The Volokh Conspiracy Archive

The article is here; the Introduction:

The United States is in a difficult moment: what basic faith there was in the institutions of democracy has been eroded, constitutional protections have been undermined by the Supreme Court's radical right-wing majority, and reason is no barrier against the libidinal release enabled by former president Donald Trump. In the wild proliferation of paranoia, accusation, retribution, and hate speech that flourishes on the internet and translates into dangerous, sometimes lethal activism in "real life," education in general and the university in particular have been singled out for attack.

The attack on education is itself not new—right-wing think tanks and politicians have been at it for decades. But this moment seems somehow more dangerous, as Republican lawmakers and militant activists use their power to send censors directly into classrooms and libraries, promising conservative parents they will regain control of their children against the specter of "woke" indoctrination.

In one of those inversions of meaning so adroitly practiced by the right, censorship is being enacted in the name of free speech and/or academic freedom. The terms themselves seem to have lost their purchase: once weapons of the weak, they now have been seized as legal instruments by the powerful, who censor what they take to be unacceptable criticism—of state policy, of inequality, of injustice—in the name of freedom.

And, perhaps most hypocritical of all, the censors claim they are ridding the university of "politics." Heightened politicization, in the name of the purging of "politics," is the stunning result. The two are not the same. Politics (as I want to use the term) refers to contests about meaning and power in which outcomes are not predetermined; those who politicize—or, better, rely on partisanship—know in advance the outcomes they want to impose, the enemies they want to defeat. In theory, politics is at the heart of the free inquiry associated with democratic education, partisanship is its antithesis. In fact, the relationship between the two is never as simple as that opposition suggests.

Multiple political commentators and media outlets have spun narratives of potential election disasters, including efforts to overturn the results. Over at Lawfare, Rick Pildes explains why many of these scenarios ignore the legal guardrails that are in place that are likely to prevent such scenarios from taking place.

As Election Day draws near, anxieties are running high among Democrats about how partisan actors backing Donald Trump might seek to steal the 2024 election. Trump himself has commented that "the only way we're gonna lose" is "if they cheat," raising the specter of another attempt to upend the election results like the country saw in 2020. The danger is real, but much of the speculation about mechanisms Trump or his allies might use to overturn election results risks unnecessarily raising the anxiety level of voters. To be sure, partisan actors might well try various ploys to manipulate the outcome, particularly if the election hinges on one or two states. But there are significant legal, institutional, and political guardrails already in place to thwart these partisan efforts.

A recent essay Neal Katyal authored in the New York Times is a good illustration of these anxieties. Katyal raised several nightmare scenarios for "a potential election crisis" under which, in his view, corrupt partisan actors could seek to deprive Vice President Kamala Harris of a lawful victory, if in fact she wins the election. But in each of the scenarios Katyal raises, the guardrails that are already in place should temper these concerns.

Some of these guardrails are longstanding. Others were enacted as part of the Electoral Count Reform Act. Together, the various guardrails protect against most of the common nightmare scenarios put forward about rogue governors, electors, or state legislatures. And what about Congress? Pildes writes:

Would Congress nonetheless defy the ECRA and act illegally? To reject a state's electoral votes would require a majority in each house of the newly elected Congress. No matter which party controls the House and Senate, its margin is expected to be thin. Sen. Susan Collins was the leader oncr the Republican side in the bipartisan Senate group that drafted the ECRA. Other Republicans in that group who will still be in the Senate in January 2025 include Lisa Murkowski, Todd Young, and Shelley Moore Capito. Let's assume for the sake of analysis Republicans control the House and have 51 or 52 Senators. It would still take only one or maybe two Republicans to abide by the terms of the ECRA that they themselves drafted to defeat any plot in Congress to steal the election

None of this means the election will be free of trouble or dispute, only that these particular concerns -- that the election will be stolen or the legitimate results subverted -- fail to account for the legal and other safeguards that are in place.

The piece concludes:

There is no way to make the system entirely failsafe against all risks. I'm particularly worried that Pennsylvania and Wisconsin will have long delays in getting to a definitive result, given that their laws still – unconscionably – refuse to permit their election officials to start processing absentee ballots until election day. If the results of the election cannot be known for several days, this will almost inevitably spawn suspicion and distrust, fueled by social-media conspiracy theories, and might lead to major efforts to disrupt the vote-counting process. In advance of the 2020 election, I wrote that this dynamic of late vote counts would likely be a major focal point of efforts to delegitimize the outcome. I fear the situation is even worse this time around. Too many voters are already primed in advance this time around to believe the election is "being stolen" if the numbers change dramatically overnight and in the days after the election.

Post-voting partisan efforts to manipulate the process could undermine public confidence, be disruptive, and even lead to civil unrest. But there are many more mechanisms in place than a lot of anxious public commentary recognizes to ensure the lawful outcome of the 2024 election.

10/20/1973: The Saturday Night Massacre occurs.

Co-Blogger Jon Adler flagged an exchange in Royal Canin U.S.A., Inc. v. Wullschleger. Chief Justice Roberts asked Ashley Keller if there were any cases where the Supreme Court "came out the other way than every court of appeals had come out." Keller was not able to think of an example on the spot. After a few moments, Roberts thought of a case:

CHIEF JUSTICE ROBERTS: Was that -was that the case in Chadha?

MR. KELLER: INS versus Chadha?

CHIEF JUSTICE ROBERTS: Yes. MR. KELLER: I --I don't know. I apologize.

CHIEF JUSTICE ROBERTS: Somebody will check. I just -

JUSTICE KAGAN: Gosh, I'm not sure which way that cuts.

(Laughter.)

CHIEF JUSTICE ROBERTS: I'm not sure that's true. I just have it in the back of my mind, but --okay.

Yes, someone would "check" that. His name is Seth Barrett Tillman. Seth reminded me that in Chadha, the Supreme Court affirmed the Ninth Circuit. And do you know who wrote the circuit court opinion in Chadha? Judge Anthony M. Kennedy. AMK ruled that the one-house veto violated the separation of powers. So Chief Justice Roberts is wrong on this front. Even better, Antonin Scalia filed an amicus brief on behalf of the American Bar Association supporting affirmance!

But there is one fairly prominent case in which the Supreme Court came out the opposite way of all lower federal courts: Brown v. Board of Education. The Court reversed three federal courts in Kansas, South Carolina, and Virginia. Of course, the Court affirmed the Delaware Supreme Court, which found that the separate schools were not equal.

The case is Wade v. Univ. of Mich.; as is common for such denials of review, the majority didn't offer a detailed opinion, but Justice David Viviano, joined by Justice Brian Zahra, dissented:

In 2001, the University adopted Article X, which bans the possession of firearms on its campus or "any property owned, leased or otherwise controlled" by the University. That prohibition applies to all persons regardless of whether they possess a concealed-carry permit. Plaintiff unsuccessfully applied for a waiver under Article X. The record indicates that plaintiff does not work, reside, or study at the University and has a concealed-carry permit….

[T]he Court of Appeals disregarded the analysis required by the United States Supreme Court for Second Amendment disputes and invented a confusing four-factor test that bears almost no resemblance to the Supreme Court's test. On remand, the Court of Appeals set forth the following factors for resolving Second Amendment challenges:

It's The University of Michigan Doubled Down on D.E.I. What Went Wrong?, by Nicholas Confessore; the subtitle is "A decade and a quarter of a billion dollars later, students and faculty are more frustrated than ever."

The article is here; the Introduction:

There is growing pessimism about the future of free speech in the United States. Crusaders from all sides of the political spectrum seem intent on suppressing objectionable discussion. The worry is that Americans may be losing their appetite for candid and constructive dialogue. It has become too costly to participate in public discourse. We fear that incorrect speech will be canceled by the left or bullied by the right.

This is surely a troubling state of affairs. But it can be cured only if we first correctly diagnose its causes. There is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. But this diagnosis puts the cart before the horse. The difficulty we now face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased. We misconceive the problem because American culture is obsessed with what has become known as the free speech principle. It is a principle that is widely misunderstood. Our misconceptions are as deep and as they are consequential.

I shall take as my text a representative and much-discussed 2022 opinion piece by the editorial board of The New York Times entitled "America Has a Free Speech Problem." In its first sentence, the editorial warned that Americans "are losing hold" of the "fundamental right" to "speak their minds and voice their opinions in public without fear of being shamed or shunned." The editorial did not focus its attention on government regulation of speech, which is the particular domain of the constitutional law of the First Amendment, but instead on the more basic question of free speech itself. It urged Americans to extend to each other the fundamental right to say whatever is on their minds. The editorial suggested that the more speakers could express their thoughts, the more our politics would heal. It implied that the current dislocation of our politics could be solved by more speech.

The editorial's framing of the issue is not idiosyncratic. Advocates of a free speech principle abound. Yet the editorial rests on a misguided understanding of free speech.

Another interesting tidbit from the oral argument in Royal Camin USA v. Wullschleger concerned what weight the Court should give unanimity on a question among the lower courts of appeals. (In this case, the lower courts of appeals have treated the post-removal amendment of a complaint in one way, but there is an argument the relevant statutory requires a different result.)

In the exchange, Justice Kagan suggests she is not a fan of INS v. Chadha (the decision in which the Court held that a unicameral legislative veto is unconstitutional).

From the transcript:

CHIEF JUSTICE ROBERTS: Counsel, we have had cases where we came out the other way than every court of appeals had come out, right?

MR. KELLER: Yes, you have, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Like what?

MR. KELLER: I think there are -- that's a great question.

(Laughter.)

MR. KELLER: And none spring to mind, but I am positive that I can find some.

JUSTICE KAVANAUGH: Central Bank?

CHIEF JUSTICE ROBERTS: Well, I mean, it's pretty bold to take the position without knowing one.

MR. KELLER: Fair. Mea culpa.

CHIEF JUSTICE ROBERTS: Was that -- was that the case in Chadha?

MR. KELLER: INS versus Chadha?

CHIEF JUSTICE ROBERTS: Yes.

MR. KELLER: I -- I don't know. I apologize.

CHIEF JUSTICE ROBERTS: Somebody will check. I just --

JUSTICE KAGAN: Gosh, I'm not sure which way that cuts.

(Laughter.)

CHIEF JUSTICE ROBERTS: I'm not sure that's true. I just have it in the back of my
mind, but -- okay.

Catching up on Supreme Court oral arguments, I was struck by the following exchange in Royal Canin U.S.A. v. Wullschleger (a case about the effects of post-removal amendments to a complaint) in which Justice Sotomayor suggested that some lower court judges are taking their cues from dicta in Supreme Court opinions.

From the transcript:

JUSTICE ALITO: Well, do you think that -- that courts of appeals read our
decisions differently than we may? I mean, you know, I'm -- I was on a
court of appeals for 15 years. If I saw a strong dictum in a Supreme Court decision, I
would very likely just salute and move on. But, here --

(Laughter.)

JUSTICE ALITO: -- we have --

JUSTICE SOTOMAYOR: Not now.

(Laughter.)
JUSTICE ALITO: -- more of an obligation -- it depends, Justice Sotomayor --

(Laughter.)

JUSTICE ALITO: -- both when we're considering -- you know, when we're considering
what we've written -- we know how these things are written. You know, we know how these footnotes are written. Can -- do we have liberty to read them a little bit differently?

Listening to the audio, I took Justice Alito to be suggesting there is dicta and then there is dicta, and justices (particularly those who may have been on the Court at the time) can often tell the difference. I also took Justice Sotomayor to be suggesting that some lower courts don't merely "salute and move on" when they see "strong" dicta in a Supreme Court opinion, but rather take that dicta as their cue for how to proceed and push beyond settled precedent. Justice Alito's response suggests to me he interpreted her comment in the same way. (Again, this may be more clear on the audio.)

I am not sure which case(s) Justice Sotomayor had in mind, but there are many potential candidates.

10/19/1789: Chief Justice John Jay takes oath.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Last week, IJ's cofounder and former president Chip Mellor passed away after a battle with leukemia. Godspeed, Chip. You're a legend. Click here to learn more.

New on the Short Circuit podcast: What happens when the gov't claims it doesn't enforce the law? It avoids a lot of civil rights lawsuits.

The article is here; the Introduction:

In response to our democratic crisis—polarization, contested elections, political violence—philanthropists, activists, and civic leaders have set about trying to find ways to restore democracy and a vibrant civic culture. Foundations have launched ambitious new programs. Individual philanthropists have convened collaboratives—the Democracy Alliance, the Democracy Funders Network, New Pluralists—aimed to pool resources and insights to shore up the polity. A cottage industry of new organizations has grown over the last seven years to work on voting rights, voter access, election laws and systems, civic participation, and more. These valiant efforts have collectively helped tamp down political unrest, fend off demands to reject the 2020 election result, and defend vulnerable democratic systems at the state level across the country. Many of these efforts are geared not just toward fortifying American democracy in its current form, but also to reinventing it to better meet the needs of a country buffeted by technological, demographic, and social change.

One bulwark of a healthy democracy that these efforts have not sufficiently prioritized, however, is free speech. This is doubly surprising. First, because alongside voting rights and systems, good governance, and civic participation, free speech and open discourse have always formed part of the backbone of a healthy democracy. And second, because free speech and open expression are so clearly under threat today. Controversies over free speech—what can and cannot be said, taught, studied, and read—are fueling grievances that are deepening polarization and distrust in our political system. Yet the battle to uphold free speech has not been incorporated into the broader movement for democracy. It must be.

In this essay, I first describe the loss of faith in free speech on the left and the right and the reasons for it. I then detail the relationship between free speech and democracy, and how it has come under pressure from growing pluralism, polarization, and digitization. I follow by outlining how a flagging commitment to free speech in education, in terms of protest and assembly rights and in relation to the role of the free press, are collectively weakening American democracy. I conclude with a series of recommendations that can help shore up the place of free speech as a democratic cornerstone now and for generations to come.

From the Foundation for Individual Rights and Expression, which represented defendant Amy Gulley (click on the link above for a version with many more links):

In August 2023, a British court convicted nurse Lucy Letby of murdering seven children and attempting to murder six more. The trial garnered international media attention. When Sarrita Adams — a British expat living in California — questioned the scientific evidence behind the conviction. Claiming to hold a Ph.D. from the University of Cambridge, Adams set up a website questioning the evidence, sought to submit a friend-of-the-court brief to the British court, and began fundraising to "aid in the upcoming appeal for Lucy Letby" — even starting a for-profit company, "Science on Trial, Inc."

British media outlets and internet users questioned the credibility of Adams's claimed credentials and expertise. Some pointed out a California appellate court opinion stating that Adams had not completed her Ph.D. as of November 2017 and questioned Adams' fundraising efforts. Amy Gulley, a Pennsylvania resident, started a subreddit — r/scienceontrial — critical of Adams and her company, and criticized them on X (formerly Twitter).

In June 2024, Adams sued Gulley in California — a state Gulley had never even visited, three time zones away from her home on the east coast. Adams alleged that Gulley was "harassing" and "stalking" Adams, and "impersonating" Science on Trial, Inc., by using its name on a subreddit. Central to Adams's claims was her allegation that Gulley "lied about [Adams'] educational qualifications . . . from the University of Cambridge[.]"

Adams obtained a restraining order — without a hearing — from the San Francisco court, which ordered Gulley: "Do not make any social media posts about or impersonate [Adams] and the company Science on Trial on any public or social media platform."

From an Arizona Court of Appeals decision Tuesday in Wineberg v. Buonsante, written by Judge Lacey Stover Gard and joined by Chief Judge Christopher Staring and Peter Eckerstrom:

In January 2024, Wineberg filed a petition for an order of protection under § 13-3602. He alleged that [his ex-wife] Buonsante had engaged in the following acts:

She has been stalking my community. She has delivered my personal information to people in my community even though being told she has no reason to be around my home. She has been seen on my porch looking through my front window. [S]he has blasted me all over social media. [S]he has harassed my friends and family. This has been going on since June 2023.

The superior court conducted an ex parte hearing, at which Wineberg explained that Buonsante had shown his neighbors a published article containing negative information about him. Wineberg stated that he had not had any communication with Buonsante, but that she had told others that she was "trying to destroy" him. He accused her of seeking to prove that he was a "predator of women."

The superior court determined that Buonsante had "committed the offense of harassment" and granted the order of protection. Based on Wineberg's allegation that Buonsante had disparaged him in videos on a social-media platform, the court included in the protective order a directive that Buonsante "shall not post messages about [Wineberg] on the internet or on social media." It also ordered Buonsante not to possess any firearms for the order's duration and to surrender her existing firearms to law enforcement.

In our previous four posts we've argued that LLM AIs should not be in the driver's seat of ordinary meaning inquiries. In so stating, we don't deny that AI tools have certain advantages over most current corpus tools: Their front-end interface is more intuitive to use and they can process data faster than human coders.

These are two-edged swords for reasons we discussed yesterday. Without further refinements, the user-friendliness of the interface and speed of the outputs could cut against the utility of LLM AIs in the empirical inquiry into ordinary meaning—by luring the user into thinking that a sensible-sounding answer generated by an accessible, tech-driven tool must be rooted in empiricism.

That said, we see two means of leveraging LLM AIs' advantages while minimizing these risks. One is for linguists to learn from the AI world and leverage the above advantages into the tools of corpus linguistics. Another is for LLM AIs to learn from corpus linguists by building tools that open the door to truly empirical analysis of ordinary language.

Corpus linguistics could take a page from the LLM AI playbook

10/18/1960: Gomillion v. Lightfoot argued.

On Tuesday, the U.S. Court of Appeals for the D.C. Circuit granted a petition for rehearing en banc in End Citizens United PAC v. Federal Election Commission, to consider whether FEC decisions to decline to take enforcement action are subject to judicial review as "contrary to law." This could produce a significant outcome for the enforcement of federal election law, and perhaps for judicial review of executive branch enforcement discretion more broadly.

In January, a divided panel of the D.C. Circuit concluded that the Federal Election Campaign Act does not create a cause of action to challenge the FEC's exercise of enforcement discretion. Judge Rao wrote for the court, joined by Judge Katsas. Judge Pillard dissented. From Judge Rao's opinion:

FECA allows a court to "declare that the dismissal of [a] complaint … is contrary to law." 52 U.S.C. § 30109(a)(8)(C). Under our precedents, a dismissal is "contrary to law" if "(1) the FEC dismissed the complaint as a result of an impermissible interpretation of [FECA] … or (2) if the FEC's dismissal of the complaint, under a permissible interpretation of the statute, was arbitrary or capricious, or an abuse of discretion." Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). To the extent we review dismissals for arbitrariness, our review is "[h]ighly deferential," "presumes the validity of agency action[,] and permits reversal only if the agency's decision is not supported by substantial evidence, or the agency has made a clear error in judgment." Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (cleaned up); accord Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 357 (D.C. Cir. 2020) (per curiam).

FECA's contrary to law review does not eliminate the Commission's prosecutorial discretion. "[T]he [Administrative Procedure Act] and longstanding … precedents rooted in the Constitution's separation of powers recognize that enforcement decisions are not ordinarily subject to judicial review." New Models, 993 F.3d at 888; see also Chaney, 470 U.S. at 831–32. And "[t]he Supreme Court in Akins recognized that the Commission, like other Executive agencies, retains prosecutorial discretion." Citizens for Resp. & Ethics in Wash. v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (citing FEC v. Akins, 524 U.S. 11, 25 (1998)). It follows that the Commission's "exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny." Comm'n on Hope, 892 F.3d at 439. Furthermore, we recently reiterated that a Commission dismissal is unreviewable if it "turn[s] in whole or in part on enforcement discretion." New Models, 993 F.3d at 894. A dismissal is reviewable "only if the decision rests solely on legal interpretation." Id. at 884; . . .

The Commission's dismissal of the first complaint is an unreviewable exercise of its prosecutorial discretion. As End Citizens United concedes, the controlling commissioners expressly invoked their prosecutorial discretion when dismissing the complaint. They cited Chaney repeatedly, discussed the time and expense an investigation would involve, and mentioned the Commission's "substantial backlog of cases." Statement of Reasons at 2, 10. Prioritizing particular cases and considering limited time and resources are quintessential elements of prosecutorial discretion. When the 10 Commission's dismissal rests even in part on prosecutorial discretion, it is not subject to judicial review. New Models, 993 F.3d at 884, 893–95; see also Comm'n on Hope, 892 F.3d at 439. . . .

Perhaps buoyed by Judge Pillard's dissent (and the ideological makeup of the D.C. Circuit), Camapign Legal Center Action filed a petition for rehearing en banc on behalf of the End Citizens United PAC. The grant of their petition suggests that a majority of the court believes D.C. Circuit caselaw over-insulates FEC non-enforcement decisions from judicial review. If I had to make a prediction, the full court will reverse the panel--but that may not be the end of the story.

The order granting en banc rehearing also expanded the questions before the court. Specifically the order included the following:

In addition to the issues raised in the petition for rehearing en banc, the parties are directed to address in their briefs whether Orloski v. FEC correctly held that an FEC decision can be "contrary to law" under 52 U.S.C. § 30109(a)(8)(C) "if the FEC's dismissal of the complaint . . . was arbitrary or capricious, or an abuse of discretion." 795 F.2d 156, 161 (D.C. Cir. 1986).

I doubt the addition of this question will have much effect on the en banc court's decision, as I suspect a majority of the D.C. Circuit is comfortable with Orloski and the extent to which it facilitates judicial review of some FEC decisions to dismiss complaints. Judge Rao, on the other hand, appears to have some doubts (as indicated by footnote 3 in her opinion, which draws a response in footnote 2 of the dissent). But insofar as Orloski is on the table, could that set up a broader review of judicial review of the FEC (if not federal agencies more broadly) by the Supreme Court? This is a possibility worth watching.

The Volokh Conspiracy

Journal of Free Speech Law: "Academic Freedom & the Politics of the University," by Joan Wallach Scott

Pildes on the Election's Guardrails

Today in Supreme Court History: October 20, 1973

When Did The Supreme Court Come Out "The Other Way Than Every Court of Appeals"?

Mich. S. Ct. Declines to Review Decision Upholding U. Michigan Gun Ban

Interesting and Detailed N.Y. Times Article About DEI at the University of Michigan

Journal of Free Speech Law: "The Unfortunate Consequences of a Misguided Free Speech Principle," by Robert Post

Justice Kagan Does Not Like INS v. Chadha

Justices Alito and Sotomayor on How Courts Read Dicta

Today in Supreme Court History: October 19, 1789

Short Circuit: A Roundup of Recent Federal Court Decisions

Journal of Free Speech Law: "The Fate of American Democracy Depends on Free Speech," by Suzanne Nossel

Court Order Requiring Removal of Reddit Criticism of Scientist/Consultant Vacated

Court Ordered Ex-Wife to Stop Publicly Disclosing Her Ex-Husband's Alleged Past Misdeed

Could LLM AI Technology Be Leveraged in Corpus Linguistic Analysis?

Today in Supreme Court History: October 18, 1960

Thursday Open Thread

D.C. Circuit Grants En Banc Review to Consider Reviewability of FEC Enforcement Discretion

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76