9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Thursday Open Thread
What's on your mind?
Man Indicted For Threatening To Lynch "Corrupt" Justice Thomas And His "Insurrectionist" Wife
There are consequences to the rhetoric about the Court from high ranking officials.
Yesterday the Department of Justice indicted Panos Anastasiou for making threats against "Supreme Court Justices 1-6." Threats were also made against "Family Members 1 and 2" of "Supreme Court Justices 1 and 2." The indictment doesn't name who the six Justices and their family members are, but it isn't hard to figure things out. The motion to seek a detention hearing lists the specific messages that the defendant submitted through the Supreme Court's website. I will reproduce theme here, as relayed by DOJ.
January 4, 2024: "I'd like to see [Former President 1 and Supreme Court Justice 1] hanging together from an Oak tree. I'd gladly provide the rope and pull the handle."
May 10, 2024: "Subject: N***** [Supreme Court Justice 1]", "I'd like to see you have a real lynching and I'll donate the tree and pull the lever… you worthless piece of n***** shit."1
May 16, 2024: "I would have had NO reservations about walking up to [Supreme Court Justice 2] and not asking him to take it down but to put a BULLET in this mother fuckers head."
May 17, 2024: "I'm going to call and urge my fellow Vietnam veterans… to drive by the [Supreme Court Justice 2]'s house with their AR15's and when fucking [Supreme Court Justice 2] and his fucking PIECE OF SHIT CUNT WIFE are HOME spray the home of these disrespectful mother fuckers with hundreds of rounds… hopefully killing these SCUMBAG COCKSUCKERS. Hopefully N***** [Supreme Court Justice 1] and his white trailer trash n***** loving insurrectionist wife are visiting."
June 18, 2024: "I don't want to see these two corrupt mother fuckers assassinated… I'd like to see them TORTURED worse than Kim Jung Un would torture his own family. You know, like putting electrodes up their ass and on their balls, needles under their finger nails, pulling their teeth with pliers, etc etc. Make these SCUMBAGS beg for their lives."
July 1, 2024: "ASSASSINATING THESE COCKSUCKERS IS THE ONLY PANACEA… that includes the CONVICTED CRIMINAL, [Former President 1]. Again as an AMERICAN and to defend the constitution and democracy I want the assassinations by any ENTITY of the government or even a PATRIOTIC AMERICAN to commence. And PLEASE start with the assassination of the N***** and HERMAPHRODITE. As a Vietnam veteran and if I had the means and way I'd assassinate them myself. These fuckers are NOT ABOVE THE LAW."
July 3, 2024: "WE NEED MASS ASSASSINATIONS. If you're corrupt you're corrupt… don't give us this official and unofficial bullshit. You mother fuckers are UNELECTED and Americans have no trust in you. The internet is abuzz with Americans clamoring for your ASSASSINATIONS. We need to assassinate you fuckers and put your heads on a pike and use them as soccer balls. I want to be the first to kick [Supreme Court Justice 6] head down Pennsylvania Ave. You don't want to ask me what I'd like to do to the N***** and [Supreme Court Justice 2]."
July 5, 2024: "We should make [Supreme Court Justices 1-6] be AFRAID very AFRAID to leave their home and fear for their lives everyday."
Justice 1 is Justice Thomas. Family member 1 is Ginni Thomas.
Justice 2 is Justice Alito. Family member 2 is Martha Ann Alito.
And I am just going to guess that Justices 3 through 6 include Chief Justice Roberts, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. I'm not sure for certain who Justice 6 is, and why the defendant wants to kick his or her head down Pennsylvania Avenue.
I am grateful that the defendant was apprehended, but these threatening messages began nearly eight months ago. Far be it from me to question law enforcement, but it seems in recent times that the government has failed to act upon threats until guns were in the vicinity of public officials. Do would-be assassins get one free shot at a Justice's ear? Are they allowed to hide for twelve hours in a bush outside the Justice's home? We know the Kavanaugh assassin was able to take a stroll past the Justice's house. I'm glad DOJ finally got around to indicting him! In the meantime, Justice Barrett needs to explain to her children why she has a bullet-proof vest.
Let me make a broader point. There is a common theme in the defendant's rants: the Justices are corrupt, they are in cahoots with President Trump, and Ginni Thomas is an insurrectionist. Where could the defendant possibly have heard such messages? Surely, one could find these comments in the dregs of social media. But these slanders are also issued repeatedly by leading Democratic lawmakers. Indeed, the entire basis of President Biden's "Court Reform" plan is that the Justices are "corrupt" and cannot be trusted. There are consequences to the rhetoric about the Court from high ranking officials.
I wish more people in positions of power would defend the Court. I praise in the highest terms a recent speech that Kannon Shanmugam delivered at Duke, as reported by the Wall Street Journal. Kannon points out how public officials use language that is similar to Panos Anastasiou's, minus the racial slurs. Kannon offers some examples:
… the attacks have been accompanied by unusually toxic rhetoric. Consider statements like these:
• "The extreme far-right, MAGA majority on the United States Supreme Court is totally out of control."
• "This activist, extremist MAGA court faces a legitimacy crisis."
• "The problem is not that the Supreme Court is just conservative. The problem is that it is corrupt."
• "We must restore justice and balance to the rogue, radical Supreme Court."
• "The Supreme Court is a cesspool of corruption devastating our communities."
These statements do not come from random people; all of them come from members of Congress. And it does not take much imagination to realize what the rhetoric elsewhere looks like.
And Kannon expressly ties this sort of rhetoric with the assassination attempt against Justice Kavanaugh:
As observers across the political spectrum noted in the immediate aftermath of the attempted assassination of former President Trump, the rhetoric in American public life, on both sides, has more generally become overheated; indeed, we practicing lawyers (myself included) sometimes cross the line, too. But I believe that the attacks on the Court's legitimacy, and the accompanying rhetoric, are having two deeply concerning effects. First, as the two distinguished recent leaders of this school's Bolch Judicial Institute, David Levi and Paul Grimm, have recently warned, attacks on the legitimacy of the courts are contributing to the threat of violence against judges in general. And the same can be said with regard to the Supreme Court in particular. Most obviously, a man has been charged with the attempted assassination of Justice Kavanaugh after allegedly turning up at his home with a gun and other weapons. (The man has pleaded not guilty and is awaiting trial.) Others have recently been charged with or detained for making threats against the Chief Justice and Justice Barrett. It is impossible to draw a direct link between the attacks on the Court's legitimacy and any of these recent alleged crimes. But when even members of Congress are threatening that Justices will "pay the price" and "won't know what hit them" if they issue decisions reaching certain outcomes, it is not unreasonable to conclude that the rhetoric around the Court's legitimacy risks adding to the problem.
Kannon is exactly right. As we are told over and over again, words have consequences.
And I only wish more members of the Supreme Court bar would be so vocal in speaking out on this issue. They make a lot of money off of the Court. Certainly their firms, and clients, would appreciate even a modest defense of the Justices.
The same charge goes to the Department of Justice. I'm looking right at you Attorney General Garland. You are quite fond of criticizing former-President Trump, whom your special counsel is trying to convict, but criticism should also be targeted at your boss. Ditto for Solicitor General Prelogar, who should spend a little less time sitting with Vanity Fair, and spend more time explaining why her boss's proposal would be so destructive for the Court. One wonders if any other Attorney General would ever approve of such a puff piece about the Solicitor General.
California Litigants Must Ask for Pseudonymity, Rather Than Just Filing Under a Pseudonym
From L.A. Superior Court Judge Frank Tavelman's order last Friday in Roe v. Smith:
Plaintiffs have not adhered to the proper procedure for proceeding anonymously. Before a party can proceed anonymously, they must move the Court for permission to do so. This procedure is addressed in Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105 (hereinafter DFEH). There the Court observed the following:
Procedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party's true name.
Here, no motion was made to proceed anonymously, and no hearing was ever conducted on Plaintiff's right to do so. This procedural posture is important because it places the burden on the party seeking to proceed anonymously to demonstrate an overriding interest. Plaintiff's failure to move for permission to proceed anonymously has essentially improperly shifted this burden to First Amendment and Defendants. Plaintiffs have never demonstrated to the Court that they can overcome the presumption of openness provided by CRC Rule 2.550(c)….
No Pseudonymity for Plaintiff Challenging Suspension Under Title IX
So holds the Eleventh Circuit, upholding the district court's decision—but the court's standard of review suggests that the exact oppose district court decision might have been upheld, too.
Yesterday's Eleventh Circuit decision in Doe v. Florida Gulf Coast Univ. Bd. of Trustees (by Eleventh Circuit Judges Robert Luck, Andrew Brasher, and Nancy Abudu) involved a plaintiff who was suing under Title IX, challenging the University's decision to suspend him for allegedly having sex with his ex-girlfriend "when she was too intoxicated to consent." Plaintiff sought to proceed under a pseudonym—quite routine in such cases. But the district court said no, and the Eleventh Circuit held that the district court's decision wasn't an abuse of discretion:
We have laid out several considerations relevant to determining whether a district court should allow a litigant to proceed anonymously[:] … "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." "The 'information of utmost intimacy' standard" generally relates to topics like "abortion" as well as "prayer and personal religious beliefs." "On the other hand, courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … We have [also] considered, for example, [4] whether "the party seeking anonymity is a minor," [5] whether the person "faces a real threat of physical harm absent anonymity," and [6] whether the movant would face "social stigma" if forced to proceed under the movant's true name.
The appellate court held that the district court didn't abuse its discretion as to the utmost intimacy and stigma factors:
"Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias"
Professional librarian sources seem split on viewpoint-based book removals: some firmly call for viewpoint neutrality, while others say that books should be evaluated for "biased viewpoints."
[1.] Next week, the entire en banc Fifth Circuit will be hearing Little v. Llano County, a case involving allegations of viewpoint-based book removals in a public library. As I've noted before, the Supreme Court has never resolved whether such removals are unconstitutional. Pico v. Bd. of Ed. (1982), which considered the matter as to public school libraries, split 4-4 on the subject, with the ninth Justice, Justice White, expressly declining to resolve the substantive question. (The Pico Justices generally agreed that schools could remove some material as age-inappropriate because of its vulgar or sexual content; the debate was about viewpoint-based removals.)
U.S. v. American Library Ass'n (2003), which dealt with the related question of Internet filtering in public libraries generally, was also a splintered decision, and didn't resolve the broader question, either. A 1995 Fifth Circuit panel decision had generally precluded such viewpoint-based removals, but the Fifth Circuit en banc court will need to consider whether that decision should stand: Rehearing by the full en banc court is the normal way that federal appellate courts reconsider whether three-judge panel decisions should be overruled.
I'm not sure what the answer here should be. I tentatively think a public school is entitled to decide which viewpoints to promote through its own library: School authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc., essentially as supplements to the school curriculum (over which the school has broad authority). The process of selecting library books is part of the government's own judgment about what views it wishes to promote. And the ability to reconsider selection decisions—including in response to pressure from the public, which is to say from the ultimate governors of the public schools—should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional.
But this doesn't necessarily resolve the question of how librarians should administer non-school public libraries, which aren't the adjunct to any sort of school curriculum. Libraries are much more about giving more options to readers, rather than about teaching particular skills and attitudes to students. The case for viewpoint neutrality is therefore stronger there—though not, I think, open and shut. (Note also that even the challengers in this case leave open the possibility that courts shouldn't scrutinize book acquisition decisions to decide whether they are viewpoint-based, but only book removal decisions. See Appellees' En Banc Brief at 43-44 & n.13, 50.)
In any case, that's the big picture; here, I want to talk about a particular twist in the dispute, which can be particularly well seen in a friend-of-the-court brief filed by the Freedom to Read Foundation, the Texas Library Association, and American Library Association. The passage, and the sources it cites, refer to the necessity to remove books on some criteria—this is called "weeding," and some sources suggest that each year a public library would generally weed out 5% of its stock—and discuss which criteria are proper:
Today in Supreme Court History: September 19, 1907
9/19/1907: Justice Lewis Powell's birthday.
Blocking Dissenters from School System's "StaffPride" Twitter Account May Have Violated First Amendment
From yesterday's opinion by Judge Paula Xinis (D. Md.) in Foldi v. Bd. of Ed. for Montgomery County:
Foldi and Mandel live in Montgomery County, Maryland. Foldi writes for a news magazine, The Spectator, and Mandel is a columnist for several national publications and has written extensively on education and parental rights. Id. In October 2022, the School Board announced the introduction of LGBTQIA+-themed books into the MCPS [Montgomery County Public Schools] curriculum. In response, several parents sought permission from MCPS for their children to "opt out" of any classroom instruction involving these books.
At first, it appeared that MCPS would permit this opt-out alternative. On March 22, 2023, MCPS confirmed that parents could choose to have their children read other material in lieu of the LGBTQIA+ books. But the next day, the School Board reversed course and informed parents that no such opt-out alternative would be available, nor would MCPS notify parents when classroom instruction would involve LGBTQIA+-themed materials….
The question of LGBTQIA+-inclusive reading materials became a hot button issue for MCPS. At a March 2023 School Board meeting for example, one parent vocally opposed the Board's refusal to provide an opt-out alternative to parents on behalf of their children. In response, Board Member Harris challenged the protestor, publicly announcing that the parent's position "is just telling that kid, 'here's another reason to hate another person.'"
Over the next few months, the debate over the propriety of the opt-out alternative intensified, and in advance of a June 6, 2023, School Board meeting, "scores of parents and community members" gathered in peaceful protest outside of the MCPS Carver Educational Services Center ("Carver Center"), where the meeting was being held. Also at the June 6th meeting, a female Muslim student attested to her discomfort with being made to read LGBTQIA+ books that ran contrary to her religious beliefs, to which Board Member Harris said she "felt kind of sorry" for the student, and opined about whether the student was "parroting [the] dogma" of her parents.
Standards of Appellate Review, Pseudonymous Litigation, and the Need for the Supreme Court to Step in
As I mentioned earlier this week, I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ., which deals with when parties can litigate as John or Jane Does. This closing Part explains why the Supreme Court's review is especially important in light of how appellate courts review district court decisions in this area.
[III.] If this Court does not act, inconsistent pseudonymity determinations will continue
The inconsistency among district court decisions is unlikely to be solved by the circuit courts, particularly because the circuits review the trial court's conclusion only for abuse of discretion. See, e.g., MIT, 46 F.4th at 66 (1st Cir); Pilcher, 950 F.3d at 41-42 (2d Cir.); Megless, 654 F.3d at 407 (3d Cir.); Doe v. Sidar, 93 F.4th 241, 247-48 (4th Cir. 2024); Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016); Pet. 8a, 10a (7th Cir.); Cajune v. Indep. Sch. Dist. 194, 105 F.4th 1070, 1078 (8th Cir. 2024); Doe v. Kamehameha Sch., 596 F.3d 1036, 1046 (9th Cir. 2010); M.M. v. Zavaras, 139 F.3d 798, 804 (10th Cir. 1998); Frank, 951 F.2d at 323 (11th Cir.); In re Sealed Case, 931 F.3d at 96 (D.C. Cir.).
Because of the lack of de novo review in such cases, there is little opportunity for the "evolutionary process of common-law adjudication" that "give[s] meaning" to legal rules, Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502 (1984). Instead of marking out two zones—where pseudonymity should be granted and when it should be denied—an abuse of discretion standard leads the Courts of Appeals to mark out three areas: (1) pseudonymity requests that any reasonable judge would grant; (2) pseudonymity requests that any reasonable judge would deny; and (3) pseudonymity requests on which reasonable judges could disagree.
Court Upholds Ban on Knowing Falsehoods About Voting Mechanics and Voter Eligibility Aimed at Preventing Voting
Minnesota Voters Alliance v. Ellison, decided yesterday by Judge Nancy Brasel (D. Minn.), upheld this new Minnesota statute:
(a) No person may, within 60 days of an election, cause information to be transmitted by any means that the person:
- intends to impede or prevent another person from exercising the right to vote; and
- knows to be materially false.
(b) The prohibition in this subdivision includes but is not limited to information regarding the time, place, or manner of holding an election; the qualifications for or restrictions on voter eligibility at an election; and threats to physical safety associated with casting a ballot.
An excerpt of the analysis:
Today in Supreme Court History: September 18, 1857
9/18/1857: Justice John Hessin Clarke's birthday.
Tuesday Media Recommendations: Science Fiction and Fantasy Books
Post your recommendations in the comments; other weeks, there'll be other posts for other genres and other formats.
Snowflake Justice Court
No, not a dispute resolution center for campus microaggressions. It's actually an Arizona trial court for dealing with misdemeanors, unlawful detainer lawsuits, protection orders, and small claims in the town of Snowflake (population 6,500).
Pharmacy Student's First Amendment Lawsuit Based on (Reversed) Expulsion for Twitter Sex Talk Can Proceed
From today's opinion in Diei v. Boyd, written by Judge Chad Readler and joined by Judges Joan Larsen and Stephanie Davis:
Kimberly Diei enrolled at the University of Tennessee Health Science Center College of Pharmacy to pursue a doctorate in pharmacy. At the time, Diei maintained social media accounts under the pseudonym "KimmyKasi," where she posted about song lyrics, fashion, and sexuality. According to Diei, her social media posts neither identified her "as a College of Pharmacy student" nor "indicated any affiliation with the University of Tennessee." Those accounts would nevertheless put Diei at the center of a school investigation.
Just a month into her studies, Diei was informed by Christa George, Chair of the College's Professional Conduct Committee, that the Committee had received an anonymous complaint regarding Diei's social media activity. George explained that the Committee would review the posts to decide whether they violated the "Standards for Student Professionalism Conduct," requirements Diei asserts she was never provided. Following an investigation, the Committee unanimously held that Diei's postings were "sexual," "crude," and "vulgar" in nature, and thereby violated the College's professionalism standards. The Committee, however, did not vote to expel Diei.
The following school year, George notified Diei that the Committee had received a second complaint similar to the first. After a hearing, the Committee informed Diei that the content of the newly complained-of posts also violated the College's professionalism standards. The Committee deemed Diei's social media activity "a serious breach of the norms and expectations of the profession[]," and concluded that Diei did not "meet the threshold of professional behavior or the requirements of the Technical Standards for students." Accordingly, the Committee voted unanimously to dismiss Diei from the College. Diei appealed that decision to the school's Dean. Roughly three weeks later, the Dean reversed the Committee's decision.
Diei sued, claiming the original decision violated the First Amendment, and the Sixth Circuit held that her case could go forward:
Firearms Law Textbook 2024 Supplement Now Available
For free -- 566 pages
I'm pleased to announce the publication of the 2024 Annual Supplement for the textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy. The supplement is available here as a PDF.
The base textbook was published in October 2021, and is coauthored by Nicholas J. Johnson (Fordham), George A. Mocsary (Wyoming), E. Gregory Wallace (Campbell), Donald Kilmer (Lincoln), and me. The book's public website is here, and the Aspen Publishers page for the book is here. The 2024 Supplement is a guide to Bruen and the significant post-Bruen litigation.
While the 2024 Supplement discusses a large variety of cases, including state court cases involving state constitutional law, here are some of the major items:
- A long excerpt of Bruen, with many Notes and Questions, which point readers to leading pro/con scholarship about the case.
- A long excerpt of Rahimi.
- Updates on the latest social science and data.
- A long excerpt of Cargill v. Garland, on bump stocks, as well as updates on everything else about the National Firearms Act.
- A detailed essay by George Mason Prof. Robert Leider explaining the complexities of the major 2022 federal gun control statute.
- Analysis by attorney Johanna Reeves of ATF's "Frame or Receiver Rule."
- Cases summaries and excerpts on all the major issues being litigated under the Bruen framework, including prohibited persons, right to carry, bans on types of arms, and many other types of restrictions.
- And lots more!
But wait, that's not all. The base textbook is available in print, and (from the publisher's website for students and faculty) as an e-book. There are also seven free supplemental chapters available online, from the book's public website. These cover: Firearms Policy and Status; International Law; Comparative Law; In-Depth Explanation of Firearms and Ammunition; Antecedents of the Second Amendment; Arms Rights, Arms Duties, and Arms Control in the United Kingdom; and The Evolution of Firearms Technology from the Sixteenth Century to the Twenty-First Century.
Among the things you will find in the online chapters are 25 pages of in-depth research on the role of gun control and armed resistance in the Turkish genocide of Armenians and other Christians in the early twentieth century, a hundred pages about gun control and armed resistance in Communist China and Tibet; ancient Greek, Roman, and Chinese law and philosophy about arms; United Nations gun control; modern law about arms on Native American reservations; and many other topics.
We hope that in the 2024 Supplement and in the online chapters, students writing Notes and professors writing Articles may find interesting issues for further exploration. We also hope that judges, clerks, and litigators will find the 2024 Supplement to be a helpful guide to the post-Bruen legal environment, and that the two online chapters about firearms mechanics (how modern firearms operate; and the history of firearms development) may also be useful.
Alliance for Hippocratic Medicine on Remand - Still Struggling with Standing
No, the U.S. Court of Appeals for the Fifth Circuit's initial standing rulings were not faithful applications of Supreme Court precedent.
Yesterday, on remand from the Supreme Court, the U.S. Court of Appeals for the Fifth Circuit remanded Alliance for Hippocratic Medicine v. FDA (the mifepristone case) to the district court. As readers likely recall, a unanimous Supreme Court concluded that AHM lacked standing to sue the FDA for loosening the rules governing mifepristone. Indeed, it was not a particularly close call.
As Josh Blackman notes in a post below, Judge James Ho wrote a separate concurrence defending the panel's initial decision as a faithful application of applicable Supreme Court precedent that relied upon the federal government's prior representations about whether federal conscience laws protect doctors from having to perform abortions where doing so would violate their consciences. I accept that the Solicitor General offered the Court a more robust reading of federal conscience protections than may have been provided in other cases, and that this argument provided the Court with a basis for concluding that the plaintiffs lacked standing, but this concession by the SG was not necessary to resolve the case.
I reject Judge Ho's claim that the Fifth Circuit (and district court) "applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit." For reasons I explained in multiple posts (see listing below), even if one assumes that federal laws would not have protected members of AHM from having to perform abortions in emergency settings, AHM still failed to satisfy the requirements of Article III standing under existing doctrine.
As the Supreme Court explained in its AHM decision, in order to establish standing the plaintiff doctors would have to establish that the FDA's loosening of restrictions on mifepristone was "likely" to "cause them to provide medical treatment against their consciences." Even without the protection of federal conscience laws, this was a showing none of the plaintiffs could make, and this was doubly so once the case was limited to the FDA's loosening of the restrictions on mifepristone, and no longer encompassed the decision to approve mifepristone for sale in the first place. So narrowed, it was entirely speculative that any member of AHM would ever even witness an emergency room visit occasioned by the FDA's less stringent regulation of mifepristone, let alone that one would have been threatened with having to violate his or her conscience.
Judges' Boycott of Columbia in Clerk Hiring Is Permissible Under Judicial Ethics Rules (II)
From an order by Eleventh Circuit Judge William Pryor, affirmed by the Eleventh Circuit Judicial Council Aug. 12 but apparently just recently made public (see also this similar Fifth Circuit decision):
The Complaint stems from a letter from multiple federal judges, including the Subject Judges, addressed to the president of a university and copied to the dean of the university's law school. The letter … states:
Since the October 7 terrorist attacks by Hamas, [] University has become ground zero for the explosion of student disruptions, anti-semitism, and hatred for diverse viewpoints on campuses across the Nation. Disruptors have threatened violence, committed assaults, and destroyed property. As judges who hire law clerks every year to serve in the federal judiciary, we have lost confidence in [the university] as an institution of higher education. [The university] has instead become an incubator of bigotry. As a result, [the university] has disqualified itself from educating the future leaders of our country.
The letter sets out the following three steps the university would take if it was "serious about reclaiming its once-distinguished reputation": (1) "Serious consequences for students and faculty who have participated in campus disruptions and violated established rules concerning the use of university facilities and public spaces and threats against fellow members of the university community"; (2) "Neutrality and nondiscrimination in the protection of freedom of speech and the enforcement of rules of campus conduct"; and (3) "Viewpoint diversity on the faculty and across the administration—including the admissions office."
In discussing item 1, the letter states that universities should identify students who violate established rules or threaten others, and that, "If not, employers are forced to assume the risk that anyone they hire from [the university] may be one of these disruptive and hateful students."
Lower Court Decisions on Pseudonymity Are Chaotically Split
I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ. This Part explains how badly split lower court decisions are. (Recall that one of the main reasons the Court steps in to resolve lower court cases is to resolve inconsistencies that would lead to different results in similar cases throughout the country.)
[A.] This Court has not given lower courts guidance
This Court has never decided when pseudonymity should be allowed. When parties have requested this Court's permission to file a writ of certiorari pseudonymously, this Court has granted or denied that request without explanation. See, e.g., Doe v. Mich. Att'y Grievance Comm'n, 519 U.S. 946 (1996) (denying); Foe v. Cuomo, 498 U.S. 892 (1990) (granting). This Court has sometimes reviewed pseudonymous cases (Roe v. Wade is a famous example), but in doing so it has never discussed in any detail when pseudonymity should be allowed.
This Court has recognized the common-law public right of access to judicial records, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-99 (1978), and the First Amendment right to attend criminal trials, Richmond Newspapers, 448 U.S. at 580. But while those rights are connected to the public's right to know the names of parties in civil cases, see supra Part I.A, this Court's precedents do not set forth any meaningful guidance on when the interests favoring pseudonymity can overcome that right.
Nor do the Federal Rules of Civil Procedure give much guidance (except by mandating pseudonymity for minors, Rule 5.2(a)(3)). Many courts have inferred a presumption against pseudonymity from Rule 10(a) ("The title of the complaint must name all the parties") and Rule 17(a) ("An action must be prosecuted in the name of the real party in interest"). See, e.g., Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992). But the Rules say nothing about when pseudonymity is nonetheless permissible. The lower court cases allowing pseudonymity in some situations have thus proceeded without either this Court's or the Rules' guidance.
[B.] The circuits are split into three groups on pseudonymity
The petition accurately summarizes the circuit split:
- The Seventh Circuit allows pseudonymity in narrow circumstances, seemingly limited to situations where the litigant "is a minor, is at risk of physical harm, or faces improper retaliation (that is, private responses unjustified by the facts as determined in court)." Pet. 10a.
- Ten circuits apply different non-exhaustive, multifactor tests. See, e.g., United States v. Pilcher, 950 F.3d 39, 42 (2d Cir. 2020) (ten factors); Femedeer, 227 F.3d at 1246 (10th Cir.) (four factors).
- The First Circuit rejects both a multifactor test and "sharp, categorial exceptions to the strong presumption against pseudonymity," and instead identifies "four general categories of exceptional cases in which party anonymity ordinarily will be warranted." Doe v. Mass. Inst. of Tech., 46 F.4th 61, 70-72 (1st Cir. 2022).
But beyond this formally visible circuit split, lower courts that adopt various multifactor tests disagree on how to interpret each factor, generally without acknowledging the disagreement.
[1.] Consider, for instance, a recurring question: Does risk of reputational, economic, or professional harm suffice to let a litigant proceed pseudonymously? Most courts generally say no: "That a plaintiff may suffer embarrassment or economic harm is not enough." Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011); Volokh, supra, at 1420-23, 1457-60 (citing many cases that take this view).
