The Volokh Conspiracy

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

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Due Process

Costs and Benefits of Due Process

How should we weight the costs and benefits when we conduct due process balancing?

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In 2016, Maranda ODonnell was arrested in Harris County, Texas, which includes the city of Houston, for driving with a suspended license to her mother's house in order to pick up her 4-year-old daughter. ODonnell's bail was set according to a fixed written schedule that the judicial officers had to follow in Harris County, Texas at the time. Like hundreds of thousands of others, she did not have a public defender. ODonnell lived "paycheck to paycheck," said she was "worried about whether [her] job will still be there when I get out," and simply could not afford to "buy [her] release from jail." At a brief hearing, the hearing officer set cash bail at $2,500 more than she could afford—and she was jailed.

ODonnell joined a federal civil rights lawsuit challenging these bail practices as an unfair due process violation. In 2017, federal judge Lee Rosenthal found the practices unconstitutional, relying on a detailed set of factual findings, and concluded that Harris County's misdemeanor bail policy violated the Due Process Clause. In 2019, the parties entered a Consent Decree, the first of its kind in the country, which required that most people arrested for misdemeanors be promptly released without having to pay for their freedom, and that more due process, including discovery and public defenders, be provided at bail hearings.

Since March 2020, I have served as the court-appointed monitor for the settlement, along with my colleagues and friends, law professor Sandra Guerra Thompson from the University of Houston Law Center, economics professor Songman Kang from Sungkyunkwan University in Seoul, Korea, and political scientist Dottie Carmichael from Texas A&M University. As monitors, we closely studied the bail reforms in Harris County.

What we learned surprised us. We knew that ending the cash bail system would free tens of thousands of people each year who would otherwise have ended up in jail. Before the consent decree, 90 percent of people arrested for misdemeanors had secured bonds imposed, which had to be paid before being released, and almost all were higher than $500. Afterwards, nearly 90 percent of misdemeanor arrestees were released on bond, mostly for $100 or less. We knew that liberty would benefit from this Consent Decree.

In the years of our work studying these reforms, however, we also consistently found that these reforms also powerfully benefited public safety. Every year since the reforms took effect, both misdemeanor arrests and rearrests have both declined. We recently summarized these findings in a law review article, and I discuss them more briefly in my new book.

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Judge Bibas: "Wisdom does not always find me, so I try to embrace it when it does—even if it comes late, as it did here"

Judge Bibas, sitting by designation in the District of Delaware, revises his prior summary judgment opinion.

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There is a long-running dispute between Thompson-Reuters and Ross. TR alleges that Ross used the Westlaw headnotes to train a competing AI product. In 2023, Judge Bibas largely ruled against TR. But on the eve of trial, the case was stayed. Today, Judge Bibas issued a revised opinion. In short, he changed his mind.

The opinion begins:

A smart man knows when he is right; a wise man knows when he is wrong. Wisdom does not always find me, so I try to embrace it when it does––even if it comes late, as it did here. I thus revise my 2023 summary judgment opinion and order in this case.

Felix Frankfurter  wrote in a dissent, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." However, Frankfurter almost certainly did not make this quote up. Sir Arthur Conan Doyle wrote in a Holmes short story, "but it is better to learn wisdom late than never to learn it at all." And I'm certain others said it before him. Judge Bibas channels that higher power.

Bibas explains his new thinking on headnotes:

A headnote is a short, key point of law chiseled out of a lengthy judicial opinion. The text of judicial opinions is not copyrightable. Banks v. Manchester, 128 U.S. 244, 253–54 (1888). And even if it were, Thomson Reuters would not get that copyright because it did not write the opinions. But a headnote can introduce creativity by distilling, synthesizing, or explaining part of an opinion, and thus be copyrightable. That is why I have changed my mind.

Kudos to Judge Bibas. People should always be open to revising their thinking. And even better, they should explain why they changed their minds. This opinion demonstrates that virtue.

DACA, ACA, FCPA

Prosecutorial discretion comes full circle.

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In June 2012, the Obama Administration announced the policy that became known as DACA. Several days later, Justice Scalia lambasted that policy while announcing his Arizona v. United States dissent. He charged that it "has come to pass and is with us today . . . a federal government that does not want to enforce the immigration laws as written." Over the next several years, President Obama routinely suspended enforcement of various mandates under the Affordable Care Act.

I often sounded a lonely note that these actions were unlawful, and set a dangerous precedent. Yet, the constant refrain was that the President had discretion, and these actions were within the law. I replied that this power of non-enforcement was far more dangerous in the hands of a conservative president. After all, progressives tend to like more law, while conservatives favor less law.

And so it has come to pass. President Trump signed an executive order pausing enforcement of prosecutions under the Foreign Corrupt Practices Act (FCPA):

For a period of 180 days following the date of this order, the Attorney General shall review guidelines and policies governing investigations and enforcement actions under the FCPA. During the review period, the Attorney General shall:
(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;

To be clear, this is not a total suspension of the law. The Attorney General retains the discretion to make exceptions to the Presidents order. Though as a practical matter, I would be surprised if any new FCPA actions are initiated over the next six months.

What is the justification to halt enforcement of this law? Trump alludes to his Article II power over foreign affairs.

Purpose and Policy. Since its enactment in 1977, the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (FCPA) has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States. Current FCPA enforcement impedes the United States' foreign policy objectives and therefore implicates the President's Article II authority over foreign affairs.

The President's foreign policy authority is inextricably linked with the global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.

But overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.
It is therefore the policy of my Administration to preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.

During all of the debates over DACA and ACA, President Obama never invoked any sort of Article II power. To the extent he was relying on discretion, it had to be granted by statute. Here, Trump connects his opposition to FCPA prosecutions with his approach to foreign affairs.

DACA, ACA, FCPA. Prosecutorial discretion comes full circle.

Donald Trump

The Danger of Trump Disobeying Court Orders [Updated]

The administration may be moving in that direction. If it does so and gets away with it, the consequences are likely to be dire.

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Supreme Court
Supreme Court (Michael Brochstein/Sipa USA/Newscom)

 

The new Trump administration may be heading in the direction of disobeying court orders that go against it. If they do so and get away with it, there are likely to be dire consequences for our constitutional system. An administration not bound by court orders is ultimately not bound by the Constitution and the laws, either.

Evidence indicates that the Trump administration is in violation of court orders in as many as three separate cases. A federal court in Rhode Island has ruled that they violated its previous order barring Trump's funding freeze on federal grants. There are also indications that the administration has violated court orders against policies freezing federal grants from the National Institute of Health and FEMA.

At the same time, top administration officials including VP J.D. Vance have implied that the administration has the power to violate court orders.Vance says that "[j]udges aren't allowed to control the executive's legitimate power." Top Trump adviser Stephen Miller  asserts there is no "line in the Constitution where it says a lone unelected district judge can assume decision-making control over the entire executive branch." This despite the fact that Miller himself – along with other conservatives – supported similar lawsuits and judicial injunctions issued by "lone" district judges against Biden Administration policies, such as student loan forgiveness.

As yet, it is not completely clear that the administration plans to systematically defy court orders that go against it. Violations that have occurred so far might be a result of incompetence or disorganization. And it is possible to parse Vance's statement in a way that avoids endorsing defiance of judicial rulings. But the combination of multiple violations and statements by high officials apparently condoning such behavior is ominous, to say the least. If Vance and other administration officials don't really mean to endorse defiance of judicial rulings, they could easily say so.

Federal court decisions blocking implementation of illegal administration policies are a fundamental element of our system of judicial review. Article III of the Constitution states that "The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." That obviously includes cases challenging the legality of policies adopted by the executive branch. And, just as obviously, courts cannot exercise that authority effectively if the executive (or anyone else) is free to disregard rulings they don't like.

Some defenders of Trump's actions cite Biden's policies on student loan forgiveness as a kind of precedent. Biden did boast that the Supreme Court's (correct) ruling in Biden v. Missouri "didn't stop me" from forgiving student loans. Nonetheless, when the Court ruled that he didn't have the authority to engage in massive loan forgiveness under the 2003 HEROES Act, Biden obeyed the ruling. He did then try to engage in large-scale loan forgiveness under another statute, the Higher Education Act. But when courts predictably ruled Biden couldn't do a massive loan forgiveness plan under the HEA, either, Biden obeyed those rulings, as well.

Biden's actions in the student loan saga were reprehensible and illegal, and I said so at the time. But he did not disobey any court orders, as Trump may now do.

If the president is able to defy or ignore court orders against him, then the executive branch would be effectively free of legal constraints on its actions - including those of the Constitution. It could violate constitutional rights, usurp the authority of Congress (as Trump is trying to do with his wide-ranging assault on the spending power), and more. In that scenario, we would no longer have a  constitutionally constrained federal government, except perhaps in name only.

We aren't there yet. But to prevent it, courts, key political actors - preferably in both parties - and the public must make clear that executive defiance of judicial rulings is unacceptable and intolerable. Trump can be forced to back down from this extremely dangerous precipice. Whether enough of us have the will to make him do so remains to be seen.

UPDATE: Trump has now said he will obey court orders. It's good he said that. But, given the pattern of events described above, and Trump's extensive history of lying, we should not just take him at his word. Rather, it's important to deter defiance by continuing to bring as much political pressure to bear as possible.

Free Speech

Court Throws Out Lawsuit Over Journalist's Publication of Information About Sealed Arrest

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From the tentative ruling in Doe v. Substack, Inc. released last week; I'm told it was largely adopted in the hearing at Feb. 4, with a minor modification noted below (for more on the current state of a challenge to Cal. Penal Code § 851.92(c), brought by the Foundation for Individual Rights and Expression on behalf of the First Amendment Coalition and me, see here):

Plaintiff Maury Blackman … was arrested in December 2021 for domestic violence at a time when he was the CEO of Premise Data, a private company. As is customary, police officers prepared a report ("Incident Report") describing the incident and their encounters with Blackman and another person present. No charges were ultimately pursued against Blackman arising from the incident and the Superior Court entered an order sealing the arrest and related records under Penal Code sections 851.91 and 851.92 on February 15, 2022.

In September 2023, after the sealing order, [Jack] Poulson published a blog post reporting the arrest and relating what was described in the Incident Report. Poulson later reported on his blog that Blackman was terminated in part because of the incident. Poulson had previously published other blog posts about Premise Data, including concerning (according to those posts) its contracts with U.S. Special Operations Forces for intelligence collection, its contracts with the United States Department of Defense, and Blackman's security clearance.

Poulson's post about the arrest appeared on his newsletter, published by Substack. He also posted a redacted version of the Incident Report on an eponymous website owned by Tech Inquiry. The Tech Inquiry website is a source of articles and data about surveillance, weapons companies, and public contracts. Poulson is the founder and executive director of Tech Inquiry….

Blackman unsuccessfully attempted to have Poulson's posts removed based on the sealing order. Blackman has submitted a declaration describing financial and nonfinancial injuries from Poulson's blog posts. All of the claims asserted in the complaint relate to the blog posts and the effect of their publication on Blackman. The San Francisco Chronicle has covered Blackman's lawsuit.

Blackman sued, and the defendants moved to have the complaint dismissed under the state "anti-SLAPP" statute. Under that statute, a defendant must show that its speech was "in connection with a public issue" (to oversimplify), and the court concluded the defendants' speech qualified:

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Free Speech

"Bloggers, Xers, Facebookers, YouTubers, Instagrammers, and Others" Have Right of Access to Court Proceedings,

including the right to videorecord, given that state law (unlike federal law) provides for such videorecording for the mainstream media; so holds the Ohio Chief Justice.

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A short excerpt from Ohio Supreme Court Chief Justice Sharon Kennedy's long opinion in In re Disqualification of Wollscheid, decided Oct. 31, 2024, but just posted on Westlaw last week:

Cody Henderson, the defendant in the underlying criminal case, has filed an affidavit of disqualification pursuant to [Ohio state law] seeking to disqualify Judge Susan R. Wollscheid of the Washington Court House Municipal Court from presiding over the case….

On June 17, 2024, Henderson was arrested for menacing, a violation of R.C. 2903.22(A)(1)(a). The alleged victim of the offense was a sheriff's deputy, Lieutenant John M. Warnecke….

Judge Wollscheid's actions interfering with Henderson's rights to self-representation and to a speedy trial [details in the opinion -EV], while appearing to be improper, do not by themselves provide a basis to disqualify her from the underlying case. But although it is well established that adverse rulings do not on their own require the disqualification of a judge, "it has also been recognized that 'a judge could be disqualified if his or her adverse rulings were accompanied by words or conduct that call into question the manner in which the proceedings are being conducted.'" And this case is not just about Judge Wollscheid's treatment of Henderson's constitutional rights. An additional issue is the judge's denial of media access to the underlying proceeding.

After Henderson's arraignment, Caden Reed and Ethan Womack, both representing Omniversal Media L.L.C., submitted media-access requests {for "[a]udio/video recording outside," to "[a]udio/video record," and to "[p]hotograph the courtroom"} pursuant to Sup.R. 12. Henderson claims that Judge Wollscheid's denial of those requests without first holding a hearing is proof of the judge's bias and prejudice against him and creates the appearance of impropriety requiring the judge's disqualification from the underlying criminal case.

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Politics

William E. Humphrey's Death Certificate

His cause of death was cerebral hemorrhage.

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William E. Humphrey

Why is the case called Humphrey's Executor v. United States? Because William E. Humphrey died while the case was being litigated. His estate continued the case, seeking Humphrey's backpay. Chief Justice Sutherland's majority opinion states:

"William E. Humphrey, the decedent, on December 10, 1931, was nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate."

While teaching this case in 2017, I joked that President Roosevelt removed William Humphrey from the FTC, and from the land of the living. That's one way to make sure the courts do not reinstate him!

A person watching the lecture on YouTube heard the joke, and checked up on it. Humphrey's obituary did not state a cause of death. But my viewer requested a copy of the death certificate from the D.C. Department of Health. In fact, Humphrey's executioner was cerebral hemorrhaging and arteriosclerosis. He died in his home. Humphrey was not assassinated.

There is one legal curiosity here: the certificate lists his occupation as "Retired." That's one way to put getting fired.

I've had this document in my archives for nearly eight years. With Humphrey's Executor on the chopping block, now seems like the right time to publish it.

Guns

"Kafkaesque" Gun Background Check Delays May Violate Second Amendment

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From Judge Trevor McFadden's opinion last week in Sedita v. U.S. (D.D.C.):

"Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated?" Franz Kafka, The Trial. Like Kafka's Joseph K., Plaintiff Giuseppe Sedita alleges he has been adjudged by a muddled and garbled governmental process that flouts his rights and offers no effectual remedy when he complains. Three times, he has been given the run-around when trying to buy a firearm. Each time, the Government has refused to greenlight his gun purchase. And each time, Sedita has walked away empty-handed. Although Sedita has repeatedly tried to set the record straight through the Government's administrative process, remedy has eluded him; the Government has rebuffed Sedita's attempts to clear himself through silence and nonresponsive form letters….

Sedita sued, claiming this violated his Second Amendment rights, and the court allowed the claim to go forward. The court began by holding that buying a gun "is covered by the clear prescription of the Second Amendment" (since keeping and bearing requires a pathway to buying), and goes on to reason thus:

[T]he Federal Officers [then] bear the burden of "demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation." Bruen footnote nine acknowledges that "definite" and "objective" background checks fall comfortably within that tradition. But when a particular licensing regime diverges from that tradition—perhaps by becoming "abusive"—it infringes on the Second Amendment.

"Following Bruen, the Supreme Court has not explained what constitutes 'abusive ends' in the context of firearm regulations, aside from its discussion of 'shall issue' licensing regimes." … In the context of Sedita's challenge, the Court finds a seemingly permissible background check regime could become abusive if riddled with inaccuracies but bereft of an effective method to correct those inaccuracies, leading to perpetual and inevitable delays on firearm purchases. At the very least, the Federal Officers present no evidence of this nation's historical tradition suggesting otherwise.

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Due Process

Public Opinion and Due Process

Do we agree with Blackstone that it is better that ten guilty persons escape than one innocent suffer?

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Sir William Blackstone famously said that it is "better that ten guilty persons escape, than that one innocent suffer." The maxim expressed by that English jurist was perhaps no more popular in 1765 than it is today.

In a jibe clearly directed at Blackstone and others of a similar mind, English jurist and philosopher Jeremy Bentham made light of writers call it better to save "several guilty men, than to condemn a single innocent man," and others who, "to make the maxim more striking, fixed on the number ten." Others "made this ten a hundred," and still others "made it a thousand." Such "candidates for the prize of humanity" go so far as to say that "nobody ought to be punished, lest an innocent man be punished."

If you were sitting as a juror in a criminal trial in the United States, a judge would instruct you, not on Blackstone's maxim, but on a due process-informed standard that embodies the same view: that the "defendant is presumed innocent of the charges" and that this presumption "is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty as charged." That standard of proof reflects Blackstone's view of due process. In 1970, Justice John Marshall Harlan II in the Court's In re Winship ruling that set such a high standard of proof in U.S. criminal trials, explained: "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."

Do people agree with Blackstone's maxim? In a series of studies, Gregory Mitchell and I have sought to explore whether people are more on the side of Blackstone or Bentham, due process or crime control, concerning themselves more with the punished innocent or the unpunished guilty. We describe that body of research in a law review article. We posed, among others, the following simple question:

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President Trump's Removal Letter of NLRB Member Gwynne Wilcox

The President did offer some potential causes for removal.

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Shortly after President Trump removed NLRB Member Gywnne Wilcox, I wrote that the Supreme Court will not repudiate Humphrey's Executor. Now, having read Trump's removal letter, the Court may not have to.

Wilcox has moved for expedited summary judgment in D.D.C. on the same schedule as a preliminary injunction. In a declaration, Wilcox states that Trump did not "justify my removal on the ground that I committed any neglect of duty or malfeasance in office." The motion includes an exhibit I had not yet seen: President Trump's removal letter.

The letter offers two paragraphs to explain the removal. I see at least one passage that could rise to the level of "neglect of duty or malfeasance in office." Trump stated:

In my judgment, Members Wilcox and General Counsel Abruzzo have adopted a host of decisions that have improperly cabined employers' rights to speak on the subject of unionization, raising serious First Amendment concerns about the censorship of important speech. Several such decisions were issued on the eve of the new Administration. They have also issued decisions that, in my judgment, have vastly exceeded the bounds of the National Labor Relations Act. To take just one example, they supported a new joint employer rule—a rule that courts then invalidated and the Board seemingly acknowledged could not go forward.

Trump alleges Wilcox's may have violated the Free Speech Clause, exceeded the statutory authority of the agency, and proposed a rule that was declared unlawful by courts. To be sure, Wilcox would argue that her actions were consistent with the Constitution and the NLRA, and the courts were mistaken. But the President has the duty to take care that the laws are faithfully executed. I would think that obligation entails the power to decide that someone in an agency has violated the Constitution, or at least came close to violating it.

The last sentence of the letter states, "you are removable with or without statutory cause by the President." Trump may argue these steps triggered a for-cause removal. (The statute also requires a notice and hearing before removal; I am reasonably confident that the Court would not uphold these sorts of dilatory procedural requirements.)

Seila Law did not have occasion to define what "neglect of duty or malfeasance in office" means. However, Judge Griffith's concurrence in PHH v. CFPB did address these terms. He wrote:

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A Very Different Constitutional Immunity Amendment

The "forgiveness doctrine" should be the basis for continued immunity while in office.

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Today, Acting Deputy Attorney General Emil Bove instructed the Acting U.S. Attorney for SDNY to dismiss the indictment against New York City Mayor Eric Adams without prejudice. This decision was made without regard to the "strength of the evidence or the legal theories on which the case is based." Rather, the ADAG found the prosecution has "improperly interfered with Mayor Adams' campaign in the 2025 mayoral election." Moreover, Bove wrote that "the pending prosecution has unduly restricted Mayor Adams' ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the policies of the prior Administration."

Both of these rationales only make sense so long as Adams is in office. If he loses re-election, then both of these rationales drop out. Importantly, a former mayor is no longer of use of the executive branch. Adams can then be recharged. The memo states that the confirmed U.S. Attorney can review the matter following the November 2025 election. In other words, the Trump-appointed prosecutor can decide whether to re-indict Adams based on the outcome of the election. Presumably, if Adams loses election, he will be indicted. Or he might be pardoned. But if Adams wins re-election, he will not be indicted.

Critics have cited this decision as yet another example of lawlessness by the Trump Administration. I approach the situation differently. In fact, this memorandum crystalizes something I have been toying with for some time.

There was a time when an indicted elected official would immediately resign in shame. The stigma of holding office in the face of a criminal indictment was too great. Today, that stigma is long gone. Politicians now routinely serve while under indictment. George Santos did not resign, but was expelled. Senator Robert Menendez did not resign until he was convicted. Mayor Adams has not resigned, and apparently made the right judgment. Relatedly, Donald Trump ran for President, successfully, while under several indictments.

These politicians have argued, fairly or unfairly, that the indictments are partisan witch hunts. And at least to some degree, these politicians have maintained some popular support. Their supporters agree that politics went into their prosecutions. Indeed, President Biden said as much about the prosecution of his son Hunter. Who is the ultimate arbiter of these sorts of crimes? I would wager it is not the jury. Rather, it is the voters.

This dynamic reflects the Texas "forgiveness doctrine." Under that doctrine, an official cannot be impeached for conduct that was known when the official was elected to his current term. In effect, the voters forgave the official for his transgressions. Trump was convicted by twelve Manhattanites, but was acquitted by 77 million voters.

I would propose a 28th constitutional amendment that would overrule Trump v. United States, at least in part, but would extend immunity far more broadly. In short, federal and state elected officials can be indicted while in office, but cannot be tried for those indicted offenses until after they no longer in that elected office. All applicable statutes of limitation would be tolled while the official remains in office.

There are several options. First an indicted elected official can resign, in which case he can be tried immediately. Second, the indicted elected official can be impeached, removed, expelled, recalled, or whatever process is available under law, and then tried immediately. Third, the indicted elected official can choose to serve out his term, and not run for re-election; when his term concludes, he can be tried. Fourth, the indicted elected official can run for re-election; if the voters re-elect him, then he cannot be tried until he no longer holds that position. In effect, this amendment would eliminate all immunity for indictments, but grant temporary immunity against trials for current office-holders.

I can already hear the howls! Josh, how can you do this?! Indicted officials would have every incentive to stay in office so they do not face a criminal trial. And they could use the powers of their office to stay in power to forestall a criminal trial. Indeed, the politician can violate election laws as a means to secure their re-election, and those offenses could not be subject to a criminal prosecution.

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Free Speech

Race Discrimination/Harassment Lawsuit Against Seattle Related to Its "Race and Social Justice Initiative" Thrown Out

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From Judge Jamal Whitehead's opinion today in Deimert v. City of Seattle(W.D. Wash.):

It is unlawful for an employer to discriminate against any employee because of their race. Recognizing the stubborn and pernicious effect of racism against minorities, many employers have adopted Diversity, Equity, and Inclusion ("D.E.I.") initiatives to combat discrimination and harassment in the workplace.

Plaintiff Joshua Diemert, a white man, alleges that his employer, Defendant City of Seattle ("City"), discriminated against him because of his race. He argues that the City's Race and Social Justice Initiative ("RSJI")—the City's D.E.I. program—created a hostile-work environment by "infusing race into all City functions" and "reduc[ing] [him] to an embodiment of his race."  He also alleges the City retaliated against him when he opposed the supposed harassment.

Controlling precedent makes clear that the legal protections against workplace discrimination apply with equal force regardless of the plaintiff's race. Yet we must acknowledge what history and common sense tell us: instances of discrimination against the majority are rare and unusual. Diemert does not present that rare and unusual case here. Contrary to his claims, D.E.I. programs aimed at addressing racial inequalities against Black people and other minorities are not by their very nature discriminatory against whites. And while it is apparent that Diemert personally rejects the RSJI, as is his right, the details he alleges about its discriminatory effect are not so objectively severe or pervasive as to create a racially hostile-work environment against white people in general or him in particular. The same is true about the sweeping claims Diemert makes about his co-workers' and supervisors' alleged race-based conduct, which lack specificity and factual support. Put plainly, more is required of Diemert under the law to demonstrate an unlawful hostile-work environment.

Because Diemert's claims do not stack up against the time-honored tests for proving unlawful employment discrimination and retaliation, the Court must grant the City's summary judgment motion and dismiss Diemert's case.

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Free Speech

Journal of Free Speech Law: "Beyond the Editorial Analogy: First Amendment Protections for Platform Content Moderation After Moody v. NetChoice,"

by Kyle Langvardt & Alan Z. Rozenshtein.

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The article is here; the Introduction:

Over the past several decades, a combination of a laissez-faire regulatory environment and Section 230's statutory protections for platform content-moderation decisions has mostly foreclosed the development of First Amendment doctrine on platform content moderation. But the conventional wisdom has been that the First Amendment would protect most platform operations even if this regulatory shield were stripped away. The simplest path to this conclusion follows what we call the "editorial analogy," which holds that a platform deciding what content to carry, remove, promote, or demote is in basically the same position—with the same robust First Amendment protections—as a newspaper editorial board considering which op-eds to carry.

While formally appealing, this analogy operates at such a high level of abstraction that one might just as plausibly characterize platforms as more akin to governments—institutions whose power over speech requires democratic checks rather than constitutional protection. These competing analogies point in opposite directions: one treats platforms as democracy-enhancing speakers deserving autonomy; the other as institutional censors warranting regulation.

A circuit split over which analogy to follow prompted the Supreme Court's decision last Term in Moody v. NetChoice, LLC. The Eleventh Circuit had invalidated Florida's content-moderation law as an unconstitutional interference with platforms' editorial discretion. The Fifth Circuit upheld Texas's similar law based on the traditional understanding that common carriers—in this case social platforms—are appropriately subject to anti-discrimination requirements.

The Court found both of these stories too tidy.

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The Kennedy Center? Really?

Why does our President care about the makeup of the Kennedy Center Board?

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The VSG (Very Stable Genius) has indicated that he is planning on (and may perhaps have already begun?) firing the members of the Kennedy Center Board of Trustees (including chairman David Rubinstein), replacing them with his own appointees, and naming himself as Chairman of the Board. [See the KC Board Statement here]

As originally reported in The Atlantic:

His posting on Truth Social indicated that he planned to make the Kennedy Center "GREAT AGAIN" by terminating "multiple individuals from the Board of Trustees, including the Chairman, who do not share our Vision for a Golden Age in Arts and Culture," and that he would announce a "new Board, with an amazing Chairman, DONALD J. TRUMP!" adding, "For the Kennedy Center, THE BEST IS YET TO COME!").

One might have thought, what with war in Ukraine and Congo, the freeze in federal DEI spending, bird flu outbreaks, growing global trade tensions over tariffs, the immigration crisis, the plans to eliminate US AID and the Department of Education, the alarming rise in fentanyl-related deaths, Elon Musk's 20-somethings poking around inside the Treasury Department's payment systems, …  that the composition of the Kennedy Center Board would be rather low down on the VSG's priority list, and not something one would have expected him to act upon during his third week in office.

Here are two things on which I think we can all agree: that the US faces many pressing problems, and that changing the management of the Kennedy Center will not address any of them. Read More

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Recent Volokh Posts

1

Andrew McCarthy on the Hegseth Impeachment

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S. Ct. Suspends District Court's Injunction Blocking Border Barrier Building

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The Butler Didn't Do It

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Justice Cody Hiland Publicly Criticizes The President For Nominating Him To District Court Instead of Eighth Circuit

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Deference, the Insurrection Act, and Statutory History

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U. Colorado Regent-vs.-Regents Lawsuit, Cannabis, Race, and Legislative Immunity

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Plaintiffs Contesting Tren de Aragua Membership Claims / Alien Enemies Act Application Still Can't Sue Pseudonymously

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Today in Supreme Court History: November 9, 1942

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Open Thread

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Talarico's Christianity

The All-Argentina Issue is Here

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