. Can you even begin to think what that might be?

[Michael P]

Your rants against most aspects aspects of the First Amendment are as old and tired, and no more worth repeating, as the many times you have been told why you are wrong.

[Stephen Lathrop]

Michael P, in short, I offered a comment, and you remain at a loss to engage. Or you prefer to pretend exasperation. Or maybe there is no pretense. Does my challenge frustrate you?

More than 200 years ago, Franklin noted the kind of advocacy you and many others on this blog so often practice. Franklin characterized an eagerness to invoke rights, coupled with an unwillingness to discuss them. Franklin—world-famous for the practicality he valued—thought that style an obstacle to sensible government. He criticized people who practice it.

Of course, to invoke Franklin often risks giving too much credit. How many would-be commenters on public life can match Franklin's standards, or even want to try?

Your heated response suggests that belligerent and tumultuous tendency I mentioned above. You could moderate it. Have you decided to cherish it instead? If so, do you think that wise?

[Michael P]

No, I declined to engage with someone who keeps telling at clouds. Learn the difference.

[Stephen Lathrop]

Perhaps you should mute me.

[Michael P]

Perhaps you should limit your comments to things you haven't essentially said a dozen times before.

[Stephen Lathrop]

Miachael — I do not recall addressing this issue previously. The only category it seems to fit is, "Issues which annoy Michael P."

[David Nieporent]

We both understand that true threats are not protected. The definition of a true threat is currently arbitrary to the point of obscurity. I suggested a change, to make the definition a practical guideline for the kind of people—belligerent, tumultuous people—to whom it applies. Explain what you would improve, and why.

You didn't suggest a change; you just said, "How about if we censor more," and then handwaved what it would actually constitute. You didn't explain how your non-specific proposal would be any more easily administrable than the current regime or why it would be an improvement.

The boundary condition is actually pretty clear: a statement of the form, "I am going to do X to you" is a true threat. A conditional statement is generally not. And a statement of the form, "I hope something bad happens to you" is not.

What exactly is the benefit that you think accrues from putting more people who never injured anyone in jail for their speech? (If they actually did injure people, then they could be charged for that, and the threat issue would be unimportant. )

[Stephen Lathrop]

Nieporent — I wrote:

Does the ability to use without legal peril words encompassing literal deadly violence add much to liberty interests? How much would liberty interests be damaged by instead drawing the true threats exclusion closer to the side of public safety, to rule out mention of deadly violence?

How does that not propose a specific change? It says in so many words to rule out mention of deadly violence. That is now permitted. I would not permit it. That is the proposed change.

As I am sure you can see, the paraphrase you wrote, "How about if we censor more," is a mischaracterization.

You write:

What exactly is the benefit that you think accrues from putting more people who never injured anyone in jail for their speech? (If they actually did injure people, then they could be charged for that, and the threat issue would be unimportant. )

One benefit would be fewer people living in terror that they or their children might be attacked by someone publishing an anonymous threat with intent to terrify them. Many folks already suppose people show they are actually dangerous if they publish threats which mention killing people. I suggest that if such threats were made illegal, people who could not constrain themselves from publishing them ought to be treated by law as actually dangerous, as proved by their own lack of self-control, and by the social damage such threats inflict.

Another benefit would be an end to less common instances where published assertions that people ought to be killed get picked up by some nutcase and acted upon—as sometimes happens.

The biggest benefit would be constraint on weaponized publishing—publishing used to terrify others, and intimidate them from activities they are entitled to do, and which benefit the public life of the nation. For instance, to act as administrators of elections. News reports say people are quitting those jobs—or deciding not to take them in the first place—because they reasonably fear the consequences when such threats are published against them, however conditionally.

Please explain why you think a published statement in the form, "Unless you stop saying Biden won the election, you ought to be killed," is a plus for either free speech, press freedom, or the public life of the nation.

[Harvey Mosley]

"One benefit would be fewer people living in terror that they or their children might be attacked by someone publishing an anonymous threat with intent to terrify them."

As usual, you use examples that have nothing to do with what you actually say.

[Stephen Lathrop]

Explain?

[Krayt]

True threats are not protected. But legion are the whiners who will exaggerate the threat to hurt and silence a political opponent.

Every example I've seen run through this blog was something I'd consider over the line. But when you add in the motivation factor to hurt one's opponent based on it, it's not so obvious anymore.

So yeah, something like "you'd better pre-order body bags" sounds awful, but is almost certainly hot air. 12 Angry Men and all that.

[Stephen Lathrop]

Krayt, a disadvantage of the style of analysis you choose is that it omits the effect of the threat on its target. Do you think it reasonable to tell a threat recipient that, for instance, her fear for the lives of her children is trivial, or dismissible emotion? Is that something you would do yourself?

If the ability to publish what you call, "hot air"—but which in fact intimidates some people out of even attempting public service—were legally constrained, what of value do you think would be lost?

[Brett Bellmore]

"Krayt, a disadvantage of the style of analysis you choose is that it omits the effect of the threat on its target."

So, you're proposing a sort of "eggshell skull" rule of threats? You can threaten all day long if you threaten people of normal character, so long as you avoid 'true' threats, but if you screw up and threaten some precious snowflake, never mind that no sane person would have been terrified, you're in trouble?

The problem with that sort of approach, and it seems to be spreading like a cancer, is that it creates an incentive to be thin skinned and take offense at things no sane person would think twice about. Suddenly crazy notions like "micro-aggression" get taken seriously, and people are being punished for not using the right made-up pronoun,

[F.D. Wolf]

Second Circuit: Virginia law would have applied California law. Dissent: Virginia law would have applied New York law. Or maybe D.C. law.

Why don't you jackasses ask the Supreme Court of Virginia?

[Shamie Ervin iv]

Thanks to John Ross for his mirthful wit and eloquence. Priceless food for this old geezer. And speaking of the word "extirpate," I remember long ago, in law school, I think, looking it up and its etymology after reading this quote from Edmund Burke: "Power gradually extirpates from the mind every humane and gentle virtue. Pity, benevolence, friendship, are things almost unknown in high stations."

[Rev. Arthur L. Kirkland]

I enjoy these summaries, which are fun to read, but partisan exuberance sometimes creates unattractive distance between the depictions and the underlying decisions.

(Of course, without the partisan shading there is scant likelihood this blog would be interested in them, so I would never see them.)

[David Nieporent]

Kirkland doesn't understand the definition of the word "partisan." Film at 11.

[Rev. Arthur L. Kirkland]

One can be partisan -- intensely partisan, brutally partisan -- without misstatements of fact. I have never regarded partisanship as a defense of inaccuracy.

[David Nieporent]

Whoosh!

The point is that there is absolutely nothing "partisan" in the Short Circuit briefs. You might have meant ideological and chosen the wrong word because words aren't your forte, though the only significant ideology in them is a generally libertarian mindset, especially with regard to QI.

[darkknight9]

My involvement with the word was from history:
"This will give seven ships searching for Emden and avoid the necessity of moving one of the three Light Cruisers now hunting Königsberg. Numbers are everything, and the extirpation of these pests is a most important object."

[Hugo S. Cunningham]

The summary about the Nunes defamation lawsuit sounds trivial. In fact, it might be rather important and expensive to Nunes. California has a tough and effective anti-SLAPP law penalizing those who file frivolous defamation lawsuits-- eg the supposed defamation is obviously true, or otherwise protected by current case law (opinion rather than (dis)provable fact etc.).