From the motion, in Drake University v. Des Moines Community College Foundation:
On July 8, 2024, Drake filed a Motion for Preliminary Injunction requesting the Court temporarily enjoin Defendants' use of certain trademarks, namely a standalone "D" and dark blue/light blue/white color scheme in connection with post-secondary educational services ….
While the Drake Brand is comprised of several elements, of particular importance is Drake's live mascot, Griff II, who frequently appears in public on behalf of Drake wearing outfits featuring elements of the Drake Brand. While Griff II is represented pictorially in the record, his true effectiveness as an ambassador of the Drake Brand lies in his physical presence.
Yesterday's Complaint in this case essentially alleges that CBS's editing of the 60 Minutes Harris interview was "false, deceptive, or misleading," and thus a violation of Texas's consumer protection law. But states generally can't impose liability for misleading or even outright false political speech. To quote the Washington Court of Appeals in WASHLITE v. Fox News, where plaintiff unsuccessfully sued Fox for allegedly false statements about COVID,
[T]he Supreme Court in U.S. v. Alvarez (2012) disavowed the principle that false expressions in general receive a lesser degree of constitutional protections simply by virtue of being false. The court stated that its precedent restricting the value or protections afforded objectively false statements
all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.
The court went on to explain that,
[w]ere the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition.
WASHLITE's allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State's undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.
The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
United States v. Stevens (2010).
"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). Although WASHLITE pursues the meritorious goal of ensuring that the public receives accurate information about the COVID-19 pandemic, the challenged statements do not fall within the narrow exceptions to the First Amendment's protections. We affirm the trial court's conclusion that, however laudable WASHLITE's intent, its CPA claim is barred by the First Amendment.
The order granting rehearing was just filed today, so the court will reconsider the case in the coming months. Here's an excerpt from the now-vacated panel majority opinion (Judge Jane Stranch, joined by Judge Stephanie Davis), which deals with school policies that "prohibit students from repeatedly and intentionally using non-preferred pronouns to refer to their classmates":
Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) … does not require school authorities to wait for a disturbance before regulating speech, nor does it "require certainty that disruption will occur." Even this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause. The PDE parent-members themselves "understand[]" that use of non-preferred pronouns "will be considered 'insulting,' 'humiliating,' 'dehumanizing,' 'derogatory,' and 'unwanted' to those who want to go by different pronouns."
PDE also attached to its preliminary injunction motion an article containing a therapist's explanation that students who "have been misgendered all day" often become "traumatized," "humiliated," and "cry after school." This evidence dovetails with a study, cited by the district court, collecting literature on the "measurable psychological and physiological harms" that can be caused by use of non-preferred pronouns. And it supports the conclusion that transgender students experience the use of non-preferred pronouns as dehumanizing and that, as a result, the repeated use of such pronouns can have severely negative effects on children and young adults….
PDE … asserts that by preventing the use of non-preferred pronouns, the District's policies unconstitutionally discriminate based on viewpoint. Depending on the speech's forum, the government may sometimes enact content-based restrictions on speech, but "viewpoint discrimination"—that is, "regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction"—is typically "presumed impermissible." Rosenberger v. Rector (1995).
If you're in law school, take a Choice of Laws class (often called Conflicts of Laws); these issues come up in a huge range of cases, both involving state law and involving the law of foreign countries, and if you don't know the basics of choice of laws, you often won't even be able to know enough to do the necessary research. Here's how it plays out in a particularly lurid case, Steiner v. Ebay, Inc. (D. Mass.); an excerpt from today's decision by Judge Patti Saris (for more, see this post about the civil case and this one about the criminal prosecution):
In this extraordinary and troubling case, eBay, an e-commerce company, conducted a campaign to silence Ina and David Steiner, a married couple living in Natick, Massachusetts, through harassment, stalking, and threats. The Steiners own and operate a trade publication [EcommerceBytes] that published critical coverage of eBay. In response, as alleged, eBay's top executives and employees made online threats, signed the Steiners up for over fifty unwanted email subscriptions, and sent disturbing packages to their home, including fly larvae, spiders, a bloody pig mask, and a funeral wreath.
The planning for this illegal campaign originated in California, where much of the online activity also took place, but other actions, like the surveillance and vandalism of the Steiners' home, occurred in Massachusetts. As a result of the harassment campaign, seven individuals involved in the conspiracy were criminally charged and have since pleaded guilty. The Steiners filed this civil suit against multiple defendants, including eBay. Now, both eBay and the Steiners have moved for partial summary judgment on the issue of whether Massachusetts or California law will govern the question of punitive damages….
The parties agree that Massachusetts law governs questions of liability and compensatory damages but disagree on whether this Court should apply Massachusetts or California law to the issue of punitive damages for six of the Steiners' remaining claims against eBay. The parties and the Court also agree that California and Massachusetts law conflict: punitive damages are available under California law but not under Massachusetts law for the relevant causes of action. Compare Pine v. Rust (Mass. 1989) ("Punitive damages are not favored in Massachusetts, and we have long followed the principle that, absent statutory authorization, punitive damages may not be awarded."), with Haigler v. Donnelly (Cal. 1941) ("If … the action is one in tort, exemplary damages may be recovered upon a proper showing of malice, fraud or oppression ….")….
On Tuesday, in Hanson v. District of Columbia, a panel of the U.S. Court of Appeals for the D.C. Circuit divided over whether to grant an injunction against enforcement of D.C.'s magazine cap, which limits a magazine to ten bullets. Judge Millett and Senior Judge Ginsburg joined a per curiam opinion for the court. Judge Walker wrote a lengthy dissent.
Here is the introduction to the per curiam majority:
After the Supreme Court's landmark ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), the District of Columbia revised its firearms laws to cap the capacity of firearm magazines at "10 rounds of ammunition." D.C. Code § 7-2506.01(b). Over a decade ago, applying the then-prevailing intermediate scrutiny standard of review, we held the magazine cap did not violate the right to bear arms secured by the Second Amendment to the Constitution of the United States, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." SeeHeller v. District of Columbia (Heller II), 670 F.3d 1244, 1264 (D.C. Cir. 2011). Since then, the Supreme Court has rejected "means-end scrutiny in the Second Amendment context," in favor of asking whether a challenged restriction is consistent with "the Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 19, 24 (2022).
Seeing a new opening, the Appellants have charged once more unto the breach. They argue the District's magazine cap is unconstitutional under the test set forth in Bruen and moved the district court for a preliminary injunction to prohibit enforcement of the magazine cap. The district court denied the motion. Because the Appellants have failed to make the "clear showing" required for a preliminary injunction on this early and undeveloped record, Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), we affirm the denial of their motion.
Judge Walker's dissent opens with a simple syllogism.
In District of Columbia v. Heller, the Supreme Court held that the government cannot categorically ban an arm in common use for lawful purposes. Magazines holding more than ten rounds of ammunition are arms in common use for lawful purposes. Therefore, the government cannot ban them.
And here is how he concludes:
Mark Twain once told a story about an evening at church. He said that at first the sermon was so inspiring that he planned to put $400 into the collection plate: "I wanted to give that and borrow more to give." But then his opinion of the sermon tapered off: "My enthusiasm went down, down, down — $100 at a time, till finally when the plate came round I stole 10 cents out of it."
I agree with most of what the majority says in the first 18 pages of its clear, concise, and eloquent opinion. I agree that plus-ten magazines are likely "'Arms' within the meaning of the Second Amendment," "in common use" for the lawful purpose of "self-defense," and covered by "the Second Amendment's plain text." And I agree that a ban on plus-ten magazines is not analogous to regulations about the storage of gunpowder; or to restrictions on the time, place, and manner of carrying arms; or to state laws from the Prohibition Era directed at machine guns.
But then I part ways with the majority in two respects.
First, the majority reads Heller to leave open the question of whether the government can ever ban an arm in common use for lawful purposes. In contrast, I read Heller to answer that question. It held that "a complete prohibition of their use is invalid."
Second, even assuming that the validity of those bans is an open question, the majority gets the answer wrong. D.C. has failed to "demonstrate that [its] regulation is consistent with this Nation's historical tradition of firearm regulation."
The majority's contrary conclusion depends on two types of regulations. But neither of them is analogous. The first of them — a "handful" of laws enacted nearly a century after the Second Amendment's ratification in two outlier states and a territory — did not cover arms kept at home or carried while traveling; in addition, those laws are too little and too late to establish a historical tradition. As for the second purported analogue, it covered only "unusual" arms — not arms in common use for lawful purposes. So neither demonstrates a tradition of laws imposing a burden comparable to D.C.'s complete ban on commonly possessed plus-ten magazines.
Because D.C.'s law violates the right to keep and bear arms guaranteed by the Second Amendment, I would reverse the district court's decision and direct it to enter a permanent injunction.
I respectfully dissent.
Both opinions are lengthy, the dissent especially so (and it includes 233 footnotes).
The Court is likely to take another gun case in the near future, either concerning the sorts of weapons that may be prohibited or (as here) concerning limitations on magazine size. If the latter piques the Court's interest, perhaps this could be the vehicle -- if not in this preliminary posture, than on the merits.
I've blogged a lot about the recent geofence warrant cases in the Fourth Circuit and the Fifth Circuit, which reached opposite conclusions on whether access to geofence records is a search (and in the latter case, held all geofence warrants unconstitutional). Today the Fourth Circuit announced that will rehear its geofence warrant case, United States v. Chatrie, en banc. Meanwhile, the Fifth Circuit's petition for rehearing is still pending.
While we're at it, it's interesting to ponder an aspect of modern Fourth Amendment litigation in play with these cases. Although the theoretical basis of the litigation is possible suppression of evidence—the defendants have filed motions to suppress—all the uncertainty about the law doesn't mean there's real uncertainty as to who will win. The reason is the good-faith exception to the exclusionary rule, which as a practical matter reserves suppression of evidence for particular violations—typically, ones that were clear ex ante. The scope of the good-faith exception to the exclusionary rule is uncertain, but the exception is at its strongest when courts resolve novel issues of Fourth Amendment law. Even with the panel ruling in Smith, the Fifth Circuit's remarkable decision saying that all geofence warrants are unconstitutional, the government won in the end on the good-faith exception.
This echoes a common pattern these days in caselaw on the Fourth Amendment and digital evidence. As a practical matter, litigation over novel questions of Fourth Amendment law provides opportunities for courts, if they want, to issue optional advisory opinions on the law going forward. In some cases, courts they take the option and issue an opinion that has holdings to guide future courts. But quite often, courts decline to hand down rulings on the law and say, well, whatever the constitution means, there's no remedy under the good-faith exception. This is what has happened in a bunch of the major cases I have blogged about here, such as the Second Circuit's ruling in United States v. Ganias, and the Fifth Circuit's ruling in United States v. Morton. Lots of discussion of critically important questions, and then, ultimately, no answer.
I would speculate that this might be one of the reasons that the Supreme Court has largely stayed away from Fourth Amendment law in the last few years. The ever-broader good-faith exception leads to fewer merits rulings. I had a research assistant look into this, and the numbers checked out; there are fewer precedential merits rulings on Fourth Amendment law these days than in the past. And fewer merits rulings means fewer splits. So no one knows what the law is, and new litigation on the most important issues often ends without a ruling on what the law is. This is a big problem if you're interested in knowing what your rights are, but I take it to be a dynamic the Justices just haven't been all that worried about.
Anyway, fingers crossed that the Fourth Circuit and Fifth Circuit don't just resolve their cases on the good-faith exception in the end without reaching the merits. And stay tuned for the en banc argument in the Fourth Circuit, and for a decision on whether the Fifth Circuit will grant rehearing, too.
The American Journal of Law and Equality has just published a symposium on the 70th anniversary of Brown v. Board of Education, possibly the Supreme Court's most iconic decision. The symposium includes contributions by many prominent legal scholars, including Mark Tushnet, David Strauss, Geoffrey Stone, Sheryll Cashin, and my Volokh Conspiracy co-blogger David Bernstein, among others.
My own contribution, entitled "Brown, Democracy, and Foot Voting," is available on SSRN and also at the AJLE site. Here is the abstract:
Traditional assessments of Brown's relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens' ability to "vote with their feet" as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.
Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.
Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually "representation-reinforcing." While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.
Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.
In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.
As I noted in the article, it is difficult to produce a thesis on Brown that is both original and useful. More has been written about this ruling than almost any other Supreme Court case. Readers will have to judge whether I managed to succeed.
From Lee v. Garland, decided Tuesday by the D.C. Circuit (in an opinion by Judge Gregory Katsas, joined by Judges Karen LeCraft Henderson and Douglas Ginsburg)
The Federal Bureau of Investigation revoked Jason Lee's security clearance after he failed three polygraph examinations. It then fired Lee because his job required a clearance. Lee contends that the revocation was based on race, national origin, and protected speech. He brings various claims under the First Amendment, the Fifth Amendment, and Title VII. We hold that Department of Navy v. Egan (1988), bars judicial review of these statutory and constitutional claims….
In 2003, the FBI hired Jason Lee, an American citizen of Chinese ancestry, and granted him a Top Secret security clearance. To ensure that cleared individuals remain trustworthy, the FBI periodically subjects them to polygraph examinations. Lee failed his 2013 exam. The examiner noted problems with Lee's answers to questions about terrorism, unauthorized release of information, and failure to disclose security violations. Lee then failed a follow-up exam in 2014. This time, the examiner noted that Lee's breathing patterns indicated deception. The FBI revoked Lee's clearance.
Lee appealed the revocation to the Access Review Committee (ARC) of the Department of Justice, which reviews clearance revocations by DOJ component agencies. In 2018, the ARC ordered Lee to sit for a third polygraph exam, which was administered by FBI Agent Stacy Smiedala. Before that exam, Lee admitted to serving as a source for media articles exposing what he regarded as inappropriate FBI polygraph testing practices. The exam ended when Lee refused to answer further questions about what information he had divulged to the media.
I spent this week in Switzerland, where I gave two talks on immigration policy: one at Avenir Suisse, a classical liberal/libertarian-leaning think tank, and one at NZZ Real Estate Days (annual convention of the Swiss real estate industry). The experience engendered some reflections, which I cover in this post. But it's important to note some caveats right off the bat: I am not an expert on Swiss politics and society, though I do have some knowledge by virtue of being a federalism and immigration scholar (Switzerland is an important case study for both fields). I only speak one of Switzerland's two main languages (French; the other is German, and German-speaking Swiss outnumber the French-speakers). As described below, my knowledge of French was of little use on this trip. In addition, I should stress that I did not speak to a statistically representative sample of Swiss people. Among other things, because of the nature of the two events, those I met were overwhelmingly highly educated and relatively affluent.
These reflections won't resolve either Swiss or US debates about immigration. But I hope they might be of some small interest, nonetheless.
J.D. Vance recently said that if immigration was the path to prosperity, then "America would be the most prosperous country in the world." Well, we very nearly are! Depending on which data set you look at, the US ranks somewhere between 6th and 10th in per capita GDP. Ahead of us are various small oil-rich states (e.g. the UAE, Qatar, and Norway), Luxembourg (tiny city state that specializes in banking), Ireland …. and Switzerland! Thus, Vance can still argue that if immigration were economically beneficial, we would be ahead of Switzerland, not behind it. But here's the problem: Switzerland actually has way more immigration relative to population than we do. Over 30% of the Swiss population is foreign-born, compared to about 14% for the US. Ireland also has a higher per capita GDP than the US in most rankings. Their percentage of immigrants in the population is almost 20%, lower than Switzerland, but considerably higher than the US.
Correlation doesn't prove causation. Switzerland and the US could be rich despite immigration, rather than because of it. And much of what's going on is that richer nations attract more immigrants. However, extensive evidence indicates that immigration is a major driver of economic growth and innovation.
The current debate over immigration in Switzerland has many similarities to that in the US and other countries. There is a strong anti-immigrant political movement, spearheaded by the People's Party (which has done relatively well in recent Swiss elections). At both speaking events (particularly the more politically diverse NZZ event), some people were relatively sympathetic to my pro-immigration position, and others much less so. That is to be expected for such a controversial issue.
Most of the objections I heard were very similar to those I encounter in the US and elsewhere. I address these standard objections here and in greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. But one argument was much more prevalent in Switzerland than elsewhere: concerns about what I call "swamping" - the possibility that the native population will swiftly be overwhelmed by large numbers of immigrants from widely different cultures.
This is understandable, given the small size of Switzerland. Swamping is a more plausible scenario there than for larger nations. I answered the objection with a number of points adapted from Chapter 6 of Free to Move. But there is a Swiss-specific response that didn't occur to me until afterwards: A large fraction of migrants to Switzerland are actually from countries with very similar languages and cultures. The largest immigrant groups in Switzerland are Italians (14% of the foreign-born population), Germans (13.4%), Portuguese (10.6%), and French (6.8%). Germans, French, and Italians are of course among the traditional native populations of Switzerland.
Switzerland gets a lot of immigration from other European nations because, while not a member of the European Union, it has an agreement with the EU permitting freedom of movement, under which EU citizens are allowed to live and work in Switzerland. As the richest nation in Europe (with the exception of small city-states like Luxembourg and oil-rich Norway), and one with relatively open labor markets (especially by European standards) Switzerland attracts many EU migrants. I in fact met many German immigrants to Switzerland during my stay. They come because Switzerland has better job opportunities than Germany's overregulated labor market.
Given this state of affairs, even with a complete "open borders" policy, immigration to Switzerland from geographically and culturally distant nations is always likely to be in large part balanced by migration from nearby culturally and linguistically similar ones. This in turn helps increase the incentive for more culturally distant immigrants to assimilate.
At the NZZ event, I made a point of including a section on the impact of immigration on housing, in my talk. Among other things, I noted that immigrants disproportionately work in the construction sector, thus making it easier to build new housing. This effect - along with other aspects of migration - also increases the profitability of the real estate industry (which I pointed out). I thought that might be of special interest to an audience of real estate professionals. Indeed, when I first got the NZZ invitation, I thought they would want me to do a presentation primarily focused on housing issues, a subject I also write about (the organizers made clear they wanted me to speak about immigration more generally).
Interestingly, none of the many questions I got at the NZZ conference were about housing or real estate. This is another example of how, contrary to popular belief, self-interest is not the major determinant of people's views on most political issues.
Almost everyone I met at the two events were either native-born Swiss or immigrants from Germany. But, while in Zurich, I ran into immigrants from a variety of other countries, including Turkey, Ethiopia, Tunisia, Bulgaria, and Ukrainian war refugees (whom I spoke to in Russian). Even more than in the US, most Uber drivers are recent immigrants from relatively poor nations.
These immigrants speak highly of Switzerland, and most seem to work hard to learn German (and in many cases, also English). One Turkish immigrant (an Uber driver) told me he moved to Switzerland because the pay is better, and Switzerland is a "peaceful" and orderly country. Much better - he said - than Germany, where "there is too much disorder" (I stress this is his view, not mine).
While Switzerland seems to be doing a good job of absorbing immigrants, the country's policy of promoting multilingualism seems less successful. Switzerland has four official languages (French, German, Italian, and Romansch), with German (the majority language) and French being by far the most prevalent.
Both of my talks were in German Switzerland (Zurich for the Avenir Suisse event and Davos for NZZ). But I naively thought that my knowledge of French would be useful, because German-speaking Swiss are supposed to learn that language in school, and could use it when traveling to the French-speaking part of the country.
What I actually found is that most of the German Swiss I met either don't speak much French at all (one told me he had studied French in school for six years, but forgotten nearly everything), speak it worse than I do (I am only moderately fluent), or are much more comfortable speaking English. English is, to be fair, easier for German speakers to learn than French, and there is a strong incentive to learn it because it is the language of international business.
As already noted, I did not speak to a representative sample of Swiss. Perhaps those I met were just unusually averse to French. But, as a general rule, I would expect highly educated professionals to be more likely to learn another language than working class people. A 2022 study finds that 38% of Swiss use more than one language at work, but most of that seems to be people using Standard German in addition to the Swiss dialect, or using English. Only a small fraction of German Swiss regularly use French.
While immigrants have strong incentives to learn the dominant language in their new home, learning two languages is a much tougher challenge. For most adults, learning a foreign language is hard, painful work, and they will only do it if there is a strong incentive. I expect, therefore, that high immigration levels make the multilingualism policy even harder to implement than is already the case. If even many native-born Swiss Germans don't learn much French (or don't remember what they do learn), immigrants to majority-German parts of the country probably learn even less. Given the enormous benefits of migration (including for receiving-country natives), I think this tradeoff is worth it. But it should be acknowledged.
Sidi Mohammed Abdullahi, 22, already faces 14 felony counts, including attempted first-degree murder, aggravated battery, and attempted murder of a police officer, after allegedly shooting a Jewish man walking to synagogue Saturday morning. The victim was wearing a kippah, a traditional Jewish head covering also known as a yarmulke.
Police said Abdullahi shot him without saying a word. Roughly 30 minutes later, the incident escalated when Abdullahi reportedly opened fire on five first responders. Police fired back, shooting him multiple times….
"We will never do things just based on belief. We need proof," [CPD Supt. Larry Snelling] said. "Evidence from the offender's phone indicated he planned the shooting and specifically targeted people of Jewish faith."
Four days ago, NBC Chicago and other outlets reported (though third-hand) that,
In designing and adopting any regulatory scheme, there are two separate but important decisions to make. First, of course, we must decide on the substantive rules or standards that will govern the behavior to be regulated. This is often the most visible and contentious decision to make. Setting out the rule to be enforced is generally viewed as tantamount to setting the policy itself. But there is a second decision that must also be made, perhaps even more consequential than the first. Once we know what rule will be enforced, we must decide who will be empowered to interpret and enforce that rule. After we design the regulation, we must design the regulator. Rules are not usually self-enforcing. Someone will have to determine whether the rule has been violated and what to do in the case of violations. Those two decisions are critical to the success and significance of any regulatory scheme.
In this regard, the regulation of speech is no different than any other regulatory scheme. Changing the context of speech regulation does not change the dilemma. When we lay down a rule about what kinds of speech should be forbidden, we must also decide who will interpret and enforce that rule. Who will decide whether the rule is violated by a particular utterance and therefore whether the speech in question should be suppressed, or the speaker punished?
Moreover, such issues arise whenever we seek to regulate speech. If the government wants to prohibit some speech, it will need a process of enforcing that law or administrative regulation. If the government wants to criminalize "terroristic threats," it will need both to specify the rule against such threats and to rely on a criminal justice process for investigating and prosecuting those who make such threats. If Congress wants to exclude from federal trademark protection marks that are "scandalous" or disparaging, it will need to articulate the exception to trademark law and empower a government official to review trademark proposals and reject those that violate the rule. If the comment section of an online journal excludes some kinds of posts, the publisher will need to specify a rule explaining what content is prohibited and designate a moderator to review and delete posts that potentially offend the rule.
An Introduction To Constitutional Law Video Library: Chisholm v. Georgia (1793), Marbury v. Madison (1803), McCulloch v. Maryland (1819), Gibbons v. Ogden (1824), Barron v. City of Baltimore (1833)
An Introduction to Constitutional Lawby Barnett and Blackman has sold tens of thousands of copies, and has been adopted by educators at every level--law school, undergraduate, and high school. Each copy of the book provides access to our fourteen-hour video library. These rich videos bring the cases to life with photographs, archival video, and audio from the Supreme Court.
And now, the Foundation for the Constitution has secured the rights to post all of the videos for free on YouTube. In this post, we will include the videos from Part I: Foundational Cases on Constitutional Structure. Subscribe to see the remaining seventy videos as they are posted. We hope you enjoy watching these videos as much as we enjoyed producing them.
Part I: Foundational Cases on Constitutional Structure
"Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." An ''emanation'' refers to a ray of light. During a lunar eclipse, the ''umbra'' refers to the darkest part of the shadow formed when the Earth orbits between the sun and the moon. The ''penumbra'' refers to the lighter part of the shadow, where some of the ''emanations'' from the sun are visible.
As regular readers may recall, I argued in a recent article that terms of service to an Internet account have little or no effect on Fourth Amendment rights in the account:
Almost everything you do on the Internet is governed by Terms of Service. The language in Terms of Service typically gives Internet providers broad rights to address potential account misuse. But do these Terms alter Fourth Amendment rights, either diminishing or even eliminating constitutional rights in Internet accounts? In the last five years, many courts have ruled that they do. These courts treat Terms of Service like a rights contract: by agreeing to use an Internet account subject to broad Terms of Service, you give up your Fourth Amendment rights.
This Article argues that the courts are wrong. Terms of Service have little or no effect on Fourth Amendment rights. Fourth Amendment rights are rights against the government, not private parties. Terms of Service can define relationships between private parties, but private contracts cannot define Fourth Amendment rights. This is true across the range of Fourth Amendment doctrines, including the "reasonable expectation of privacy" test, consent, abandonment, third-party consent, and the private search doctrine. Courts that have linked Terms of Service and Fourth Amendment rights are mistaken, and their reasoning should be rejected.
I'm pleased to say that the Second Circuit handed down a ruling in United States v. Maher this week rejecting the claim that terms of service waive Fourth Amendment rights, at least in the important context of a Google account. The decision is written in a somewhat narrow way, but I think it gets the basics correct. Here's the key passage from Maher:
The government argues that Maher's expectation of privacy in the Maher file that he emailed to his own Google account was extinguished by Google's Terms of Service, which advise users that Google (1) "may review content to determine whether it is illegal or violates our policies," App'x 113, (2) "may" report "illegal content" to "appropriate authorities," id. at 142, and (3) "will share" users' information with law enforcement when necessary to comply with applicable law, id. at 131.
This court has not had occasion to address what effect, if any, a private company's terms of service might have on a defendant's reasonable expectation of privacy. It may well be that such terms, as parts of "[p]rivate contracts[,] have little effect in Fourth Amendment law because the nature of those [constitutional] rights is against the government rather than private parties." Orin S. Kerr, Terms of Service and Fourth Amendment Rights, 172 U. PA. L. REV. 287, 291 (2024) (summarizing case law). We need not here draw any categorical conclusions about how terms of service affect a user's expectation of privacy as against the government. On this appeal, it suffices that we conclude that Google's particular Terms of Service—which advise that Google "may" review users' content, App'x 113—did not extinguish Maher's reasonable expectation of privacy in that content as against the government.
In reaching that conclusion, we adopt the reasoning of the Sixth Circuit in United States v. Warshak, 631 F.3d at 286–87 (holding that government violated Fourth Amendment when, without warrant, it compelled internet service provider to surrender contents of user emails). There too, the government argued that an internet service provider's contractual reservation of the right to access user emails extinguished a defendant's expectation of privacy in his emails. In rejecting the argument—at least with respect to a reservation phrased in terms of what the provider may do, see id. at 287 (quoting Acceptable Use Policy provision stating that provider "may access and use individual Subscriber information in the operation of the Service and as necessary to protect the Service" (emphasis in original))—the Sixth Circuit held that "the mere ability of a third-party intermediary to access the contents of a communication cannot be sufficient to extinguish a reasonable expectation of privacy" as against the government, id. at 286 (emphasis in original). As the court explained, that conclusion finds support in the seminal Fourth Amendment case, Katz v. United States, 389 U.S. 347 (1967), where "the Supreme Court found it reasonable to expect privacy during a telephone call despite the ability of an operator to listen in." United States v. Warshak, 631 F.3d at 287 (noting that telephone companies could then "listen in when reasonably necessary to protect . . . against the improper and illegal use of their facilities" (internal quotation marks omitted)). It also finds support in cases recognizing that hotel guests retain a reasonable expectation of privacy in their rooms, "even though maids routinely enter hotel rooms." Id.; see United States v. Stokes, 733 F.3d 438, 443 n.7 (2d Cir. 2013) ("Hotel guests retain a legitimate expectation of privacy in the hotel room and in any articles located in their hotel room for the duration of their rental period."). We too conclude from these precedents that Google's Terms of Service, advising users of what the company "may review," App'x 113, did not extinguish Maher's reasonable expectation of privacy in his emails as against the government.
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