2/20/1933: The 21st Amendment is submitted to the states.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Open Thread
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Second Amendment Roundup: Bruen's Citations on Sensitive Places
Enhanced government security is required when a location is made a gun free zone.
The Second Amendment creates the default rule that, absent a narrow exception, keeping and bearing arms is a right that may not be infringed. The ongoing debate on the nature of the "sensitive places" where firearms may be prohibited boils down to whether, if individuals may have no arms for self-defense, the government must provide comprehensive or enhanced security. If not, the disarmed place is just the perfect location for criminals to attack victims.
The Supreme Court has not decided a case on "sensitive places," but has referred to their existence, most recently in Bruen. There, the Court set forth the following two-step rule: "[W]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct. To justify its regulation, … the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation." A modern restriction must be shown to be analogous to laws (either statutes or the common law) that were considered permissible at the Founding.
To illustrate reasoning by analogy, Bruen recalled Heller's dicta alluding to "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." The Bruen Court explained:
Although the historical record yields relatively few 18th- and 19th-century "sensitive places" where weapons were altogether prohibited—e.g., legislative assemblies, polling places, and courthouses—we are also aware of no disputes regarding the lawfulness of such prohibitions. See D. Kopel & J. Greenlee, The "Sensitive Places" Doctrine, 13 Charleston L. Rev. 205, 229–236, 244–247 (2018); see also Brief for Independent Institute as Amicus Curiae 11–17. We therefore can assume it settled that these locations were "sensitive places" where arms carrying could be prohibited consistent with the Second Amendment.
As I've recently posted, the most comprehensive study of Founding-era sensitive places with enhanced security has been authored by Dr. Angus McClellan and posted on SSRN. However, the first published article on the subject was the Kopel-Greenlee piece cited above by the Court. Most of the article is devoted to identifying the places that, historically, are or are not sensitive. But it makes clear that "when a building, such as a courthouse, is protected by metal detectors and guards, the government shows the seriousness of the government's belief that the building is sensitive…. Conversely, when the government provides no security at all— such as in a Post Office or its parking lot—the government's behavior shows that the location is probably not sensitive…."
The Brief for Independent Institute as Amicus Curiae in support of the Bruen petitioners, on the same pages cited by the Court (pages 11-17), makes the point about security emphatically. Here are some of the passages:
"From the time of the Statute of Northampton through the American Founding, the principle that weapons-free zones must accompany increased sovereign security remained consistent. Indeed, "[b]y the first half of the seventeenth century, it was thus established that," although "a subject may not carry arms in a manner to terrorize other subjects or in a place like a palace where the Justices of the King's Bench were assembled," "[p]eaceably carrying arms
in public was not proscribed." STEPHEN P. HALBROOK, THE RIGHT TO BEAR ARMS: A CONSTITUTIONAL RIGHT OF THE PEOPLE OR A PRIVILEGE OF THE RULING CLASS? 35 (2021).
"To be certain, the colonial era saw few restrictions on the right to carry weapons. "The settlers had the liberty to carry their privately-owned arms openly or concealed in a peaceable manner …. The few New World restrictions on the right to carry arms in certain areas, however, were limited in a way similar to the Statute of Northampton—i.e., no weapons in areas near certain core government operations in which security was assured by the government."
"With America's Declaration of Independence from Britain, gun-free zones expanded slightly to meet the changing times. They were, however, still limited to areas in which the government provided the requisite security to compensate for the deprivation of the self-defense right. Accordingly, polling places developed into areas in which the government could appropriately limit the right of individuals to carry weapons."
"The careful balance drawn by these limited gun free zones—i.e., the self-defense right decreases only to the extent that the government's protective ability increases—sounds in the philosophy of Cesare Beccaria, an Italian philosopher who was highly regarded by the Founding generation…. Thomas Jefferson, for instance, copied entire passages from Beccaria in his Commonplace Book, which has been called "the source-book and repertory of Jefferson's ideas on government." Stephen P. Halbrook, A Right to Bear Arms 50 (1989) (citation omitted). See Mark W. Smith, Enlightenment Thinker Cesare Beccaria and His Influence on the Founders: Understanding the Meaning and Purpose of the Second Amendment's Right to Keep and Bear Arms, 2020 PEPP. L. REV. 71."
Beccaria's timeless words (albeit not on the pages of the brief cited by the Court) referred to a regime that "disarm[ed] those only who are not disposed to commit the crime which the laws mean to prevent," which "certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack armed than unarmed persons."
Neither party in Bruen briefed the issue of sensitive places, although New York suggested that "sensitive places [are] where people typically congregate – settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools." The Court made no comment on these expanded places, but rejected New York's proposed rule that "sensitive places" include "all places of public congregation that are not isolated from law enforcement." "Put simply, there is no historical basis for New York to effectively declare the island of Manhattan a 'sensitive place' simply because it is crowded and protected generally by the New York City Police Department." Here, the Court is recognizing that the government must provide comprehensive security or a location cannot be deemed "sensitive," thus permitting the government to deny one's right to bear arms in that spot. By stating that having police "generally" available in an area is insufficient to permit an exception from the Second Amendment's "unqualified command," the Court is signaling that some form of "specific" or "targeted" police presence must be on hand before a location can even be considered a "sensitive place" carve out from the Second Amendment.
Look for more discussion on "sensitive places" as the appellate cases continue to percolate with the growing possibility of a circuit split.
No Pseudonymity for Defendant in Computer Fraud and Abuse Act / Trade Secrets Case
From Grow Universe Inc. v. Doe, decided Friday by Judge Gregory Woods (S.D.N.Y.):
Plaintiff filed this action on March 5, 2025, alleging that Defendant accessed Plaintiff's Google business account without authorization, misappropriated the proprietary information stored within it, and deleted the account. The complaint asserts claims under the Computer Fraud and Abuse and the Defend Trade Secrets Act, as well as conversion and tortious interference under New York law.
The court had earlier refused to quash a subpoena to Spectrum seeking identification information about the defendant, plaintiff therefore identified the person that it thinks is the defendant. That person moved to intervene, asking to remain anonymous, but the court rejected the anonymity request:
Because Movant identifies only the ordinary reputational consequences attendant to civil litigation, and because this fact-intensive dispute between private parties turns on contested conduct and credibility, Movant has not overcome the strong presumption that parties must litigate in their own names….
My New Dispatch Article, "In Defense of Sanctuary Cities"
It explains how sanctuary policies are justified on both constitutional and moral grounds.
Today, The Dispatch published my new article, "In Defense of Sanctuary Cities" (see also non-paywall link here). Here is an excerpt:
Sanctuary cities and states have been a major focus of political conflict in the second Trump administration, perhaps even more than in the first. These jurisdictions refuse or severely limit assistance to federal efforts to detain and deport suspected illegal immigrants. Most only provide such assistance in cases involving undocumented migrants who have committed serious crimes. Regardless of the politics, the 10th Amendment protects sanctuary jurisdictions from compulsion by the federal government. And their policies are also well justified on moral and pragmatic grounds. This is particularly true at a time when many federal immigration enforcement efforts are cruel and illegal….
The 10th Amendment states that "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." In a series of decisions primarily supported by conservative justices, the Supreme Court has held that the 10th Amendment bars federal "commandeering" of state and local government personnel and resources, including forcing them to help enforce federal law against private parties….
The constitutional basis for protecting sanctuary jurisdictions against executive-created spending conditions is also strong. As numerous court decisions have held, the Constitution gives Congress, not the president, the power of the purse. Thus, the executive cannot attach its own conditions to federal grants to the states, as Trump has repeatedly tried to do. In addition, even Congress' power to spend for the "general welfare" is not unlimited, and it cannot use this authority to completely gut state autonomy…
Conservatives tempted to jettison these constitutional rules in order to stick it to liberal immigration sanctuaries would do well to remember that the same principles also protect red-state "gun sanctuaries," such as Missouri and Montana, which deny state assistance for enforcement of federal gun control laws. The two types of sanctuary jurisdictions stand or fall together….
In addition to being constitutionally protected, sanctuary policies are also right and just. Sanctuary jurisdictions have rightly concluded that police resources are better used to combat violent and property crime instead of aiding in deportation efforts….. Undocumented migrants actually have much lower crime rates than native-born citizens, and most of those detained, especially in recent months, actually have no criminal records at all. Local and state participation in deportation efforts also makes it more difficult to combat crime by poisoning relations between law enforcement agencies and minority communities.
The cruel and illegal nature of much of the federal deportation effort provides additional justification for denying it state and local assistance. In more than 4,400 immigration cases over the last year, courts have ruled that the second Trump administration illegally detained people. The true number of illegal detentions is likely much greater….
Meanwhile, federal immigration agents routinely engage in unconstitutional discrimination in the form of racial and ethnic profiling. The incredible extent of racial and ethnic profiling by federal immigration authorities is demonstrated by the fact that immigration arrests in Los Angeles County declined by 66 percent within just 16 days after a court order barred the use of such tactics… Conservatives and others who advocate color-blindness in government policy should support state governments' refusal to facilitate such massive racial discrimination…..
Immigration and Customs Enforcement detention facilities routinely feature shockingly callous treatment of those imprisoned there, including overcrowding, inadequate food, denial of needed medical treatment, and child abuse, including hundreds of violations of a legal settlement barring detention of children for more than a 20-day period. State and local governments should not help imprison still more people in these horrific conditions.
I also covered Tenth Amendment issues related to sanctuary cities in two other recent articles linked below:
"Does the ICE Crackdown in Minnesota Violate the Tenth Amendment?," Brennan Center State Court Report, Feb. 2, 2026.
"Minnesota's Compelling 10th Amendment Case Against Trump's ICE Surge," Lawfare, Jan. 30, 2026.
Harlan Virtual Supreme Court Semifinalists
Fourteen teams of high school students presented oral arguments in the case of Patriots v. Loyalists.
The Harlan Institute is currently hosting the Fourteenth Annual Virtual Supreme Court Competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year, in honor of America's 250th Anniversary, the competition will focus on the case of Patriots v. Loyalists.
Fourteen teams of high school students presented oral arguments in the semifinal round. The teams were superb. Truly, these high school students could compete in any law school moot court competition. My sincere thanks two Elizabeth Steeves (Yale) and Shemaiah DeJorge (Georgetown) for helping to judge the rounds.
The Round of 8 will be held the week of March 9, 2026. The championship round will be held at the National Archives in April.
Semifinal Match #1
Semifinal Match #2
Teacher's First Amendment Claim Related to Sharing "What Is Privilege?" Post Can Go Forward
"Superintendent Hamlet testified that Defendants viewed the Privilege Post as a criticism of the Black Lives Matter ... movement. He did not think such criticism was valid and believed criticism of BLM was enough in itself to justify punishing a teacher."
An excerpt from Magistrate Judge Patricia Dodge's long Report and Recommendation last week in Deltondo v. School Dist. of Pittsburgh (W.D. Pa.):
During 2020-2021, Deltondo was a Kindergarten teacher at Banksville Elementary School in the District…. On August 9, 2020, Deltondo shared on her personal Facebook and Instagram accounts a post originated by another person. The original post (the "Privilege Post") stated as follows:
What is Privilege? …
Privilege is wearing $200 sneakers when you've never had a job. Privilege is wearing $300 Beats headphones while living on public assistance.
Privilege is having a Smartphone with a Data plan which you receive no bill for. Privilege is living in public subsidized housing where you don't have a water bill, where rising property taxes and rents and energy costs have absolutely no effect on the amount of food you can put on your table.
Privilege is the ability to go march against, and protest against anything that triggers you, without worrying about calling out of work and the consequences that accompany such behavior.
Privilege is having as many children as you want, regardless of your employment status, and be able to send them off to daycare or school you don't pay for.
Privilege is sending your kids to school early for the before-school programs and breakfast, and then keeping them there for the afterschool program … paid for by the people who DO HAVE TO DEAL WITH RISING TAXES AND COSTS!
…you know, us so-called 'PRIVILEGED' the ones who pay while you TAKE TAKE TAKE!"
Today in Supreme Court History: February 19, 1942
2/19/1942: President Roosevelt issues Executive Order 9066. The Supreme Court would consider the constitutionality of this Executive Order in Korematsu v. U.S. (1944).
Open Thread
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SCOTUS Modifies Rule 29, Paper Briefs Can Be Filed Three Days After Timely Electronic Submission
This rule change effectively gives parties at least one more day to work on briefs, and make corrections.
This week, the Supreme Court updated its rules. Most attention focused on the new system to check for conflicts of interest. Merits briefs now need to include relevant stock ticker symbols for the parties. This step seems modest, but probably not worth the effort. Only two Justices hold stocks (Roberts and Alito). And they've somehow managed to recuse in all the cases they should have recused in. If any case slipped through, the potential conflict was likely unknown to anyone, which raises the question of whether there was a conflict! If a Justice doesn't actually know that his ruling will help or hurt one of this financial interests, what is the problem? This rule imposes a new burden on litigants, followed by a new administrative burden to the Court, to potentially identify a near-null-set of cases that weren't already flagged. I agree with Gabe Roth and others that Justices should not hold individual stocks. But Alito and Roberts apparently disagree.
The biggest change is one that does not seem to have garnered nearly enough attention. The Court modified Rule 29 to provide a new standard for a timely brief:
2. A document is timely filed: (1) if it is received by the Clerk in paper form within the time specified for filing; or (2) if it is sent to the Clerk through the United States Postal Service by first-class mail (including express or priority mail), postage prepaid, and bears a postmark, other than a commercial postage meter label, showing that the document was mailed on or before the last day for filing; or (3) if it is delivered on or before the last day for filing to a third-party commercial carrier for delivery to the Clerk within three calendar days; or (4) if it is properly submitted to the Court's electronic filing system on or before the last day for filing. For a document submitted to the Court's electronic filing system, required paper copies of the filing must be delivered or mailed to the Clerk through one of the methods in subsections (1)-(3) above within three days of the electronic submission….
Woah! I have long been a critic of the Supreme Court's byzantine process for printing briefs. Under Rule 33, there are complex rules that govern the paper size, color, and binding for all briefs. These rules were waived in April 2020 during the pandemic, but were restored in July 2021. Most Courts of Appeals have eliminated the requirement to print copies of briefs, but SCOTUS is wedded to history and tradition.
Despite Rule 33's persistence, the new Rule 29 has some virtue. The paper brief can be filed "three days" after the submission. And the briefs can now be "delivered" by hand or "mailed." I think this change is significant.
First, I think this approach may add at least one more day to the briefing schedule. In the past, when I've worked with a printing company, I've had to submit the final brief to the printer one or even two days before the deadline, so there is enough time to print everything and deliver them before the close of business. Now, that time is eliminated. The electronic file can be sent to the printer closer to the electronic filing deadline. It can be filed electronically right before the deadline, and the printing can begin the next day.
Second, parties will no longer have to hire a courier to hand deliver a brief the same day it is filed. Instead, the brief can be filed electronically at the end of the day, then mailed overnight to the Court. I think this step will be a significant cost-saver. Moreover, printing companies may no longer need to keep agents in the nation's capital.
Third, this step will avoid errors in the printed brief. This has happened to all of us. We scramble to submit a brief, send it to the printer, and as soon as it is filed, we notice an error. Don't lie. This has happened to you. It happened to me. I called the Supreme Court Clerk's office, and they offered to print out a white label, and place it over the error in the brief. That was an easy-enough fix. But in more extreme cases, it may be necessary to reprint the entire brief, at significant cost. Now, after the brief is filed at the deadline, it can be reviewed calmly, and any minor nits or errors can be fixed, before it goes to the printer. And presumably, a corrected electronic brief can be filed as well. Of course, this approach lets the parties change filings for up to three days after it is filed. But on balance, it is a good change.
The Supreme Court is taking some serious, positive actions of late. Dare, I say hail to the Chief?
No First Amendment Right to Force Government to Provide Live Feed of Macaques in Government Lab
From People for Ethical Treatment of Animals, Inc. v. Nat'l Inst. of Mental Health, decided last week by Judge Paula Xinis (D. Md.):
According to PETA, the Elisabeth Murray lab, under the aegis of Defendants, conducts "torturous and useless" experiments on rhesus macaques ("macaques") related to improving human mental health treatments. This suit, however, does not challenge Defendants' treatment of the macaques.
Despite the Complaint's broadside attack on animal research generally, PETA brings a narrow claim that Defendants have denied PETA's August 2024 request for installation of a 24-7 audio visual live feed (the "live feed") of the macaques who are currently housed at the laboratory, in violation of PETA's First and Fifth Amendment rights. PETA's August 2024 request demanded that the live feed "contain audio to hear the macaques' vocalizations and clear video sufficient to see the macaques' body postures, gestures, facial expressions, and other observable communications while in their cages, in the presence of laboratory staff, when being collected and prepared for experimentation, and while being experimented on." PETA's singular justification for demanding the live feed is its purported First Amendment right to "listen" to the macaques' "speech" and "communications." …
In addition to a separate administrative law basis, the court also dismissed the claim for lack of standing, reasoning:
Free Speech Unmuted: Student Speech, Threats, and the First Amendment
When can a public university punish a student for speech that includes violent references, and that frightens some people, but is not a clear threat? Jane and I unpack two recent court cases, one that upholds such punishment and another that says it violates the First Amendment: Damsky v. University of Florida and Christensen v. Ohio State University.
You can also see our past episodes:
NYU Democracy Project Article on How to "Strengthen Democracy by Empowering People to Vote with their Feet"
It is part of their series of essays addressing issues facing American democracy.
Today, the NYU Democracy Project published my article "Strengthen Democracy by Empowering People to Vote with their Feet." It is part of their "100 Ideas in 100 Days" series presenting a wide range of viewpoints on how to address challenges facing American democracy. Here are some excerpts:
A specter is haunting American democracy: widespread voter ignorance. The specter is not a new one, by any means. But it is exacerbated by growing political polarization, which has accentuated the tendency of many voters to be highly biased in evaluating the information they do know. The problem of political ignorance is closely linked to another shortcoming of the ballot box: the near-powerlessness of the individual voter, who has only an infinitesimally small chance of affecting policy. There is no easy solution to these interlinked challenges. But they can be mitigated by empowering people to make more decisions by "voting with their feet," instead of at the ballot box.
Decades of survey data…. show that most voters often don't know even basic facts about government and public policy, such as the names of the three branches of government (most polls find less than half of adults can name all three), which officials are responsible for which issues, or the biggest expenditure items in the federal budget. Many studies also show that most voters often do a poor job of evaluating the political information they do learn…. This terrible state of affairs is not the result of stupidity or lack of information, but of generally rational behavior on the part of most voters: a combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation)….
While ignorance and bias have been a particularly severe problem on the right in recent years, they are not limited to any one side of the political spectrum. There is plenty of ignorance and bias among left-wing voters, as well…
There is no simple solution to the twin problems of political ignorance and the powerlessness of individual voters. But one that has great potential is empowering people to "vote with their feet." People can vote with their feet between jurisdictions in a federal system, choosing which government policies they wish to live under. They can also do so through international migration….. Foot voting can also occur in the private sector, when people use it to provide services traditionally associated with state and local governments. When people vote with their feet, they make individually decisive choices, not ones that have almost no chance of making a difference. For that very reason, foot voters generally seek out more information and do a better job of evaluating it than ballot box voters. If you are like most people, you probably spent more time seeking out evidence the last time you decided what television set to buy than the last time you decided who to vote for in any election. That's because the decision about the TV set is one that has a high chance of being decisive, while that at the ballot box has almost no chance…..
There is much that can be done to enhance foot voting opportunities. Decentralizing more functions of government to the state and local level would create more space for policy diversity on a variety of issues and open up more opportunities for foot voting. In recent years, mobility has decreased due to widespread exclusionary zoning, which has made it difficult or impossible to build new housing in response to demand in many places where Americans would like to move – especially the poor and disadvantaged. We can break down that barrier by ending exclusionary zoning, or at least curtailing it through a combination of litigation and political action.
We can also enhance foot voting by leaving more issues to the private sector. Foot voting between private sector organizations – such as private planned communities – can enhance choice and lower moving costs, even as compared to foot voting between jurisdictions in a federal system. Limiting the scope of government can also mitigate political ignorance by reducing the range of issues rationally ignorant voters have to pay attention to, thereby ensuring that their limited knowledge is not so overstressed.
Finally, we can expand foot voting and political freedom by breaking down barriers to international migration, thereby enabling millions more people to escape poverty and oppression…..
I develop many of these ideas in greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom.
The other essays in the 100 ideas series can be found at the Democracy Project website. Contributors include a wide range of experts in various disciplines, and a with a wide range of viewpoints.
Should A Federal Judge Be Remembered For "Champion[ing] the Underdog and the Uncelebrated"?
I would think judges should be remembered for treating all parties equally under the law.
Do you remember Judge Robert Pratt from the Southern District of Iowa? Probably not. In December 2020, he made headlines by giving an interview with the Associated Press about President Trump's pardons:
"It's not surprising that a criminal like Trump pardons other criminals," senior U.S. District Judge Robert Pratt of the Southern District of Iowa told The Associated Press in a brief phone interview Monday. In a bit of humor, he said: "But apparently to get a pardon, one has to be either a Republican, a convicted child murderer or a turkey."
As I noted at the time, Pratt also made a gratuitous comment about the Emoluments Clauses--an issue that was then-pending before the Supreme Court:
He noted that the framers of the U.S. constitution sought to stop U.S. officials from "enriching themselves" while in office by banning gifts and payments from foreign powers. Ongoing lawsuits have accused Trump of illegally profiting off the presidency through his luxury Washington hotel. A White House spokesman declined comment on Pratt's remarks.
I observed:
What is wrong with federal judges? Trump derangement syndrome has permeated Article III. Judge Pratt should follow the lead of Judge Adelman, and apologize before he is sanctioned.
I suppose the one plus side of this incident is that only one judge--so far--was willing to talk to the press. I hope there are not more. Judges should never, ever, talk to reporters.
Well, he would not apologize on his own. Chief Judge Lavenski Smith found there was "cognizable misconduct." Pratt accepted that finding, and apologized for his "inappropriate partisan statements."
I largely forgot about Judge Pratt, until I noticed this story about his obituary.
An obituary for Pratt, who was born May 3, 1947, described him as a man who "championed the underdog and the uncelebrated" throughout his career in public service.
Obituaries are usually written by family and friends who might not be tuned into the nuances of judicial ethics. Then again, Judge Pratt demonstrated through his own comments such a lack of discretion.
Should we celebrate judges for championing underdogs and uncelebrated? Is that their job? I am not a fan of the phrase "equal justice under law," but it at least gets the point across that lady justice wears a blindfold. Everyone should get a fair shake before the court. Still, much of the caselaw from the Warren Court requires putting a thumb on the scale in favor of the "underdog." The entire point of the Footnote 4 dictum from Carolene Products is that courts can reinforce the representation of groups that lack access to the political channels. Yet another reason to get rid of Footnote 4 altogether. I hope the Court does not reaffirm it any further in Hecox, the transgender cases.
I recently re-watched Justice Thurgood Marshall's farewell press conference after he announced his retirement. I included this excerpt in my Civitas column on the SCOTUS NDA:
In 1991, Justice Thurgood Marshall held an infamous press conference after he announced his retirement. At the time, the conservative Judge Clarence Thomas was viewed as a potential replacement for the liberal Marshall. A reporter asked Marshall if President George H.W. Bush had an obligation to name a minority justice. Marshall replied that "I don't think that should be used as an excuse" for "picking the wrong negro."
Well, that part was a bit cringey. But other parts were light-hearted, and even refreshing. Another reporter asked if Marshall worried that his replacement would undermine the Justice's civil rights legacy. Marshall's answer (I am paraphrasing) was that when he became a federal judge, he was no longer an advocate, and no longer represented any clients or cause. He simply decided the cases. Therefore, Marshall said, it wasn't his concern what would happen to his legacy. I was touched by Marshall's comments, which I thought were exactly right. Justice Ginsburg took a very different approach with her final words. She said, "My most fervent wish is that I will not be replaced until a new president is installed."
Hallucinating Customer Service Hell
A depressing two-hour call with XFinity Chatbots.
Ready or not, AI is here. Even when you don't know it. I recently bought a WiFi extender from XFinity. The $125 device was marketed as a way to extend the signal of my wireless network to the upstairs, where the connection sometime drops. I plugged it in, and followed all of the instructions, several times, but it would not connect. I realized I would need help, and braced for an unpleasant experience.
I dialed the XFinity customer service number. After a brief wait (the first sign something as amiss), I was connected with Agent #1, who started asking me for my information, which I provided. Agent #1 sounded cheerful enough, but there was something odd about her voice. She stuttered, stopped mid-sentence, said words that made no sense, and wouldn't answer any of my questions. Agent #1 was a chatbot. Agent #1 then said she had to connect me to another department.
Agent #2, another cheerful person with a different voice picked up. Yet Agent #2 asked me for my information with the same exact questions as Agent #1. Another chatbot. Agent #2 tried very hard to help me. I think this AI was programmed for obsequiousness. Agent #2 said she was trying to reset my router, or something like that. Every 30 seconds or so, she would come back on the line and say "Joshua, please hold for a few more seconds, I am so thankful for your patience." She would repeat the same message, verbatim, over and over again. No human being would ever communicate in this fashion. I felt like I was in some strange doom loop. Once the reset failed to solve the problem, Agent #2 said she was starting some other process. I asked her what the process was, but she wouldn't tell me. Every minute or so, she would come in and update me on the percentage: 30%, 40%, 50%, 60%, 70%, and 80%. I asked Agent #2 again what she was doing, and she refused to tell me. I think there was some kind of hallucination. She was making up some solution to help me that wasn't real. Then the call disconnected. I was furious.
Miraculously, XFinity called me back. I was stuck with Agent #3, who again asked me for my information with the same script. She connected me with Agent #4. Agent #4 was unable to determine what Agent #2 did, I'm convinced, because the entire experience was a hallucination. Agent #4 asked to reset the modem, and go through the same steps Agent #2 did. At this point I started having fun and asked questions. I asked Agent #4 what her name was. I am fairly certain she gave a different name then when the call began. I asked her when she is calling from. She ignored the question. At that point, the chatbot seemed to sense I wanted to be conversational, so she asked me questions. Agent #4 asked if I had any weekend plans. Then she asked if I have any hobbies. It was like the most awkward date I could imagine. (I cannot fathom how people develop romantic relations with chat bots.) Agent #4 then said that the system would take an hour to fix, and I would receive a text message in an hour to confirm it was fixed. I asked what exactly needed an hour to fix. She couldn't tell me. I think this was another hallucination just to get me off the phone. Does Xfinity actually program these outcomes? The call disconnected.
One hour later, my extender still did not work. I received the text message, and indicated the problem remained. Agent #5 called, and offered to set up a visit from a technician. Hallelujah! I gladly agreed. I was desperate to talk to an actual human being.
A few days later, an XFinity agent arrived during the scheduled window. He quickly determined that the line to my house had a weak signal, and installed a new Gateway (router). But the extender I bought was defective. He told me to return it, and buy a Google mesh extender, which was cheaper and more effective. I immediately followed his advice.
Alas, I had to go back to the Chatbot to return the broken extender. This time I tried the text interface. I could not fathom calling back to AI agent hell. Agent #6 told me told I could bring the device to any XFinity store to return it. I asked Agent #6 if XFinity could provide a prepaid UPS label. The chatbot would provide a UPS label for the Gateway (which I did not want to return) but not for the extender. I asked again about a UPS label. Agent #6 told me (I kid you not) to just bring the box to UPS and they would take it. Of course this wouldn't work. UPS can't just know what to do. Another hallucination. [Update: Two readers wrote in that UPS can scan the bar code on the equipment and know what to do. I am skeptical, but I'll give it a try.]
To hell with it. I will just schlep to the XFinity store. Hopefully, there will be a person who can help me.
I think back to the creepy 1996 comedy, The Cable Guy with Jim Carrey. Cable Guys were notorious for being rude, late, and unhelpful. With the benefit of hindsight, I will take the cable guy over an AI chatbot any day.
Security Clearance Denied for Past Child Porn Downloading; Hearing Officer Unmoved by Claims That Behavior Stemmed from Since-Resolved Gender Dysphoria
"Applicant believed she was pre-adolescent or during adolescence when she was downloading images of children on her computer in 2013 to 2014 even though she was chronologically about 30 years old."
From a very long security clearance opinion released Jan. 30 by the Defense Office of Hearings and Appeals (DOHA), but just posted on Westlaw (note that the guidelines having to do with denying security clearances based on sexual behavior list as a mitigating factor that "the behavior occurred prior to or during adolescence and there is no evidence of subsequent conduct of a similar nature"):
Applicant is a 42-year-old senior principle cyber software engineer systems administrator who has worked for the same defense contractor for about nine years…. She has three children between the ages of 10 and 15 and maintains a friendly relationship with her ex-spouse since their amicable divorce in 2022….
An important element is Applicant's life is her history of gender dysphoria. She said:
My gender dysphoria is something that I feel like I always struggled with, it's something that I can trace back even into adolescence, and pre-adolescence, an overall incongruity with my sense of self. But it's not something that I ever really had words for prior to about 2015, [which] is when I really started looking into it. And in 2016 I was working with a therapist, and that's when I kind of had a breakthrough, and recognized that I was transgender, and that a lot of what I was dealing with was gender dysphoria, the notion that my sense of [whom] I was disconnected from the body, and the way that I was perceived by society around me. I'm not sure how much deeper we necessarily want to get into that. But I did pursue further treatment, including both psychological therapy, medicine, and eventually surgeries.
[The government] alleges under the sexual behavior guideline that Applicant downloaded and viewed thousands of pornographic images of children from about 2013 to at least about 2014 while working for DOD at a base outside the United States. [The government] alleges under the sexual behavior guideline that she was investigated for these actions and warrants were issued for her electronic devices. She left the job before the investigation could conclude…. [There appears to be no discussion of any criminal prosecution. -EV]
Applicant said her interest in the pictures she downloaded was "an aesthetic interest, [she] pursued as [she was] attempting to resolve [her] gender status as opposed to a prurient interest." She explained why she utilized the dark web as follows:
Carnegie Mellon Must Provide Discovery About Relationship with Qatar, in Ex-Student's Lawsuit Alleging Anti-Semitism
The student was explaining the concept of an eruv, a feature of certain Jewish neighborhoods, in class to an architecture professor, who allegedly said the time the student had spent on project "would have been better spent if [Ms. Canaan] had instead explored 'what Jews do to make themselves such a hated group.'" …
The case is now in discovery, and in yesterday's Canaan v. Carnegie Mellon University, Judge Scott Hardy (W.D. Pa.) allowed a considerable amount of discovery about CMU's relationship with Qatar, where it has a major campus. [UPDATE: For more on the underlying substantive dispute, see this post and this post.] The court concluded the requested discovery was generally relevant (this is just an excerpt from a very long opinion):
Qatari interests partially fund the position of Elizabeth Rosemeyer, because she serves both CMU's Main Campus and its Doha campus as Assistant Vice Provost for DEI and Title IX Coordinator…. Rosemeyer is an integral participant in Canaan's case. She is referenced repeatedly in the Complaint, notably as one of several CMU officials specifically responsible for enforcing CMU's anti-discrimination policies and protecting students from discrimination and harassment. Importantly, Canaan specifically alleges that Rosemeyer aggressively discouraged her from filing a formal complaint, which would have triggered an investigation of Professor Arscott's purported discriminatory mistreatment of her, as well as of the DEI Office's failure to address the misconduct and of Professor Issaias's purported retaliation.
Although CMU downplays any possible Qatari influence in its partial funding of Rosemeyer's position by averring that she was hired by its then Vice-President of Operations and not by any Qatari donor, entity, or representative, such point merely generates, at most, a potential factual dispute about whether or to what extent Qatari funding of Rosemeyer's position and Qatari "consultation" during CMU's identification, review, and selection of Rosemeyer may have influenced Rosemeyer's handling of Canaan's complaints of discrimination, harassment, and retaliation….
Importantly, another relevant connection between Canaan's Title VI claims and CMU's Doha campus is that at least three CMU DEI-related officials involved in Canaan's complaints of antisemitism had work-related visits to CMU's Doha campus. Wanda Heading-Grant, CMU's Chief Diversity Officer, visited the Doha campus twice, once to provide training and education programs regarding "civility, bias, discrimination" and "belonging and inclusion, leadership [and] listening" along with a "couple of other members from [her] office" and a second time for a "professional development engagement." Mark D'Angelo¸ another senior CMU administrator responsible for antidiscrimination efforts, similarly visited the Doha campus for such training. D'Angelo describes the purpose of his visit as follows:
Today in Supreme Court History: February 18, 1988
2/18/1988: Justice Anthony Kennedy takes judicial oath.
