The Volokh Conspiracy

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

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Columbia law Prof. Philip Hamburger has put up a detailed post responding to my earlier argument that courts should focus on coercion in Murthy v. Missouri, the case where two state governments and other plaintiffs argue that various federal agencies violated the First Amendment by pressuring social media platforms into barring various posts from their sites. I appreciate Prof. Hamburger's thoughtful post. But I remain unpersuaded.

Prof. Hamburger relies heavily on the use of "abridging" in the Free Speech Clause, in contrast to the use of "prohibiting" in the Free Exercise Clause:

The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.

The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.

Thus, Prof. Hamburger concludes that "even when the government acts through entirely voluntary cooperation, without even a hint of coercion, it can still be abridging the freedom of speech."

There may indeed be a meaningful distinction between "abridging" and "prohibiting." The former is a lower standard than the latter, suggesting that even relatively minor restrictions are unconstitutional. But it is nonetheless the case that, for there to be a violation of the Constitution, the thing the government must restrict (or "abridge") is "freedom of speech" (emphasis added). Absent some kind of compulsion, there is no loss of freedom.

Indeed, voluntarily choosing not to engage in some type of speech is itself an exercise of that freedom. Both common sense and longstanding Supreme Court precedent indicate that the right to refrain from speaking is itself a free speech right. If a private firm voluntarily chooses not to engage in speech, there is no violation of the freedom of speech, just the exercise of it. And that's true even if the decision was taken in response to non-coercive persuasion by the government.

If a government official persuades Reason to bar me from posting on their website because, he argues, my posts are unfair to the president and misrepresent the effects of his wonderful policies, there is no violation of freedom of speech. To the contrary, Reason's decision would be an exercise of that freedom.

Prof. Hamburger tries to distinguish this sort of situation from the social media case because, in the latter, the speakers' consent has not been obtained:

You might protest, as does Prof. Somin, that when the government persuades Reason not to let him post on this website, the government does not thereby violate his First Amendment rights. In his view, "that's no different" from when the government persuades the platforms to suppress Dr. Jayanta Bhattacharya's posts. Really, no different? Prof. Somin publishes here as a member of the blog, who has been personally invited to publish under its masthead. Whereas newspapers publish their choice of submitted editorials, blogs publish anything a member of the blog posts, but either way, nothing gets published or posted except what has been chosen by the newspaper or blog through its selection of an editorial or blogger….

In contrast, any individual can post on the platforms, at least until his posts are removed, and that is the individuals' speech, not the platforms' speech. Not even the platforms claim otherwise…. So when the government consensually gets a platform to remove posts, it is suppressing the speech of third parties without their consent.

Actually, it is not true that "any individual can post on the platforms, at least until his posts are removed." They can only do so if they first agree to the platforms' "terms of service," which include restrictions on the types of speech that are allowed, and also generally reserve the right to change the terms of service unilaterally. The latter point defeats Prof. Hamburger's argument that users did not consent to removal of speech that doesn't violate the terms of service. If platforms impose restrictions that somehow go beyond their terms of service, the users might have a right to sue for breach of contract. But it would still not be a violation of the First Amendment. In sum, while Facebook or Twitter/X impose fewer editorial constraints on content than the New York Times or Reason, they do still have them.

Prof. Hamburger also relies on contract law's recognition of various forms of information asymmetry and "pressure" that do not involve coercion, but might still vitiate a contract. Libertarian that I am, I decry many of these shifts in contract law. But whether defensible or not, they still don't prove there can be a violation of "freedom of speech" without coercion. Indeed, these restrictions on contract rights tend to be paternalistic in nature. They don't promote freedom, but rather restrict it in the name of promoting welfare, for fear that people might make bad choices in response to information asymmetries or social pressure.

Finally, it is ironic and internally contradictory that Prof. Hamburger has an expansive vision of what is prohibited by the First Amendment when it comes to non-coercive government pressure to bar social media posts, but a very narrow one when it comes Texas's and Florida's attempts to force social media firms to host speech they disapprove of. In this latter situation, there is blatant and obvious coercion.

My own position, by contrast, is completely consistent: government can use persuasion, but not coercion, in both situations. It cannot force social media platforms to either post material they disapprove of or to bar that which the private firms would prefer to allow. But, in both situations, it can use noncoercive persuasion. As noted in my previous post, various veiled threats can also be coercive. Identifying them may, in some cases, create evidentiary issues.

There is, perhaps, a disagreement here that goes beyond legal considerations. Prof. Hamburger is, I think, deeply worried that social media firms taking down posts will severely constrain the marketplace of ideas. I am not. The types of speech federal agencies tried to get social media firms to remove (e.g- anti-vaxxer speech, claims that the 2020 election was stolen from Trump, etc.) nonetheless remain widely available online and elsewhere. You can even find plenty of it on social media platforms! If there is a market demand for this kind of speech, media firms will have strong incentives to provide it - so long as government doesn't suppress them.

Prof. Hamburger is right that speech can be a "public good" (though it can also often be a public bad, as when misinformation leads to the adoption of harmful government policies). But voluntary decisions by social media firms are not a significant threat to that public good. Only systematic government coercion is likely to truly endanger it.

In Trump v. United States (the immunity case), the Supreme Court ordered the D.C. Circuit to "continue withholding issuance of [its] mandate" until the Supreme Court issues a judgement. At Lawfare, Jack Goldsmith (no relation to Jack Smith) and
Tom Koenig offer a wonky breakdown of the Court's order. Here, I'd like to flag one aspect of the per curiam order that bears on a topic of recent interest: unexplained stays that avoid the four-factor test from Nken v. Holder. Goldsmith and Koenig write:

We cannot find any square precedent for the Supreme Court's order to a lower court to withhold the issuance of that court's mandate. (Given the difficulty of researching obscure emergency orders, we very well may have missed a precedent.) The Court has withheld issuance of its own mandates. It has "stayed" the issuance of lower federal courts' and state courts' mandates. And it has denied requests to "stay" the issuance of a lower court's mandate. But our research has not turned up a past instance of the Supreme Court directing a lower court to "withhold issuance" of its own mandate.

The first puzzle here is whether this order differs from a stay. The Supreme Court seemed to go out of its way to indicate that it was not issuing a stay when it used the language of "withholding the mandate"; when it ruled that Trump's stay request was moot; and, perhaps, when it stated that it was not implying anything about the merits, which a stay order typically does, since at least a "fair prospect" that the Court will reverse the judgment below, and perhaps even a "likelihood of success on the merits," is needed for a stay. (Both the precise standard for a stay in the Court and whether there is a meaningful difference among the potential standards are unclear; but some merits consideration is typically involved under all the relevant standards.)

Yet the Court's order appears to have the same practical effect as a stay of the mandate: The D.C. Circuit's order cannot go into effect, pending the Supreme Court's review. As the Court explained in Nken v. Holder, an appellate court's stay of a lower court's order temporarily "hold[s]" that order "in abeyance pending review." Here the order the Supreme Court held in abeyance is the D.C. Circuit's order affirming the district court. The D.C. Circuit had already stayed that order by directing the clerk of the court to withhold its issuance temporarily. (As noted above, the D.C. Circuit treats "withhold orders" as stays.) By directing the D.C. Circuit to continue withholding its order affirming the district court, the Supreme Court achieved the same result as a stay.

The Supreme Court did not grant a stay of the D.C. Circuit's judgment. The Supreme Court did not consider the four-factor test from Nken v. Holder. The Supreme Court expressly did not opine on the merits.

It is possible that the Court in its Trump v. United States "continue withholding" directive relied—in part or in whole—on its inherent power to "hold an order in abeyance," in the words of Nken. This might explain why it did not use the language of "stay" and why it could nonetheless dismiss the request for a stay as moot. And it might also explain why the Court could indicate that it had not taken any view of the merits in issuing its order. For the Court's inherent power to hold a lower court order in abeyance in this context might not turn on the traditional stay factors, including a preliminary merits assessment (whether filtered through the "fair prospect" of reversal standard or the "likelihood of success on the merits" standard). Indeed, since the Court granted certiorari on a potentially dispositive interlocutory issue in the same order, it is natural to see its directive to the D.C. Circuit as, in the words of McKenzie, part of an inherent power needed to "render [the Court's] jurisdiction efficacious" without any need to take a view on the merits.

The Supreme Court did exactly what Justices Barrett and Kavanaugh told the Fifth Circuit not to do: issue a temporary shadow docket remedy that puts a lower court ruling on hold without considering whether the suit is likely to succeed on the merits.

The message is loud and clear: unexplained stays for me, but not for thee.

If you read through the rest of Goldsmith and Koenig's post, I think you'll come to the conclusion that--at best--the Court was relying on some sort of "inherent" authority to order the withholding of the mandate without actually issuing a stay. The authors write that such an argument "appears to be a novel basis for a directive of this sort and might imply a much broader power to stop lower court proceedings than the Court has until now recognized." We are in very nebulous grounds here--perhaps yet another facet of the shadow docket that warrants a New York Times best-selling book.

The Supreme Court should get its own emergency docket in order before lecturing the lower courts how to deal with theirs.

This morning the Supreme Court denied certiorari in Murphy Co. v. Biden, a challenge to President Obama's invocation of the Antiquities Act to expand a national monument designation so as to place additional federal timber lands in Oregon off limits to timber development.

Here was the question presented portion of the petition filed on behalf of the Murphy Company:

The Antiquities Act of 1906 authorizes the President, "in [his] discretion," to declare that "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" found on federal land are "national monuments" and to "reserve parcels of land as a part of the national monuments" so long as those parcels are "confined to the smallest area compatible with the proper care and management of the objects to be protected." 54 U.S.C. 320301. Three decades after that Act's passage, in the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act), Congress reserved certain federal lands in Oregon for "permanent forest production," mandating that "the timber thereon shall be sold, cut, and removed in conformity with the princip[le] of sustained yield" timber production. 43 U.S.C. 2601. In 2017, President Obama invoked the Antiquities Act to add O&C Act timberlands to an existing Oregon national monument established to protect biological diversity, see Proclamation 9564, 82 Fed. Reg. 6,145 (Jan. 12, 2017)—despite the fact that lands that are part of that monument may not be used in "provision of a sustained yield of timber," Proclamation 7318, 65 Fed. Reg. 37,249, 37,250 (June 9, 2000).

The question presented is whether the Antiquities Act authorizes the President to declare federal lands part of a national monument where a separate federal statute reserves those specific federal lands for a specific purpose that is incompatible with national-monument status.

Although the case received a decent amount of interest from amici (five in support of certiorari, and one joining the federal government in opposition), it appears that four justices were not interested in hearing the case.

Justice Kavanaugh expressed an interest in the case, however. Today's orders list noted that both Justice Kavanaugh and Justice Gorsuch (the one justice to have served in a western state) would have voted to grant certiorari. As I have noted several times before, Justice Kavanaugh quite regularly notes his willingness to grant certiorari when his colleagues are not so convinced.

While the Court showed no interest in examining the Antiquities Act today, I suspect they may wish to consider the scope of executive branch authority under this statute eventually, particularly since recent administrations have been reasonably aggressive invoking it.

Philip Hamburger, a professor at Columbia, is the CEO of the New Civil Liberties Alliance, which represents most of the individual plaintiffs in Murthy v. Missouri.

Hamburger wrote the following post in response to a post at Volokh by Ilya Somin:

Is coercion the First Amendment's measure of the freedom of speech? In commenting on Murthy v. Missouri, Prof. Ilya Somin takes the view that "coercion is the appropriate standard." To this he merely adds that "veiled, but credible threats of retaliation by government officials qualify as such coercion."

So far does he take this emphasis on coercion that, from his perspective, there is no First Amendment violation even when the government uses "significant encouragement" to get the private party to concede "active control" over its speech decisions. In the absence of coercion (including credible threats of retaliation) he apparently sees no limit on the power government can exercise over speech if it gets consent.

Abridging vs. Prohibiting

The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.

The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.

It is therefore unconvincing to suggest that coercion is the measure of freedom of speech. That contradicts the plain meaning of the First Amendment when it contrasts abridging and prohibiting.

Where did Prof. Somin go wrong? He gets to his coercion standard from the word "freedom," arguing that if a private party "cut[s] back on speech voluntarily, the freedom of speech has not been abridged." His theory seems to be that you have not had your freedom abridged if you give consent, and you are acting consensually unless you are coerced. Thus, although the First Amendment's very words make clear that coercion is not the standard for freedom of speech, he reintroduces a coercion standard on the theory that it is the opposite of freedom and consent.

But does it make sense to introduce a coercion standard into a right when the Constitution carefully speaks of it in terms of abridging and contrasts that to prohibiting? Such reasoning defeats the Constitution's words and meaning.

Abridging Was Part of the Traditional Understanding of the Freedom of Speech and Was a Deliberate Choice

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

Today, Lawfare published my article on why Texas is wrong to equate illegal migration and cross-border drug smuggling with "invasion" in two important cases currently being litigated before the federal courts. Some of the points made in the article are developed in greater detail in an amicus brief I recently filed in United States v. Abbott, on behalf of the Cato Institute and myself.

Here's an excerpt from the article:

In two important cases currently before the U.S. Court of Appeals for the Fifth Circuit, the state of Texas has advanced the argument that illegal migration and drug smuggling qualify as an "invasion" authorizing the state to "engage in war" in response, under Article I of the Constitution. So far, federal courts have uniformly rejected such claims. But if they were to accept them, drastic consequences would follow. Border-state governments would be empowered to attack neighboring countries, even without congressional authorization. And the federal government would have the power to suspend the writ of habeas corpus—thereby detaining people without due process—almost anytime it wants. In addition to these practical considerations, Texas's "invasion" argument is at odds with the text and original meaning of the Constitution.

In United States v. Abbott the federal government is suing Texas for installing floating buoy barriers in the Rio Grande to block migration and drug smuggling, thereby creating safety hazards and possibly impeding navigation…. The Biden administration claims this violates the Rivers and Harbors Act of 1899, which bars "[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." In United States v. Texas, the state is defending the legality of S.B. 4, a new state law that criminalizes unauthorized migration, expands state law enforcement officials' powers to detain undocumented migrants, and gives Texas state courts the authority to order removal of migrants convicted under the law. The federal government claims S.B. 4 is preempted by federal law and that it infringes on federal authority over immigration.

In both cases, Texas argues the federal government's interpretation of the relevant statutes is wrong. But, more importantly, the state also contends that the Invasion Clause of Article I of the Constitution gives it the power to install buoys in the river border it shares with Mexico and to enforce S.B. 4 even if federal statutes forbid such actions. Article I, Section 10, Clause 3, of the Constitution states that "[n]o state shall, without the Consent of Congress, … engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and drug smuggling qualify as "invasion" and that, therefore, the Constitution gives the state the power to take military action in response in defiance of federal statutes, and even in the absence of congressional authorization for war….

The constitutional text undermines the idea that "invasion" includes illegal migration and smuggling. The Invasion Clause relied on by Texas allows states to "engage in war" in response. That suggests an "invasion" must be the kind of organized assault that would normally justify full-scale war in response, including sending troops to attack and occupy the country from which the invasion originated….

The Guarantee Clause of Article IV of the Constitution states that the federal government must protect the states "against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." Here, invasion is paired with "domestic Violence"—which in 18th century usage refers to uprisings against the state government, not the modern use of the term to denote violence in family and intimate relationships. Under the long-standing doctrine of noscitur a sociis, "a word may be known by the company it keeps." Here, it makes little sense to assume that "invasion" includes nonviolent actions, when it is coupled with "domestic Violence."

The original meaning reinforces the text….

In his Report of 1800, James Madison,one of the leading framers of the Constitution, responded to claims that the Guarantee Clause authorized the notorious Alien and Sedition Acts of 1798 by emphasizing that "[i]nvasion is an operation of war,"and thus the Clause does not authorize restrictions on immigration. The same logic applies to the use of "invasion" in Article I.

Tablet Magazine's profile of Seth Barrett Tillman provided a peek inside our working relationship. Due to the six-hour time difference between Houston and Dublin, we often have to chat at unusual times. Our sweet spot is around midnight Texas time, before I go to sleep, and early morning Ireland time, when Seth wakes up. During that window, there are few work or personal interruptions, and we can chat--as we often do--for lengthy periods about arcane legal questions that suddenly become timely.

Another timing quirk of our collaboration is the Sabbath. Seth and I are out of contact every week from when Shabbat begins in Dublin (around Sundown on Friday) to when Shabbat ends in Houston (about an hour after sundown on Saturday). During the winter, Shabbat begins as early as 4:00 p.m. in Ireland, so our communications cease on Friday morning around 8:00 a.m. Central Time. And quite often, big things tend to happen in the courts on Friday afternoons. We've had many briefs due on Fridays, so we have to file a day early on Thursday. (Somewhat related, we have had many briefs due on Jewish holidays; we also had to file early). Most recently, the Denver trial court ruled that President Trump was not an "Officer of the United States" on Friday after 5 p.m. local time. Seth remained unaware of that news till Saturday evening his time. Thankfully, I was in California that day, and was able to digest the opinion, and quickly blog about it, before I too had to sign off.

Tablet reported, "Blackman doesn't check or send email on Shabbat, meaning there is a 30-hour period each week when the two cannot be in communication." This is a new practice for me, and I wanted to write about it here.

This past Yom Kippur, in September, I made a promise to myself stop using the Internet on Shabbat. In recent years, I had stopped using my phone on Rosh Hashanah and Yom Kippur, and so decided to expand the practice. In candor, I still do all sorts of otherwise prohibited activity. I'll drive, write, and use my computer without WiFi. I also leave my phone on, but only with voice calls and text messages--no data. Still, this is a massive shift in my approach to the world. For approximately twenty-five hours every week, I am off the grid. I do not check emails. I do not read news. I do not go online. I do not check social media. Nothing.

From a religious perspective, I am trying to become more observant, and am proud that I have stuck with it this long. But from a social perspective, this is one of the best self-improvements I've made in some time. Rabbi Meir Soloveichik analogized Shabbat to unplugging from The Matrix. He wrote, "You can find hints of an unplugged 'Zion' in the Sabbath tables of observant Jews, where electronic devices are forbidden."

For a full day, I can completely disconnect from the world around me. No one can bother me. No one can disturb my peace. No one can impose some new deadline on me. No one can call me an Illuminati Priest. The only people I interact with are those I choose to be with. My phone stays in my pocket for emergencies, and seldom comes out. I will use my computer to read documents I've downloaded in advance, or prepare for class, but I do not acquire any new information from the internet. When Saturday evening arrives, I feel refreshed in ways I did not anticipate. Now, once the sabbath ends, I have to go through my emails and missed stories. That process takes about two hours. But I would much rather have that compressed two-hour window late Saturday night, in order to have the prior 25-hours free.

Last month, I wrote about a Fourth Circuit decision in Doe v. Sidar, which discusses one-sided pseudonymity. Last week, Google received two requests that it remove that post from its indexes—and thus vanish it from search results—on the theory that the post violated the copyright in a Tumblr post, https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual:

Re: Unknown
NOTICE TYPE: DMCA

Copyright claim 1

KIND OF WORK: Unspecified

DESCRIPTION The decision allows such pseudonymity when the defendant has already been found (by default judgment) to have committed the assault, but Judge Wilkinson's concurrence argues that, absent this unusual factor, one-sided pseudonymity should be frowned on.

ORIGINAL URLS: https://www.tumblr.com/case49news/745091056157196289/fourth-circuit-on-one-sided-pseudonymity-in-sexual

ALLEGEDLY INFRINGING URLS: https://reason.com/volokh/2024/02/21/fourth-circuit-on-one-sided-pseudonymity-in-sexual-assault-cases/

But it is that tumblr post that copied mine, not vice versa; though the post appears to be backdated to the day before I posted mine, whoever sets up a site is able to do that sort of thing. Indeed, the post is the only one on that particular tumblr blog, which I expect was created precisely to make the deindexing request. And if you want still more evidence, note that the post (on the tumblr blog as well as on my blog) talks about "my amicus brief on my own behalf in this case"; you can check the court records to see that this was my brief, not some anonymous tumblr blogger's brief.

This is a known sort of deindexing scam, which I discussed at pp. 300-01 of my Shenanigans (Internet Takedown Edition) piece, and which has been known as far back as 2016, see this Tim Cushing (TechDirt) piece, and likely even earlier. Fortunately, it appears that Google has not acted on this request, and I expect that it will not.

I unfortunately can't tell who is behind this; the deindexing requests have submitters' names attached, but those could be just as fake as the rest of the request. But in any event, I thought I'd mention that. For those curious what someone wants to hide, I copy my original post below.

Free Speech Right of Access

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3/25/2014: Burwell v. Hobby Lobby Stores argued.

3/24/2009: Citizens United v. FEC argued for the first time.

3/23/1870: Justice Joseph Bradley takes oath.

The article is here; the Abstract:

A new generation of claims argues that addictive design by social media companies has caused a national mental health crisis, and so seeks to join nascent state legislative efforts in making addictive design by technology companies public health law's next frontier. But the threshold, global objections of leading social media platforms (including Facebook, Instagram, Snapchat, Tik Tok, and YouTube) to pioneering addictive design tort lawsuits—In re Social Media Adolescent Addiction Litigation in federal court and the Social Media Cases in California—suggest that state authority to regulate addictive design (through litigation or otherwise) will depend on the resolution of a conflict between two regulatory paradigms: the public health regulatory paradigm and the internet regulatory paradigm. The public health paradigm prizes federalism, with states historically playing a lead role in safeguarding the public's health through law—including against unwitting exposure to addictive products. Under this paradigm states would be permitted to develop and implement legal responses to an emerging public health threat through their courts and legislatures, as they have done with alcohol, gambling, opioids, and tobacco. The internet paradigm, on the other hand, usually insists on a "hands off" approach to regulation online, with broad federal preemption under section 230 of the Communications Decency Act and often-prohibitive constraints under the First Amendment.

In the pioneering cases, the platforms argue that the internet paradigm makes pending lawsuits asserting addictive design claims non-starters, regardless of their merits. On the section 230 and First Amendment legal theories they advance, states could not regulate content-related addictive design by providers of interactive computer services (including social media platforms and some online video game manufacturers), no matter the evidence and no matter how intentional, effective, or harmful to kids or adults. Not surprisingly, the plaintiffs offer alternative views that would permit broad state regulation of addictive design.

This Article argues that, even if courts are unpersuaded by the broadest arguments in favor of a public health approach to regulation of addictive design, they should nonetheless reject the platforms' efforts to make addictive design a public-health-law-free zone. The public health and internet paradigms can be reconciled as a policy matter because addictive design threatens both public health and innovation online. The public health and internet paradigms can also be reconciled as a legal matter because even strong theories of section 230 and the First Amendment, properly understood, leave states a safe harbor in which to regulate much addictive design. Addictive design claims allege platforms engage in what psychologists call "operant conditioning" by using content-neutral intermittent reinforcement and variable reward techniques associated with slot machines to foster compulsion in users. These techniques need not entail content moderation or "editorial expression"; indeed, such techniques are ordinarily hidden from users, who may never realize they have been conditioned by a provider. State regulation of such content-neutral platform activity is not insulated from state public health regulation even under broad theories of the reach of section 230 and the First Amendment. To make maximal use of this safe harbor, public health researchers studying the harms of addictive design, legislators devising tailored regulatory responses, and courts adjudicating novel addictive design claims should remain mindful of the value of separating content-based addictive design claims from conditioning-based claims made in advancing public health law's digital frontier.

Free Speech

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From today's decision in Jacobson v. Rubins, written by Judge Stevan Northcutt, joined by Judges Morris Silberman and Craig Villanti:

David Jacobson … and David Rubins are engaged in circuit court litigation involving a real estate transaction. During discovery, Rubins moved for a protective order to preclude a second taking of his and his wife's depositions, and Jacobson moved to compel the depositions. In the motion for protective order and at the hearing on the motions, Rubin's attorney complained—immaterially and absent pleadings or evidence—that Jacobson had been defaming the Rubinses. During the hearing, the court correctly pointed out that the assertion was irrelevant to the discovery dispute, and it declined to consider it beyond admonishing Jacobson's attorney to caution him about the potential ramifications of any such conduct.

Nevertheless, the court later issued a written order on the motions that states:

ORDERED AND ADJUDGED that Plaintiff's Amended Motion for Protective Order [Doc. #344] is DENIED to bar the depositions but Defendant shall not video or take photographs and shall cease all Defendant's extrajudicial defamatory conduct towards Plaintiff, DAVID RUBINS and his wife, BETH RUBINS. (Emphasis added.)

Free Speech Libel

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When Sylvia Gonzalez was elected to the city council in Castle Hills, Tex., she wanted to see that the city's potholes got filled. But angering the city's leadership led to a months-long investigation that ended with Sylvia arrested, allegedly for stealing a citizen petition that she herself championed. After the charges against her were dropped, Sylvia sued city officials for retaliating against her for her exercise of First Amendment rights, and this week IJ Attorney Anya Bidwell argued her case before the U.S. Supreme Court. Learn more here, and listen to the argument audio here. Read More

What a real invasion looks like. Russian armored vehicle in Ukraine. March 2022. (NA)

Today, the Cato Institute and I filed an amicus brief in United States v. Abbott, a case before the en banc US Court of Appeals for the Fifth Circuit. Our brief explains why the state of Texas is wrong to equate illegal migration and cross-border drug smuggling with "invasion." Here is the summary of the brief, posted on the Cato website:

In this case, the United States contends that Texas illegally placed buoys in the Rio Grande River, in violation of the Rivers and Harbors Act of 1899, which prohibits the "creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States." In addition to disputing the Biden Administration's interpretation of the statute, Texas also contends it has the power to place the buoys there under the Invasion Clause of Article I of the Constitution, which provides, "[n]o State shall, without the Consent of Congress, … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas claims illegal migration and cross‐border drug smuggling qualify as "invasion," thereby authorizing it to install the buoys even if doing so would otherwise be barred by a federal law.

In their amicus brief, the Cato Institute and Professor Ilya Somin take no position on the statutory issues, but urge the U.S. Court of Appeals for the Fifth Circuit to reject Texas's dangerous Invasion Clause argument. It is at odds with the text and original meaning of the Invasion Clause and would have extraordinarily dangerous implications if accepted by federal courts.

Part I of the brief explains why Texas's interpretation of the Invasion Clause is manifestly wrong under the text and original meaning of the Clause. As James Madison emphasized in his Report of 1800, "Invasion is an operation of war." The term does not include illegal migration or drug smuggling.

Part II outlines the dire implications of Texas' arguments. State governments would have the power to wage war in response to undocumented migration and smuggling, even if such warfare were not authorized by Congress. This would be a major undermining of Congress' sole power to declare war and threatens to involve the United States in warfare at the behest of a single state government. The state's position would also effectively give the federal government the power to suspend the writ of habeas corpus at any time, since the Constitution gives the federal government the authority to do so "when in Cases of Rebellion or Invasion the public Safety may require it." Since some significant amounts of illegal migration and cross‐border smuggling occur at virtually all times, this would give the federal government the power to suspend the writ whenever it wants to. When the writ of habeas corpus is suspended, the government can arrest and detain people without trial, and without filing charges. That power would apply to American citizens and permanent residents, not just migrants who have recently crossed the border.

Finally, Part III outlines how three circuit court decisions have ruled that "invasion" does not include illegal migration and is limited to military attack. If the Fifth Circuit rules the other way, it would create a circuit split, a result disfavored by Fifth Circuit precedent.

This week, the Office of the Solicitor General filed a petition for certiorari in FDA v. Wages & White Lion Investments LLC, asking the Supreme Court to review the U.S. Court of Appeals for the Fifth Circuit's en banc decision concluding that the FDA's denial of some vaping product pre-market tobacco applications (PMTAs) was arbitrary and capricious. According to the SG, Supreme Court review of the Fifth Circuit's decision is warranted because the court relied upon "legal theories that have been rejected by other courts of appeals that have reviewed materially similar FDA denial orders."

At one level, the federal government's decision to seek Supreme Court review is what one might expect. There is a circuit split on whether the FDA acted in an arbitrary and capricious fashion when it refused to consider certain materials submitted with PMTAs and departed from previous guidance it had given the industry. Most circuits to hear such claims turned them away. The Fifth Circuit (along with the Eleventh Circuit) did not. Certiorari would thus be warranted to resolve the circuit split and remove any cloud over the FDA's continuing ability to review (and deny) PMTAs for vaping products. Without Supreme Court review, vaping product manufacturers would have every incentive to seek review of any PMTA denials in the Fifth and Eleventh Circuits, and this could undermine the FDA's regulatory authority.

At another level, I suspect there was some discussion within the Departments of Justice and Health & Human Services as to whether this case provides the best vehicle for Supreme Court review of the FDA's regulation of vaping products. The vaping companies in this case may seem like appealing targets, but the record here includes multiple opinions excoriating the FDA's failure to comply with administrative law norms. For this reason, one might have thought the FDA would have preferred to see the Supreme Court accept certiorari in a case in which the FDA prevailed below, and without a dissenting opinion.

Up until this point, it has been my impression that the FDA has been somewhat strategic in deciding which cases to litigate and where. In particular, the agency has been more than happy to defend PMTA denials against relatively small (often regional) vaping product manufacturers, while it has strategically avoided going to court against larger players, particularly those with top-notch DC appellate representation. Thus the FDA voluntarily agreed to reconsider its decision to reject PMTAs from Turning Point and Juul, but went to court against smaller fluid manufacturers of startups. The FDA, thus far, has also been more willing to approve tobacco-flavored vaping products produced by larger companies (often companies with a long history in the tobacco industry) while rejecting PMTAs from just about everyone else. To date, the agency has yet to approve a vaping product with any flavor profile other than tobacco.

Triton Distribution (the name of the vaping company owned by W&WL) is a mid-sized vaping fluid manufacturer, but the case is sure to attract attention from other companies fighting to keep their products on the market. Some of the larger players (including companies that also make cigarettes) may be happy to sit on the sidelines, however, or even take the FDA's side, particularly if their own products have made it through the FDA's regulatory gauntlet. Government prohibition of competing products is a sure-fire way to maintain market share.

While the Supreme Court does not grant certiorari all that often, this would seem like a strong candidate. The circuit split, and its ongoing effects on the FDA's ability to administer the PMTA approval process makes eventual Supreme Court review inevitable, and if this is the case the DOJ pushes to tee up this issue, this is likely the case the Court will accept.

From today's order by Judge John Woodcock (D. Me.) in Doe v. Smith; Sigmund D. Schutz and Alexandra A. Harriman of PretiFlaherty and I represent the media intervenors, and my student Timon Amirani worked on our motion. (Note that our motion to unseal is still pending.)

Over the plaintiff's objection, the Court grants a motion to intervene filed by a trust representing a network of independent news and media outlets to seek to unseal docket entries and potentially to depseudonymize the plaintiff depending on the contents of the filings if unsealed….

On November 14, 2023, John Doe, acting under a pseudonym, filed a civil action in this Court against Sara Smith, another pseudonym, asserting that she breached a Non-Disclosure Agreement and caused the Plaintiff damages. The Plaintiff also sought equitable relief, including an injunction against Ms. Smith. In the complaint, Mr. Doe alleges that he was the winner of the Maine State Lottery, that Ms. Smith is the mother of his minor daughter, and that Ms. Smith entered into a Non-Disclosure Agreement to "promote the safety and security of John Doe, [herself], and their daughter" and to avoid "the irreparable harm of allowing the media or the public in general to discover, inter alia, John Doe's identity, physical location, and assets." Mr. Doe filed several motions to seal documents filed in this case based on his view that the revelation of his name will cause him irreparable harm, and the Court has granted those motions….

On February 20, 2024, the Maine Trust for Local News (Maine Trust) filed a motion to intervene to file motions to unseal the documents currently docketed under seal and potentially to depseudonymize the case in the future. In its motion, Maine Trust describes itself as "a network of independent news and media outlets serving the entirety of the state of Maine," a description the Court accepts for purposes of this motion. [Note that despite the court's admirable caution in its description, there's little controversy about the Maine Trust's role; it includes, among others, the Portland Press Herald and Maine Sunday Telegram, as well as many other smaller mainstream publications. -EV]

On the same day, the Maine Trust filed a motion to unseal the documents in four docket entries. On February 21, 2024, Sara Smith quickly responded and stated that not only did she not object to Maine Trust's motion to intervene but that she had objected to various motions to seal by John Doe. On March 6, 2024, John Doe filed his opposition to Maine Trust's motion to intervene….

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Tablet, a Jewish Magazine, published a lengthy profile of my dear colleague Seth Barrett Tillman. I think the author really captured Seth's essence. Seth, more than anyone else I've ever met, challenges everything. And I don't mean that in the cliché sense of "think critically." He challenges every assumption, no matter how widely adopted, by bringing forward intellectual communities that have long since faded away. Seth has done this in more contexts than I can count. And in each context, he has clashed with those who seek to perpetuate those narratives--especially where that assumption is essential to their scholarship.

Some scholars assume that Lincoln ignored Chief Justice Taney's order in Ex Parte Merryman. And that assumption is necessary to argue in favor of a robust Article II power. Tillman disproved that assumption.
Some scholars assume that that the Order, Resolution, and Vote Clause has the anti-circumvention rationale that Madison attributed to the Presentment Clause. And that assumption is necessary to defend INS v. Chadha. Tillman disproved that assumption.
Some scholars assume that the North Carolina House of Commons expelled Jacob Henry because he was Jewish. And that assumption is necessary to make broader points about religious discrimination and pluralism. Tillman disproved that assumption.
Some scholars assume that there is no difference between an "Officer" and an "Officer of the United States," and the Framers used "Officer"-language indiscriminately. And that assumption is necessary to argue that the Presidential Succession Act is unconstitutional. Tillman disproved that assumption.
Some scholars assume that the President holds an "Office under the United States." And that assumption is necessary to argue that President Trump was violating the Foreign Emoluments Clause. Tillman disproved that assumption. As Will Baude wrote in 2017, Tillman "has a nearly comprehensive theory of how all of the different office-related phrases in the Constitution make sense together." There is no "secret code."
Some scholars assume that the President is an "Officer of the United States" for purposes of Section 3 of the Fourteenth Amendment. And that assumption is necessary to argue that President Trump is disqualified for engaging in insurrection. Tillman disproved that assumption.
I could go on.

There are two general types of responses to Tillman. The first type of response doesn't even bother to engage with Tillman, but instead calls him "crazy" or "weird" or "fringe" or "strange" or speaking a "secret code" or being an "Illuminati priest." This first approach does little to actually address Tillman's arguments, other than use hyperbole, and degrade academic discourse. The second type of response argues that Tillman is wrong, or that he missed a document, or that he failed to account for something. The Hamilton document incident from 2017, which was inexplicably resurrected of late, demonstrates how this second type of response usually shakes out. Indeed, even Justice Scalia can err. As close as I work with Seth, he still pulls things out of his memory banks that I had never heard of it.

I think the Tablet profile really illustrates what makes Tillman tick. No it is not, as some critics love to charge, some sort of political bias. It's actually quite the opposite. Tillman got into the "officer" stuff precisely because it was not political:

I have filed an amicus brief in United States v. Trump (S.D. Fla.), one of two prosecutions brought against former-President Trump by Special Counsel Jack Smith. This brief, which is on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation, contends that Special Counsel Jack Smith is not an "Officer of the United States." At most, his position is properly characterized as a mere "employee." And as a mere "employee," Smith cannot exercise the broad prosecutorial powers of a United States attorney. If our position is correct, then this prosecution can continue, if at all, only under the normal supervision of the politically accountable United States Attorney for the Southern District of Florida.

After our brief was accepted by the Court, the follow order was issued:

The amicus brief [410-1] is accepted for Court consideration. Should the Special Counsel or Defendants wish to file a separate response to the amicus brief, they may do so on or before April 4, 2024, in accordance with the Local Rules.

Here is the introduction section of the brief:

Disputes about offices and officers generally result from two types of questions. First, there are procedural questions: how is the office created, how is a person appointed to that office, and how can the officer's tenure be terminated? Second, there are substantive questions: what is the scope of the officer's powers and what level of supervision or direction is the officer subject to? United States v. Trump implicates both aspects of Special Counsel Smith's role.

Procedurally, Special Counsel Smith's position was (purportedly) created by the Attorney General to resolve a particular controversy. See 28 C.F.R. § 600.1. And this Special Counsel position will cease to exist when that investigation is completed. 28 C.F.R. § 600.8(c). This ephemeral position's duties were and are only "temporary" rather than "continuing and permanent." Lucia v. SEC, 585 U.S. 237, 245 (2018) (citing United States v. Germaine, 99 U.S. 508, 511–12 (1879)).

Furthermore, under longstanding and controlling precedent, a position that is not "continuous" is not an "office" at all. Id. At most, Smith's temporary position is properly characterized as a mere "employee." Buckley v. Valeo, 424 U.S. 1, 126 n.162 (1976). Special Counsel Smith does not hold an "office," and he is not an "Officer of the United States." To paraphrase Justice Scalia's Morrison dissent, this employee came as an employee.

Substantively, the regulations vest the Special Counsel with "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." 28 C.F.R. § 600.6. A United States attorney is considered an inferior "Officer of the United States." United States v. Hilario, 218 F.3d 19, 25 (1st Cir. 2000). However, a mere "employee" cannot exercise the broad prosecutorial powers of a United States attorney.

Both procedurally and substantively, the prosecutorial actions taken by Special Counsel Smith are ultra vires with respect to the Special Counsel Regulation. Likewise, Smith's exercising the powers of an "Officer of the United States" in his capacity as an employee of the United States violates the Supreme Court's Appointments Clause jurisprudence. While Smith's and his subordinate's past actions may be salvageable by the De Facto Officer Doctrine, his future actions can continue under the current regulations, if at all, only under the normal supervision of the politically accountable United States attorney for the Southern District of Florida.

As I've said before, there is always more "Officer stuff" to write about.

I am grateful for the assistance of my co-counsel, Michael O'Neill of the Landmark Legal Foundation and Michael A. Sasso of Sasso & Sasso, P.A. in Orlando.

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