(a) A person is guilty of simple stalking if he or she willfully,
maliciously, and repeatedly, follows or harasses another person or who
makes a credible threat with intent to place that person or a member of his or
her immediate family in fear of death or bodily injury.
(b) A person is guilty of advanced stalking if he or she violates
Subsection (a) of this Section when there is a temporary restraining order or
an injunction or both or any other court order in effect prohibiting the
behavior described in that Subsection against the same party.
Rather an odd locution, it seems to me; the term would normally be something like "aggravated stalking," or the crime might be divided into first-degree and second-degree stalking. But legislatures can name things as they please.
From yesterday's Third Circuit decision in Reading v. North Hanover Township, written by Judge Thomas Hardiman and joined by Judges Kent Jordan and David Porter:
Angela Reading, a mother and former school board member, alleged that federal and local government officials violated her right to free speech by engaging in a campaign of censorship and retaliation after she posted comments on Facebook. She requested a preliminary injunction to prohibit those officials from further interfering with her First Amendment rights. After the District Court denied her motion, Reading appealed.
{Reading's allegations are serious and raise important questions under the Free Speech Clause of the First Amendment. Reading expressed concern about whether her seven-year-old daughter was being exposed to sexual topics that have no place in an elementary school. Regardless of whether one agrees with Reading's concern, the record suggests that Defendants' response to her blog post was, to put it mildly, disproportionate.}
Although much of the government actors' behavior was beyond the pale, the record does not show a substantial risk that their acts of censorship and retaliation will recur. So Reading lacks standing to seek a preliminary injunction….
More on the factual claims:
The controversy that gave rise to this case unfolded at the Upper Elementary School (UES or School) in the North Hanover Township School District. As part of its 2022 "Week of Respect," the School invited students to design posters "demonstrat[ing] that UES [is] a safe place where everyone [is] accepted." Some students offered "messages of general acceptance," while others supported more specific causes.
One such poster, anchored in the center by the acronyms "LGBTQ" and "UES," featured descriptions of various sexual identities and their corresponding flags. The poster included a "bi" flag, a "genderfluid" flag, and a "polysexual" flag, among others. It announced that "different is cool" and instructed students that "you are who you are."
Angela Reading first saw the poster when she attended the School's "Math Night." After her seven-year-old daughter asked what the word "polysexual" meant, she was "livid." She took her concerns to social media. In a lengthy post to the "NJ Fresh Faced Schools" Facebook page, Reading wondered why an elementary school would permit its students to "research topics of sexuality," and worried that adults were "talking about their sexual life" with her children. She called the poster "perverse" and argued that it "should be illegal to expose my kids to sexual content." Although "[k]ids should respect differences," Reading explained, they "should not be forced to learn about and accept concepts of sexuality in elementary school." Reading concluded the post by noting that her comments were "made in [her] capacity as a private citizen and not in [her] capacity as a [school] board member."
Reading's post quickly drew the ire of military personnel at nearby Joint Base McGuire-Dix Lakehurst, some of whom had children at the School. Major Chris Schilling was especially fixated on the post. In an email to local parents, Schilling complained that Reading's post was "filled with too many logical fallacies to list." He accused her of "try[ing] to over sexualize things" to "give her arguments more power," insisting that she did "not hav[e] the proper resources and/or education on the matter." Schilling was "very concern[ed]" that Reading served as a local school board member.
Yesterday's decision by Judge William K. Sessions III (D. Vt.) in University of Vermont Students for Justice in Palestine v. University of Vermont upheld the University's interim suspension of UVMSJP for violating various rules in setting up a 10-day long tent demonstration on the University's Davis Center Green in Spring 2024:
Using the Davis Center Green to the exclusion of others for non-commercial solicitation without a reservation;
Disruption of scheduled tabling and other reservation of space outside the Davis Center;
Disruption of normal student engagement and/or academic work patterns;
Setting up tents ("temporary structure") on the Davis Center Green without a permit and declining to remove them when requested;
Overnight occupancy of a temporary structure;
Encouraging and facilitating the violation of policy by other students.
UVMSJP sued over this suspension of the group's recognized student organization privileges (the lawsuit wasn't about any academic suspension of any particular students). The court, though, granted the university's motion to dismiss, concluding that even if the facts were as UVMSJP had alleged, they wouldn't amount to a violation of the First Amendment. First, the court rejected plaintiffs' prior restraint claim:
In Healy v. James (1972), the Supreme Court considered whether a college violated the plaintiffs' free association rights when it denied recognition of their student group. Ultimately, the Court remanded the case for reconsideration of the plaintiffs' claims, as it was unable to "conclude from this record that petitioners were willing to abide by reasonable campus rules and regulations." …Healy noted that recognition of a student group, "once accorded, may be withdrawn or suspended if petitioners fail to respect campus law."
More recently, the Supreme Court considered a case in which Hastings Law School denied Registered Student Organization status to a Christian student group ("CLS") that excluded students based on religion and sexual orientation. Christian Legal Society v. Martinez (2010)…. The Supreme Court … [held] that by requiring CLS to comply with all school policies and regulations, Hastings was merely imposing a "reasonable, viewpoint-neutral condition on access to the student-organization forum," while CLS was seeking "not parity with other organizations, but a preferential exemption from Hastings' [nondiscrimination] policy."
The Court finds that both Healy and Martinez support Defendants' contention that a university may take action against a student organization when the university's rules have been violated. Whether those actions are constitutional, however, will largely depend on both the lawfulness of the underlying rules and the extent to which the university's actions were in concert with those rules. The Court must therefore proceed to UVMSJP's additional constitutional challenges.
The court held that the relevant program of student group access to university property, resources, and recognition was a limited public forum, in which the government's actions as property owner need only be reasonable and viewpoint-neutral. And the court concluded that these actions were indeed reasonable and viewpoint-neutral:
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: Does the Supreme Court want to overturn Kelo v. New London? We're asking them to overturn Kelo v. New London. Swear to heck. Click here to learn more.
New on Unpublished Opinions, IJ's roundtable podcast: Is a pun worth keeping if you have to explain it in a footnote? Plus, other weighty jurisprudential questions.
New on the Short Circuit podcast: UCLA's Joanna Schwartz and Kasia Wolfkot of the Brennan Center talk with IJ's Anya Bidwell about civil rights reforms at the state level.
In September 2024, Leigha Lemoine … was enrolled in the cosmetology program at Defendant Horry Georgetown Technical College ("HGTC"). On September 5, 2024, while Lemoine was off-campus, Lemoine's boyfriend's roommate—who was not an HGTC student—insulted Lemoine. Later that day, Lemoine detailed the incident in a Snapchat group text that included other HGTC students. Therein, Lemoine posted the following:
But naw I was trying to be nice but f[***] that some random ugly a[**] in bread looking f[***] dude called me a b[****] he needa get blasted….
On September 11, 2024, some students at HGTC reported that they "fe[lt] uncomfortable and somewhat unsafe" due to Lemoine's use of "the term 'blasted'" in the Snapchat….
School officials met with Lemoine, who "denied [the Snapchat had] anything to do with physical harm" and said she "only intended that the roommate 'needed to be held accountable and called out for his behavior.'" The officials at first accepted that, but two days later they
discovered a one-year-old video of Lemoine posted on Instagram, in which Lemoine fired a handgun at a target. While firing the handgun, Lemoine was "wearing a western[-]style outfit …." … Lemoine explained [to school officials] that the gun in the video "did not belong" to her and she had never fired a gun before that time….
Apparently because of the combination of this Snapchat and the year-old video, Lemoine was suspended until Summer 2025, based on a student code provision forbidding "[e]ngaging in any activity that disrupts the educational process of the college, interferes with the rights of others, or adversely interferes with other normal functions and services."}
Specifically, [a school administrator] wrote that "[i]n today's climate," Lemoine's "failure to disclose the existence of the video" and "use of the term 'blasted'" created "a significant amount of apprehension related to the presence and use of guns" and that "both employees and students" at HGTC "feel unsafe due to these circumstances." …
Lemoine sued, and the court issued a preliminary injunction ordering that she be readmitted. The court concluded that the speech likely didn't fall into the First Amendment exception for "true threats" of illegal conduct:
From U.S. v. Wilson, decided yesterday by Ninth Circuit Judge Danielle Forrest, joined by Judge Patrick Bumatay and District Judge James Donato (N.D. Cal.) (for a similar result in a case alleging selective prosecution against alleged white supremacist rioters, see U.S. v. Rundo(9th Cir. 2024)):
On May 31, 2020, Defendants-Appellees Nathan Wilson and Christopher Beasley allegedly joined a protest in Santa Monica, California [following the killing of George Floyd] and set fire to a police car. They were both federally indicted on one count of arson. Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views.
The panel held (disagreeing with the trial court) that defendants weren't entitled to "discovery on their selective-prosecution claim":
The Executive Branch has "'broad discretion' to enforce the Nation's criminal laws." Thus, a "'presumption of regularity supports' … prosecutorial decisions and, 'in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'" Selective-prosecution claims—assertions that a prosecutor has brought charges for reasons forbidden by the Due Process Clause of the Fifth Amendment—require courts "to exercise judicial power over a 'special province' of the Executive." …
Given the separation-of-powers concerns at play, the standard for proving selective prosecution is "a demanding one." The Supreme Court has established a two-factor standard: the defendant must demonstrate "clear evidence," first that the decision to prosecute "had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose." "[T]he showing necessary to obtain discovery" on a selective-prosecution claim is "correspondingly rigorous," and is intended to be a "significant barrier to the litigation of insubstantial claims." …
To show discriminatory effect sufficient to warrant discovery, a defendant must "produce some evidence that similarly situated defendants … could have been prosecuted, but were not." … Defendants argued to the district court that they were unconstitutionally prosecuted based on a policy of the Trump Administration to prosecute an arbitrary class: "'individuals associated with protests who the government thought held anti-government views, regardless of what actual views they held.'" And they asserted that to evaluate the discriminatory effect of their prosecution, the district court should look to "a control group consisting of 'all individuals whom the [U.S. Attorney's Office] could charge federally for arson.'" …
Focusing on its selected control group—arsonists in the Central District of California—the district court turned to statistics. It noted that the U.S. Attorney's Office for the Central District brought four arson cases related to the George Floyd protests, two arson cases in the previous 10 years, and nine others in the decade before that. It also highlighted that the George Floyd protest cases were the first stand-alone arson charges brought since 2007. The district court further surveyed arson cases occurring in the area within the Central District overall, finding that between 2010 and 2019, an annual average of 3,500 arsons were reported and 559 were prosecuted. Based on these statistics, the district court found that the U.S. Attorney's Office was "obviously aware of and chose not to federally prosecute far more serious and damaging arsons" than the police-car burning for which Defendants were charged. As a result, it concluded that Defendants met their burden to show evidence of discriminatory effect.
This was an abuse of discretion because the district court "based its ruling on an erroneous view of the law." In defining the control group with only two shared facts—(1) arson (2) within the Central District—the district court did not account for many other facets of the crimes….
Klara and the Sun, by Kazuo Ishiguro: A first-person novel told from the point of view of a solar-powered Artificial Friend. It is hard to say much more about the plot without spoiling it or failing to render it as beautifully as Ishiguro does. The book begins with Klara sitting in a shop window, and the reader discovers the world through Klara's eyes, as she manages to explore, understand, and misunderstand it, and develops her own deep relationships, quests, and failures. Written in 2021, but perhaps even more timely today.
The President's Lawyer, by Lawrence Robbins:A page-turner of a novel about the intersection of criminal defense and Washington scandal. The main character is a career litigator whose childhood best friend, the former President of the United States, has been accused of murdering his mistress. Plot twists, personal entanglements, and several entertaining trial scenes ensue. The author (recently deceased) was himself an experienced DC litigator, from criminal trials to Supreme Court arguments, and co-founded his own law firm, Robbins, Russell, Englert, Orseck & Untereiner, where he was once my boss.
Law for Leviathan, by Daryl Levinson: How is constitutional law like international law? Both of them struggle with the fact that there are no international law police or constitutional law police who can directly apprehend and sanction law breakers. That is because they are law for states, and so they must figure out how to establish legal rules without simply relying on any one state to enforce them. This academic but readable book argues that this is possible, but requires a range of strategies outside of simply laying down the law and expecting it to be obeyed. One of the most refreshing books about constitutional law I have read in a while. [You can also hear a Divided Argument podcast discussion with Daryl about this book, Separation-of-Powers Police.]
Here's the whole list. I also recently read and enjoyed the Grover Cleveland biography, which is recommended by my colleague Todd Henderson.
Feel free to make your own nominations in the comments!
FIRE, which represents the First Amendment Coalition and me in challenging the law, reports:
A federal court, acting on a stipulation agreed to by the California attorney general and San Francisco city attorney, today halted enforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO's sealed arrest records.
Under the law, any person — including journalists, advocates, witnesses, and victims of crimes — faced a civil penalty of up to $2,500 for sharing public information. The court order results from a First Amendment lawsuit filed by the Foundation for Individual Rights and Expression in November, which led the California attorney general and San Francisco city attorney to agree not to enforce the law while the lawsuit is pending….
In October 2023, journalist Jack Poulson published articles about a controversial tech CEO's arrest, sharing a copy of the arrest report sent to him by an unidentified source. The San Francisco Police Department had previously made that report public, even though the executive had successfully petitioned a state court to seal the record.
Almost a year after Poulson published the report, the city attorney of San Francisco — working with the tech executive — sentthreeletters to Poulson and his webhost, Substack, demanding they remove articles and the sealed report. Those letters threatened enforcement of California's anti-dissemination statute, Penal Code § 851.92(c). The law imposes a civil penalty of up to $2,500 on any person (except the government officials charged with maintaining the secrecy of sealed records) who shares a sealed arrest report or any information "relating to" the report — even if the information is already publicly available.
Concerned by the implications of the statute, FIRE sued the San Francisco city attorney and the California attorney general on behalf of the Bay Area-based First Amendment Coalition, its Director of Advocacy Ginny LaRoe, and legal commentator Eugene Volokh. Each regularly comments on censorship campaigns precisely like the one the tech CEO and city attorney launched against Paulson and Substack. But the anti-dissemination statute prohibited them from covering the CEO story, even though the information has been publicly available for over a year.
Today, the court entered a preliminary injunction agreed to by both California and the city attorney that prohibits them from enforcing the law with respect to publicly available information. The preliminary injunction protects not only FAC and Volokh, but anyone — including journalists like Poulson — who publishes information made available to the public.
The case is proceeding, and there will presumably be briefing as to whether the law should be permanently enjoined; but while that's happening, the law is being preliminarily blocked, as to reporting on publicly available information. Here's an excerpt from FIRE's memorandum arguing in support of the preliminary injunction, which I take it helped persuade the government defendants:
When a new presidential administration begins, the executive branch often changes position on some cases pending before the Supreme Court. But why wait till inauguration day to hear the views of the incoming administration?
The TikTok litigation casts this question in stark relief. The statute effectively banning TikTok goes into effect on January 19, the day before President-Elect Donald Trump is slated to begin his second presidential term. Recognizing that deadline, the justices have crafted an expedited briefing schedule with oral argument on January 10.
The Biden administration will of course litigate the case. But Trump has made public statements indicating that he may be more supportive of TikTok. In this situation, it might make sense for Trump to appear as an amicus. As the imminent president, he would hardly be a run-of-the mill friend of the court.
New administrations generally try not to change the executive's litigation position too much or too often, since doing so can undermine the Solicitor General's long-term credibility and draw attention to the political nature of the new position. Yet these changes do happen. And when they do, the new administration's views are often informative. The justices can be receptive to them.
For similar reasons, the justices might especially want to know the President-Elect's views on the TikTok case. For example, they might want to know how banning TikTok would interact with Trump's planned domestic and foreign policy plans. They might want to know whether and how the new administration will enforce the law starting January 20. Or they might simply be curious about what a different, new administration thinks about the question presented.
Of course, Amicus Trump would lack the formal trappings of office. For instance, he would not yet have taken his (second) oath of office or be fully in touch with the Nation's national security system. Yet even with those limitations there is significant room for judicial interest in the views of the future executive branch.
In the past, presidents-elect have generally avoided trying to openly disrupt the policies of their lame-duck predecessors before inauguration day. But that norm may already be fraying, as evidenced by Trump's stated views, and the logic behind it might be undermined in a time of sharp political polarization. If any incoming president would buck this norm, thereby creating a new one, it is Donald Trump.
It is even possible to imagine that the justices would invite Trump's views, essentially calling for the views of the president-elect (CVPE). Such a move would also have some appeal in cases like US v. Skrmetti, where the Biden administration's position is almost surely not the one that the Trump administration will or would adopt, and where the new administration's position might affect the viability of the case.
The appeal of a CVPE is at its apex in the Tiktok litigation, which involves a decision almost on the eve of a dramatic turnover in the Executive Branch.
Some excerpts from Canaan v. Carnegie Mellon Univ., decided Tuesday by Judge Scott Hardy (W.D. Pa.); the opinion is 15,000 words, so this can only give a flavor of the matter. First, the allegations from plaintiff's Complaint (which, at this stage of the case, the court assumes to be factually accurate in determining whether the plaintiff has a legal basis for her claim):
Ms. Canaan was taking one of her required studio classes where students receive hands-on, practical instruction in architectural design, making models and applying lessons learned in their other classes. These studio classes typically involve small groups, open discussions, and one-on-one meetings with professors. Students receive critically important feedback individually as well as in small group and class-wide settings. On May 5, 2022, Ms. Canaan had the final review for her semester-long studio class project, which was a model she designed depicting the conversion of a public space in a New York City neighborhood into a private space through an eruv (i.e., an integral feature of neighborhoods with large devout Jewish populations). {Plaintiff's Complaint describes an eruv as a "small wire boundary that symbolically extends the private domain of devoutly religious Jewish households into public areas, permitting activities within it that are normally forbidden in public on the Sabbath."}
In response to questions, Ms. Canaan was explaining the concept of an eruv to Mary-Lou Arscott, Professor and Associate Head for Design Fundamentals at the School of Architecture …, when Professor Arscott cut Ms. Canaan off and told her that "the wall in the model looked like the wall Israelis use to barricade Palestinians out of Israel," and that the time Ms. Canaan had used to prepare her project "would have been better spent if [Ms. Canaan] had instead explored 'what Jews do to make themselves such a hated group.'" …
[Discussion of Canaan's complaints to CMU, and CMU's allegedly dilatory and inadequate responses, omitted. -EV] [A]pproximately six months after Professor Arscott had directed offensive comments at Ms. Canaan in Ms. Canaan's studio class[, ]CMU's administration finally scheduled a meeting with Ms. Canaan and Professor Arscott over Zoom on November 2, 2022. The Complaint describes this Zoom meeting as an unproductive endeavor: the meeting took place, but Vice Provost Heading-Grant said and did nothing as facilitator, Professor Arscott refused to apologize and showed no remorse, and, further, Professor Arscott referenced and subsequently emailed contents of a blog titled "The Funambulist" to Ms. Canaan and Vice Provost Heading-Grant. Professor Arscott urged Ms. Canaan to read the contents of The Funambulist that she linked in the email because it provided her with "insightful … perspective."
According to the Complaint, The Funambulist contains anti-Jewish and anti-Israel content, including, among other things, the promotion of pictures of terrorist organizations throwing Molotov cocktails at Jewish people and articles with titles such as "Israeli Apartheid" and "Israeli Police: The Daily Practice of Collective Punishment Against Palestinians." A sample passage from one article, dated April 8, 2022, that could be considered particularly pertinent to Ms. Canaan's circumstances and Professor Arscott's refusal to apologize reads: "[Y]ou never make concessions to the oppressor. If you're going to get punished, and you might, if you piss off Zionists, it's always a possibility, right, then stare the oppressor in the face, and take whatever punishment is coming. Don't concede, don't start apologizing …. The Palestinians aren't backing down, nor should we … [we] do not make concessions to the oppressor."
From Hines v. Stamos, decided today by Judge Terry Doughty (W.D. La.):
This case stems from Defendants' alleged participation in censoring Plaintiffs' speech on social media. Defendants are "nonprofits, academic institutions, and researchers alleged to have been involved in examining the issue of the viral spread of disinformation on social-media and the resulting harms to society." Plaintiffs are social media users, each with significant followings, who allege that the acts of Defendants caused Plaintiffs' disfavored viewpoints to be censored—namely their speech concerning COVID-19 and elections. As a result of this alleged past and ongoing censorship, Plaintiffs filed this putative class action lawsuit on behalf of themselves and "others similarly situated," against Defendants….
The court didn't agree with plaintiffs that they had conclusively established that the federal court in Louisiana had personal jurisdiction over defendants—but it did conclude that plaintiffs had sufficiently alleged facts that would justify further discovery as to personal jurisdiction:
To earn jurisdictional discovery, the movant must first make "a preliminary showing of jurisdiction." A preliminary showing does not require proof that personal jurisdiction exists, but "factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts." In other words, Plaintiffs must state what facts discovery is expected to uncover and how those facts would support personal jurisdiction….
Plaintiffs have alleged—to the point of "possible existence"—that the Stanford Defendants effectuated censorship in Louisiana by "assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech's spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation." And as such, Plaintiffs have adequately alleged that the Stanford Defendants' online activities may support personal jurisdiction. Limited jurisdictional discovery is thus necessary to show to what extent Defendants' online activities were "directed" at the forum state.
And the court held that plaintiffs had sufficiently alleged that they had standing to sue (which in this case means that various platforms had restricted their speech because of the defendants' actions, rather than just because of the platforms' own independent decisions), and were thus entitled to further discovery on this as well:
Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name. (Institute for Justice.)
Today, the Institute for Justice filed a cert petition urging the Supreme Court to hear Bowers v. Oneida County Industrial Development Agency, a case in which IJ seeks to overrule Kelo v. City of New London (2005). Kelo is the controversial case in which the Supreme Court held that the government could use eminent domain to take property in order to promote private "economic development." Although the Fifth Amendment states the the government may only take private property for "public use," a narrow 5-4 Supreme Court majority built on earlier precedents to rule that virtually any potential public benefit qualifies as such. The Court also ruled the government need not prove that the supposed public benefit will actually materialize. In the Kelo case itself, it never did, and the condemned property ended up being used mainly by feral cats.
Here is an excerpt from IJ's description of the Bowers case:
Bryan Bowers and his business partner Mike Licata build things. And they pride themselves on building things the people in their upstate New York community actually want and need. That is what led them to buy a plot of land across from a new hospital in Utica, New York: They had heard from doctors in the area that they would happily rent space from a Bowers building if one went up.
Unfortunately, they weren't the only ones with plans for a medical office building near the hospital—or with plans for their newly acquired land. A different group of doctors had formed a private company they called Central Utica, LLC, that had plans for a building next door. After Bryan and Mike signed a contract to buy their new land, Central Utica announced that it wanted Bryan and Mike's land, too—to use as a private parking lot for its building.
Two different people wanting the same thing is nothing new, whether it's toddlers with toys or private businesses with land. The difference is that this dispute happened in New York, where local and state officials sometimes behave like spoiled children.
Central Utica wrote a letter to a local government agency, the Oneida County Industrial Development Agency, asking it to take Bowers' land using eminent domain. Shockingly, the county agreed. In the county's telling, the new private office building would create jobs and economic growth, and that was reason enough to invoke the power of eminent domain. (Bryan, of course, proposed to build an office building that would also have created jobs, and the location was already surrounded by literally thousands of parking spots, including a brand-new multi-level garage, but the county didn't seem troubled by that.)
That may seem like a flimsy basis for taking away someone's private property, but in New York, it's standard procedure. New York is the nation's leading abuser of eminent domain, and it is a stark example of the excesses of one of the Supreme Court's most reviled decisions: Kelo v. City of New London….
Against this backdrop, the condemnation of Bryan's property is just more of the same. Sure, a private business went to the government and asked to be given someone else's private property—but that's not unusual in New York. While most states would have a problem with that, in New York, it took the court all of a paragraph to conclude that the taking was constitutional. If it weren't enough that the new private office building would create jobs, the court identified another secondary benefit that would justify the condemnation: The public, it said, could use the new parking lot at night, when its new private owner didn't need it.
Of course, that isn't true. Once the new owners took over the land, they immediately put up signs making clear that the general public wasn't allowed….
But in New York, that doesn't matter. It doesn't matter whether the public can actually use the land that's being taken, and it doesn't matter that in reality the land is a private parking lot in a sea of public parking spaces—just like it didn't matter in Kelo whether the government would actually build anything at all. All that matters is whether the government can imagine a good reason for the taking.
A rule that says the government can take your property whenever it can imagine a benefit to doing so is just a rule that says the government can take your property whenever it wants to. It will be up to the Supreme Court to decide whether the Constitution demands more than that.
As IJ notes, many states have passed eminent domain reform legislation since Kelo or repudiated it as a standard for the public use clauses of their state constitutions. But, as described in my book, many of the reform laws are weak, and still permit a wide range of abusive takings.
I will likely have more to say about this case in future posts.
NOTE: I have worked with the Institute for Justice on various other property rights issues over the years, but have no involvement in this case. However, I may file an amicus brief urging the Supreme Court to hear it.
