Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Dinosaur statutes, vote harvesting, and septic permits.
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.
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.
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.
Sarrita Adams, who was a prominent public critic of the English Lucy Letby murder trial, got that order almost four months ago.
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."
But the Arizona Court of Appeals just reversed, concluding that speech about a person generally isn't "harassment," even if unwanted speech directed to the person may be.
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.
As technology develops, we anticipate the use of LLM AI tools to augment corpus linguistic analysis of ordinary meaning—without outsourcing the ultimate task of legal interpretation.
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.
What's on your mind?
It appears that a majority of judges on the D.C. Circuit believe it should be easier to seek judicial review of Federal Elections Commission non-enforcement decisions.
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.
Case of the Speluncean Explorers Redux
Tonight the Supreme Court denied a stay of execution in Roberson v. Texas. There were no noted dissents, but Justice Sotomayor issued a ten-page statement respecting the denial of the application. Justice Sotomayor acknowledged that the defendant "presents no cognizable federal claim." Therefore, the Court cannot grant relief. But the final paragraph includes an unusual plea:
Under these circumstances, a stay permitting examination of Roberson's credible claims of actual innocence is imperative; yet this Court is unable to grant it. That means only one avenue for relief remains open: an executive reprieve. In Texas, as in virtually every other State and the federal government, "[t]he Executive has the power to exercise discretion to grant clemency and affect sentences atany stage after an individual is convicted[.]" Vandyke v. State, 538 S. W. 3d 561, 581 (Tex. Ct. Crim. App. 2017).Preventing the execution of one who is actually innocent bymeans of a review "unhampered by legal technicalities" is a core historical purpose of the executive power to grant pardons or reprieves. Christen Jensen, The Pardoning Power in the American States 49 (1922); see also Herrera v. Collins, 506 U. S. 390, 417 (1993) ("History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency"); Graham v. Texas Bd. of Pardons and Paroles, 913 S. W. 2d 745, 748 (Tex. Ct.Crim. App. 1996) (same). An executive reprieve of thirty days would provide the Texas Board of Pardons and Paroles with an opportunity to reconsider the evidence of Roberson's actual innocence. That could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence.
Yes, you read that right. Justice Sotomayor issued a plea for clemency to Texas Governor Greg Abbott.
Last week I wrote about the potential for clemency in Glossip v. Oklahoma. I noted that one of the justices in the fictional "Case of the Speluncean Explorers" likewise asked the Executive for clemency. I can't recall a Supreme Court justice making a similar request. But Justice Sotomayor may be one of the first.
The ACLU’s wise decision to defend the NRA in NRA v. Vullo bears fruit.
From Chief Judge Mark Walker's opinion today in Floridians Protecting Freedom, Inc. v. Ladapo:
Floridians will vote on six proposed amendments to their state constitution this election cycle, including Amendment 4, titled "Amendment to Limit Government Interference with Abortion." Voting has already begun.
The State of Florida opposes Amendment 4 and has launched a taxpayer-funded campaign against it. Floridians Protecting Freedom, Inc., the Plaintiff in this case, has launched its own campaign in favor of Amendment 4.
Plaintiff does not challenge the State's right to spend millions of taxpayer dollars opposing Amendment 4. The rub, says Plaintiff, is that the State has crossed the line from advocating against Amendment 4 to censoring speech by demanding television stations remove Plaintiff's political advertisements supporting Amendment 4 or face criminal prosecution.
Plaintiff's argument is correct. While Defendant Ladapo refuses to even agree with this simple fact, Plaintiff's political advertisement is political speech—speech at the core of the First Amendment. And just this year, the United States Supreme Court reaffirmed the bedrock principle that the government cannot do indirectly what it cannot do directly by threatening third parties with legal sanctions to censor speech it disfavors. The government cannot excuse its indirect censorship of political speech simply by declaring the disfavored speech is "false." "The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion." "In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us." To keep it simple for the State of Florida: it's the First Amendment, stupid….
Unfortunately, in this instance, it's "Justices," not "Jews" (at least not mostly), which would have been funnier. The case is State ex rel. Spung v. Evnen, from the Nebraska Supreme Court, and deals with a state constitutional separation of powers question related to a felon reenfranchisement statute; the opinions are an unsigned per curiam announcing the judgment of the Court, with each Justice also writing a separate opinion (shades of the Pentagon Papers case, which had one per curiam plus an opinion from each of the nine Justices). Here's the per curiam:
The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences. The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote. Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately….
The Nebraska Constitution divides the powers of state government "into three distinct departments, the legislative, executive, and judicial." Neb. Const. art. II, § 1. It also states that "no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others except as expressly directed or permitted in this Constitution." Id. This separation of powers provision has been a part of the Nebraska Constitution since 1875.
Provisions governing voting rights and elections have also been part of the Nebraska Constitution since 1875. The constitution provides that "[a]ll elections shall be free; and there shall be no hindrance or impediment to the right of a qualified voter to exercise the elective franchise." Neb. Const. art. I, § 22. Qualified voters are defined in article VI, § 1, of the constitution to mean "[e]very citizen of the United States who has attained the age of eighteen years … and has resided within the state and the county … for the terms provided by law … except as provided in section 2 of this article …." Article VI, § 2, identifies voters who are disqualified from voting. It provides, "No person shall be qualified to vote who is non compos mentis, or who has been convicted of treason or felony under the laws of the state or of the United States, unless restored to civil rights." Neb. Const. art. VI, § 2.
Some were surprised by the Supreme Court's action, but they should not have been.
This past spring, in Ohio v. EPA, a 5-4 Supreme Court stayed the implementation of an Environmental Protection Agency rule governing interstate air pollution pending legal proceedings challenging the rule on the merits. This decision was unusual, but not without precedent. Back in 2016 the Supreme Court had also stayed the Obama Administration's Clean Power Plan--also by a 5-4 vote.
The Court's apparent willingness to press pause on major air pollution regulations, combined with an overall increase to consider aggressive "shadow docket" filings, encouraged industrial groups and conservative states to file multiple applications for stays of other EPA rules. After all, if the Court did it twice, it could do it again. None of these recent applications have been successful however.
At the Court's long conference, the justices denied multiple applications seeking stays of EPA rules governing hazardous air pollutants and methane emissions. Then, yesterday (in a more closely watched case), the Court rejected applications seeking a stay of the Biden Adminsitration's rules limiting greenhouse gas emissions from power plants (basically the Biden Administration's replacement for the CPP). Only Justice Thomas dissented. (Justice Alito did not participate.) [See also Sam Bray's post on the application denial.]
Some seem surprised by the Court's actions, but I don't think they should be. The reasons for granting stays of the CPP and interstate air pollution rule were not present in these other cases.
The stay of the CPP was somewhat unusual, but it also presented the Court with an unusual dilemma (as I noted at the time). The Court had recently decided Michigan v. EPA, in which the justices concluded that EPA regulations governing mercury emissions from power plants were arbitrary and capricious. The EPA did not care much about this ruling, however, and trumpeted that fact. After the decision, EPA put out a press release saying (correctly) that nearly all of the regulated utilities had already made the required capital investments while the litigation was pending because there was no way to comply with the deadlines otherwise. Those who sought to stay the CPP highlighted this, basically telling the Court the EPA was celebrating its ability to impose regulations without complying with the law. That the EPA also declared that the CPP represented a pathbreaking and unusually aggressive assertion of agency authority was only icing on the cake.
While the interestate air pollution rule did not present the same sort of major question as the CPP, it was another instance in which the petitioners--and utilities in particular--could plausibly claim that they would have no choice but to make substantial and irreversible capital investments to comply with the rule while judicial review was ongoing. Thus, they could claim some degree of irreparable harm (and more harm than routine compliance costs; on this point, see Sam Bray's excellent post below).
The more recent stay applicaitons tried to present the rules in question as presenting the same sorts of issues, but they were unsuccessful at doing so. These other rules are not as broad or aggressive as the CPP, and do not present the same sort of risk of irreparable harm, in part because the EPA has been more attentive to providing compliance deadlines that accommodate some amount of judicial review. In the case of the most recent power plant rules, it is also notable that the U.S. Court of Appeals for the D.C. Circuit, in its order denying the stay, took the time to explain its decision while also expediting the petitioners' legal challenges so that regulated entities would not be forced to make major compliance expenditures before the litigation could proceed.
Justice Kavanaugh (joined by Justice Gorsuch) made note of some of this in a brief opinion respecting the denial of the applications.
In my view, the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency's rule. But because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D. C. Circuit decides the merits. So this Court understandably denies the stay applications for now. Given that the D. C. Circuit is proceeding with dispatch, it should resolve the case in its current term. After the D. C. Circuit decides the case, the nonprevailing parties could, if circumstances warrant, seek appropriate relief in this Court pending this Court's disposition of any petition for certiorari, and if certiorari is granted, the ultimate disposition of the case.
Going forward, what I think this means is that the Court is settling on a reasonable standard for evaluating stay requests for major regulations. As a general matter, particularly if the EPA sets reasonable compliance deadlines, such stays should be denied. But where we have some combination of a particularly aggressive assertion of agency authority (again, think "major question") and a compliance schedule that will prematurely force regulated entities to make substantial capital investments (perhaps, particularly, if those regulated entities are rate-regulated utilities, which operate under greater constraints), a stay is more likely. This also means that regulatory agencies and the D.C. Circuit can make stays less likely by taking care to consider such factors themselves.
This is all a long way of saying that the justices are willing to offer extraordinary relief in extraordinary cases, but that it is far from open season on major environmental rules.
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.
The article is here; the Introduction:
On my bookshelf is a treasured relic of a bygone age, a full print edition of The Oxford English Dictionary (OED): twelve volumes plus five supplements, the last of them published in 1986. The OED puts the first use of journalism, "the occupation or profession of a journalist; journalistic writing; the public journals collectively," at 1833. Journalistic, "of or pertaining to journalists or journalism; connected or associated with journalism," arrived a few years earlier, in 1829. Reporter, "one who reports, debates, speeches, meetings, etc., especially for a newspaper; a person specially employed for this purpose," originated earlier still, in 1813. And interview, "to have an interview with a person; specifically on the part of a representative of the press," didn't appear until decades later, in 1869.
I served as dean of Columbia University's Graduate School of Journalism for ten years, from 2003 to 2013. During that time, I was privileged to attend dozens, or maybe even hundreds, of official journalism events: banquets, prize ceremonies, and so on. Almost invariably, the speakers would extol the First Amendment as a sacred constitutional enshrinement of our profession. Often one of them would observe that we are the only field of endeavor specifically mentioned in the Constitution, or assert that it was the framers' special intent to put the amendment that mentioned us first because it was so important to them.
But as we see from the OED, such sentiments are self-celebratory historical fantasies, because there were no journalists in 1791, when the First Amendment was ratified. At the Constitutional Convention, in 1787, the framers specifically declined to include a press freedom clause in the original document, which is why the First Amendment, along with the rest of the Bill of Rights, was added a few years later by Congress. In the original version of the Bill of Rights, the current First Amendment was actually the Third Amendment, in line behind two others that were dropped because they couldn't attract majority support.
Now that Jane Bambauer and I are up to a dozen videos in the series, I thought I'd pass along the whole list; if you find some of the titles interesting, please check them out. The videos were made starting this Spring, but they mostly talk about broad topics that aren't especially time-sensitive.
Jane and I discuss calls to restrict misinformation, from the Sedition Act of 1798 to Hurricane Helene.
You can see all our episodes (a dozen now) here.
Panel discussion at the NYU Federalist Society Chapter
On October 15, I spoke on a panel at the NYU Federalist Society with Ken Marcus of the Brandeis Center. We discussed the role that Title VI plays on college campuses in the wake of October 7. It was a thoughtful and informative event, with no disruptions. Alas, at the very end, after the event concluded, several students started chanting "Free Palestine" as they exited the room. Whatever.
I am grateful to the NYU Chapter for hosting us.
From Bates v. Oregon Health Authority, decided yesterday by the Oregon Court of Appeal (Judge Scott Shorr, joined by Judges Josephine Mooney and Ramón Pagán):
In 2015, the legislature passed House Bill (HB) 2546, which addressed a number of issues involving "inhalant delivery systems," commonly known as "vape pens" or "e-cigarettes." The bill, among other things, outlawed the sale of such products to minors, banned vaping indoors by adding inhalant delivery systems to the Oregon Indoor Clear Air Act, and, as relevant to the current matter, created certain requirements surrounding the sale and packaging of inhalant delivery systems…. [The bill] states: "It is unlawful: … (f) To distribute, sell or allow to be sold an inhalant delivery system if the inhalant delivery system is packaged in a manner that is attractive to minors, as determined by the [Oregon Health Authority] by rule."
The Oregon Health Authority (OHA) subsequently promulgated a number of regulations regarding packaging of inhalant delivery systems, including OAR 333-015-0357, which stated:
"(1) An inhalant delivery system is packaged in a manner that is attractive to minors if because of the packaging's presentation, shape, graphics, coloring or writing, it is likely to appeal to minors.
"(2) The Authority considers the following non-exclusive list to be likely to appeal to minors:
"(a) Cartoons;
"(b) Celebrities, athletes, mascots, fictitious characters played by people, or other people likely to appeal to minors;
"(c) Food or beverages likely to appeal to minors such as candy, desserts, soda, food or beverages with sweet flavors including fruit or alcohol;
"(d) Terms or descriptive words for flavors that are likely to appeal to minors such as tart, tangy, sweet, cool, fire, ice, lit, spiked, poppin', juicy, candy, desserts, soda, sweet flavors including fruit, or alcohol flavors; or
"(e) The shape of any animal, commercially recognizable toy, sports equipment, or commercially recognizable candy."
The court held that that the law violated the Oregon Constitution's free speech provision. Oregon courts have developed an unusual framework for dealing with that provision, and I won't dwell on it here. Here, though, is the heart of the argument; I expect it would also be a powerful argument under a federal commercial speech challenge, though perhaps not as conclusive as it is under Oregon constitutional law:
The selling points of LLM AIs are insufficient; corpus tools hold the advantage.
What is the allure of LLM AI chatbots in the search for empirical evidence of ordinary meaning? Judge Newsom's two concurring opinions channel recent scholarship in developing four main selling points. And they advance those points as grounds for endorsing LLM AIs over tools of corpus linguistics.
Our draft article presents our opposing view that corpus tools have the advantage notwithstanding—or even because of—the purported features of LLM AIs. We outline some key points below.
LLM AIs are enormous
The first claim is that LLMs "train on" a "mind-bogglingly enormous" dataset (400-500 billion words in GPT-3.5 turbo)—language "run[ning] the gamut from … Hemingway novels and PhD dissertations to gossip rags and comment threads." The focus is on the size and the breadth of LLMs. The assertion is that those features assure that the LLMs' training "data … reflect and capture how individuals use language in their everyday lives."
Corpus size can be an advantage. But size alone is no guarantee of representativeness. A corpus is representative only if it "permits accurate generalizations about the quantitative linguistic patters that are typical" in a given speech community. Representativeness is often "more strongly influenced by the quality of the sample than by its size." And we have no basis for concluding that an LLM like ChatGPT is representative. At most, OpenAI tells us that ChatGPT uses information that is "publicly available on the internet," "licensed from third parties," and provided by "users or human trainers." This tells us nothing about the real-world language population the creators were targeting or how successfully they represented it. And it certainly doesn't tell us what sources are drawn upon in answering a given query. In fact, "it's next to impossible to pinpoint exactly what training data an LLM draws on when answering a particular question."
New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.
