The Volokh Conspiracy

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

The Volokh Conspiracy
About The Volokh Conspiracy

Free Speech

Florida Teachers Have No First Amendment Right to Indicate Their Preferred Pronouns and Honorifics in Class

So an Eleventh Circuit panel held today, by a 2-1 vote.

|

Excerpts from the 9,400-word Wood v. Fla. Dep't of Ed., decided today by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher:

Katie Wood is a transgender woman who teaches at a public high school in Florida. Two years ago, the state enacted Fla. Stat. § 1000.071(3), which, as applied to Wood, prohibits her from using the honorific "Ms." and the gendered pronouns "she," "her," and "hers" in exchanges with students during class time. Wood sued to enjoin the enforcement of § 1000.071(3) against her. The district court granted Wood a preliminary injunction, finding it substantially likely that the law violates her First Amendment right to free speech.

We disagree. Because we hold that Wood hasn't shown a substantial likelihood that § 1000.071(3) infringes her free-speech rights, we vacate the preliminary injunction and remand the case to the district court for proceedings consistent with this opinion….

Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex." …

We begin—and find that we can end—with the question whether Wood has shown a likelihood of success on the merits of her First Amendment challenge. As relevant here, the First Amendment (as incorporated through the Fourteenth) prohibits state legislatures from "mak[ing any] law … abridging the freedom of speech." The First Amendment's protections extend to public-school teachers and students, "neither of whom shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

But a teacher's right to speak is not without limits. One reason is that "[i]n addition to being [a] private citizen[ ]," a teacher is "also [a] government employee[ ] paid in part to speak on the government's behalf and convey its intended messages."

Read More

Immigration

Federal Court Rules Against Trump's "Invasion" Executive Order

But, notably, the court chose not to rule on the issue of what qualifies as an "invasion."

|

AI-generated image.

Today, in Refugee and Immigrant Center for Legal and Educational Services v. Noem, US District Court Judge Randolph Moss issued an important decision blocking Donald Trump's January 20 "invasion" executive proclamation, which sought to foreclose nearly all pathways to legal migration and asylum applications for migrants crossing the southern border. Trump claimed the order is authorized by both federal statutes and the Guarantee Clause of Article IV, Section 4 of the Constitution, which states: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion."

Judge Moss rejects both grounds for the order, in a long and detailed 128-page ruling. Interestingly, however, he rejects the administration's constitutional argument without defining what qualifies as an "invasion." Here is his summary of the decision:

For the reasons that follow, the Court concludes that neither the INA [statute] nor the Constitution grants the President or the Agency Defendants authority to replace the comprehensive rules and procedures set forth in the INA and the governing regulations with an extra-statutory, extra-regulatory regime for repatriating or removing individuals from the United States, without an opportunity to apply for asylum or withholding of removal and without complying with the regulations governing CAT protection. The Court recognizes that the Executive Branch faces enormous challenges in preventing and deterring unlawful entry into the United States and in adjudicating the overwhelming backlog of asylum claims of those who have entered the country. But the INA, by its terms, provides the sole and exclusive means for removing people already present in the country, and, as the Department of Justice correctly concluded less than nine months ago, neither § 1182(f) nor § 1185(a) provides the President with the unilateral authority to limit the rights of aliens present in the United States to apply for asylum. Nor can Article II's Vesting Clause or Article IV's Invasion Clause be read to grant the President or his delegees authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted and the regulations that the responsible agencies have promulgated. As the Framers understood, "every breach of the fundamental laws," even when "dictated by necessity," undermines respect for the rule of law and "forms a precedent for other breaches where the same plea of necessity does not exist at all, or is less urgent or palpable." The Federalist No. 25, at 167 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Here, nothing in the INA or the Constitution grants the President or his delegees the sweeping authority asserted in the Proclamation and implementing guidance.

On the constitutional argument regarding "invasion," Judge Moss chose not to address the issue of what qualifies as an "invasion," instead ruling that the Guarantee Clause doesn't grant the president any relevant independent authority:

Defendants' reliance on the Constitution's guarantee that the "United States . . . shall
protect each [state] against Invasion," U.S. Const., art. IV, § 4 (the "Invasion Clause"), fails for the same reasons. Defendants themselves place little or no independent reliance on the Invasion Clause and, instead, merely suggest that the President plays some role in protecting the States "against Invasion…." even assuming that is correct, Defendants do not dispute that Congress plays the primary role in crafting the governing rules and that, under the Youngstown framework, see Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring), the President may not act in derogation of the laws that Congress has enacted. Although relevant precedent is sparse, the Supreme Court has opined that the responsibility for "carry[ing] into effect" the Guarantee Clause "is primarily a legislative power," Texas v. White, 74 U.S. 700, 701 (1868), overruled on other grounds by Morgan v. United States, 113 U.S. 476 (1885), and that it "rest[s] with Congress . . . to determine . . . the means proper to be adopted to fulfill th[e] guarantee" against "domestic violence," Luther v. Borden, 48 U.S. 1, 43 (1849). There is no reason to believe that the Invasion Clause, which appears in the very same sentence of Article IV as these provisions, allocates responsibility any differently. That conclusion finds further support in Article I of the Constitution, moreover, which grants Congress the power to "provide for calling forth the Militia to . . . repel Invasions," U.S. Const., art. I, § 8, cl. 15, leaving little doubt that responsibility under the Invasion Clause is, at the very least, shared between the political branches. Finally, it is far from clear that the Invasion Clause confers any power to act that is not found elsewhere in Articles I and II of the Constitution. Unlike Article IV, Section 4, which speaks in terms of the responsibility of "[t]he United States" to protect the States, Articles I and II speak in terms of the "Power[s]" vested in the Congress and the President to perform their constitutional responsibilities…. If the President lacks authority under the Vesting Clause of Article II to supplant the INA with an alternative set of immigration laws, that power cannot be found in Article IV, Section 4.

I think this is correct as far as immigration policy goes. The president cannot override congressional mandates and impose his own new migration policies merely by proclaiming the existence of an "invasion." An invasion does not give the president blanket authority to impose new immigration restrictions.

But I am skeptical of the idea that the Invasion Clause component of the Guarantee Clause never gives the president any independent authority. In the event of a genuine "invasion" - i.e., an organized military attack - the president would surely have at least some authority to respond, even in the absence of specific congressional authorization. In that situation, the Invasion Clause reinforces his powers as Commander-in-Chief of the armed forces.

For that reason, I think the better approach to this issue would be to rule that illegal migration and cross-border drug smuggling do not qualify as an "invasion." Rather, as James Madison wrote in addressing this very issue,  in his Report of 1800, an "[i]nvasion is an operation of war." I address the meaning of "invasion" in much greater detail here and here.

The rest of Judge Moss's long and detailed opinion addresses the statutory issues, and explains why he is granting a class certification, among other things. I will not attempt to go over these issues in detail here. But his general conclusion strikes me as correct. No statute gives the president the "authority to adopt an alternative immigration system, which supplants the statutes that Congress has enacted."

It is also notable that Judge Moss emphasizes that immigration restriction is primarily a congressional power, not an executive one. I agree on that, as well, assuming the power belongs to the federal government at all (which, under the original meaning of the Constitution,  it mostly does not). That principle lends support to a possible nondelegation challenge to Trump's massive new travel ban order.

This case should be distinguished from ongoing litigation over Trump's invocation of the Alien Enemies Act of 1798, which also involves the meaning of "invasion," among other issues. On that, see my recent amicus brief, on behalf of the Brennan Center, Cato Institute, Prof. John Dehn, and myself (coauthored with Katherine Yon Ebright and Leah Tulin).

Obviously, this litigation will continue on appeal.

Free Speech

Federal Judge Sues for Libel, Court Calls (Some) Arguments on His Side "Frivolous" and "Absurd"

|

The decision, by Judge Roy Altman (S.D. Fla.) is Monday's Block v. Matesic; for more on the plaintiff judge (Judge Frederick Block (E.D.N.Y.)), see this N.Y. Times article, also from Monday.

The original libel claim has to do with the plaintiff judge's battles related to his Florida condominium association board, of all things. A few excerpts, from the discussion of plaintiff's arguments that defendant must have known that the statements about plaintiff were false or at least likely false (the so-called "actual malice" test):

[1.]

[W]e use "Florida's substantive law" to determine whether the words of the December 18 Email are competent evidence of express malice. As it happens, they aren't.

Block says that the "letter itself evinces ill-will" because the Defendants referred to him as "disgruntled" and said that he was "regurgitating" certain information. This "utterly gratuitous" language, Block says, reveals that "the publication's true, primary intent was to discredit [Block's] analysis and defame him by way of retribution." Filling in the gaps for Block, the reasoning seems to be that the Defendants' words show their ill intent towards him, and that ill intent (he seems to be saying) evinces their actual malice. Block doesn't argue—nor could he—that the words "disgruntled" and "regurgitate" in any way demonstrate the Defendants' knowledge of the falsity of their statement. We therefore take him to be arguing that the Defendants' word choice shows that the Defendants intended the defamatory implication of the December 18 Email.

Unfortunately for Block, his argument is absurd. As we noted, "disgruntled" means "unhappy and annoyed." Was Block disgruntled? Yes—obviously. And to "regurgitate" means "to throw or pour back or out from or as if from a cavity." "Typically," it refers to something— say, information—that has "been taken in, at least partially digested, and then spit back out." We don't think that "regurgitate" connotes something strictly negative, but Block's argument isn't more persuasive even when we infer (as we must) that the Defendants meant it disparagingly. "Strong, angry, or intemperate words do not alone show express malice." Under Florida law, "words themselves" inherently "demonstrate express malice" only when they are "so extreme."

Obviously, to satisfy a standard that regards mere garden-variety "extreme" words as insufficient, the words must be genuinely incendiary [citing cases which did involve incendiary language -EV] …. "Disgruntled" and "regurgitated" pale in comparison. And Block doesn't cite a single case in which any court treated such anodyne words as evidence of express (let alone actual) malice. In fact, faced with much nastier statements, the cases do the opposite.

[2.]

Read More

Do Arrest Warrants Have a Diligence Requirement?

Tracing the doctrine back.

|

The Fourth Circuit recently handed down a ruling, United States v. Ordonez-Zometa, that raised a really interesting question: Does the Fourth Amendment require officers to exercise diligence in executing an arrest warrant?  That is, if there's an arrest warrant out for a person, are officers required to make the arrest when they can, or soon after that?  And if they can delay making the arrest, how long a delay is allowed?

What makes this particularly interesting to me is that I went in thinking there was no such diligence requirement; the Fourth Circuit said there is such a requirement; but when I looked back into the history of the caselaw, I tended to think the Fourth Circuit's diligence requirement may just be a vestige of long-overturned caselaw that no one realized is now obsolete.

Here are the details, for the law nerds interested in the puzzle to be solved here.

In the new ruling, officers obtained an arrest warrant for Ordonez-Zomet in a homicide investigation.  The next day, they executed the arrest while he was in a car, leading to a seizure and search of the car and evidence.  As I understand the claim, Ordonez-Zometa is arguing that it was a Fourth Amendment violation for the officers to wait until Ordonez-Zometa was in a car to carry out the arrest warrant.  That was problematic, the notion seems to be, because it gave officers the power to seize and later search the car under the search incident to arrest exception.

In an opinion by Judge King, the Fourth Circuit started off by saying yes, there is a diligence requirement, but that it was not violated here:

The record demonstrates that the district court did not err in denying his suppression motion on the basis of undue delay. To be sure, police officers should act with diligence in the execution of an arrest warrant. See United States v. Weaver, 384 F.2d 879, 880 (4th Cir. 1967). And, here, they did just that: The warrant for Ordonez-Zometa's arrest was issued at 7:12 p.m. on March 12, 2019, and it was executed less than 24 hours later — at 6:50 p.m. on March 13, 2019. See J.A. 110, 1920. That should end the inquiry. Cf. Weaver, 384 F.2d at 880-81 (upholding execution of an arrest warrant after a delay of more than two weeks).

Further, the court adds, you can't really evaluate the reasons for undue delay because modern Fourth Amendment law doesn't usually allow an inquiry into an officer's subjective thoughts:

In this appeal, Ordonez-Zometa urges our Court to look past the objective facts to examine and second-guess the officers' decision-making — specifically, why the officers chose to execute the arrest warrant when and where they did so. But this proposition runs headlong into the well-settled principle of Fourth Amendment law of objective reasonableness. This Court does not, and should not, inquire into the strategic motivations of arresting officers. See Ashcroft v. al-Kidd, 563 U.S. 731, 736-37 (2011); see also Brigham City, 547 U.S. at 404.

To be sure, we have cautioned against law enforcement intentionally withholding the execution of an arrest warrant in hopes of gaining access to a location they could not otherwise search. See Weaver, 384 F.2d at 880. But that principle does not license us to disregard the rule that a Fourth Amendment analysis does not turn on the subjective motives of the officers involved. See Town of Castle Rock v. Gonzales, 545 U.S. 748, 764 (2005) (recognizing discretion police possess in deciding when and how to execute warrants). Indeed, the courts have "almost uniformly rejected invitations to probe subjective intent." See al-Kidd, 563 U.S. at 737 (internal quotation marks omitted). And for good reason: "the Fourth Amendment regulates conduct rather than thoughts." Id. at 736 (citing Bond v. United States, 529 U.S. 334, 338 n.2 (2000)).

I found this discussion fascinating because I'd generally been of the understanding that there is no diligence requirement for arrest warrants. As I have thought of it, arrest warrants do two things.  First, they establish probable cause that justifies an arrest, negating the need for a post-arrest hearing into probable cause that would otherwise be needed promptly, under Gerstein v. Pugh.  And second, they permit entry into a person's home to arrest them when there is reason to believe the person is home, under Payton v. New York. But arrests generally don't require warrants.  So I've been of the impression that there's no constitutional duty to carry out an arrest when an officer has the opportunity to do so.  Officers can do that, but they don't need to.

I was curious: Where did this apparent requirement come from? Read More

Free Speech

Lawsuit Against Google for Accurately Reporting Negative Stories About Plaintiff Dismissed

Plaintiff claimed that the search results violated his "right of publicity," and also that the output was defamatory because it "uses a 'negative algorithm' that promotes negative stories about Garmon while suppressing positive stories about him—or, at least, pushing the positive stories down the list of search results."

|

From Judge Corey Maze (N.D. Ala.) yesterday in Garmon v. Google LLC (note that, though plaintiff is pro se, he is a lawyer, and indeed had represented Senate candidate and former Alabama Supreme Court Justice Roy Moore):

Trenton Garmon filed his third complaint against Google LLC and asks the court to enjoin Google and award him $8 billion….

Google, as likely all readers know, is an internet search engine…. If you … type "Trenton Garmon" into Google's search bar, you will receive images, links, and articles about the plaintiff. According to Garmon, this shows Google's unauthorized use of his indicia that is both defamatory and violates Alabama privacy laws. So Garmon sued Google. The court dismissed Garmon's first amended complaint for failing to state a claim and gave Garmon a chance to refile and fix his pleading deficiencies. Garmon has since filed a third amended complaint, which Google moves to dismiss with prejudice….

Garmon alleges … that Google violated Alabama's Right of Publicity Statute …:

[A]ny person or entity who uses or causes the use of the indicia of identity of a person, on or in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fundraising or solicitation of donations, or for false endorsement, without consent shall be liable under this article to that person, or to a holder of that person's rights

By its plain text, the ARPS only prohibits commercial use of a person's "indicia of identity" without his consent in one of four ways:

Read More

Free Speech

Wisconsin Court Had Ordered Ex-Wife Not to Make "Disparaging Remarks … About the Other Party, Attorneys, or … Employees of the Court"

|

From Wisconsin Court of Appeals Judge Lazar's decision April 30 in Reeves v. Reeves:

Moondette and Timothy were divorced on November 29, 2023, after four years of marriage. Moondette was ordered to pay Timothy a total of $24,209.54, which included reimbursements and attorney's fees related to earlier contempt findings as well as an equalization payment, by January 3, 2024. On January 31, Timothy sought an order to show cause why Moondette should not be found in contempt, alleging that she had paid nothing….

At a March 21, 2024 hearing Moondette argued that her failure to pay was not contemptuous because it was not willful, asserting that she did not have the financial means to comply with the order…. The circuit court did "not find [Moondette] credible at all," stating its impression was that she was "telling [the court] whatever is convenient[ ]" rather than being truthful. Noting contradictions in her testimony regarding her income, her "unreal" decision to spend on things like a car payment for her eighteen-year-old daughter rather than "taking care of [her] obligations," and her admission that she could afford up to $500 per month but had paid nothing, the court concluded that Moondette had "willfully and intentionally violated the court orders." It held her in contempt and imposed a penalty of 120 days in jail if Moondette failed to comply with the purge condition of making monthly payments of $900 on her debt to Timothy.

After the circuit court set that condition, Timothy's counsel brought up another issue, stating:

And there's not an existing motion on this and I briefly mentioned it to counsel. But I can tell the Court what my client was looking to have addressed is that there continues to be a lot of social media posts from [Moondette] about my client, about this process, [and] about the judges that have handled this case.

After counsel confirmed that these alleged posts were "[a]bout the courts as well," the court imposed an additional purge condition:

Read More

Free Speech

Free Speech Unmuted: The Supreme Court Rules on Protecting Kids from Sexually Themed Speech Online

|

My co-host Jane Bambauer and I discuss the Court's June 27 decision in Free Speech Coalition v. Paxton, which upheld a state law that required pornography sites to "use reasonable age verification methods … to verify" that their users are adults.

See also our past episodes:

Some Dubious Reasoning in Judge Gerald McHugh's Haverford Opinion

|

Eugene blogged earlier today about Judge Gerald McHugh's opinion dismissing a hostile environment complaint by Jewish students against Haverford College. I have not read the complaint, and I'm not going to take issue with Judge McHugh's ruling--I tend to think that the strongest case Jewish students typically have is disparate treatment, not hostile environment, in part for the First Amendment reasons Judge McHugh identifies--but I did find some of his reasoning rather dubious, to wit:

(1) Plaintiffs also discuss assorted social media posts made by Haverford Professors Gina Velasco, Guangtian Ha, and Tarik Aougab on their personal social media accounts. Id. ¶¶ 49, 51, 54-57. These posts all disparage those who continue to support Israel, but vary in tone, taste, and conviction. Id. I begin with the observation the social media posts are leveled at the state of Israel, not people of Jewish descent.

Well, no. If social media posts by professors are disparaging supporters of Israel, those posts are disparaging individuals, not the state of Israel. On northeastern liberal arts campuses like Haverford, the most vocal supporters of Israel will be predominately, perhaps exclusively, Jewish students. Professors nevertheless have a right to criticize people, including Jewish people, for supporting Israel. However, there is a point where such criticism can be of a nature where the professor may be justly suspected of being unwilling to treat some of his or her students fairly. (Imagine a professor who says, for example, "I will take any opportunity I can to take revenge on any Zionists I come across.") At that point, the university may have a duty to step in.

(2) At a meeting with Jewish community leaders to discuss the campus climate, Vice President Young also reportedly said that "Jewish students needed to condemn 'genocide' rather than report[] antisemitism." At a similar meeting with Jewish community leaders, Plaintiffs also aver that Dean McKnight posited that attacks against Jews who are committed to Israel are categorically different from attacks against other minorities. Plaintiffs finally contend that at a Chabad-hosted event, President Raymond stated that on October 7th, she saw "peaceful people" breaking free from their chains.

As a preliminary matter, none of these statements embrace Hamas. Plaintiffs can reasonably characterize them as focusing on the suffering of Palestinians without showing similar concern for the losses inflicted by Hamas or for the surge of antisemitic incidents making headlines. As a matter of campus leadership, there may be ample basis for criticism if such statements were made, but the statements remain pure speech about matters of public concern.

My first objection is that Vice President Young has an obligation to enforce Title VI, and at least some manifestations of antisemitism are violations of Title VI. For a university VP to be telling Jewish leaders that students shouldn't be reporting antisemitism, period, seems to strongly suggest that VP Young is discouraging students from reporting potential Title VI violations, and also that Young will not enforce Title VI when it comes to antisemitism. Imagine, for example, a Swarthmore VP telling black community leaders that instead of African American students reporting racism on campus, they should be condemning genocide in South Sudan.

Second, while McKnight is entitled to his opinion that attacking Jews who support Israel is categorically different than attacking members of other minority groups, the dean also has Title VI obligations. Imagine Dean McKnight saying "attacking women who support abortion/black students who support affirmative action is 'categorically different' than attacking other groups." You can't imagine it because it wouldn't happen, but in any event the dean doesn't get to pick and choose which groups on campus get protected and why. To the extent he is saying that they are being attacked for their ideology rather than their identity, that raises all sorts of complicated questions that can't be dismissed "categorically."

Third, if President Raymond indeed stated that on 10/7, she saw "peaceful people breaking free from their chains," how is that not embracing Hamas? Who was responsible for October 7, if not Hamas?

At least with regard to points 1 and 2, when you are in a position of university authority, and in that position you are charged with enforcing civil rights laws, your comments that relate to such enforcement may in fact be speech on matters of public concern, but that surely doesn't provide a blanket exemption from liability. Imagine, for example, a university official says, "I think Latinos are typically criminals, and I wish we did not have any at Haverford." Is that speech on a matter of public concern? Sure. Does that mean the First Amendment protects Haverford from liability based in part on that statement if Latino students sue, and use that as evidence of (at best) deliberate indifference to their concerns? Hardly.

(3) The encampment lasted three days, a relatively short period compared to similar encampment activity on other college campuses. … Here, amidst a period of extreme unrest on college campuses across the country, it was not clearly unreasonable for administrators to allow protestors to freely express themselves for three days.

I've expressed the view that the way universities should handle rule-breakers is to ask whether they would allow the rule-breaking if white supremacists were doing it. Surely, Haverford fails that test here, and I don't think it's "reasonable" for universities to decide whether to enforce rules based on the political views of the rule-breakers.

But my bigger concern here is Judge McHugh referring to an illicit encampment as students freely expressing themselves. Occupying someone else's (Haverford's) property is trespass, not freedom of expression. The students could have expressed themselves in all sorts of ways without breaking college rules, and the law. So if Judge McHugh is correct that Haverford's response was reasonable, it was because it was reasonable for Haverford to allow students to break school rules and the law, because no one was otherwise stopping the students from expressing themselves.

(Fun thought experiment: imagine the students "occupied" Judge McHugh's chambers  or courtroom. Think they would have lasted three days thanks to his tolerance for "freedom of expression"?)

To conclude, again, I'm not arguing that Judge McHugh's decision was ultimately wrong. At the very least, I would need to study the pleadings before I could think about reaching such a conclusion. I also tend to be skeptical of hostile environment claims, both because of First Amendment concerns and because it's very hard to prove that a plaintiff was truly denied the benefits of an education by a hostile educational environment. But that said, I think that Judge McHugh's sloppy reasoning undermines the force of his opinion, and makes it look like he is apologizing for Haverford administrator's misbehavior rather than merely concluding that it did not rise to the level of a Title VI hostile environment violation.

Guns

California General Ban on Nonresidents' Getting Concealed Carry Licenses Violates Second Amendment

|

From today's Hoffman v. Bonta, decided by Judge Cathy Ann Bencivengo (S.D. Cal.):

The sole issue in this case is whether the Constitution requires California to allow nonresidents to apply for a concealed carry weapons (CCW) license. Plaintiffs, who are not California residents, complain that they are prohibited from carrying a firearm for self-defense when they visit California. For standard two-year licenses, California imposes a residency requirement. An applicant who has his or her principal place of business or employment within the local permitting jurisdiction may receive a 90-day license. Unlike some states, California does not have a reciprocity policy for CCW licenses.

The State argues … that … the Second Amendment does not mandate that a traveler be allowed to use another state's license to carry in California. In effect, they argue that nonresidents do not qualify as "the people." The Supreme Court has not interpreted "the people" so narrowly. See Heller (the people "unambiguously refers to all members of the political community, not an unspecified subset")….

California [argues that its rule is justified by] historical analogues relating to various "locality-based licensing laws" from the mid-19th century…. The problem for the State is not the licensing laws themselves: Plaintiffs do not seek California's licensing scheme stricken in its entirety. Instead, the State must provide a historical analogue for licensing laws that did not allow nonresidents to apply. For that category of restriction, the State provides a series of state laws from the early 1900s that appear to impose residency requirements on licenses. Ignoring that these laws do not date to the Founding or Ratification Era, many laws from the same period explicitly allowed nonresidents to apply.

Read More

Free Speech

Are Plaintiffs More Eligible to Be Pseudonymous in Lawsuits Against the Government? Less Eligible?

Today's D.C. Circuit decision muddies the matter still further.

|

Many courts list "whether the suit … challeng[es] the actions of the government or that of private parties" as one factor in deciding whether to allow pseudonymity. But which way does that factor cut?

[1.] Some courts conclude that pseudonymity is less available in suits against the government than in suits against private parties, see, e.g., Doe v. Megless (3d Cir. 2011):

Does the subject of the litigation heighten the public's interest? Here, interest "is heightened because Defendants are public officials and government bodies." This factor supports disclosure of Doe's identity.

Likewise, see M.M. v. Zavaras (10th Cir. 1998):

Plaintiff's claim to relief clearly involves the use of public funds, and the public certainly has a valid interest in knowing how state revenues are spent.

See also Femedeer v. Haun (10th Cir. 2000) ("the public has an important interest in access to legal proceedings, particularly those attacking … properly enacted legislation"). Or see Doe v. Pub. Citizen (4th Cir. 2014):

[T]he public interest in the underlying litigation is especially compelling given that Company Doe sued a federal agency.

[2.] Others, though, conclude that pseudonymity is less available in suits against private parties than in suits against the government, see, e.g., S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe (5th Cir. 1979):

Furthermore, all of the plaintiffs previously allowed in other cases to proceed anonymously were challenging the constitutional, statutory or regulatory validity of government activity. While such suits involve no injury to the Government's "reputation," the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm.

Read More

Free Speech

No Pseudonymity for Would-Be FDIC Employee Challenging Ban on Employment of Felons

|

From Doe v. Hill, decided today by D.C. Circuit Judge Patricia Millett, joined by Judges Neomi Rao and Judith Rogers:

Dr. Doe challenges the constitutionality of the Federal Deposit Insurance Corporation's [statutory] ban on hiring those who have been convicted of a felony. {Dr. Doe was convicted of two Ohio felonies when he was a young man in the early 1990s. Since then, Dr. Doe has lived a law-abiding life, obtained a PhD, and become a federal public servant with a security clearance. In 2009, he applied for and received a pardon from the Ohio governor, and his felony convictions were sealed by an Ohio court.} …

Because federal court proceedings are presumptively open and transparent, proceeding under a pseudonym is rarely granted. {Civil complaints filed in federal court must "name all the parties[,]" Fed. R. Civ. P. 10(a), and the suit must be prosecuted in "the name of the real party in interest," id. 17(a)(1).} Although Dr. Doe has a legitimate privacy interest in his sealed felony convictions, that interest is insufficient in this case to overcome the strong presumption against pseudonymous litigation….

This presumption is grounded in "the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" We generally require "parties to a lawsuit [to] openly identify themselves … to protect[] the public's legitimate interest in knowing all of the facts involved, including the identities of the parties."

Requiring parties to litigate under their real names serves important values. Accurate party names allow citizens to evaluate the nature of the claims raised and the interests at stake, to assess "the real-world aftermath of a suit," and to determine for themselves whether "justice was done." Knowing the identity of parties also makes it easier for citizens to investigate abuses of the judicial process like judicial conflicts of interest and ex parte contacts, and it promotes the appearance of fairness. "Secrecy breeds suspicion[,]" and so "[s]ome may believe that a party's name was masked as a means of suppressing inconvenient facts and that the court was either asleep at the wheel or complicit in the cover up."

Read More

Free Speech

California Law Stops City from Flying World Flag Above U.S. and California Flag

And the U.S. Constitution doesn't preclude this result.

|

From City of Arcata v. Citizens in Support of Measure M, decided Friday by the California Court of Appeal (Justice Charles Smiley, joined by Justices Jim Humes and Monique Langhorne Wilson); seems quite right to me:

In November 2022, the City's voters passed Measure M, an initiative to enact an ordinance requiring the City to "fly the Earth Flag at the top of all city-owned flagpoles, above the flag of the United States of America and the California flag, and any other flags that the city may choose to display." Measure M passed with 3,051 votes in favor of the measure and 2,781 votes against it. The City subsequently adopted Measure M as an ordinance (the Ordinance), as required by Elections Code section 9217….

Under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." (Italics added.) Put another way, "[o]ur state's Constitution grants state laws enacted by our Legislature supremacy over nearly all ordinances adopted by the more local government entities such as counties and cities." …

[California Government Code] section 436 … provides, "Where the National and State Flags are used, they shall be of the same size. If only one flagpole is used, the National Flag shall be above the State Flag and the State Flag shall be hung in such manner as not to interfere with any part of the National Flag. At all times the National Flag shall be placed in the position of first honor." This mandate is absolute, barring a small carveout the Legislature provided in section 434.5, which states that entities such as cities and counties can impose "reasonable restrictions" on the time, placement, and manner of display of the National Flag, but only when "necessary for the preservation of the public's health, safety, or order." …

Read More

Politics

Comment to the Texas Supreme Court On Whether To "Reduce Or End" Reliance on the American Bar Association

"What is good for Texas is not necessarily good for the University of Texas, and vice versa."

|

In April, the Supreme Court of Texas invited comments on whether Texas should "reduce or end" reliance on the American Bar Association's Section on Legal Education. A few weeks ago, the Civitas Institute organized a symposium on this important topic. I have now submitted a comment to the Court. In short, whether the Court keeps or abandons the ABA, there should be a recognition that the interests of law deans are not always consonant with the interests of the general public.

Here is my comment:

I submit this comment in my individual capacity, and not on behalf of my employer, the South Texas College of Law Houston. Admittedly, my views about the ABA are out of sync with those of most law professors and deans in Texas. I submit this minority report quite deliberately. The Supreme Court's order invited "comments on this topic from the Texas Board of Law Examiners, the Texas law school deans, the bar, and the public." With respect, I think this order lists the relevant constituencies backwards. The Supreme Court's authority to regulate the legal profession is premised on serving the public interest. And the interests of law school deans, in particular, are not always consonant with the public interest. 

A simple example illustrates this point. Were the Supreme Court to end its reliance on the American Bar Association, the most immediate practical effect would be on portability: Students who graduate from Texas law schools that are not ABA accredited may not be eligible to sit for bar exams in other states. To law school deans, this outcome would be an anathema. How can elite law schools thrive without recruiting top students who will not stay in Texas? Of course, Texas could still allow students who graduate from law schools in other states to sit for the Texas Bar exam. And nothing would prevent elite law schools from voluntarily undergoing ABA accreditation. The theoretical problem is limited to students who graduate from non-elite Texas law schools who seek to leave our state. 

I think the public would ask a reasonable question: Why should the state adopt rules to benefit people who have no interest in serving Texans? Herein lies the disconnect. Two decades ago, Justice Clarence Thomas lamented that the University of Michigan Law School was little more than "a waystation for the rest of the country's lawyers, rather than a training ground for those who will remain in Michigan." Thomas, as usual, was right. He questioned UM's "decision to be an elite institution [that] does little to advance the welfare of the people of Michigan or any cognizable interest of the State of Michigan." What is good for Texas is not necessarily good for the University of Texas, and vice versa.

In June, I helped to organize a symposium hosted by the Civitas Institute about Texas and the Future of Legal Education. This conversation advanced a range of criticisms about the ABA's role. I think each essay, which I've appended to this comment, is worth studying. But here, I urge the Court to consider the broader interest of the public, and not simply the concerns of entrenched regulated entities. There is no demonstrable connection between the ABA's onerous regulations and "promoting high-quality and cost-effective legal education." In the past decade, the Supreme Court of Texas erred by adopting the Uniform Bar Exam and joining the NextGen Bar Exam—decisions that were part of the conveyor belt towards nationwide portability. In that process, the Supreme Court has neglected the teaching of Texas law and flattened federalism. The time is now ripe for the Supreme Court to change course. If portability is so important, there are other ways to accomplish this end than through the ABA's byzantine regime. 

I do hope SCOTX changes course.

Free Speech

Court Allows Breach of Contract Claim for Haverford's Allegedly Failing to Respond to Anti-Semitism Complaints—But Only for Nominal Damages

"So whatever hard to imagine rationalization Haverford might offer for obscuring the content of its actual bias policy—an artifice reminiscent of Dean Wormer's 'double secret probation'—I find the demarcation 'draft' to be of no legal import."

|

In yesterday's Landau v. Corp. of Haverford College, Judge Gerard McHugh (E.D. Pa.) rejected plaintiffs' Title VI claims (see here for more), but allowed the breach of contract claim to go forward, albeit only for nominal damages:

Plaintiffs allege that although they filed complaints to Haverford about many of the instances [of alleged anti-Semitic behavior], they did not receive any response, violating the policies that Haverford represents as active on their website. The absence of demonstrable harm does not prohibit this claim, because Pennsylvania law permits contract claims for nominal damages. Plaintiffs allege that Haverford failed to evenhandedly enforce its "Anti-Discrimination, Harassment, and Bias Policy." To state a claim for breach of contract, a plaintiff must "set forth facts regarding (1) the existence of a contract, including its essential terms; (2) a breach of duty imposed by the contract; and (3) resultant damages." "Written guidelines, policies, and procedures" distributed to students over the course of enrollment may constitute the terms of such contracts.

[1.] Existence of a Valid Contract

Plaintiffs rely on a combination of two Haverford documents as the basis for their claim. They first allege that Haverford has breached its promise set forth in its Non-Discrimination Statement to provide an employment and educational environment free from all forms of unlawful discrimination on the basis of "religion, national origin, ancestry, citizenship … or any other characteristic protected by law." Plaintiffs then allege that this Non-Discrimination policy is enforceable through the College's Anti-Discrimination, Harassment, and Bias Policy ("Bias Policy"), which itself is a binding contract, and details a series of procedures that Haverford has failed to follow. Plaintiffs attach what they contend is an active and binding version of the Bias Policy that they downloaded from Haverford's website. Plaintiffs also plead that the policy is directly adjacent to the portal where students can, and did, submit "bias incidents."

Haverford disputes the validity of the contract, pointing to the fact that the attached PDF of the Bias Policy, the same Bias Policy that was linked on Haverford's website on the date of oral argument, is clearly labeled as a "draft." Haverford argues that because the Policy was designated as a draft, it was not in force during any of the incidents alleged. Notably, Haverford does not provide any alternative policy that was in place, further asserting that even if the Court finds that the Bias Policy was operative, Plaintiffs' allegations of breach are too vague to state a contract claim.

Read More

More

Recent Volokh Posts

1

Today in Supreme Court History: November 8, 1994

2

Open Thread

3

Court Allows Discovery as to Vindictive Prosecution Defense by Smartmatic's Parent Company

4

Prosecution Over Threat to American Federation of Teachers President Randi Weingarten Can Go Forward

5

Arkansas Bar Official Allegedly Transferred Points from Some Bar Examinees to Others

6

Attorney Fee Award Cut from $100K to $50K, Partly as Sanction for Hallucinated Citations

7

November 7 as Victims of Communism Day - 2026

8

Today in Supreme Court History: November 7, 1922

9

Open Thread

10

Short Circuit: A roundup of recent federal court decisions

The All-Argentina Issue is Here

New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.

Subscribe & Start Reading Learn More