"To the extent that Kavadia asks the Court to order that public reporting about this case be removed from the Internet, such an order would blatantly violate the First Amendment."
In Decastro v. Kavadia (S.D.N.Y. Feb. 23, 2004), defendant in the long-closed case asked the Court to "'remove [] posts' about this case from the New York Post's website and online legal databases such as Justia, eDiscovery Assistant, Casetext, and Leagle," on the grounds that "these posts are 'damaging [his] name' and 'affecting [his] life and career.'" No, said Judge Jesse Furman (S.D.N.Y.):
To the extent that Kavadia asks the Court to order that public reporting about this case be removed from the Internet, such an order would blatantly violate the First Amendment. To the extent that Kavadia's request can be construed as a request to seal the record of this case, it is without merit, both because the proverbial cat is well out of the bag and because Kavadia's embarrassment does not overcome the strong presumption in favor of public access that applies here…. "Generalized concerns of adverse publicity do not outweigh the presumption of access." …
Quite right, and I think clearly so under U.S. law, though some court decisions in past cases had granted such remedies (at least initially), see, e.g., here, here, and here. Here is a taste of the factual backstory in the case, from the opening paragraph of the Casetext opinion:
This would virtually ensure the case can't be dismissed for lack of standing, thanks to Missouri's precedent-setting Supreme Court victory in Biden v. Nebraska. The Show Me State can once again really show 'em!
Last Friday, I wrote about the new lawsuit filed by eleven red states challenging President Biden's new massive student loan forgiveness program. As I noted in that post, this case in many ways resembles Biden v. Nebraska, the 2023 case in which the Supreme Court invalidated the administration's previous gigantic loan forgiveness plan.
One of those parallels is that the administration is likely to try to prevail by arguing that the plaintiff states lack "standing" to bring the case, because they haven't suffered a relevant injury. In Biden v. Nebraska, the Supreme Court (and lower courts) ruled that the plaintiffs succeeded in getting standing because the state of Missouri (one of the six state plaintiffs in that case has a state agency - the Higher Education Loan Authority of the State of Missouri (MOHELA) - that services federally backed student loans, and MOHELA's income would be reduced if some of those loans were forgiven.
As discussed in my last post, Louisiana, one of the plaintiffs in the new case, has a state student loan agency that appears to be similar to MOHELA. But it may not be exactly the same. Among other things, it is not clear whether it still services federally backed student loans, as well as providing its own loans. Thus, it might be possible for courts to distinguish the Louisiana agency from MOHELA. The plaintiff states do have other theories on which they could get standing. But these are not clear winners under current Supreme Court precedent.
But the plaintiffs' standing problems could almost easily be resolved if the state of Missouri were to join the case! Then they could use the exact same reasoning that prevailed in Biden v. Nebraska. If even a few of the loans that would be forgiven (or partially forgiven) under the new plan are serviced by MOHELA, that agency stands to lose income if the plan is implemented, and that in turn would be an injury to the state!
The Biden administration and other supporters of its previous loan forgiveness plan raised a variety of arguments against the MOHELA standing theory (e.g. - they argued that MOHELA's administrative separation from other state agencies meant the state could not raise claims based on injuries to MOHELA). But all of these were rejected by the Supreme Court in Biden v. Nebraska. And it's highly unlikely the Supreme Court would reverse or significantly limit that precedent now.
I was actually somewhat surprised Missouri isn't already included in the lawsuit challenging the new loan forgiveness plan. Almost all of the legal, moral, and policy objections to the original plan also apply to the new one (I summarized them here and here). Both plans would exacerbate our already severe fiscal crisis, both are regressive, both manipulate vague statutes for the purpose of raiding the Treasury, both create perverse incentives for universities (we can raise tuition, expecting Uncle Sam to pick up much of the tab!), and both are unfair to taxpayers, including non-college graduates and people who paid off their student loan debt without a federal bailout. If Missouri leaders objected to the previous loan forgiveness plan on these types of grounds, I suspect they oppose this one, too.
Perhaps Missouri simply doesn't want to work with odious Kansas Attorney General Kris Kobach, the man spearheading the eleven state-lawsuit (Kobach has been sanctioned by federal courts for various types of misconduct, on several occasions). If that's their concern, I can understand it; I am no fan of Kobach, myself. Or perhaps there is some other reason why they could not or would not make an arrangement with the other plaintiff states.
If so, nothing prevents Missouri from simply filing their own suit challenging the plan! It would be in a different circuit (the Eighth) from the one where Kansas filed its case (the Tenth). Even if the Kansas-led suit ultimately failed for lack of standing, Missouri's could still prevail.
Obviously, it is possible that the Biden Administration could win the suit on the merits, even if the plaintiffs do have standing. But, for reasons summarized in my last post, the merits case against the plan is strong, bolstered by Biden v. Nebraska. At the very least, definitively eliminating the standing issue would be an important step forward for those challenging the new plan.
I wish this step were not necessary. People seeking to challenge illegal government expenditures shouldn't have to resort to the kind of circuitous tactics that prevailed in Biden v. Nebraska. In my long-held view, any taxpayer should have standing to challenge illegal government expenditures. The taxpayers are the ultimate - and usually the most important - victims of such abuses of power. For those keeping score, I also held that view when blue states and others challenged Donald Trump's attempt to divert military funds to build his border wall, which I also opposed. But the Supreme Court is highly unlikely to adopt taxpayer standing anytime soon.
At the same time, it is also unlikely to reverse the standing holding in Biden v. Nebraska. That creates a great opportunity for the Show Me State to Show 'Em Again! I hope they will rise to the challenge.
UPDATE: It turns out Missouri has already initiated its own separate lawsuit challenging the new plan, announced on March 29, a day after the lawsuit led by Kansas. I was very busy the last couple days, and somehow missed this development. I apologize to readers for this oversight.
Longtime readers will recall that every so often, I would go on a "rant" about how many federal judges were ignoring the text of Federal Rule of Evidence 702, as amended in 2000. Instead, they were relying on decisions that predated the rule, and indeed contradicted the rule. Some of these decisions relied on precedents dating back as far as the 1980s, before the Supreme Court's so-called Daubert trilogy of cases on expert evidence tightened the admissibility rules substantially, and of course before Rule 702 was amended to make it conform (and indeed, settle some existing ambiguities) with the trilogy. I also wrote an academic article on the subject.
As a result of these writings, attorney Eric Lasker invited me to co-author an article calling for a new amendment to Rule 702, one designed to call federal judges' attention to the fact that the Rule, and not preceding precedents, is what they are supposed to be applying. I agreed, but I warned Eric that professors often call for rules to be amended, and are almost just as often ignored. Our article was published in the William and Mary Law Review.
To my surprise, about a year later Professor Dan Capra, reporter for the Federal Rules of Evidence, told me that he read our article, agreed with its basic premise, and was planning to propose to the Rules Committee that it amend the rule. It took another seven years, but in December 2023, the new amendment to Rule 702 took effect:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably appliedexpert's opinion reflects a reliable application of the principles and methods to the facts of the case.
Basically, the first change is admonishing judges that the admissibility of expert testimony is an issue for the judge to decide under the preponderance standard of Rule 104(a), and not, as some judges has been implicitly deciding, an issue for the jury under Rule 104(b) so long as a reasonable juror could decide the evidence is relevant. The second change is to clarify that judges should not look at an expert's methodology as an abstract matter, but rather ensure that the expert's stated opinion reflect a reliable application of reliable principles and methods.
These changes are different from what Eric and I proposed, but I think the underlying message to judges, that they need to stop shirking their responsibility to apply Rule 702, comes through loud and clear.
In the last months of 1919, a year in which a pandemic had killed hundreds of thousands and the nation's cities had been marred by racial pogroms and mob violence, Walter Lippmann reflected on the state of the American public sphere. "[A] nation," he complained, "easily acts like a crowd. Under the influence of headlines and panicky print, the contagion of unreason can easily spread through a settled community." The press was awash in fictions and propaganda; Americans had "cease[d] to respond to truths, and respond simply to opinions." There wasn't even a way to make sure people didn't deliberately and cynically lie to the public: "[If] I lie to a million readers in a matter involving war and peace, I can lie my head off, and, if I choose the right series of lies, be entirely irresponsible." The public was acting not in response to its objective social reality, but to what Lippmann dubbed a "pseudo-environment of reports, rumors and guesses." How, he wondered, could democracy function in such an environment?
Over the coming years, as Lippmann sought to answer this question, he produced a series of books that constitute perhaps the most serious effort to think through the problems, possibilities, and limits of public opinion in modern American democracy. In particular, he developed two key insights about democratic theory that can help us today, as another generation of Americans looks on their public sphere—awash in fake news, rumor, and cynical lying—with disdain and despair.
The first was his rejection of what he dubbed the myth of the "omnicompetent citizen." Americans, Lippmann argued, cling to "the intolerable and unworkable fiction that each of us must acquire a competent opinion about all public affairs." That simply wasn't possible. American society was too complex, too vast, too differentiated. The divisions of labor were too deep, social life too confusing—a kaleidoscope of shifting experiences. And the tempo and sweep of political life, sliding from crisis to crisis, from issue to issue, made it impossible for the citizen to catch their breath. How could anyone, in the spare moments between work and leisure and family, be expected to come to a considered understanding of international trade policy one night, a labor strike the next, and a public health scandal the day after?
Donald Trump should get the same pass for lying about sex that former president Bill Clinton got and that former 2004 Democratic Party Vice Presidential nominee John Edwards got
The NY State criminal trial that is about to begin on April 15th is all about whether former President Donald Trump lied in his expense reports to cover up his payment of hush money to pornographic film star Stormy Daniels prior to the 2016 presidential election. NY argues that in doing this Trump violated NY State laws, almost all of which involve misdemeanor offenses. The prosecution implies that Trump's alleged lies and coverup are a violation of federal campaign finance laws, which makes the misdemeanors more serious and justifies the prosecution.
First, it is settled U.S. Department of Justice (DOJ) policy not to prosecute such cases, which is one of many possible reasons why the federal government has not brought any charges against Trump about the Stormy Daniels hush money matter. Another reason is that the DOJ may think Donald Trump's expense reports were truthful as Trump claims them to be. Second, when former President Bill Clinton perjured himself and engaged in obstruction of justice by denying under oath that he had had sexual relations with then-White House intern Monica Lewinsky, both in a deposition and before a federal grand jury, the judgment of the U.S. Senate was that Bill Clinton's "lies about sex under oath" did not disqualify him from holding the presidency.
430 law professors signed a letter to the Senate on November 6, 1998 writing that "making false statements about sexual improprieties" under oath before a federal grand jury "is not a sufficient constitutional basis to justify the trial and removal of the President of the United States." Harvard Law Professor Cass Sunstein wrote on October 4, 1998 in TheWashington Post that mere lies about sex under oath were not in his view disqualifying behavior in a president of the United States.
Both the law professors' letter and Professor Cass Sunstein's op-ed tried to argue that perjury about a person' private sex life fell in a different category from perjury about the execution of a President's political duties, which would be a disqualifying offense for a President to engage in. It was noted that people often lie about adulterous sex to protect their spouses and to preserve their marriages, and not to retain or to win the presidency.
Of course, this is exactly why Donald Trump allegedly paid Stormy Daniels what is alleged to be hush money because Trump's alleged affaire with Daniels coincided with his wife Melania giving birth to Trump's son Barron. Former President Bill Clinton's perjury under oath before a federal grand jury led to his acquittal by the Senate in his impeachment trial, and, after Clinton left office, the only penalty he paid for his lies under oath about sex to a federal grand jury was disbarment and the entry of a plea bargain. Donald Trump's alleged lies about sex in filing his expense accounts are minor compared to Bill Clinton's lies about sex under oath before a federal grand jury at a time when he had sworn that he would take care that the laws be faithfully executed. As many remember, Clinton's DNA was found on a white stain on Monika Lewinsky's blue dress proving that he had in fact had sexual relations with Lewinsky.
In 2004, the Democratic Party's nominee to be Vice President, John Edwards, paid a woman $1 million in hush money to cover up an alleged adulterous affair leading to the birth of a child born out of wedlock. The U.S. Justice Department prosecuted John Edwards who defended himself arguing that he was trying to protect his wife from learning about his adultery and that lies about sex and hush money to cover them up were not an illegal, unreported campaign donation. The trial resulted in a hung jury, and the U.S. Justice Department declined to re-prosecute John Edwards. The Department adopted a formal position that DOJ would not going forward prosecute as campaign finance violations the payment of hush money. Lies about sex were not fit to prosecute as campaign finance violations. Again, this explains why the federal government has declined to prosecute Donald Trump over his payments of hush money to Stormy Daniels and others.
Edwards' behavior involved much more hush money than Trump had paid, as well as the birth of an illegitimate child. If what John Edwards did was not a felony warranting jail time then what Donald Trump did in allegedly paying hush money to Stormy Daniels does not disqualify him for running for President either.
The disparate treatment of John Edwards, and Donald Trump for paying hush money and lying about having done so suggests NY State prosecutorial misconduct. Even if Trump were to be convicted in the sham proceeding set to begin on April 15th, voters should give him the same pass for lying in order to cover up adultery that was given to Bill Clinton and John Edwards.
Is the current Supreme Court an originalist court? Should it be? Professor Marc O. De Girolami has an op-ed in the New York Times arguing that the current Supreme Court has embraced traditionalism in its approach to constitutional interpretation, and that this is a good thing. It is a worthwhile read. Here is a taste:
This court is conventionally thought of as originalist. But it is often more usefully and accurately understood as what I call "traditionalist": In areas of jurisprudence as various as abortion, gun rights, free speech, religious freedom and the right to confront witnesses at trial, the court — led in this respect by Justices Samuel Alito, Clarence Thomas and Brett Kavanaugh — has indicated time and again that the meaning and law of the Constitution is often to be determined as much by enduring political and cultural practices as by the original meaning of its words.
The fact that the Supreme Court seems to be finding its way toward an open embrace of traditionalism should be broadly celebrated. To be sure, the court's traditionalism has played a role in many decisions that have been popular with political conservatives, such as the Dobbs ruling in 2022 that overturned Roe v. Wade. But it is not a crudely partisan method. Justice Sonia Sotomayor, an Obama nominee, has used it in a decision for the court — and Justice Amy Coney Barrett, a Trump nominee, has expressed some skepticism about it.
Traditionalism may not be partisan, but it is political: It reflects a belief — one with no obvious party valence — that our government should strive to understand and foster the common life of most Americans. The Supreme Court has relied on traditionalism to good effect for many decades, though the justices have seldom explicitly acknowledged this. Traditionalism should be favored by all who believe that our legal system ought to be democratically responsive, concretely minded (rather than abstractly minded) and respectful of the shared values of Americans over time and throughout the country. . . .
Tradition, in the law and elsewhere, illuminates a basic fact of human life: We admire and want to unite ourselves with ways of being and of doing that have endured for centuries before we were born and that we hope will endure long after we are gone. At its core, this is what constitutional traditionalism is about: a desire for excellence, understood as human achievement over many generations and in many areas of life, that serves the common good of our society.
The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act's force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA's success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the Act's ability to foster private land conservation is will affect the law's overall success.
This article is based upon a presentation that I made at the 2nd Annual Environment Forum: Science and Public Choice, sponsored by the Environmental Finance and Risk Management Program (EFRM) of Florida International University's Institute of Environment on March 8, 2023. The same issue of the FIU Law Review features other articles on environmental law and policy from the interdisciplinary symposium, including the transcript of remarks by Bret Stephens and articles by Matthew Burgess, Michael Buschbacher, Henrique Schneider, Nancy McLaughlin, Mario Loyola and Joanne Spalding and Andres Restrepo.
As Eugene mentioned yesterday, the Missouri Higher Education Loan Association (MOHELA), has threatened to bring a lawsuit for libel. but New York Times v. Sullivan, among other cases, say the constitution forbids libel suits brought by the government. The Washington Post ran a story about this, and asked me (and Sam Bray) for a comment in light of our writing about the constitutional status of MOHELA in the context of Biden v. Nebraska. (Amicus brief; HLR Case Comment).
I wrote back: "It is not clear whether the Supreme Court's ruling that a harm to MOHELA is necessarily a harm to Missouri also means that MOHELA is the same as the state for other legal purposes," and a paraphrase of my comment was added to the story. Since it might look like Eugene and I are in some kind of disagreement here, I thought I would explain:
My main point was that the state standing question resolved in Biden v. Nebraska seemed to be intentionally separate from many other legal questions one might ask about the state status of MOHELA.
For instance, there has been a dispute in the lower courts about whether or not MOHELA is an "arm of the state" of Missouri for purposes of state sovereign immunity -- and I think the better view is that MOHELA is not an "arm of the state." But the Supreme Court avoided saying anything about that question, even though some of the earlier briefing in the case had turned on it. Similarly, the Supreme Court avoided ever saying that MOHELA "is" the state, describing it instead as a "public corporation," "government corporation," "instrumentality of the state of Missouri," etc, whose injury was necessarily an injury to the state. So whether the New York Times v. Sullivan principle applies to such entities strikes me as a different and further question from what Biden v. Nebraska resolved.
Consider the example of a state official. A state official is a "state actor" for some purposes -- their official acts are constrained by the Constitution, and if they violate the Constitution you can sue them. But state officials, unlike governments, are allowed to bring libel lawsuits (subject to the actual malice standard). So is MOHELA more like a state official, or is it a government itself? That's an interesting question, but again, not the one fully answered by Biden v. Nebraska.
That said, in emailing with Eugene afterwards, I learned that there is a substantial body of lower court case law holding that governmental nonprofit corporations and the like are covered by the no-libel-suits-brought-by-government rule. Eugene cited:
Beedle v. Wilson, 422 F.3d 1059 (10th Cir. 2005) (applying state action analysis under sec. 1983 to decide whether a hospital was barred from suing for libel) … ACLU of Minn. v. Tarek ibn Ziyad Acad., No. CIV.09-138(DWF/JJG), 2009 WL 4823378 (D. Minn. Dec. 9, 2009) (charter school); Nampa Charter Sch., Inc. v. DeLaPaz, 140 Idaho 23 (2004) (charter school); Cap. Dist. Reg'l Off-Track Betting Corp. v. Ne. Harness Horsemen's Ass'n, 92 Misc. 2d 232 (N.Y. Sup. Ct. 1977) ("public benefit corporation organized under the provisions of the Regional Off-Track Betting Corporation Law of the State of New York"); Beedle v. Darby, 2000 OK 1 (nonprecedential) (hospital); Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39 (1981) (hospital); Atlanta Humane Soc. v. Mills, 274 Ga. App. 159 (2005) (Humane Society).
These citations persuade me that the general rule seems to be that non-human entities that are state actors seem to be covered by the anti-libel principle, and so Eugene is probably right about the bottom line.
In 2020, the U.S. Agency for Global Media (USAGM) was sued by several of its employees. USAGM oversees U.S.-funded international broadcasting outlets, including the Voice of America (VOA). The plaintiffs, five USAGM senior managers and VOA's program director, alleged that USAGM CEO Michael Pack, who was appointed by President Trump in 2020, "[had] sought to interfere in the newsrooms of the USAGM networks, in violation of their eighty-year practice … of journalistic autonomy." Plaintiffs accused Pack of "seek[ing] to quash … coverage that is insufficiently supportive of President Trump," as well as "any coverage, unless unfavorable, of President Trump's political opponents." These actions, the plaintiffs charged, ran afoul not only of statutory commands but of the First Amendment. USAGM responded that VOA and the other networks speak on behalf of the government and lack any First Amendment rights in so doing. In taking the actions that he did, Pack was simply "exercis[ing] his [own] authority to 'direct and supervise' and to 'assess the quality, effectiveness, and professional integrity of' USAGM" reporting.
The First Amendment arguments in this case, Turner v. USAGM, reflect a broader tension in the case law concerning the government's role as "knowledge producer"—that is, its role in producing or conveying information or otherwise fostering knowledge. From the plaintiffs' perspective, the government ties itself to a mast when it purports to produce journalism. That mast is comprised of the norms of professional journalism, including a strict separation between an operation's business or political commitments and its journalistic endeavors.
This argument is consistent with several strands of Supreme Court case law. For example, the Court repeatedly has held that, although government is not required to subsidize private speech or create speech forums, once it does so, it may not impose restrictions that are based on viewpoint or that are incompatible with the very nature of the speech subsidized or forum created. The defendants, on the other hand, invoked aspects of free speech doctrine that emphasize the government's broad discretion to control the speech that it produces. This includes the Garcetti rule—stemming from the 2006 Supreme Court case of Garcetti v. Ceballos—whereby government employees generally are unprotected by the First Amendment for their work product speech, meaning speech that they produce as part of their job duties. Garcetti itself arguably is in tension with the Court's acknowledgment elsewhere to the effect that "speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment."
John Doe and Robert Roe are a gay couple who have been in a "committed, but discreet," relationship for 33 years, and who were married in California in 2013. Doe is a United States citizen and California resident who lives in Riyadh, Saudi Arabia most of the year, where he works for a company as legal counsel. Roe is a Saudi Arabian citizen who, until May 2021, was living full-time in Riyadh and working as a result estate [real estate? -EV] investor. Since 1989, Doe and Roe lived together in Saudi Arabia, but they were forced to keep their relationship and sexual orientation hidden because homosexuality has been treated as a capital offense in Saudi Arabia. "Living very carefully, they successfully kept their 33-year relationship a secret from the government, strangers, employers, friends, and family, alike."
In 2021, Doe and Roe were flying on Lufthansa from Riyadh to San Francisco. For complicated reasons related to U.S. COVID-related travel rules, Doe and Roe ended up having to disclose to a senior Lufthansa employee at Riyadh airport that they were married under U.S. law, and the employee allegedly said that publicly; they also allege that the information about the marriage was conveyed to Saudi authorities. As a result,
Roe has not returned to Saudi Arabia since the May 25, 2021 flight for fear of harsh penalties faced by Saudi citizens for being gay, "with the most lenient punishment being the revocation of his passport and inability to ever leave Saudi Arabia, and escalating to potential harassment of his family, imprisonment, or the risk of being executed because of his sexual orientation and relationship with Roe." Doe has inquired of high-ranking officials at the United States consulate as to whether it might be safe for Roe to return to Saudi Arabia, and they have "unanimously concurred" that Roe's safety cannot be assured if he were to return. Roe was forced to quickly and at great expense obtain a vista that allowed him to legally remain in the United States instead of returning home to Saudi Arabia. In January 2023, Roe received a provisional green card for permanent residency in the United States, and he hopes to become a United States citizen so that he may remain indefinitely in the United States.
Roe and Doe live with the uncertainty of whether Roe will be permitted to remain in the United States or if he will be required to leave and live elsewhere. Since leaving Saudi Arabia, Roe has not seen his family, who all live in Saudi Arabia. Doe, as a U.S. citizen, has been and will be able to return for work in Saudi Arabia with less risk of severe government retribution. Nevertheless, "Doe still fears that his sexual orientation and marital status will cost him his job, result in public shaming, and potential permanent deportation from Saudi Arabia." …
The court concluded, however, that it lacked personal jurisdiction over Lufthansa; though Lufthansa does business in California, the court concluded that "plaintiffs have failed to show that their claims arise out of or relate to defendants' activities in California:
What is the story of religious pluralism in America? Over time, and not without occasionally serious conflict, the wider American society comes to accept minority religious groups it initially finds quite threatening: Quakers, Catholics, Mormons, and others. These groups insist on their legal rights and, eventually, America lives up to its commitments to religious freedom and civic equality. A more tolerant, peaceful society results, a real achievement in a world in which brutal religious persecution still exists.
That is the conventional story, and it is told very well in a new documentary, "Free Exercise: America's Story of Religious Liberty," which I review at the Law & Liberty site. But, to my mind, there is another explanation as well. Religious peace has resulted from moderation on both sides. The wider society becomes more accepting of religious difference, but minority religions themselves often transform in ways that make them more like everybody else.
Take Catholics, for example. Catholics were once deeply threatening to mainstream America, not least because the Catholic Church opposed America's liberal commitments, including religious freedom, as dangerous heresies. But the Church's position on "Americanism" changed over time, and largely as a result of American influence. As I write in my review:
The nineteenth-century Church was the Church of the Syllabus of Errors (1864), a papal document that condemned freedom of conscience and the separation of church and state as dangerous heresies. America's Protestant majority saw this document and the values it espoused as hostile to fundamental American commitments. In the 1928 campaign, The Atlantic published an open letter questioning whether a Catholic like Smith could serve as president, citing the Syllabus and other papal pronouncements on church and state.
A hundred years later, though, and largely through the efforts of American Catholics like Fr. John Courtney Murray, the Second Vatican Council adopted Dignitatis Humanae, a document that specifically endorses religious liberty as a civil right. Catholic scholars have argued that Dignitatis Humanae and the Syllabus of Errors can be interpreted consistently with one another and that, from a theological perspective, there was no change. However theologians understand the situation, though, after Dignitatis Humanae, something had indeed changed as a practical matter. A major point of tension between the Catholic Church and American culture had disappeared, largely because of American influence.
The LDS Church offers another example. Mormons were deeply threatening to 19th century America, mostly because of polygamy. But, again, that changed:
In 1890, however, the LDS Church officially ended the practice—making it possible for Utah to be admitted as a state six years later. Practically speaking, Mormonism changed in a way that made it much less threatening to the wider American public. Mormons conformed to social convention, and relations between the LDS Church and other Americans have been better ever since.
In short, in America, minority religions have tended to move to the mean over time and become, in important ways, more or less like everyone else. (There are exceptions, of course, like the neo-traditionalists in many religious communities who self-consciously set themselves apart from the wider society). What explains this dynamic? It's hard to say. Perhaps the Lockean commitments that underpin our First Amendment lead over time to religious moderation. Perhaps the explanation lies in Americans' tendency to conform to social expectations, an under-appreciated fact about us that Tocqueville noticed 200 years ago. Whatever the explanation, the pattern seems very clear. Minority religions change America, but America changes minority religions, too.
From U.S. v. Osadzinski, decided yesterday by the Seventh Circuit (Judge Michael Scudder, joined by Judges Diane Wood and Amy St. Eve):
Thomas Osadzinski appeals his conviction for providing material support to a terrorist organization. In 2019 he created a computer program that allowed ISIS (the Islamic State in Iraq and Syria) and its followers to rapidly duplicate terrorist propaganda videos online and thereby to stay a step ahead of efforts by the United States and other western governments to thwart the organization's media campaign. Osadzinski shared his computer program with people he believed were ISIS supporters, taught them how to use it, and deployed it to compile and disseminate a large trove of ISIS media.
The court held that the conviction was consistent with the First Amendment, as applied in Holder v. Humanitarian Law Project (2010):
By its terms, 18 U.S.C. § 2339B makes it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization." Congress defined "material support or resources" as "any property, tangible or intangible, or service." "Services" include any "expert advice or assistance" that is "derived from scientific, technical or other specialized knowledge." … [T]he Supreme Court in HLP explained that § 2339B did not prevent a person from freely speaking about, or even independently advocating for, a terrorist organization. Rather, the Court made clear that the material-support statute prohibited "only a narrow category of speech" that falls outside the protection of the First Amendment—speech "to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations." …
For the sake of resolving this appeal, we accept Osadzinski's contention that all of his offense conduct qualifies as "speech" within the meaning of the First Amendment. That includes several activities that have been recognized as expression, such as writing an article and instruction manual, forwarding multimedia links, and sending pro-ISIS messages over social media. It also includes Osadzinski's creation, execution, and distribution of source code, which other circuits have found to constitute "speech" under the First Amendment.
There are many parallels between this case and the one the Supreme Court decided in Biden v. Nebraska, invalidating Biden's previous large-scale loan forgiveness plan.
Yesterday, a coalition of eleven red states led by the state of Kansas filed a lawsuit challenging the legality of President Biden's new loan forgiveness plan, which would forgive at least $156 billion in federal student loan debt. I suspect I am not the only observer who had a strong sense of de ja vu, when they saw this filing. Kansas v. Biden has many obvious similarities to Biden v. Nebraska, the case in which the Supreme Court invalidated the administration's previous massive student loan forgiveness plan (which would have discharged some $430 billion in student debt). Both involve efforts to forgive large amounts of student debt by exploiting vaguely worded statutes. Both plans are vulnerable under the "major questions doctrine," which requires Congress to "speak clearly" when authorizing an executive branch agency to make "decisions of vast economic and political significance." And both cases involve similar procedural "standing" questions.
Because I believe the Supreme Court was right to rule against the administration in Biden v. Nebraska, I think courts should also rule against it here, too. There may be ways to distinguish the two cases. But, so far, it looks like it's going to be an uphill battle for the administration.
The biggest potential difference between the cases is that Biden v. Nebraska involved an effort to forgive debt under the 2003 HEROES Act, while the current plan relies on the Higher Education Act of 1965 (HEA), as amended. When the previous case was being litigated, some suggested the Administration should rely on Section 432a of the HEA instead of or in addition to the HEROES Act. Section 432a gives the Secretary of Education the power to "enforce, pay, compromise, waive, or release any right, title, claim, lien, or demand" related to federally backed student loans. I critiqued this theory here.
In the aftermath of the Supreme Court's decision last June, the Biden administration announced they were indeed going to try to put together a new loan forgiveness plan using the HEA. But instead of relying on Section 432a, the administration adopted a rule that relies on Section 455 (codified as 20 U.S.C. Section 1087e), which gives the Department of Education the power to establish "Income contingent repayment schedules" that "shall require payments that vary in relation to the appropriate portion of the annual income of the borrower (and the borrower's spouse, if applicable) as determined by the Secretary [of Education]." The administration claims this provision gives it the power to adopt repayment plans that essentially forgive at least $156 million in student debt. As the plaintiff states' complaint summarizes it, the rule "(1) defines "discretionary income" to be income above 225% of the applicable Federal poverty guideline, (2) sets the monthly payment amount at $0 if the borrower's income falls below that threshold, (3) caps the monthly payment amount at 5% of the borrower's income that goes above that threshold for undergraduate loans, and (4) cancels all loans where the original principal balance was $12,000 or less after the borrower has made 120 monthly payments or the equivalent."
The administration claims all this comes within the power to create "income contingent repayment schedules." But this power is not broad enough to permit massive loan forgiveness, as opposed to merely offering some flexibility in the timing of repayment, based on income. As the states rightly point out, the administration's theory of Section 455 would allow it to use this power to forgive virtually all federally backed student debt: "there is nothing in the Secretary's interpretation of the HEA that would prevent him from limiting debt repayment on income-driven repayment plans to 1% of income over $1,000,000 for 1 year only, with all remaining debt—typically 100%—cancelled by the federal government."
At the very least, it is far from clear that Section 455 gives the Department of Education such vast authority. And if it is not clear whether Congress has delegated such a sweeping power, then the agency's claim to authority must be rejected under the major questions doctrine, as it was in Biden v. Nebraska. In that case, the Court ruled that forgiving $430 billion in student debt qualifies as an issue of "vast" economic and political significance. The same is true of the current plan.
To be sure, $156 billion is a smaller amount than $430 billion. But as the states point out, the former figure almost certainly underestimates the true cost of the new plan, because it was calculated under the assumption that the Administration's HEROES Act plan would be upheld by the courts and implemented, thereby forgiving a large part of the debt that might otherwise be covered by the new HEA plan. Since the Administration lost Biden v. Nebraska, the HEROES Act plan was not implemented, and therefore the new HEA plan would likely cover a lot more debt than is included in the figure of $156 billion.
The boundary between major and minor issues under the major questions doctrine is admittedly a fuzzy one. But hundreds of billions of dollars in loan cancellation strikes me as major by any plausible standard. The scope of this plan is at least in the same general ballpark as that of the one struck down in Biden v. Nebraska.
A big issue in Biden v. Nebraska was whether anyone had standing to sue to challenge the plan. Most observers thought standing was the administration's best chance of winning the case, because it could be none of the plaintiffs challenging the plan had suffered the requisite "injury" required to get standing. Ultimately, the coalition of state governments challenging the plan got standing because one of them (Missouri) had a state agency (MOHELA) that services federally backed student loans, and the agency's income would be reduced if some of those loans were forgiven.
The plaintiff states in the present case have a similar standing argument. One of them (Louisiana) also has a state agency that services federal student loans and provides student loans of its own. The plaintiffs claim that it - like MOHELA - would lose income if some of those loans (or parts of them) were forgiven.
I have not studied the Louisiana agency (which though the complaint does not name it, is probably the Louisiana Office of Student Financial Assistance) in detail. Perhaps there are differences between it and MOHELA that I have overlooked (e.g. - may be they don't service as many federal loans, and instead mainly focus on providing their own loans; the latter could still be a path to standing if demand for state student loans goes down as a result of federal student loan forgiveness). But if LOSFA and MOHELA are relevantly similar, Louisiana can get standing in this case much the same way that Missouri got it in the other one.
As this case goes on, we will like learn more about LOSFA, how it works, and its connections to federal student loans. For now, I welcome correction on the subject by people who know more about Louisiana's student loan system than I do.
The plaintiff states in this case (like the ones in Biden v. Nebraska) also have several other standing theories. I think some of them deserve to prevail, as well. But all are at least somewhat more questionable than the MOHELA/LOSFA theory, an approach already validated by the Supreme Court.
While it is not directly relevant to the merits of the case, I should note that the new suit is being spearheaded by Kansas Attorney General Kris Kobach. He is a highly dubious figure that has been sanctioned by federal courts for various types of misconduct, on multiple occasions. I certainly understand if some people view any lawsuit led by Kobach with a healthy measure of suspicion. I am no fan of Kobach myself.
But bad people sometimes bring meritorious lawsuits. This appears to be just such a case.
We are awash in lies. Misinformation has always been with us, but the endemicity of social media and the depth of political polarization in the United States and elsewhere has enabled falsehoods to be amplified, monetized, microtargeted, and spread around the world at unprecedented speed and scale. The consequences for democracy, public health, and social harmony are emergent and grave.
Misinformation presents one of the most vexing challenges for content moderation on social media (and off it, such as on cable news) for myriad reasons. Because misinformation can be difficult or controversial to define, policing it risks chilling core political speech, and because misinformation often resists automated enforcement, it cannot be removed or countered nearly as quickly or as cleanly as it spreads. Government regulation of misinformation raises special concerns, both because public officials may be particularly susceptible to political bias and because even outright lies enjoy a measure of constitutional protection.
The orthodox U.S. constitutional response to harmful speech, including false speech, is counterspeech. As Justice Brandeis wrote in his canonical concurring opinion in Whitney v. California, "[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." The view that corrective speech is preferable to censorship resonates with Justice Holmes' famous intimation that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." The digital age has revealed Holmes' aphorism to be as absurd as ever, but he was prescient in saying "[t]hat at any rate is the theory of our Constitution." So it has become.
New on the Short Circuit podcast: A dive into IJ's research report Unaccountable, which examines how qualified immunity really works in the federal circuit courts of appeals. The interview with its authors includes a special look at the methodology used by the team to comb through over 7,000 opinions issued over 11 years. Read More
