On April 8, Judge Gary B. Bashor of the Superior Court of Washington for Cowlitz County issued a summary judgment order finding Washington's ban on magazines holding over ten rounds violative of Washington's Declaration of Rights ("The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired") and the federal Second Amendment, and enjoined enforcement thereof. The 55-page ruling in State of Washington v. Gator's Custom Guns is one of the most thorough analyses issued by a court to date of why such a ban infringes on the right to keep and bear arms.
As Gator's counsel Austin F. Hatcher informed me, Judge Bashor's order was emailed to counsel at 3:04 p.m. At 4:15 p.m., the Assistant Attorney General emailed a motion to stay the injunction to counsel and said it was simultaneously being filed with the Washington Supreme Court. The 32-page motion was obviously prepared in advance in anticipation of an adverse ruling.
Without giving Gator's an opportunity to respond, Commissioner of the Court Michael E. Johnston emailed an order to counsel at 5:04 p.m. staying the injunction. That was only 49 minutes after receiving the motion to stay.
Either the Commissioner is a world-record speed reader or (more likely) didn't bother to read the opinion or the motion, for he issued the stay in lightning speed. Maybe he needed just enough time to read which side the state was on.
A couple of people, both of whom I respect a great deal, asked me for a First Amendment analysis of the students' trying to orate about the Israel-Palestine conflict at the class party at Berkeley Dean Erwin Chemerinsky's home. Happy to oblige!
[1.] Some people have argued that the party was a public law school function, and thus not just a private event. I'm not sure that's right—but I don't think it matters.
Even if Berkeley law school put on a party for its students in a law school classroom, students still couldn't try to hijack that for their own political orations. Rather, much government property is a "nonpublic forum"—a place where some members of the public are invited, but which is "'… not by tradition or designation a forum for public communication'" (Minnesota Voters Alliance v. Mansky (2018), quoting a leading 1983 case).
In a nonpublic forum, the government acting as proprietor may impose restrictions so long as they are "reasonable and viewpoint-neutral." (The restrictions need not be content-neutral, by the way, so long as they are viewpoint-neutral; and I expect that Dean Chemerinsky wouldn't have tolerated this sort of political speechmaking at their dinner by anyone.)
This is because the government has the "power to preserve the property under its control for the use to which it is lawfully dedicated." If the place is a room opened up to students for listening to a lecture, or if it's open for dinner or lunch or a party, people have no First Amendment right to bring microphones and take the event over for their own political diatribes.
From last week's Mississippi Supreme Court decision in State v. Aldrich (opinion by Justice David Ishee):
This case is a dispute over roughly one acre of Mississippi coastal land. In short, John Aldrich and the State disagree over whether the subject property is Aldrich's or State-owned tideland…. [T]he primary source of conflict is the map the secretary of state published in 1994 that demarcated the boundaries between private property and Public Trust Tidelands.
Via the map, the secretary designated the subject property as State-owned tideland. Aldrich disagreed with the designation however, leading him to challenge the relevant boundary in Harrison County Chancery Court in 1998. The State then filed a counterclaim, alleging it held fee simple title to the property.
Following more than two decades of inactivity and extended bursts of litigation to be detailed below, the chancellor eventually found in Aldrich's favor in 2022, vesting title in him and adjusting the tideland boundary. Throughout the proceedings, the chancellor made five consequential findings, all of which the State labels as error on appeal. Four of them present issues that can be routinely resolved. The outlier, however, poses a unique issue.
Specifically, the chancellor found that a 1784 Spanish land grant, which is the root of Aldrich's deraignment of title, negated the State's claim to fee simple title. This finding carries considerable weight, as it calls into question which lands passed from the federal government to Mississippi upon statehood. This case therefore requires careful historical analysis that balances the interests of private landowners with those of the State. Upon review, however, we find no error and affirm the chancery court's decision….
The 1783 Treaty of Paris, the 1795 Treaty of San Lorenzo, the 1800 Treaty of St. Ildefonso, and the 1803 Treaty of Paris also come up, as does "[t]he deposition of oyster shells and dredge spoils."
There's a whiff of Auld Lang Syne about episode 500 of the Cyberlaw Podcast, since after this the podcast will be going on hiatus for some time and maybe forever. (Okay, there will be an interview with Dmitri Alperovich about his forthcoming book, but the news commentary is done for now.) Perhaps it's appropriate, then, for our two lead stories to revive a theme from the 90s – who's better, Microsoft or Linux? Sadly for both, the current debate is over who's worse, at least for cybersecurity.
Microsoft's sins against cybersecurity are laid bare in a report of the Cyber Security Review Board, Paul Rosenzweig reports. The Board digs into the compromise of a Microsoft signing key that gave China access to U.S. government email. The language of the report is sober, and all the more devastating because of its restraint. Microsoft seems to have entirely lost the security focus it so famously pivoted to twenty years ago. Getting it back will require that it renew the focus on security -- at a time when the company feels compelled to put all its effort into building AI into its offerings. The only people who come out of the report looking good are the State Department security team, whose mad cyber skillz deserve to be celebrated – not least because they've been questioned by the rest of government for decades.
With Microsoft down, you might think open source would be up. Think again, Nick Weaver tells us. The strategic vulnerability of open source, as well as its appeal, is that anybody can contribute code to a project they like. And in the case of the XZ backdoor, anybody did just that. A well-organized, well-financed, and knowledgeable group of hackers cajoled and bullied their way into a contributing role on an open source project that enabled various compression algorithms. Once in, they contributed a backdoored feature that used public key encryption to ensure access for the authors of the feature. It was weeks from being in every Linux distro when a Microsoft employee discovered the implant. But the people who almost pulled this off were well-practiced and well-resourced. They've likely done this before, and will likely do it again, making them and others like them open source's long-term strategic vulnerability.
It wouldn't be the Cyberlaw Podcast without at least one Baker rant about political correctness. The much-touted bipartisan privacy bill threatening to sweep to enactment in this Congress turns out to be a disaster for anyone who opposes identity politics. To get liberals on board with a modest amount of privacy preemption, I charge, the bill would effectively overturn the Supreme Court's Harvard admissions decision and impose race, gender, and other quotas on a host of other activities that have avoided them so far. Adam Hickey and I debate the language of the bill. Why, you might ask, would the Republicans who control the House go along with this bill? I offer two reasons: first, business lobbyists want both preemption and a way to avoid lawsuits over discrimination, even if it means relying on quotas; second, maybe former Wyoming Senator Alan Simpson (R) was right, and the Republican Party really is the Stupid Party.
Nick and I turn to a difficult AI story, about how Israel is using algorithms to identify and kill even low-level Hamas operatives in their homes. Far more than killer robots, this use of AI in war is likely to sweep the world. Nick is critical of Israel's approach; I am less so. But there's no doubt that the story forces a sober assessment of just how personal and how ugly war will soon be.
Paul takes the next story, in which Microsoft serves up leftover "AI gonna steal yer election" tales that are not much different than all the others we've heard since 2016. The bottom line: China is using AI to advance its interests in American social media and to probe U.S. weaknesses, but so far the effort doesn't seem to be having much effect.
Nick answers the question, "Will AI companies run out of training data?"He thinks they already have. He invokes the Hapsburgs to explain what's going wrong. We also touch on the likelihood that demand for training data will lead to copyright liability, or that hallucinations will lead to defamation liability. Color me skeptical about both legal risks.
Paul comments on two U.S. quasi-agreements, with the UK and the EU, on AI cooperation.
Adam breaks down the FCC's burst of initiatives, which are a belated celebration of the long-awaited arrival of a Democratic majority on the Commission -- for the first time since President Biden's inauguration. The commission is now ready to move out on net neutrality, on regulating cars as oddly shaped phones with benefits, and on SS7 security.
In Cyberlaw Podcast alumni news, I note that Paul Rosenzweig has been appointed an advocate at the Data Protection Review Court, where he'll be expected to channel Max Schrems.
And Paul closes with a tribute to what has made the last 500 episodes so much fun for me, our guests, and our audience. Thanks to you all for the gift of your time and your tolerance!
You can subscribe to The Cyberlaw Podcast using iTunes, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
David Lat's latest item in his Original Jurisdiction newsletter; I thought it was very well done, as usual. The opening paragraphs:
Last week, when I went down to speak at UVA Law, I arrived in time to attend a speech about textualism by Justice Jay Mitchell of the Alabama Supreme Court. I got to know Justice Mitchell last fall, when we participated in a debate about whether the U.S. Supreme Court should adopt an ethics code—I argued in favor, he argued against—and even though we disagreed, I appreciated his thoughtful perspective. So I was eager to attend his UVA talk.
But Justice Mitchell is now a controversial figure, ever since he wrote the Alabama Supreme Court's opinion in LePage v. Center for Reproductive Medicine, P.C.—the big IVF case, in which the court held that the destruction of frozen embryos can give rise to a wrongful-death cause of action. Some UVA students decided to protest him.
As I approached the room where he would be speaking, I saw several protesters standing outside and holding signs. I wondered if they would yell at me or other people going into the talk, à la the Stanford law students who shouted "shame, shame" at attendees of Judge Kyle Duncan's March 2023 talk—and who screamed at Judge Duncan things like, "We hope your daughters get raped!"
But these were the most polite protesters I've ever seen.
Over one hundred years ago, in Schenck v. United States, Justice Oliver Wendell Holmes created a meme.
Holmes wanted to illustrate why freedom of speech was not—and could never be—absolute. "The most stringent protection of free speech," Holmes wrote, "would not protect a man in falsely shouting fire in a theatre and causing a panic." This was because, Holmes explained, "[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." A false cry of fire in a theater, he implied, surely posed this kind of clear and present danger.
It might have surprised Holmes to know that more than a century later, his claim about the constitutionality of false cries of fire in theaters has become one of the most famous hypotheticals in American constitutional law. And it has acquired a remarkable significance in debates about speech regulation. On a near-daily basis, the fire meme is invoked to support restricting a wide variety of speech, from health misinformation, to former presidents' social media posts, to Tucker Carlson's television show.
In response to these near-constant invocations of the hypothetical, many have suggested that the meme should be struck from our lexicon in conversations about free speech. These arguments typically come in three forms.
What a day! After two solid weeks of typical Vermont early spring weather - rain and snow and heavy cloud cover - Monday dawned bright and beautiful: blue skies, no humidity, and not a cloud in the sky. Along with a couple of old friends, we headed north from our house in southern Vermont in the early morning. We had originally planned to meet other friends in Burlington, but the weather reports were talking about clouds rolling in from the west, so we decided to find a spot up in Vermont's "Northeast Kingdom," near St. Johnsbury. We ended up in a great spot for viewing - a little local bar in the tiny town of East Burke, with a big grassy picnic area behind it with a great view, and maybe 40 or 50 so other folks, including lots of kids, hanging out and waiting for the Big Event.
The first hour leading up to totality was fabulous. With the glasses on, watching the moon - which was itself completely invisible - take a little chunk out of the sun, and then a bigger chunk, then a bigger chunk, … A gorgeous sight - the deep black of the moon's shadow against the intense gold of the sun, and the sharpness of the line between them, like it had been cut out with an Exacto knife. It occurred to me that this was the first time I had ever seen a crescent sun. And when your neck got tired and you took off the glasses and looked around, the light was getting all weird and soft, and it was getting ominously colder and colder. It was like being outside during a sunset, but all in much speeded-up time - and with the sun, oddly, still high in the sky.
It was breath-taking, sort of in the way that your first view of the Grand Canyon, or Niagara Falls, is breath-taking. But then the last sliver of the sun gets smaller and smaller and finally disappears, and everyone whips off their glasses to look, and people start yelling and laughing hysterically and jumping up and down and hugging each other … Like shipwrecked sailors who finally spy rescue ships heading their way, to borrow a phrase from John Banville. Me included. It is, to begin with, stunningly beautiful. Suddenly, it is night. In the sky is this big black disk - blacker than any black you'll ever see - lit from behind and shooting out rays of white light across the suddenly-deep-black sky. And with one little spot of pure intense gold - the "ring" of the diamond ring - hanging off of its bottom edge. No description (or photo) can do it justice.
But it's not just that the sight is incredibly beautiful - it is that you literally cannot believe what you're seeing. We've all got a zillion images stored in our brains of what "the sky" looks like. But this!?
It doesn't compute; how can the sky look like this? When it has never looked anything like it before? It's as though all of the dogs in the neighborhood, at some pre-defined instant, sprouted wings and began to fly. This can't really be happening. But there it is - right before your eyes.
And then, having started at around high noon, and having passed through sunset and then darkest night, suddenly it's dawn, as the sun starts to come out from the shadow - a kind of reverse dawn, not with the sun "rising in the east" but emerging out of the west. And then it's around high noon again. All in the space of two hours. It's as though the whole astronomical clock on which we base everything we do had gone completely haywire.
Having been desperate to see an eclipse for the last 50 years, I was a little afraid beforehand that my expectations were so high that it would all turn out to be a bit of a bummer. Uh-uh.
The Tour de France has a grading system for the difficulty level for climbing - 1 to 5, I think, with 5 being the highest. But then there are some climbs that are so steep that they get a special category - "hors categorie," in "the category that is beyond category." Unclassifiably steep, so steep it would be insulting to call it even a "5." That's what totality was like - hors categorie.
I will spare you a description of the drive back home. Turns out northeastern Vermont cannot handle 100,000 cars, all going south at the same time.
It does make you think: What the cavemen and cavewomen thought was going on if they ever happened to witness this display God only knows, but it must've scared the bejeesus out of them. It practically scared the bejeesus out of me, to be honest, and I knew what was happening (and, unlike the cavepeople, I knew it would be over soon).
And when you think that there's only one place in the universe (as far as we know) that has intelligent life on it, and that ours is the only planet in the universe (as far as we know) whose satellite moon, when viewed from the planet's surface, is precisely the right size and distance away from the planet to fit exactly over the (much larger and much more distant) star around which that planet is revolving … Like I said, it makes you think.
Personal jurisdiction aficionados have been buzzing about the Court's decision last summer in Mallory v. Norfolk Southern Railway Co. and what it might mean for jurisdiction over interstate corporations. In particular, Justice Alito's concurrence reintroduced some dormant-commerce questions that used to play a major role but have largely been forgotten since International Shoe.
I've got a new paper, forthcoming in The Supreme Court Review, which takes on the question. As it turns out, modern dormant-commerce doctrine puts some limits on state consent-by-registration statutes—but states can still do some important things that they couldn't do through minimum contacts alone. And as an original matter, assuming a "dormant" commerce clause exists, it likely doesn't say much about corporate recognition or internal affairs—or place many limits on a state's personal jurisdiction.
From the abstract:
Since 1945, the Court has sought for substantive rules of personal jurisdiction in the depths of Fourteenth Amendment due process. Mallory v. Norfolk Southern Railway Co. returns "dormant commerce" doctrine to the field—a place it occupied for several decades in the twentieth century, before being swept away and largely forgotten after International Shoe.
This Article assesses the impact of dormant commerce's return. Under today's doctrines, plaintiffs like Robert Mallory may face an uphill battle; yet they also have some good arguments on their side. On original grounds, moreover, it's far from clear that there is any dormant commerce doctrine, or that such a doctrine would have anything to say about the existence, powers, or internal affairs of state-created corporations in other states. At the Founding, states didn't have to recognize the privileges of foreign corporations at all, so they could make consent to local jurisdiction a condition of those privileges' local exercise.
By destroying the foundations of this earlier doctrine, the Supreme Court's turn-of-the-century dormant commerce cases eventually led to the recentering of personal jurisdiction on due process instead—and on complex and contradictory jurisdictional rules, less concerned with enforcing the actual Fourteenth Amendment than with preserving the legacy of International Shoe. If our doctrines of personal jurisdiction aren't going to make sense anyway, they may as well actually be law. Mallory doesn't quite get us there, but at least it points us in the right direction.
And from the introduction:
The intuition here is a simple one: "states don't have to have corporate law." If six Pennsylvanians at the Founding wanted to incorporate their backyard wheatfields, buying supplies and holding property under a common name, they'd have needed a Pennsylvania charter to do it; a permission slip from Virginia's legislature wouldn't have helped. For Pennsylvania to refuse to recognize Virginia's corporate charter wouldn't be to prefer its own goods and services over Virginia's (a potential dormant-commerce problem) or its own citizens over Virginia's (a potential Privileges-and-Immunities problem); at most, it'd prefer its own law over Virginia's for governing affairs inside its borders, something Pennsylvania has every right to do (and not a Full Faith and Credit problem). Nor would it treat these six citizens unfairly or arbitrarily (an equal protection problem); they could ask Pennsylvania to incorporate them on the same terms that anyone else can.
. . . [O]ver the last century or so, the Court developed a set of dormant-commerce limits on state corporate law—which by the early 1900s treated recognition of out-of-state corporations as something of a constitutional requirement, and which eventually extended to all aspects of a foreign corporation's internal affairs. As a matter of economic policy, maybe this wasn't so bad; if the Court's job in dormant-commerce cases is to act as a "junior-varsity Congress," maybe it succeeded in doing what Congress would have wanted done.
But policy decisions like these still need a basis in law—and not just in mistakes preserved as precedents, especially ones that depart demonstrably from the original rules. . . .
If the jurisdictional rules the twentieth-century Court came up with were uniquely sensible as a matter of policy, maybe their shaky origins wouldn't matter so much. But what we've been given is a system in which jurisdiction over a distant drug company turns on whether (unbeknownst to the defendant) a tourist ingested the defective pill in State A or State B; in which the forum for a local car accident turns on whether (unbeknownst to the plaintiff) the Ford Explorer XLT is marketed there or only the base model; and in which all these rules are ostensibly derived from the Fourteenth Amendment. The law may not have to make sense, but if our personal jurisdiction doctrines aren't going to make sense anyway, they may as well actually be law. Mallory doesn't quite get us there, but at least it points us in the right direction.
Eligibility: Lawyers at private law firms with 1-2 years of litigation experience OR fresh from one or more judicial clerkships. Someone between judicial clerkships would also be eligible.
Bar: Must have passed a bar exam that makes you eligible for admission to the DC Bar.
Fellowship Awarded by May 1: Decisions may be made on a rolling basis.
Work Location: NCLA's Washington, DC office with travel as needed for litigation. NCLA's office location will move to Virginia before the end of the Fellowship.
Litigation Experience: Fellows will start as 'second chair' on three cases. They will be expected to co-lead one case and initiate one other case throughout the one-year term of the CLiF.
Court Appearances: Fellows will make court appearances.
Fellowship Duration: 12 months, non-renewable.
Case Continuation: Fellows may 'keep' a case and work on it for NCLA as a pro bono firm project.
Second, the Southeastern Legal Foundation is looking to hiring a Litigation Attorney:
What our Litigation Attorneys do:
Report to the VP of Litigation, work with our litigation team and Executive Director to execute with excellence the organization's strategies
Serve as lead counsel for SLF and as co-counsel with partner organizations in select cases under the guidance of the Director of Litigation and organizational leadership
Identify and represent pro-bono clients in court and through other legal processes
Identify creative legal strategies to help advance SLF's litigation priorities
Represent SLF publicly in various fora, including with allied organizations and the public
Support the work of other attorneys on the litigation team as needed
Support branding, communications, and marketing of the organization
Support key functions and organizational growth (development, communications, outreach, litigation)
Coordinate operations and strategies with like-minded organizations
Jump in, as the rest of the team does, when something needs doing!
What we're looking for:
2+ years of litigation experience preferred (Senior Attorneys 7+ years encouraged to apply also)
Demonstrated interest in the public interest approach to legal practice
Knowledge of the law in the areas of SLF's focus, with relevant policy knowledge being a plus
Willingness to take on issue areas or unpopular causes
Dedication to serving clients with the highest ethical standards
Commitment to the SLF mission
Ability to work difficult collaboratively but also manage responsibilities independently
Demonstrated ability to draft detailed memoranda on complicated issue of unsettled law
Experience in complex discovery
Strong verbal and interpersonal skills, media experience preferred
Admitted to one or more state bars
A sense of humor
Ability to travel occasionally
Judicial clerkship experience is a plus, but not required
I'm always happy to pass along other hiring opportunities.
Survey data shows relatively infrequent voters are significantly more likely to support the Trump-era GOP than those who vote more often. Will this change traditional left and right-wing attitudes towards mandatory voting and other policies intended to increase turnout?
Traditionally, Democrats and progressives have been sympathetic to policies intended to increase voter turnout, while conservative Republicans have been highly skeptical. Advocates of the most extreme such policy - mandatory voting - have also mostly been on the left. Most notably, then-president Barack Obama endorsed the idea back in 2015.
Both sides in this debate cite high-minded, nonpartisan rationales for their positions. For example, supporters of mandatory voting traditionally argue that voting is a civic duty. Opponents contend that it infringes individual liberty. But cynics have long wondered whether the real motive was partisan gain: perhaps liberal Democrats supported efforts to increase turnout because it would help them win, while conservative Republicans opposed them for the very same reason.
There was disagreement among scholars about the extent to which increased turnout really helped Democrats. The effect probably wasn't as great as many partisans imagined. Still, conventional political wisdom held that increased turnout at least benefited the political left at the margin.
Recent polling trends may put both cynical and idealistic explanations for these views to the test. In the Trump era, it is increasingly Republican candidates - especially Trump himself - who stand to benefit from higher turnout.
Dan Hopkins recently summarized some of these trends at the 538 website, in an article entitled "The Less You Vote, the More You Back Trump":
In 2016, former President Donald Trump was a political outsider looking to win the GOP nomination for president. In part, his campaign sought to appeal to voters who were disenchanted with politics.
Despite that, though, Trump wasn't significantly more popular with infrequent voters than with consistent voters….
Between Feb. 20 and March 18, 2024,* Gall Sigler and I oversaw a survey, fielded by NORC, of 2,462 English- and Spanish-speaking adults living in the U.S. According to public records, 63 percent of our respondents who reported being U.S. citizens turned out to vote in 2020…
And when we broke out respondents by their voting history, we found dramatic differences in whom they support for president in 2024. President Joe Biden performed much better among frequent voters, while Trump had a large lead among people who haven't voted recently. Specifically, among respondents who voted in the 2018, 2020 and 2022 general elections, Biden outpaced Trump 50 percent to 39 percent. But among respondents who were old enough to vote but voted in none of those three elections, Trump crushed Biden 44 percent to 26 percent.
Hopkins goes on to note that this pattern helps explain why the Democrats did relatively better in the comparatively lower-turnout off-year elections of 2018 and 2022 than in the presidential election year of 2020.
One obvious explanation for Democrats' newfound advantage among more frequent voters is the rise of the "diploma gap" under which voters - especially whites - with higher levels of education have become more likely to support Democrats, while lesser-educated voters have moved in the opposite direction. Education is highly correlated with voter turnout, with more educated citizens being much more likely to vote.
Perhaps the diploma gap - and resulting partisan turnout differences - will diminish or disappear. But if it persists, it will be interesting to see if intellectuals' and political activists attitudes towards turnout will switch. Will Republicans become advocates of increasing turnout, or even embrace mandatory voting? Will Democrats become more skeptical of such measures? Time will tell.
In addition to libertarian objections to the coercion inherent in mandatory voting, my main reason for these stances is that nonvoters and infrequent voters tend to be even more ignorant about government and public policy than those who vote more often. Thus, major increases in turnout are likely to exacerbate the already severe problem of political ignorance. Mandatory voting would be even worse. I held those views back when increased turnout was generally believed to benefit Democrats, and I continue to hold them today.
It isn't just that a more ignorant electorate is likely to make worse choices among the options before them. It is that those options are likely to be worse to begin with. Parties facing a relatively ignorant election are likely to select lower-quality candidates and policies than those facing a more knowledgeable one. I describe the logic behind this more fully in my book Democracy and Political Ignorance.
This connection between voter knowledge and relatively good policy outcomes is not an iron law. In Chapter 2 of my book, I go over some scenarios where voter ignorance can actually be beneficial. But I also explain why such situations are likely to be unusual.
You might still support increased turnout or mandatory voting if you believe political ignorance doesn't matter much; for example, some scholars argue ignorant voters can use "information shortcuts" to make good decisions, or that "miracles of aggregation" lead the electorate to make good aggregate judgments even if most individual voters know very little.
I am a longtime critic of such voter-knowledge optimism, for reasons discussed in detail in Chapter 4 of Democracy and Political Ignorance. On that score, I notice greater sympathy for my pessimism among left-liberals since the rise of Trump, than before. At the very least, it may be hard for people on the left to praise higher turnout and dismiss concerns about voter knowledge in a world where less-frequent and more ignorant voters tend to back candidates like Trump, whose agenda left-wingers believe (often for good reason!) to be horrendously awful.
By contrast, right-wing intellectuals and activists sympathetic to Trumpism might potentially become advocates of policies that boost turnout, or even mandatory voting. They could also downplay or dismiss concerns about ignorance, perhaps by adopting traditionally left-wing shortcut and miracle of aggregation arguments. The latter might be a natural extension of the MAGA right's embrace of populism. I think we already see some elements of this in the right's tendency to dismiss the dangers of political misinformation.
I am far from sure that the right and left will completely switch sides on issues related to voter turnout. Long-held attitudes may be "sticky." But I would not be surprised to see at least some significant movement in that direction.
In a recent guest post at this site, Prof. Adam Candeub has put up a thoughtful critique of my argument that government cannot use "common carrier" status to severely restrict the rights of social media firms to engage in content moderation on their sites. While I appreciate Candeub's effort, I remain unrepentant. Indeed, one valuable aspect of his argument is that it highlights the dangerous implications of the common carrier theory currently being advanced by Texas and Florida in their attempts to defend their social media laws before the Supreme Court.
Candeub argues that state governments can impose common carrier status on social media firms on the basis that they have "market power" or simply because they must be compelled to "stay in their lane." Either theory would have drastic implications for freedom of speech.
As I have pointed out previously, social media firms certainly don't have anything like monopoly power in the sense of being able to prevent widespread dissemination of speech they refuse to host on their sites. All of the examples of "censored" speech Candeub and others cite - revelations about Hunter Biden's laptop, anti-vaxxer speech, critiques of Covid policy, speech supporting Trump's claims that the 2020 election was stolen from him, and so forth - received wide circulation elsewhere, particularly in major right-wing media outlets, such as Fox News.
If the argument is that posting this speech on social media sites such as Twitter or Facebook would have enabled it to reach a bigger audience or a different group of people from that reachable through other sites, that argument can be used to justify abrogating the speech rights of a wide range of media outlets and other organizations. I explained why here:
Even if Twitter and Facebook don't actually monopolize the market for political information, it's certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same theory would rationalize imposing the same requirements on other types of media. Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can't always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!
Candeub is right on one point. It does feel as if he and I "live in different worlds." I live in a world where there is extensive right-wing media ready, willing, and able to broadly disseminate speech that left-wing social media outlets may prefer to exclude - and vice versa. And I live in the world where all of the viewpoints discussed above do in fact enjoy widespread dissemination. Don't take my word for it! Search for them using Google (or any other search engine), and you will quickly see how easy it is to access them - including on sites with large audiences.
There is no monopoly power here. And if mere disproportionate influence - defined as "market power" - is enough to justify government coercion of social media firms to post material they disapprove of, it can justify similar measures against any major media outlet. Fox News could be forced to air left-wing speech it would otherwise reject, the New York Times could be forced to publish more material by MAGA types, and so on.
The "stay in their lane" argument has similar awful implications. The "lane" occupied by social media firms has never been limited to completely "neutral" dissemination of material regardless of viewpoint. They have always exercised editorial judgment, and most consumers want it that way.
Candeub argues this issue can be dealt with by distinguishing "content" moderation from viewpoint restrictions, thus potentially allowing social media firms to still exclude material that constitutes "harrassment" or is otherwise "unpleasant." But content and viewpoint are often closely linked. For example, obscene content or nasty - "unpleasant" - language is often used to underscore a point. Moreover, many users might prefer an experience free of viewpoints they consider offensive or wasteful of their time, such as Holocaust denial or "flat earth" advocacy. Such substance-based curation is a standard feature of social media firms. Every major social media site - including Twitter/X under Elon Musk - engages in it.
The advantage of free-market competition and choice is that people who dislike one firm's content moderation have other options. Candeub notes many left-wingers remain on Twitter, despite Musk's takeover and introduction of rules they dislike, suggesting that proves the firm has "market power." But, in fact, many Twitter users have left since he took over - a 23% decline in US usage since Musk took control in November 2022. Presumably, those leaving include many of those who dislike his policies the most.
The "common carrier" policies imposed by Texas and Florida and defended by Candeub would eliminate most such choice. They would impose a single mandatory system of content regulation on all major social media firms. That kind of coercion is an obvious menace to freedom of speech.
Candeub also brings up the by now familiar analogy between social media firms and enterprises like phone companies and mail carriers. In a previous post on this subject, criticized that analogy as follows:
With rare exceptions, phone calls and letters only reach a small, specifically intended audience. Unless they are illegally tapping the line, the general public does not and should not have access to your phone conversations. Ditto for your mail. By contrast, the whole point of most political discourse on social media is the ability to reach a large audience all at once. But an information product that reaches a large audience simultaneously usually works better if it has at least some moderation rules, and other constraints that enable consumers to find the material they want, while avoiding harassment, offense, and other things that make the experience annoying, unpleasant, or simply a waste of time.
Candeub protests that "common carriers carried newspapers and magazines and other material that was political discourse meant for a large audience." This overlooks the obvious reality that any individual package transported by such a carrier was in fact directed at a specific individual or small group. It was not at a site seen by millions of people at once. That, of course, is even more true of phone calls. On social media sites (and other websites with large audiences), the content is simultaneously visible to thousands or even millions of people. The latter scenario requires more extensive content control than the former.
Candeub suggests that social media users can control what they see by techniques like blocking content. But such tools are imperfect. Regular users of sites like Twitter and Facebook often encounter content they find to be annoying, time-wasting, or objectionable. Moreover, many users might find it annoying to be constantly having to block material.
Others, by contrast, might prefer to have little or no content moderation. And that's fine, too! The existence of such divergent preferences is an important consideration against letting government mandate a one-size-fits-all content moderation policy for all platforms.
In the last part of his post, Prof. Candeub laments various efforts by governments to "silence critics" by coercing social media firms into taking down content. I too oppose coercion. But it doesn't follow that "Only Texas's H.B. 20 stands against" such dangers. Such claims overlook the obvious alternative of banning coercion across the board: with extremely rare exceptions, government should be equally barred from forcing social media firms to take down content (as the Biden Administration apparently sought to do in some cases) and forcing them to put it up (as Texas and Florida seek to do). Rather than fighting one type of speech coercion with another, we can enforce the First Amendment, and prevent both.
From Indiana Bureau of Motor Vehicles v. Simmons, decided yesterday by the Indiana Court of Appeals, in an opinion by Judge Randall Shepard, joined by Judges Cale Bradford and Paul Felix:
The Appellees initiated litigation seeking to compel the Indiana Bureau of Motor Vehicles and Commissioner Joseph B. Hoage to include a third gender option on driver's licenses and identification cards. The trial court so ordered. Finding error, we reverse and remand with instructions….
Statutory Interpretation: The court also concluded that the Indiana statute requiring that driver's licenses include the person's "gender" was intended to refer to "sex," and that in turn "refers only to the binary biological classifications of male and female or whether it is a broader term that also includes non-binary classifications."
Equal Protection: The court rejected the trial court's conclusion "that the agency's refusal to issue a non-binary designation on state credentials violates the Appellees' Fourteenth Amendment right to equal protection by impermissibly treating them differently from persons who identify as binary":
Back in October, UC Berkeley Dean Erwin Chemerinsky wrote that "Nothing has prepared me for the antisemitism I see on college campuses now." At the time, I praised Erwin's bold remarks, though I feared things would only get worse. And they have.
Last week, Berkeley Law Students for Justice in Palestine depicted Dean Chemerinsky in a cartoon with blood-soaked utensils. This image appeals to the ancient blood libel that has pervaded anti-semitic propaganda for millennia. That students thought this image was appropriate is shocking. Failure to use the appropriate pronouns is immediately grounds for cancellation. But invoking the trope that Jews eat children is just another meme.
The purpose of this cartoon was to encourage students to protest a student dinner that Chemerinsky was scheduled to hold at his home.
Regrettably, students protested the dinner at Erwin's home. So far, I have only found a short video posted by supporters of the protest. It shows Chemerinsky's wife, Prof. Catherine Fisk, trying to take the microphone away from the student. We do not know what happened beforehand. Remarkably, the student said she had a First Amendment right to protest in Erwin's home. Erwin, ever the teacher, actually said "the First Amendment does not apply." Even as these students are disrupting a dinner at Chemerinsky's own home, Erwin still felt compelled to be the bigger person, and an educator.
Antisemites at @BerkeleyLaw are targeting their professors.
When Dean Erwin Chemerinsky and Prof. Catherine Fisk invited 3Ls to dinner, students called for a boycott and then came to their home with a mic to protest.
I write this with profound sadness. Since I became a dean, my wife and I have invited the first-year students to our home for dinner. We were asked this year by the presidents of the third year class to have the graduating students over for dinner because they began in Fall 2021 when COVID prevented us from having dinners for them. We were delighted to oblige and designated three nights – April 9, 10, 11 – that graduating students could choose among. I never imagined that something that we do to help our community would become ugly and divisive.
Last week, there was an awful poster, on social media and bulletin boards in the law school building, of a caricature of me holding a bloody knife and fork, with the words in large letters, "No dinner with Zionist Chem while Gaza starves." I never thought I would see such blatant antisemitism, with an image that invokes the horrible antisemitic trope of blood libel and that attacks me for no apparent reason other than I am Jewish. Although many complained to me about the posters and how it deeply offended them, I felt that though deeply offensive, they were speech protected by the First Amendment. But I was upset that those in our community had to see this disturbing, antisemitic poster around the law school.
The students responsible for this had the leaders of our student government tell me that if we did not cancel the dinners, they would protest at them. I was sad to hear this, but made clear that we would not be intimidated and that the dinners would go forward for those who wanted to attend. I said that I assumed that any protest would not be disruptive.
On April 9, about 60 students came to our home for the dinner. All had registered in advance. All came into our backyard and were seated at tables for dinner. While guests were eating, a woman stood up with a microphone, stood on the top step in the yard, and began a speech, including about the plight of the Palestinians. My wife and I immediately approached her and asked her to stop and leave. The woman continued. When she continued, there was an attempt to take away her microphone. Repeatedly, we said to her that you are a guest in our home, please stop and leave. About 10 students were clearly with her and ultimately left as a group.
The dinner, which was meant to celebrate graduating students, was obviously disrupted and disturbed. I am enormously sad that we have students who are so rude as to come into my home, in my backyard, and use this social occasion for their political agenda.
The dinners will go forward on Wednesday and Thursday. I hope that there will be no disruptions; my home is not a forum for free speech. But we will have security present. Any student who disrupts will be reported to student conduct and a violation of the student conduct code is reported to the Bar.
I have spent my career staunchly defending freedom of speech. I have spent my years as dean trying hard to create a warm, inclusive community. I am deeply saddened by these events and take solace that it is just a small number of our students who would behave in such a clearly inappropriate manner.
Erwin
Things will only continue to get worse.
UPDATE: Here is a video that shows more of the disruption. The student says that the National Lawyers Guild informed her she has a First Amendment right to speak at Chemerinsky's home. The NLG also organized the protest of my event at CUNY on (checks note) the importance of free speech.
This clip shows the protester was asked to leave repeatedly and refused, even after the homeowners threatened to call police. She held on to the mic, risking pulling an older woman down. She said that because she was a Muslim women, she could not be touched. pic.twitter.com/hrvQ38J7Ep
The Sixth Circuit, where I clerked more than a decade ago, has sixteen active judgeships. At present, there are four nominees from President George W. Bush (Sutton, Gibbons, Griffin, Kethledge) and six nominees from President Trump (Thapar, Bush, Larsen, Nalbandian, Readler, Murphy). And there are two nominees from President Clinton (Moore and Clay), one from President Obama (Stranch), and three from President Biden (Davis, Mathis, Bloomekatz).
One might think that an en banc court with ten appointees from Republican Presidents and six appointees from Democratic Presidents would consistently lean to the right. But not so. To command a majority on this even-numbered court, you need nine votes. And in recent years, finding those nine votes has been tougher and tougher. For starters, Chief Judge Sutton has long taken the policy that en banc review should be used sparingly, as the Supreme Court can correct errors. Maybe that policy made some sense a decade ago, but with the Supreme Court taking fewer and fewer cases, and circuit splits festering, the en banc/certiorari calculus should be rejiggered. (Sutton may have departed from that policy, at least in part).
Making the math even tougher is that two of the W. Bush appointees have voted more and more with the Court's liberals: Judge Richard Alan Griffin from Michigan and Judge Julia Smith Gibbons from Tennessee. One such case from 2021 was the OSHA Vaccine mandate case. The en banc court split 8-8, with Judges Griffith and Gibbons declining to join Judge Sutton's dissental. In reality, what looks like a 10-6 court on paper is probably closer to a 9-7 or 8-8 court in practice.
Whatever the split is now, it is poised to change. In August 2023, Judge Gibbons announced that she would assume senior status "upon confirmation of [her] successor." In recent years, it has been very rare for a circuit judge to be voluntarily replaced by a President of the opposite party--the so-called "flipped" seat. Judge Gibbons, who was appointed as a district court judge in 1983 at the age of 32, has been eligible for senior status since 2015 or so. But she chose not to take senior status during the four years of the Trump presidency. I have been reliably informed that she did not want President Trump nominating her replacement.
On March 20, 2024, nearly seven months after Gibbons's letter, President Biden announced his intent to nominate Kevin Ritz, the U.S. Attorney for the Western District of Tennessee, to replace Judge Gibbons.
Ritz, a white man, is unlike most of Biden's circuit nominees. Indeed, his other three appointees to the Sixth Circuit were a black woman, a black man, and a white woman. Why would Biden make such a undiverse pick? Perhaps the most salient line on Ritz's biography is that he clerked for Judge Gibbons in 2004.
It is not difficult to speculate that Ritz may have been selected to induce Judge Gibbons to take senior status. This sort of understanding is common enough. There were many rumors that Justice Kennedy was encouraged to retire, with the knowledge that he would be replaced by one of his clerks, namely Justice Brett Kavanaugh. Ditto for Justice Breyer, who was replaced by his former clerk, Justice Ketanji Brown Jackson. On the Ninth Circuit, Judge Johnnie Rawlinson told the Biden administration that she could be "persuaded" to take senior status if one of her former clerks to replace her. (Rawlinson has not yet taken senior status.) On the Seventh Circuit, Judge Michael Kanne withdrew his senior status announcement when President Trump did not nominate his former clerk. (Kanne died in 2022 and was replaced by a Biden nominee.) On the Ninth Circuit, Judge Diarmud O'Scannlain was almost replaced by former-clerk Ryan Bounds, but after his nomination faltered, he was replaced by another clerk, Danielle Forest (formerly Hunsaker). On the Eighth Circuit, Judge Roger Leland Wollman was replaced by his former clerk, Jonathan A. Kobes. I'm sure there are more judges who were replaced by their former clerks that I'm forgetting, but these recent selections are fresh in my mind.
For those curious, the Office of Legal Counsel found that the federal nepotism statute cannot be used to constrain the President's appointment power of federal judges. This issue arose after President Clinton nominated Judge William Fletcher to sit on the Ninth Circuit along with his mother, Judge Betty Fletcher. I think there could be other neutral reforms to constrain judges hand-picking their successors, which I'll address for another time.
I'll let Tennessee politicos speculate about whatever backroom deals led to Ritz's appointment. I have been reliably informed that Ritz will not receive blue slips from the two Republican Senators in Tennessee. For present purposes, it is enough to state the Gibbons's replacement with Ritz would effectively flip the en banc court from a nominally conservative circuit to a evenly-balanced, if not left-leaning circuit. Litigants who may have otherwise found the Sixth Circuit favorable will now look to greener (redder?) pastures, such as the Fifth Circuit. There are consequences here that stretch far beyond Judge Gibbons and any potential desire to be replaced by her former law clerk. We are getting close to the end of President Biden's first term. The Ritz nomination, along with the Mangi which would flip the Third Circuit, will come down to the wire.
McConnell's bill would ensure that no one can benefit from nationwide injunctions. Schumer's bill would ensure that liberal litigants still benefit from nationwide injunctions.
One of the few silver linings on the Judicial Conference's ill-fated "guidance" document is that the judges have stimulated debate in the legislature--where these debates belong. Now, the senate leaders of the Democratic and Republican parties have introduced judicial reform bills. I have not obtained a copy of Schumer's bill, though the New York Times offers this description:
Senator Schumer's bill tracks the guidance last month from the Judicial Conference, the federal judiciary's policymaking body. It would end the most targeted form of judge shopping, where plaintiffs game a district's case-assignment system by filing in a small division staffed by one or two judges.
The Schumer bill, as I understand it, would in no way limit the remedy that a particular judge can issue. It would simply limit which judges can issue that remedy. Again, the "random" reassignment will necessarily take cases away from judges in remote outposts, and transfer those cases to judges in urban areas. That is a feature, not a bug of the Judicial Conference's policy, and now Schumer's bill. And nothing will diminish the ability to draw a favorable court in San Francisco, Green Belt, Portland, and a host of other friendly venues.
Senator McConnell's bill, which I do have copy of, addresses the actual underlying problem: single judges immediately altering nationwide policy. The Times explains:
Senator McConnell's bill does not address concerns about plaintiffs who strategically file in single-judge divisions. Instead, it seeks to curtail the power of a single district court judge to issue a nationwide injunction and block federal policy across the entire country. The bill would limit the scope of district-court rulings to the parties in the case, or similar parties within the borders of the district. If a federal judge found that a U.S. immigration policy were unconstitutional, for example, that decision would not, under Mr. McConnell's bill, have any immediate effect outside the borders of the judge's district. The McConnell bill also would set new limits on where litigants in patent cases and debtors seeking bankruptcy can file their cases.
Here is the text:
''Notwithstanding any other provision of law, a district court may not issue any order providing injunctive relief unless such order is applicable only to—
''(1) the parties to the case before the court; or
''(2) similarly situated individuals in the judicial district in which the district court has jurisdiction.''
If district courts could not issue universal injunctions, the incentive to forum shop those judges would be far, far less. It is not clear that this bill would apply to APA vacatur under Section 706. It would be useful for Congress to clarify the scope of Section 706 relief in another policy.
Professor Steve Vladeck criticized the McConnell bill:
Stephen Vladeck, a professor at the University of Texas Law School, said that Senator McConnell's proposed elimination of nationwide injunctions would go too far. "The most sensible view is that there are too many, but not that they should be none," he said. "To say 'no more nationwide injunctions ever' is to solve the wrong problem."
Let's be very clear here. Under the Schumer bill, the California Attorney General can still reliably obtain nationwide relief against a Republican President by filing in the bastion that is NDCA. But the Texas Attorney General will be curtailed in his ability to seek similar relief against a Democratic President by filing anywhere in Texas. The Schumer bill, much like the Judicial Conference policy, fixates on the specter of "judge shopping" without even recognizing how the forums are stacked in urban areas.
The McConnell bill has the virtue of addressing the underlying problem in a way that would impact both sides of the aisle equally. The McConnell bill also addresses actual judge shopping in bankruptcy and patent cases.
At bottom, we are left with nationwide injunctions for me but not for thee. Or, my nationwide injunctions are good and yours are bad.
For what it's worth, the Supreme Court could actually do something to reform nationwide relief, instead of just complaining about it on the emergency docket. Chief Justice Roberts is fine with the D.C. Circuit issuing a dozen vacaturs before lunch, but heaven forbid a few judges in Texas issue them. And if Trump wins the election, all voices about limiting nationwide injunctions will immediately silence.
I am working on a series of proposals for judicial reform that would weaken both sides equally. For any bill to pass, it cannot be unilateral disarmament. The Schumer bill, and the Judicial Conference policy, amount to unilateral disarmament. I think the McConnell bill accomplishes bilateral disarmament.
Update: My friend Sam Bray made similar points in a post published shortly before mine:
And there is a new push from Senator McConnell to end the national injunction–which should be welcomed by Democrats and Republicans alike, because everyone has felt and will feel the pain. (The counter-argument in the NY Times article just linked to, given by Professor Vladeck, that we should have some national injunctions instead of none, doesn't work, because no one has come up with an effective limiting principle and it inevitably turns into ideological station identification: "good" national injunctions for me, "bad" national injunctions for thee.)
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What a day! After two solid weeks of typical Vermont early spring weather - rain and snow and heavy cloud cover - Monday dawned bright and beautiful: blue skies, no humidity, and not a cloud in the sky. Along with a couple of old friends, we headed north from our house in southern Vermont in the early morning. We had originally planned to meet other friends in Burlington, but the weather reports were talking about clouds rolling in from the west, so we decided to find a spot up in Vermont's "Northeast Kingdom," near St. Johnsbury. We ended up in a great spot for viewing - a little local bar in the tiny town of East Burke, with a big grassy picnic area behind it with a great view, and maybe 40 or 50 so other folks, including lots of kids, hanging out and waiting for the Big Event.
