The Volokh Conspiracy

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

President Biden has pardoned his son Hunter for all federal crimes committed from 2014 through yesterday. That's not just for the crimes for which Hunter has already been charged, but for anything he did (or may have done) during the last ten years. Granting this pardon was something the President had pledged not to do in June, while he was still a candidate for reelection ("I abide by the jury decision. I will do that and I will not pardon him."). But, as NBC reports, "it was decided at the time that he would publicly say he would not pardon his son even though doing so remained on the table." And now that the election is over, Biden could issue the pardon without worrying that voters would punish him or Vice President Harris, who had replaced him on the ticket.

Presidents have the constitutional "Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." There's nothing Congress can do about that. Giving someone a pardon power is hard to do without, because the chain of review for prosecutorial decisions has to stop somewhere. If the buck doesn't stop with the President, it'll stop with less-accountable prosecutors or courts.

But the President is only accountable to the electorate so long as he or his party are up for election. Once the election is over, there's no one for voters to punish. That's why Biden waited until after the election to pardon Hunter; why Trump did the same for Steve Bannon and Roger Stone; why Obama did the same when commuting the sentences of Chelsea Manning and the terrorist Oscar López Rivera. And, most notoriously, that's why Bill Clinton waited until his last full day in office to pardon the fugitive Marc Rich, who had fled to Switzerland to avoid prosecution and whose ex-wife donated $450,000 to the Clinton Library.

Some people argue that Presidents would be too stingy with pardons if the voters got to see them first. But that's what happens in a democracy: the people get to decide. If we don't think the pardon power should be reviewed by the public, then why lodge it with the President, rather than with judges or other unelected officials? A truly unreviewable pardon system would raise real dangers for a democracy, because it could be used to insulate attacks on the system from any punishment. But much the same thing happens when the President can simply wait the voters out.

Maybe the lame-duck period should be shorter; we've already amended the Constitution once to move up Inauguration Day. But it's hard to imagine that we'd provide no time at all for a transition, especially when California is still counting the votes. And it doesn't take very long to sign a piece of paper.

So the better solution is to ban, not lame-duck periods, but lame-duck pardons. Here's draft language that might do the trick:

The power to grant reprieves and pardons for offenses against the United States may not be exercised without a public proclamation of the same; nor may it be exercised from one month prior to the time of choosing the electors until the next presidential term begins, except to grant temporary reprieves extending no longer than the tenth day of such term.

Three important things about this draft. First, it bans secret pardons: the voters can't judge pardons that they don't know about. Second, it creates a "blackout period" in which the President can't issue pardons or commutations, starting one month before election day and lasting until the start of the next term. Whether the President is on the ballot or not, voters would have time to decide what they think of a pardon and whether to withhold their votes for the President's party. And third, it creates an exception for temporary reprieves, letting the current President postpone punishments (especially capital ones) and letting the newly elected President, or the same one if reelected, decide whether to make those reprieves permanent.

Mike Rappaport, who's discussed this issue before, notes that right now might be the right time for members of Congress to act. The issue is in the news now. President Biden isn't on the ballot anymore, and neither is Vice President Harris, so Democrats could endorse the amendment without facing any electoral penalty. And because the focus right now is on Biden, Republicans could endorse it as a criticism of the incumbent rather than of their own president-to-be.

If not now, when?

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[I'm putting together a post on a specific parental rights question, and it reminded me of this post of mine from 2011, which I thought I'd rerun.]

Some comments on recent posts have suggested that libertarians should support a broad notion of parental rights. I haven't written at any length on parental rights (except as to the special case of parental free speech rights), and my thinking on this is far from definite; and of course I surely can't speak for libertarians generally. But as somehow who is in many (though by no means all) matters a presumptive libertarian, I thought I'd say a bit about this. Note that I'm speaking in this post about what I think the right rules ought to be, not about what we should understand our Constitution to say with regard to this question.

1. To begin with, though parental rights are seen by the law as part of parent's "liberty," it's an unusual sort of liberty. The strongest case for liberty arises when people seek the right to do what they please with their own bodies, labor, and property, and the bodies, labor, and property of consenting adult partners (whether sexual, familial, business, or otherwise).

But parental rights are the rights to control someone else's actions. My child is not me. He is not my property. That I have the right to, say, alter my own body (or hire someone to do it for me) or to choose spiritual healing over traditional medical treatment doesn't tell us much about whether I should have the right to alter another person's property, or deny another person medical treatment—even if the other person is my minor child.

2. Moreover, parental rights don't just involve the government refraining from action (e.g., by not arresting me for false imprisonment when I physically restrain my child, the way it would if I tried to do that for an adult). Rather, they sometimes involve the government taking affirmative coercive steps to support parents' rights.

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From Wednesday's decision by Judge Robert Numbers (E.D.N.C.) in Dew v. E.I. Dupont de Nemours & Co.:

Plaintiffs, current and former residents of southeastern North Carolina, claim that Defendants contaminated the Cape Fear River with toxic chemicals. After conducting discovery, Defendants asked the court to grant summary judgment in their favor. A part of summary judgment briefing, the parties filed a wealth of documents and information, some of which Defendants claim contained sensitive business information.

Defendants … sought to keep 36 documents under seal. Defendants said, in conclusory fashion, that each document should be kept under seal because they contained some combination of confidential, sensitive, and non-public business information. They also noted that each of the documents had been designated as Confidential or Highly Confidential under the protective order entered by the court. But beyond that, Defendants provided neither substantive argument, nor evidence in support of their motion….

As with all aspects of the federal government, the federal courts belong to the People of the United States. As a result, the public has "a general right to inspect and copy … judicial records and documents." Allowing public access to judicial records advances the public's "interest in ensuring basic fairness and deterring official misconduct not only in the outcome of certain proceedings, but also in the very proceedings themselves."

Free Speech Right of Access

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I pass along this proposal from an attorney who recently clerked on the Ninth Circuit. I think this proposal has some merit, and could potentially garner sixty votes in the Senate:

The American people have spoken: migration must be controlled. President Trump won not only the electoral and popular vote, but also Congressional majorities. Surveys show that most Americans approve of "mass deportations." Concern about the border is also bipartisan, with the Biden Administration having moved to restrict asylum claims over the last year.

But while President Trump's Administration may try crack down on immigration, he likely will not be able to achieve the goals of the American people unless Congress is also willing to change how the federal judiciary reviews deportation orders and challenges to immigration policy. To solve this problem, Congress should create a new Article III court with exclusive jurisdiction over all immigration cases—call it the Court of Immigration Review (COIR).

The basic contours of America's mass-migration problem are well understood. Economic migrants travel from distant places—sometimes flying from Asia and Africa—to South America, walk or ride to the U.S. border, and file a claim for asylum (along with other, arguably redundant claims). Most of these claims are meritless. But simply by articulating a fear of persecution, most migrants will be issued a notice to appear and released to await a hearing before an immigration judge (IJ). This process is so backlogged that even scheduling the hearing can take years, leading to what DHS agents call "catch and release."

Even after an IJ rules, the process does not end: roughly 1.4 million migrants are subject to a deportation order but remain in the country. When the an IJ rejects an asylum claim and orders a migrant deported, that migrant can appeal to an executive agency called the Board of Immigration Appeals (BIA). If the BIA affirms the IJ's order, the migrant may appeal (again) to a federal circuit court. The appropriate circuit court to hear the appeal is determined by geography. In Texas, appeals go to the Fifth Circuit Court of Appeals. In the American West, they land in front of the Ninth Circuit.

I cannot speak for the Fifth Circuit, but during my time as a Ninth Circuit clerk, immigration appeals made up as many as 30% of cases heard in each sitting. Some languished for years before the court ruled. Most ended with a memorandum disposition summarily affirming the BIA. But reversals happen: for instance, the court recently ruled that a migrant could not be deported because a corrupt police officer in Mexico threatened him after an altercation in 1992. Even when deportation orders are affirmed, the years of delay are a de facto win for migrants. Immigration appeals also contribute to the backlog in the rest of the civil justice system, which is now so severe that the judiciary itself is lobbying for the creation of new Article III judgeships.

The Ninth Circuit is also a favored venue for partisan challenges to federal immigration policy. During Trump's first term, progressive groups repeatedly obtained preliminary injunctions from friendly California district courts subject to review by the Ninth Circuit. During the Biden Administration, conservative states responded by filing challenges to the administration's immigration policy in Texas district courts overseen by the Fifth Circuit. Whatever immigration policy one prefers, the effect of this gamesmanship is to undermine any uniform federal immigration policy.

Enter my proposed Court of Immigration Review. In most respects, the COIR would function like any other court of appeals. It would have eleven Article III judges, it would hear cases in three-judge panels, and its decisions would be subject to review by the Supreme Court. But unlike other courts of appeal, the COIR would have exclusive and original jurisdiction over all appeals from the BIA and all challenges to immigration regulations and statutes. Other federal courts – including district courts – would be stripped of jurisdiction to hear these cases. An exception would be prosecutions for criminal violations of immigration law, which should remain with federal district courts that have experience with criminal trials and procedure.

Beyond clearing the dockets of other federal courts and allowing for a quick resolution to the massive backlog of non-meritorious immigration appeals, creation of the COIR would also ensure a "uniform rule" of naturalization and as commanded by Article I of the U.S. Constitution. Of course, if the COIR's interpretation of immigration law was erroneous, the Supreme Court could step in. But the nation would no longer be dependent on the Supreme Court's intervention to ensure the existence of a uniform immigration policy. Nor would the Court need to repeatedly stay erroneous injunctions issued by single-judge district courts.

While pro-migration partisans may oppose this idea, that is because the current legal chaos contributes to a de facto system of open borders. Democrats may also complain (rather richly, in light of recent proposals to pack the Supreme Court) that Trump should not get to appoint eleven new Article III judges. But COIR judges would be specialists with jurisdiction over immigration matters and have no say over other hot-button judicial issues like abortion. If allegations of court packing are of serious concern, COIR judges could be appointed on a staggered basis, with Chief Justice Roberts temporarily appointing judges from other courts to serve on COIR in the interim.

Finally, the COIR's creation would not break any "norms." The Federal Circuit already has exclusive jurisdiction over patent appeals and the Court of Appeals for the Armed Forces hears appeals involving military justice issues. Congress created Emergency Courts of Appeal to hear challenges to critical national economic policies in the 1940s and the 1970s. And Congress often uses jurisdiction stripping to ensure national priorities are not bogged down in court. During the Biden Administration, Congress stripped the Fourth Circuit of jurisdiction over appeals involving a critical pipeline, and gave the D.C. Circuit exclusive jurisdiction over any challenge to the recently enacted TikTok ban. Fixing the immigration system is no less important.

From Tuesday's decision by Judge Harvey Bartle (E.D. Pa.) in Atlas Data Privacy Corp. v. We Inform, LLC (D.N.J.):

Daniel's Law [a New Jersey civil and criminal statute] provides that judges, prosecutors and other law enforcement officers as well as their immediate family members ("covered persons") may request in writing that any person, business, or association not disclose or make available their home addresses and unpublished telephone numbers….

In July 2020, a disgruntled lawyer who had litigated before United States District Judge Esther Salas sought to assassinate her at her home in New Jersey. After finding her home address on the Internet, the lawyer showed up on a Sunday evening armed and dressed as a delivery driver. Daniel Anderl, Judge Salas's twenty-year-old son, answered the door and was fatally shot by the lawyer. Her husband and Daniel's father was severely wounded. The lawyer then fled. In response to these crimes, the New Jersey Legislature passed Daniel's Law in November 2020 and has amended it thereafter.

Daniel's Law, as declared by the New Jersey Legislature, was enacted to serve the following goals:

This act shall be liberally construed in order to accomplish its purpose and the public policy of this State, which is to enhance the safety and security of certain public officials in the justice system, including judicial officers, law enforcement officers, child protective investigators[,] … and prosecutors, who serve or have served the people of New Jersey, and the immediate family members of these individuals, to foster the ability of these public servants who perform critical roles in the justice system to carry out their official duties without fear of personal reprisal from affected individuals related to the performance of their public functions.

The law prohibits any entity when requested from thereafter disclosing the home address and unpublished telephone number of a covered person …. A "covered person" is defined as "an active, formerly active, or retired judicial officer, law enforcement officer, or child protective investigator …, or prosecutor and any immediate family member residing in the same household as such [individual]." … The entity must comply with the request no later than 10 business days after receipt.

The court concludes that the law is a content-based speech restriction that extends beyond mere "commercial speech," but nonetheless upholds the law against a facial challenge (leaving possible room for occasional as-applied challenges when the home address is sufficiently "newsworthy"):

Free Speech

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12/2/1907: Ex Parte Young argued.

Today, President Biden issued a pardon to his son, Hunter Biden. In many regards, President Biden's pardon of his son resembles President Trump's pardon of Sheriff Joe Arpaio. The headline from the New York Times says it all: "In Pardoning His Son, Biden Echoes Some of Trump's Complaints."

First, President Biden issued this pardon after Hunter was convicted, but before he was sentenced. Biden has short-circuited the judicial process, taken the case out of the hand of the district court judge, and foreclosed any opportunity for appellate review. It is worth noting that both Roger Clinton and Charles Kushner were pardoned long after they had served their sentences. Back in August 2017, President Trump pardoned Joe Arpaio after he was convicted before he was sentenced. At the time, I wrote that the pardon was "premature," as the "preemptive pardon short-circuited the judicial process." There was outrage at the time to Trump's actions. It is enough to copy a paragraph from the Wikipedia page on the pardon:

In response to the pardon, The Washington Post said it was "a controversial decision, one that Trump critics labeled as an example of the president's illiberal, rule-of-law violating, authoritarian impulses." Harvard Law School professor Charles Fried, the former solicitor general for Ronald Reagan, said Trump's use of authority was specifically "to undermine the only weapon that a judge has in this kind of ultimate confrontation." Another Harvard Law School professor, Noah Feldman, said the pardon "would express presidential contempt for the Constitution." According to The New York Times, legal experts found the fact that Trump "used his constitutional power to block a federal judge's effort to enforce the Constitution" to be the "most troubling aspect of the pardon"

Hunter should hope that the District Courts in Delaware and California promptly dismiss the case, and the Trump DOJ does not have an opportunity to continue litigating the matter. But there is adverse precedent. After the pardon of Arpaio, the district judge actually held proceedings about how to deal with the pardon. Lawyers even argued that the court should not accept the pardon! Ultimately, the district court accepted the pardon, thus preventing the sentencing, but did not vacate the final judgment. The Ninth Circuit affirmed. Thus, at least in the California case, though Hunter was pardoned, under the Arpaio precedent, the conviction will stand.

Second, Trump's pardon of Arpaio was criticized because he bypassed the DOJ Pardon Attorney. He unilaterally decided to issue the pardon. Hunter would have never qualified for a pardon set forth by the DOJ Pardon Attorney. Chalk up another victory for the unitary executive.

Third, Trump was widely criticized for issuing a pardon to advance his personal interests. Arpaio was a big supporter of candidate and President Trump. The pardon was largely viewed as payback for a loyal supporter. Biden is in a similar position, though it is in many regards worse. This is not merely a political ally. It is his flesh and blood. Biden wrote, "I hope Americans will understand why a father and a President would come to this decision." Oh yes, we understand this decision quite well. Biden assured the public many times that he would not pardon his son. This promise was no doubt part of his appeal for the 2024 election. Biden ran for President (briefly) on the platform that he was honest, could be trusted, and would not put his personal concerns before the country. Historians can now judge whether Biden kept these promises.

Fourth, President Trump lobbied Attorney General Sessions to drop the Arpaio prosecution. These communications were viewed by critics as a breach of the "independence" between the Department of Justice and the President. Sessions declined to accede to Trump's requests. In 2024, Politico reported that Biden told "confidants that Garland should not have eventually empowered a special counsel to look into his son, believing that he again was caving to outside pressure." Sounds familiar? Biden said much the same in his pardon statement: "The charges in his cases came about only after several of my political opponents in Congress instigated them to attack me and oppose my election." It was Merrick Garland, Biden's Attorney General, who appointed the special counsel, not Republicans in Congress.

I don't see how Garland continues to serve. The President publicly declared that he has lost faith in his Attorney General. I would not be surprised to see Garland resign shortly. What a tragic figure, Garland is. He was nominated for the Supreme Court, never received a hearing, stepped down from the D.C. Circuit to become Attorney General, pledged to restore the rule of law, spent his entire administration enmeshed with special counsels and January 6 prosecutions, and all of those convictions have been, or will be pardoned. If Attorney General Meese was the most influential Attorney General in American history, where would Garland rank?

Fifth, Trump's pardon was viewed as an attack on Judge Susan Bolton. Adam Liptak wrote in the Times, "It was the first act of outright defiance against the judiciary by a president who has not been shy about criticizing federal judges who ruled against his businesses and policies." President Biden's statement managed to criticize the federal judge in Delaware who presided over Hunter's trial: "a carefully negotiated plea deal, agreed to by the Department of Justice, unraveled in the court room – with a number of my political opponents in Congress taking credit for bringing political pressure on the process. " This statement is flat-out false. The plea deal unraveled after it became clear the prosecution and defense did not agree how the plea agreement would be interpreted. Biden has no basis to insinuate that the District Court judge, who was supported by both Delaware senators, was politicized. Would Biden call Judge Norieka, who was appointed by President Trump, a "Trump Judge"? Cue Chief Justice Roberts.

Sixth, Trump's pardon of Arpaio concerned his conviction, and "any other offenses under Chapter 21 of Title 18, United States Code that might arise, or be charged, in connection with Melendres v. Arpaio . . . in the United States District Court for the District of Arizona." In other words, this pardon would prevent a prosecutor from bringing future charges related to that case. Biden's pardon of his son was far, far broader:

For those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024, including but not limited to all offenses charged or prosecuted (including any that have resulted in convictions) by Special Counsel David C. Weiss in Docket No. 1:23-cr-00061-MN in the United States District Court for the District of Delaware and Docket No. 2:23-CR-00599-MCS-1 in the United States District Court for the Central District of California.

This pardon immunizes Hunter from prosecution for any conduct he committed between January 1, 2014. If Hunter shot someone on Fifth Avenue during that period, he could not be tried for murder in federal court. I haven't studied pardons closely, but I am skeptical there has ever been such a broad, prophylactic pardon over the course of a decade. Even President Ford's pardon of Richard Nixon was limited to offenses "committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974." And President Andrew Johnson's 1868 pardon and amnesty of former confederates was limited to the offenses of insurrection, rebellion, and treason, during the four-year long Civil War. (Johnson's pardon had the effect of cutting short the pending appeal to the Supreme Court of the criminal prosecution of Jefferson Davis.) Finally, there is a longstanding debate about whether a pardon can be issued without enumerating a specific offense. Professor Phillip Kurland raised this issue after Ford pardoned Nixon. He said, "It is certainly not clear that the power to pardon an individual may properly, i.e. constitutionally, be invoked prior to indictment and conviction."'

Seventh, Trump's pardon was part of a long-term campaign to charge that the DOJ was politicized. Here, Biden said "I also believe raw politics has infected this process and it led to a miscarriage of justice." Again, this is Biden's Attorney General. Biden's remarks about the politicization of his own DOJ provide more credence to what Trump has said, and what he will do after January 20.

***

The more things change, the more things stay the same. For what it's worth, this pardon does not prevent Hunter from facing charges in state court. Nor does it prevent the Department of Justice from prosecuting Joe Biden over his documents case. Remember, Ron Hur only declined to prosecute Biden for his "poor memory." If Biden had continued to serve as President, I think that is an admission that he is competent to stand trial. I also think that the statute of limitations would be tolled while Trump is in office. (The proceedings in New York with Justice Merchan will speak to this issue.)

The AP (Jamey Keaten) reports:

Researchers and religious leaders on Wednesday released findings from a two-month experiment through art in a Catholic chapel in Switzerland, where an avatar of "Jesus" on a computer screen — tucked into a confessional — took questions by visitors on faith, morality and modern-day woes, and offered responses based on Scripture….

[S]ome 900 conversations from visitors — some came more than once — were transcribed anonymously. Those behind the project said it was largely a success: Visitors often came out moved or deep in thought, and found it easy to use….

"What was really interesting (was) to see that the people really talked with him in a serious way. They didn't come to make jokes," said chapel theologian Marco Schmid, who spearheaded the project….

Schmid was quick to point out that the "AI Jesus" — billed as a "Jesus-like" persona — was an artistic experiment to get people thinking about the intersection between the digital and the divine, not substitute for human interaction or sacramental confessions with a priest, nor was it intended to save pastoral resources.

"For the people it was clear that it was a computer … It was clear it was not a confession," Schmid said. "He wasn't programmed to give absolutions or prayers…." …

"For us, it was also clear it was just a limited time that we will expose this Jesus," he said …. "We are discussing … how we could revive him again,"

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12/1/1897: Justice Stephen Field resigns.

From today's decision by Judge Fernando M. Olguin (C.D. Cal.) in Concerned Jewish Parents & Teachers of L.A. v. Liberated Ethnic Studies Model Curriculum Consortium:

The Concerned Jewish Parents and Teachers of Los Angeles …, "an unincorporated association comprised of Jewish, Zionist Los Angeles teachers who teach in the [Los Angeles Unified School District] and Jewish, Zionist parents of children who are students in the LAUSD," initiated this action on May 12, 2022….

As an initial matter, the court notes that plaintiffs' [Complaint] is difficult to understand and contains a morass of largely irrelevant—and sometimes contradictory—allegations, few of which state with any degree of clarity precisely what plaintiffs believe defendants have done or, more importantly, how plaintiffs have been harmed. Indeed, so confusing are the allegations that plaintiffs spend approximately a third of their Omnibus Memorandum of Points and Authorities in Opposition to Defendants' Motions, endeavoring to explain exactly what they contend their [Complaint] alleges—and, at times, attempting to walk back certain allegations or add new ones. The lack of clarity is particularly troubling given that this is plaintiffs' fourth iteration of their complaint….

In any event, plaintiffs' claims appear to revolve around the Liberated Ethnic Studies Model Curriculum ("LESMC" or "challenged curriculum"), a set of teaching materials developed by an independent non-profit organization that has not been adopted by LAUSD. Plaintiffs allege that as of 2020, LAUSD has required high school students to take an ethnic studies class and "integrate ethnic studies into PreK-8 curricula." Plaintiffs claim that the UTLA and Consortium defendants—the non-District defendants—have advocated for implementation of the challenged curriculum and "are inserting, or attempting to insert" these materials into LAUSD schools….

According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]" Plaintiffs allege there is "rank discrimination embedded in the LESMC," because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide" and that "Zionism is distinct from Judaism." Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic….

The court rejects plaintiffs' claims on various grounds, which it discusses in too much detail to render here. But here's a good big-picture summary of a key part of the court's concerns:

Free Speech

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From Hill v. DePaul Univ., which was decided in September by the Illinois Appellate Court (Justice Martin, joined by Justices Rochford and Hoffman) but which I missed at the time:

Jason Hill is a tenured professor of philosophy at DePaul University in Chicago. Professor Hill authored an article, which he describes as an "op-ed," that appeared in the online publication The Federalist in April 2019 titled "The Moral Case for Israel Annexing the West Bank – and Beyond." The article noted that Benjamin Netanyahu had been recently elected to a fifth term as Israeli prime minister, having campaigned on a promise to "annex Jewish settlements in occupied Palestinian territories." Professor Hill wrote that the election victory "will, hopefully, see the enactment of Netanyahu's promise." He went on to argue that "Israel has the moral right to annex all of the West Bank *** for a plethora of reasons." The article contains the following subheadings: (1) "Israel's Mistake Was Allowing the Palestinian Pretense," (2) "The Palestinian Authority is a Terrible Government," (3) "Israel Has Every Right to Defeat Terrorists," and (4) "Why Palestinians Have No Moral Authority." Among Professor Hill's opinions, he wrote:

"Not all cultures are indeed equal. Some are abysmally inferior and regressive *** a strong argument can and ought to be made to strip Palestinians of their right to vote—period *** They constitute a national security threat to Israel because a core feature of their identify is a commitment to destroying Israel as a Jewish state *** only a policy of radical containment or expulsion remains a viable option."

A note printed below the article stated, "Jason D. Hill is honors distinguished professor of philosophy at DePaul University in Chicago."

Two weeks following the publication of Professor Hill's article, Dr. Paeth [President of DePaul's Faculty Council] drafted a resolution titled "Faculty Council Resolution on Academic Freedom and Responsibility," which contained statements critical of Professor Hill's article while also acknowledging Professor Hill's academic freedom to publish it. A copy of the draft resolution appeared by hyperlink in conjunction with an article in DePaul's online student newspaper The DePaulia on April 30, 2019. The next day, Dr. Paeth presented the resolution to the Faculty Council for consideration. Following discussion, the Faculty Council voted 21 to 10 to approve the resolution with amendments that removed some language from the original draft. An article regarding the approved resolution appeared in The DePaulia on May 6, 2019. The article provided a link to the original draft resolution that did not reflect the amendments approved by the Faculty Council.

The preamble of the resolution asserts that Professor Hill's article (1) "misrepresents the history of the Israeli-Palestinian conflict," (2) "distorts the facts about the current state of Israeli-Palestinian relations," (3) "promotes racisms toward Arabs generally and Palestinians in particular," and (4) "advocates for war crimes and ethnic cleansing against the Palestinian populations of the West Bank and the Gaza Strip." It goes on to state that the Faculty Council "affirms Professor Hill's right to publish and express his opinions consistent with the Faculty Handbook, the AAUP [American Association of University Professors] Statement on Academic Freedom and Tenure, and the Guiding Principles on Speech and Expression" and "affirms that Professor Hill's article failed to exercise adequate concern for accuracy, restraint, or respect for the opinions of others, as per the AAUP guidelines." The resolution continues, stating that the Council:

Free Speech Defamation Discrimination Campus Free Speech

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From Ruth v. Carter, decided Tuesday by the Nevada Supreme Court:

Appellant Shannon Ruth sued respondent Nickolas Carter for sexual battery, intentional infliction of emotional distress, and negligent infliction of emotional distress, alleging that Carter sexually assaulted Ruth following a Backstreet Boys concert in 2001, and that Carter had also sexually assaulted several other women. Carter asserted counterclaims for defamation [and related torts] …. Carter's counterclaims were based on statements by Ruth that generally alleged that Carter sexually assaulted Ruth and that Carter is a "serial" rapist and abuser of "multiple people."

Ruth moved to dismiss Carter's counterclaims under Nevada's anti-SLAPP statutes, which require a two-prong analysis:

First, the district court must determine whether the defendant has established, by a preponderance of the evidence, that the plaintiff's "claim is based upon a good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of public concern." If the defendant satisfies the first prong, the burden shifts to the plaintiff under the second prong to show "with prima facie evidence a probability of prevailing on the claim." Only a claim that satisfies both prongs of the anti-SLAPP statute—i.e., a claim based on a good faith communication and that lacks minimal merit—is subject to dismissal. Because Ruth filed the anti-SLAPP motion to dismiss Carter's counterclaims, Carter is the plaintiff and Ruth is the defendant for purposes of the anti-SLAPP analysis.

The court concluded that Ruth's statements accusing Carter of assaulting her weren't subject to dismissal under the anti-SLAPP statute (so that Carter's defamation case as to those matters can go forward):

The [key] issue is whether Ruth established, by a preponderance of the evidence, that the communications were made in good faith—that the communications were "truthful or made without knowledge of [their] falsehood." Rather than looking to the individual words, we ask "'whether a preponderance of the evidence demonstrates that the gist of the story, or the portion of the story that carries the sting of the [statement], is true." …

Ruth provided an affidavit stating that "[t]he allegations in [Ruth's] Complaint in this action are true and correct to [Ruth's] own knowledge and experience." … [W]hen, as here, there is contradictory evidence in the record, we must consider that evidence in determining whether the defendant demonstrated good faith.

Free Speech Libel

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11/30/1981: Harlow v. Fitzgerald argued.

From today's opinion in U.S. v. King County, written by Judge Daniel Bress and joined by Judges Michael Hawkins and Richard Clifton:

For some years, United States Immigration and Customs Enforcement (ICE) chartered flights out of Washington's King County International Airport, also known as Boeing Field, to transport removable aliens from this country elsewhere. At Boeing Field, fixed base operators, or FBOs, lease space from the airport and provide flights with essential services, such as fueling and landing stairs. In 2019, based on its stated disagreement with federal immigration policies, King County promulgated Executive Order PFC-7-1-EO, which directed county officials to ensure that future leases at Boeing Field prohibit FBOs from servicing ICE charter flights. Shortly after the County issued the Executive Order, all three FBOs operating at Boeing Field announced that they would no longer service ICE.

The Ninth Circuit held that King County's actions unconstitutionally violated the "intergovernmental immunity doctrine":

In recognition of the federal government's independence from state control [under the Supremacy Clause], the intergovernmental immunity doctrine prohibits states from "interfering with or controlling the operations of the Federal Government." It does so by proscribing "state laws that either 'regulate the United States directly or discriminate against the Federal Government or those with whom it deals' (e.g., contractors)." … The Executive Order violates the intergovernmental immunity doctrine in two related ways.

First, the Executive Order improperly regulates the way in which the federal government transports noncitizen detainees by preventing ICE from using private FBO contractors at Boeing Field. It is of course true that "[p]rivate contractors do not stand on the same footing as the federal government, so states can impose many laws on federal contractors that they could not apply to the federal government itself." That said, "any state regulation that purports to override the federal government's decisions about who will carry out federal functions runs afoul of the Supremacy Clause."

Our en banc decision in Geo Group, Inc. v. Newsom (9th Cir. 2022) is highly instructive and guides our analysis. At issue in Geo Group was a California law prohibiting the operation of private detention facilities within the state. Because ICE in California "relies almost exclusively on privately operated detention facilities," California's law "g[a]ve California the power to control ICE's immigration detention operations in the state by preventing ICE from hiring the personnel of its choice." This state of affairs amounted to "a 'virtual power of review over the federal determination' of appropriate places of detention" and impermissibly "breach[ed] the core promise of the Supremacy Clause."

Federalism Commandeering Immigration

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

From the motion for preliminary injunction in Peter v. Lopez (D. Haw.), filed Wednesday:

Plaintiff is a long-term resident of Hawaii who legally lives in the United States pursuant to the Compact of Free Association ("COFA") the United States has with various islands nations located in the Pacific. "The Compact grants [citizens of the Federated States of Micronesia] and citizens of other compact states [Palau and the Marshall Islands] liberal opportunities to work and reside in the United States." COFA aliens "admitted to the United States under the Compacts may reside, work, and study in the United States. They do not have the status of lawful permanent residents (also known as Green Card holders) under the Immigration and Nationality Act (INA)."

Hawaii Revised Statutes § 134-2 generally bans gun ownership by non-citizens (with some exceptions), which covers COFA aliens among others:

In Fotoudis v. City & County of Honolulu (D. Haw. 2014), this Court enjoined H.R.S. § 134-2's prohibition on noncitizen's owning firearms as applied to permanent resident aliens i.e. green card holders. After the Fotoudis ruling, Hawaii maintained a ban on other noncitizen residents of Hawaii. This included U.S. Nationals from the U.S. Territory of America Samoa until a lawsuit was filed. Shortly after the filing of that lawsuit, the State entered into a stipulated injunction which compelled Hawaii to allow U.S. Nationals to own firearms. See Alanoa Nickel v. Connors (D. Haw. 2020) (stipulated injunction as to State of Hawaii's ban on U.S. Nationals owning firearms). Since then, Hawaii has updated H.R.S. § 134-2 to include U.S. Nationals and green card holders as being among those authorized to own firearms. However, Hawaii maintains a flat ban on firearm ownership for other lawfully present aliens including COFA aliens.

Plaintiffs argue the Hawaii ban violates the Second Amendment, and violates the Equal Protection Clause, which generally forbids states (though not the federal government) from discriminating against noncitizens in various ways. An excerpt from the equal protection section:

Guns Aliens

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[I first posted a version of this post in 2020, but I've seen the problem enough since to think it was worth mentioning again.]

I have often run across documents written by lawyers that looked redacted—but all the supposedly secret information in them could be extracted with literally three keystrokes (ctrl-A, ctrl-C, ctrl-V). One was a court filing that was filed pursuant to a court order authorizing the redaction; but the material so carefully marked secret proved not to be secret at all.

Another carefully tried to hide the real name of a litigant whom the lawyer was trying to keep pseudonymous; but the name was one copy-and-paste away from being visible. What's more, when the documents were posted online in searchable spaces, search engines indexed the supposedly hidden material, so searching for the real name would find the document in which the lawyer had been trying to redact the name.

For at least one of the documents, I know what improper redaction mechanism was used: The lawyer used Google Docs to highlight passages using black highlighter, and then saved the document as a PDF. That looked blacked out on the screen; but the underlying text still remained in the PDF document—as far as the software was concerned, the text wasn't removed but was just set in a different color. (Something similar would happen with Microsoft Word.)

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11/29/2004: Randy Barnett argues Gonzales v. Raich.

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