12/12/1910: Chief Justice Edward Douglass White confirmed.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
The House of Representatives Needs to Open An Impeachment Inquiry Into President Joe Biden
Bribery is a High Crime and Misdemeanor
On Dec. 7, 2023, a federal grand jury filed an explosive indictment that charged Hunter Biden with a scheme to evade taxes on millions of dollars in income from foreign businesses. Prior to this, he was charged with violating federal law by lying about his drug usage on a federal form, and he was administratively discharged by the U.S. Navy for failing a drug test on his first day at work -- a job which Vice President Joe Biden had helped him to get which he was too old to hold.
Hunter Biden's indictment is a public document, and there is no purpose in reprinting it here. The key takeaways are that: 1) Hunter Biden received more than $7 million in income between 2016 and 2020 much of it from Chinese sources; and 2) that the corrupt Ukrainian Burisma Holdings Corporation paid him an annual salary, for a while, of one million dollars a year.
Count 4 of the Indictment says that Hunter Biden "engaged in a four-year scheme to not pay at least $1.4 million in self-assessed federal taxes he owed ***. In furtherance of that scheme, the Defendant:
a. subverted the payroll and tax withholding process of his own company, Owasco, PC by withdrawing millions from Owasco, PC outside of the payroll and tax withholding process that it was designed to perform;
b. spent millions of dollars on an extravagant lifestyle rather than paying his tax bills;
c. in 2018, stopped paying his outstanding and overdue taxes for tax year 2015;
d. willfully failed to pay his 2016, 2017, 2018, and 2019 taxes on time, despite having access to funds to pay some or all of these taxes;
e. willfully failed to file his 2017 and 2018 tax returns on time; and
f. when he did finally file his 2018 returns, included false business deductions in order to evade assessment of taxes to reduce the substantial tax liabilities he faces as of February 2020. Read More
Monday Open Thread
What's on your mind?
Law Enforcement Officers Are Part of "the People," Not Above Them
Law enforcement amicus brief against Colorado magazine ban.
Two weeks ago, I filed an amicus brief in U.S. District Court in Colorado, in Gates v. Polis, a case challenging the Colorado legislature's 2013 ban on magazines over 15 rounds. The brief was on behalf of Sheriffs and law enforcement training organizations: the International Law Enforcement Educators and Trainers Association, the Colorado Law Enforcement Firearms Instructors Association, the Western States Sheriffs Association, 10 elected Colorado County Sheriffs, and the Independence Institute (where I work).
Some of the brief explains the practical mechanics of armed self-defense, and why bans on standard magazines do not impair mass shooters, but do endanger ordinary citizens, especially when attacked by multiple criminals. Another part of the brief shows that the key data created by some of the Colorado Attorney General's expert witnesses is obviously false.
But in this post, I will focus on a more fundamental argument in the brief. The law enforcement amici reject the claim that arms universally recognized as appropriate for ordinary law enforcement officers should be banned for ordinary citizens. The claim is based on the pernicious idea that law enforcement officers are above the people, rather than part of the people. Here are some excerpts from the brief:
Texas's Ban on TikTok Use by Government Employees on Government Computers Upheld
The ban also extends to private devices that are used to access state networks.
From Coalition for Independent Technology Research v. Abbott, decided today by Judge Robert Pitman (W.D. Tex.):
Plaintiff has brought a challenge to Texas's TikTok ban [which covers Texas government employees using government-provided devices] as applied to public university faculty, who are both academics and public employees, both of which are categories that have historically received extra protection under the First Amendment….
While the Court recognizes the importance both of protecting academic freedom and supporting public employees' right to free speech, the Court finds that these important ideals do not dictate the appropriate framework for this case. Texas's TikTok ban is not a restraint on public employee speech. Even as applied to public university faculty, who are entitled to special considerations under the law, the Court finds that the ban is not a restraint on speech in a public forum, but rather a restriction on a nonpublic forum motivated by Texas's data protection concerns regarding TikTok, an app owned by a company based in China.
Texas's TikTok ban is limiting the use of an app on state-provided devices and networks, which is not a blanket prohibition. Public university faculty—and all public employees—are free to use TikTok on their personal devices (as long as such devices are not used to access state networks). Therefore, the Court disagrees with Plaintiff's characterization of the ban as falling under the category of public employee speech. The Court finds nonpublic forum analysis to be the proper framework for Plaintiff's challenge, as the ban relates to Texas's regulation of its own governmental property….
$15M Jury Award to Doctor Who Claimed Anti-Male Bias in University Finding He Had Committed Sexual Assault
From the Philadelphia Inquirer (Wendy Ruderman) Thursday:
A federal jury found Thursday that Thomas Jefferson University conducted a gender-biased investigation into allegations that former Rothman Orthopaedic Institute surgeon John Abraham raped a former medical resident.
After a four-day civil trial in U.S. District Court, jurors determined that Jefferson's leadership violated Abraham's civil rights by discriminating against him as a male and intentionally interfered with his ability to earn money as a Rothman surgeon and partner….
The case hinged on whether jurors believed that Jefferson's leadership ignored Abraham's claims that a second-year resident in Jefferson's orthopedic program aggressively pursued sex with him at a June 2018 pool party that he hosted at his Main Line home.
An Interesting Decision from Last Year on a Security Clearance for an American-Israeli Joint Citizen
I expect that the situation in this case was quite similar to that faced by many Americans who are also citizens of allied foreign nations.
From a decision (No. 19-03737) by Administrative Judge Noreen Lynch on May 27, 2022, reviewing a June 1, 2020 Defense Counterintelligence and Security Agency denial of a security clearance.
Applicant is 37 years old…. In 2007, he earned a bachelor's degree of science in mathematics and physics and his doctorate in 2018, both from U.S. universities. Applicant worked for various companies in the United States, on a post doctorate fellowship for a federal government agency, and performed research for that U.S. government agency from 2017 to 2018. He has been employed with his current employer since February 2020, and is sponsored for a security clearance….
Applicant was born in the United States to U.S. parents who are citizens and residents of the United States, but possess dual citizenship with Israel. In 1985, when Applicant was nine months old, his parents moved to Israel because they were idealistic in nature, not because they were unhappy with the United States. Thus, Applicant is a dual citizen of the United States and Israel, and has a U.S. passport and an Israeli passport. Applicant's family had never lived in Israel prior to that time. Any Jewish person is allowed to go to Israel and claim a right of Israeli citizenship. Applicant and his family travelled back to the United States annually and maintained close ties with their extended family, most of whom remain based in America. Applicant is close to his grandparents, aunts, uncles, and cousins who reside in the United States. When Applicant was 16, his parents decided it was time to move back to the United States permanently to care for their aging parents.
After Applicant's, graduation from a U.S. undergraduate school in 2007, he felt a longing to return to Israel for the culture of his youth. He wanted to travel around Europe and Morocco and wanted to go to Israel for a sense of adventure. He lived with his cousin who is also an immigrant from the United States. He obtained a job in Israel, but was drafted by the Israeli Defense Forces (IDF) from about April 2008 until November 2008. Applicant had the choice to serve this mandatory requirement or be sent to jail. While in the IDF, he served as a truck driver. Applicant has no plans on serving in the IDF in the future, but if drafted, while in Israel, he will have no choice but to serve or be jailed.
During his time in Israel, Applicant enrolled in a two-year master's program at an Israeli Institute of Technology. This Institute is sponsored, in part, by private donations from American Jews. His met his girlfriend, who later became his wife. She is an American citizen and was studying abroad in Israel. He stayed there to be with her. Applicant returned to the United States in 2011. Upon his return to the United States. Applicant did some work and research for U.S. government agencies.
Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED]
The justices are considering whether to grant certiorari in Minnesota's lawsuit against energy companies.
The Supreme Court was scheduled to consider a potentially significant climate-change case at its conference last Friday: American Petroleum Institute v. Minnesota. The case did not appear among the cert denials in today's order list, suggesting the justices may still be considering whether to grant the case.
API v. Minnesota is one of several cases filed by state and local governments against energy companies seeking recompense for the harms caused by climate change, including the expenses state and local governments must bear to improve and adapt infrastructure to account for a warmer world. Because the federal common law of interstate nuisance is entirely displaced by the Clean Air Act, nearly all of these suits have been filed in state courts. Seeking to argue these cases are preempted, the energy company defendants have sought--unsuccessfully--to have these cases removed to federal court. Their removal arguments have been rejected in the 1st, 3rd, 4th, 6th, 8th, and 9th Circuit Courts of Appeals and, thus far, the Supreme Court has shown little interest in reviewing these decisions.
The apparent relisting of API v. Minnesota suggests one or more justices may think this case is worth a second look, despite the lack of a meaningful circuit split. Justice Kavanaugh previously indicated his interest in hearing a similar case, so perhaps he is writing a dissent from denial of certiorari, or working to convince his colleagues this case is worthy of the justices' attention.
The primary issue in the case is whether there are grounds to remove Minnesota's suit to federal court. A unanimous panel of the U.S. Court of Appeals for the Eighth Circuit rejected the removal argument. For reasons I explained in this post (and addressed at longer length in this article) the Eighth Circuit was entirely correct.
Last week, former Attorney General William Barr and my friend Adam White of the American Enterprise Institute argued in the Wall Street Journal that this case "belongs in federal court, not in a Ramsey County courtroom." Their article makes several strong policy arguments for preferring federal policymaking over state climate change litigation as a means of addressing climate change. What is lacking, however, is a legal basis for yanking these cases into federal court.
Write Barr and White:
The federal courts have jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States," according to the U.S. Code. When such cases are filed in state courts, they can be "removed" to the federal courts. . . .
Early on, Congress recognized the need to ensure that the federal judiciary remained firmly in control of interstate litigation and, eventually, of federal questions more broadly. A plaintiff may be the master of his own case in some ways, but a defendant is entitled to the protections of federal laws, including laws preserving a defendant's access to federal judicial review of genuinely federal issues. And the people—through their elected representatives—are entitled to the constitutional process for making the law. . . .
Choices about how to handle energy policy must be made through the Constitution's democratic processes, not by federal judges or administrative fiat—and certainly not by state and local judges. The Minnesota case belongs in federal court to ensure that federal law governs Mr. Ellison's gambit.
Barr and White are entirely correct that all defendants, even oil companies, are "entitled to the protections of federal laws." The problem here is that there are no federal laws divesting state courts of jurisdiction to hear these sorts of claims, let alone any federal laws that can be plausibly interpreted to preempt state-law causes of action for climate change. The "gambit" here is the effort by energy companies to convince the Supreme Court that the general rules of removal and preemption should be set aside in the context of climate change.
When the Supreme Court held unanimously that the federal Clean Air Act displaces the federal common law of interstate nuisance it expressly reaffirmed precedents holding that federal environmental laws do not preempt state law claims against polluters, provided they are based on the law of the source state. Further, because the federal common law of interstate nuisance has been displaced, it cannot preempt state law claims for interstate pollution either. These are points I make at length in the article linked above.
Barr and White are correct that "choices about how to handle energy policy must be made through the Constitution's democratic processes," but no one is suggesting otherwise. Nothing in the Minnesota lawsuit undermines the right of "the people—through their elected representatives" to enact laws governing climate change. Congress has unquestioned authority to enact laws governing greenhouse gas emissions and addressing the threats posed by climate change, and there is no doubt that should Congress choose to preempt state-law suits about climate change, such suits would be preempted. But Congress has yet to make any such choice.
In West Virginia v. EPA, the Supreme Court made clear that policy choices about "major questions," such as how federal energy policy should address the threat of climate change (if at all), must be made by the people's elected representatives in Congress. Even when the stakes are high, a federal agency like the EPA lacks the authority to rewrite federal laws to conform to its policy vision. Unelected regulators only have the power to regulate that has been delegated to them by Congress.
By the same principle, the economic or political importance of federal energy policy does not justify reconceiving federal environmental statutes or distorting federal law so as to remove state law claims to federal court, let alone to find such claims preempted, when Congress has not so provided. As in West Virginia v. EPA, the ultimate policy choice here is one to be made by the legislature. It can provide for removal or preemption of such claims should it choose to. But unless and until it does, federal courts should stay their hand. Six circuit courts of appeals have understood this. We will see if the justices do as well.
UPDATE: An amicus brief filed by William Barr on behalf of the American Free Enterprise Chamber of Commerce supplements the Barr-White op-ed's policy arguments, but they are no more availaing on the ultimate question.
First, the brief argues that the federal law of transboundary air pollution is "exclusive." This may well have been the case before the Supreme Court held that the enactment of federal pollution control legislation displaces the federal common law of interstate nuisance--and it may also be a good idea as a policy matter--but it is wrong as a matter of law. As noted in this prior post about the case and my longer article on the subject, the Supreme Court not only held in Milwaukee II that federal environmental statutes displaced the pre-existing federal common law governing interstate pollution, it further held in International Paper Co. v. Ouellette that state-law-based claims for interstate pollution may still be heard in state courts (albeit relying upon the substantive law of the source state), and that the only state-law-based claims that are preempted are those that are "incompatible" with those established by the relevant federal statute. Ouellette concerned the application of the federal Clean Water Act, but the Supreme Court made clear in AEP v. Connecticut that the exact same principles apply to the Clean Air Act. Curiously, Ouellette does not even merit a mention in Barr's brief.
The brief, like the op-ed, raises the reasonable fear that states may try to extra-territorialize their regualtory preferences and impose burdens on out-of-state activities. This is a legitimate concern, and one that may be addressed through other doctrines (such as Due Process or the Dormant Commerce Clause). It is not a justificiation for federal removal, however, let alone for preemption.
There is also a reasonable argument that the Supreme Court's entire displacement jurisprudence--from Milwaukee II to AEP--is off-base, having been invented so that the Court could extract itself from fact-intensive interstate pollution litigation. Under this argument, however, the defendants might find themsleves pulled from the frying pan and thrust into the fire, for were the federal common law of interstate nuisance not displaced, there would be no basis for barring such claims when brought under federal law, as there is no plausible argument that the Clean Air Act preempts such claims against most emitters. Is that really what Barr would like?
The amicus brief further argues that the Supreme Court took a wrong turn in 1894 (in Tennessee v. Union & Planters' Bank) in its interpretation of the federal statutes governing federal question jurisdiction and removal. Here again, the arguments may have merit as a matter of first principle, but it is quite a heavy lift to ask the courts to disregard over a century of consistent interpretations of rules that Congress enacted and could readily reform (particularly where, as here, the precedent concerns questions of statutory interpretation that Congress could readily fix and that the actual parties of the case have not brought into question).
When Should Security Clearance Be Denied Based on Interest in QAnon and Three Percenters?
Security clearances can be denied based on constitutionally protected speech; but there's an adjudicative process aimed at reviewing whether such denials make sense in light of the facts of each case.
From a decision released Oct. 24, but just posted on Westlaw, ISCR Case No. 22-00849 (Dep't of Defense Office of Hearings & Appeals) (Administrative Judge Edward W. Loughran), concluding that the applicant, who worked for a DoD contractor, should regain his security clearance; an excerpt, though you can read the full decision for more on the Three-Percenters, QAnon, and the general legal rules applicable in this case:
Findings of Fact
… On January 13, 2021, a U.S. servicemember reported that a vehicle on the military installation was "displaying Three Percenter and QAnon stickers on its back window. Both of these organizations/beliefs have been linked to racially motivated violent extremism and anti-government actions." He reported that he first noticed the "III" sticker on July 31, 2020, and the QAnon sticker on January 12, 2021. He stated that he became aware of the III symbol because it was reported that an NFL player had the symbol as a tattoo.
The military criminal investigation division did a criminal and insider-threat analysis and determined that Applicant was not suspected of committing a criminal offense or being an insider threat. The military criminal investigation division did not open an investigation, with the following rationale in an email dated January 15, 2021:
- Social media was identified with no derogatory information noted.
- The FBI has not designated the 3%ers or QAnon as a terrorist organization. Neither of them are organized groups.
- The 3%er sticker alone is not an indicator of militia affiliation (see attached [FBI Joint Information Bulletin identified in above Evidence section] and below for more details.
- While an internet search for three percenters (III%) and QAnon will yield several sites declaring them anti-government, militia linked, or conspiracy theorists; as with any group there are those who take matters to the extreme and those who are more conservative in their voice. Displaying a sticker in support of either group does not make an individual a threat.
- At this time, [Applicant] is not suspected of committing a criminal offense or insider threat.
An administrative investigation was ordered and completed by a U.S. military field grade officer. The investigation disclosed that the vehicle belonged to Applicant. The Three Percenter sticker has III inside a circle of stars. The QAnon sticker is a stylized Q with a skull inside. Applicant bought the III sticker on eBay for $20 and placed it on his vehicle in about June 2020. He bought the QAnon sticker on eBay for $10 and placed it on his vehicle in about January 2021. He also bought a rubber bracelet with a red Q.
Counting to Four on LGBT without NMG
Justice Gorsuch has been consistent from Kastl to Edmo to Grimm to Bostock to Kincaid to Tingley.
Tingley v. Ferguson presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Washington law prohibits any conversations that might encourage "change [of] an individual's sexual orientation or gender identity," while allowing conversations that "support … identity exploration" and "do not seek to change sexual orientation or gender identity." The Tingley petition was filed nearly a year ago in March 2023. There was a square circuit split on the issue between the Ninth and Eleventh Circuits. Yet Washington didn't even file a BIO. A response was requested on May 5, 2023. The case was then distributed for the September 26, 2023 conference, but the Court took no action. The case was relisted seven times, and rescheduled before the December 1 conference.
Today, at long last, the Court denied the petition. Justice Kavanaugh would have granted the petition, and Justices Thomas and Alito wrote dissents from the denial of certiorari. Alito noted that given the circuit split, "this case easily satisfies our established criteria for granting certiorari." But there was no fourth vote. Given that there were three noted votes for certiorari, we can presume one more vote would have been enough to grant the case. In most cases, where Justices Thomas and Alito complain that a case is not granted, Justice Gorsuch is right on board. But he was silent here. Should we be surprised? Nope.
After last term concluded, I drew a line across the arc of Gorsuch's jurisprudence with respect to gay, lesbian, and transgender issues: Kastl v. Maricopa County Community College District, Idaho Department of Correction v. Edmo, Gloucester County School Board v. Grimm, Kincaid v. Williams. On these issues, at least, his approach is consistent: The LGBT litigant prevails. Tingley presents something of the reverse: the government prevailed, while the litigant challenging the LGBT position lost. But the outcome is the same.
Let me lay down a marker. When a case about prohibiting gender surgery for minors reaches the Court, Justice Gorsuch will rule against the government. And I suspect Justice Barrett will be with him. We'll see if they prove me wrong.
Justice Jackson Really Does Not Like Munsingwear Vacatur
Justice Jackson notes her objection to the Court's standard practice of vacating lower court decisions rendered moot by the prevailing party below.
Last week, when the Supreme Court dismissed Acheson Hotels v. Laufer on mootness grounds, Justice Jackson wrote separately to note her objection to the Court's established practice under United States v. Munsingwear of vacating the decision below when a case has been rendered moot due to the unilateral action of the prevailing party. In Acheson Hotel, the plaintiff had prevailed in the U.S. Court of Appeals for the First Circuit, but then voluntary dismissed her claims after the Court granted certiorari (and her lawyer ended up in a bit of trouble).
Justice Jackson only concurred in the judgment. While she agreed that Acheson Hotels had become moot, she wrote separately to note her objection to granting Munsingwear vacatur as a matter of course. While acknowledging that this is the Court's "established practice," Justice Jackson argued that "when mootness ends an appeal, the question of what to do with the lower court's judgment, if anything, raises a separate issue that must be addressed separately." Instead of vacating the lower court judgement automatically once the case is rendered moot, Justice Jackson suggested, there should be some showing that vacatur is equitable in the given case.
On today's orders list, the Supreme Court GVR'd (granted, vacated and remanded) three separate cases in which lower court injunctions had been rendered moot. Justice Jackson concurred separately on each order to repeat her objectrion to automatic vacatur. Thus, in Payne v. Biden, Justice Jackson noted:
Although I would require that the party seeking vacatur establish equitable entitlement to that remedy, I accede to vacatur here based on the Court's established practice when the mootness occurs through the unilateral action of the party that prevailed in the lower court. See Acheson Hotels, LLC v. Laufer, 601 U. S. ___ (2023) (Jackson, J., concurring in the judgment).
A similar, though shorter, concurrence also accompanied the orders in Biden v. Feds for Medical Freedom and Kendall v. Doster.
Cato Amicus Brief in the Texas and Florida Social Media Cases
The brief urges the Supreme Court to reverse its badly misguided precedent in Pruneyard v. Robins.
The Cato Institute recently filed a Supreme Court amicus brief in Moody v. NetChoice and NetChoice v. Paxton, cases challenging Florida and Texas state laws barring major social media firms from using most types of content moderation. Although I serve as the B. Kenneth Simon Chair in Constitutional Studies at Cato (in addition to my primary job as a law professor at George Mason University), I was not involved in writing this brief. But I very much agree with the points made by my colleagues Thomas Berry and Anastasia Boden. They urge the Court to, if necessary, overrule its badly misguided 1980 decision in Pruneyard Shopping Center v. Robins. Here is their summary of the brief:
Two years ago, Texas passed a law declaring that large social media services are "common carriers" subject to onerous regulations dictating what speech they must disseminate. The law prohibits services from removing, demonetizing, or blocking a user or a piece of content based on the viewpoint expressed. Services found to violate this requirement face liability for each piece of content they remove.
The law was soon challenged by NetChoice and CCIA, two internet trade associations whose members operate a variety of websites covered by the law. Although a federal district court held that the law violated the First Amendment, a panel of the Court of Appeals for the Fifth Circuit reversed that decision by a 2–1 vote. The panel held that the law does not inflict a First Amendment injury because the websites "are free to say whatever they want to distance themselves from the speech they host" and thus would not be falsely identified as endorsing the speech they are forced to disseminate.
Meanwhile, Florida passed a similar law around the same time as Texas's, which was also challenged by NetChoice and CCIA. In that case, the Court of Appeals for the Eleventh Circuit struck down key portions of the law as violating the First Amendment rights of the websites.
The Supreme Court has granted review of both cases, and now Cato has filed a joint amicus brief supporting NetChoice and CCIA in both cases. There are many reasons why the laws violate the First Amendment, but our brief focuses on just one aspect of the Fifth Circuit's decision: its reliance on PruneYard Shopping Center v. Robins (1980), a flawed Supreme Court decision that should be overruled.
In PruneYard, the Supreme Court held that California could force a private shopping center to host political pamphleteers on its property. The Court held that there was no First Amendment injury to the shopping center because passersby would not likely believe that the shopping center endorsed the speakers it was forced to host. But as our brief explains, there are many reasons why compelling a private entity to disseminate speech inflicts an injury. The false appearance of endorsement is one possible relevant injury, but not the only one. Supreme Court decisions before and after PruneYard have recognized this fact, making PruneYard an outlier in First Amendment doctrine.
For example, in Wooley v. Maynard (1977), the Supreme Court held that New Hampshire could not force drivers to display the state motto "Live Free or Die" on their license plates. It did so despite the fact that drivers were highly unlikely to believe that other drivers endorsed the (required) license plates on their cars. Rather, the Court recognized that a driver was injured simply by being forced "to participate in the dissemination of an ideological message by displaying it on his private property." And before and after PruneYard, the Supreme Court has held in several cases that it is a First Amendment injury to be forced to fund the private speech of others. Here too, the harm is not in any false appearance of endorsement, but simply in the compelled support of speech.
Our brief urges the Court to overrule PruneYard and fully endorse the more comprehensive view of compelled speech that underlies both Wooley and many compelled‐funding cases. Americans have a First Amendment right not only to refrain from speaking but also to refrain from printing, funding, disseminating, staging, selling, or otherwise facilitating or supporting the speech of others. We have these rights for many reasons, not just because we (sometimes) want to avoid associating ourselves as supporters and adopters of that speech. We also may want to simply avoid spreading ideas we don't think are worth spreading.
As our brief explains, the Supreme Court does not need to overrule PruneYard for NetChoice and CCIA to win these cases, but it should overrule PruneYard sooner or later. At the very least, the Court should note PruneYard's outlier status in First Amendment doctrine and decline to extend it to these novel circumstances. The Court should reverse the Fifth Circuit and affirm the Eleventh Circuit, striking down the Texas and Florida laws as First Amendment violations.
In addition to being a badly flawed First Amendment precedent, Pruneyard is also a terrible Takings Clause precedent, for reasons outlined in two articles by Prof. Gregory Sisk (see here and here). That aspect of Pruneyard isn't before the Court in the Texas and Florida social media cases. But the justices should overrule it when and if they get the chance. In my view, the Texas and Florida laws do in fact violate the Takings Clause as well as the First Amendment. But the plaintiffs in the two cases have not pursued that issue.
I have written about the stakes in these cases in greater detail here and here.
For those keeping score, I am one of the relatively few people who simultaneously support the Fifth Circuit's recent decision to bar the White House and other federal officials from coercing social media firms to take down content they deem "misinformation" and oppose that same courts' decision (with a different panel) upholding the Texas social media law. And I have held the same views on these cases regardless of who owns Twitter/X. I didn't like many of the content moderation policies of pre-Musk Twitter, and I like Musk's own policies even less. But the owners of a site should have the right to determine which speech they want to host, and which they don't. If Musk (or any owner) wants to kick me off his site because he doesn't like my views, he should be free to do so - even if it's for a stupid reason.
University Administrators Behaving Badly
A bit lost in the controversy over antisemitic speech on campus is the failure of university administrators to enforce existing rules that are content-neutral.
I have already written about my own university's failure to enforce Virginia's law banning masked demonstrations. That failure continues, despite a letter from the state attorney general reminding universities of their obligation to enforce the law, and despite an incident in which a student waving a pro-Israel Israel flag was attacked by masked demonstrators. My understanding is that other universities in Virginia are also refusing to enforce the law. I have an email from one university police department official explaining that the law was intended to be enforced only if another crime has been committed. This is nonsense. The law is meant to prevent intimidation by hateful mobs, and to help police identify suspects if laws are broken. I understand that one would not want to suddenly enforce the law and arrest masked students on felony charges, but I don't see any problem with enforcing the law after providing due warnings.
Meanwhile, at Cornell anti-Israel groups have been disrupting indoor spaces with extremely loud chanting of "from the river to the sea" and so forth. When students and their parents complained to the school, the response they received from the dean's office is that the university would not intervene unless the protests were "too" disruptive. When pressed, 20-30 minutes of disruption was deemed not "too" disruptive. But it gets worse. According to the Cornell Sun, a university official admitted that the administration has been cooperating with the disruptions, including the students' "occupying" a campus building as he made the statement!
During the meeting, Lombardi also stressed the administration's cooperation and commitment to free expression and student protests. He emphasized that the administration has cooperated with students and demonstrators with respect to the events planned for the week by CML.
"You've had a lot of activities [and] demonstrations, and the staff that's been here has been very committed to helping you be able to do that and express yourself during your demonstrations throughout the week," Lombardi said. "So we remain very committed to that, including today."
UC Berkeley has an "all-comers" policy, ie, student organizations must be open to everyone with no discrimination. Nevertheless, as revealed in a recent lawsuit filed against the university, twenty-three student organizations have adopted policies that discriminate against "Zionists" in various ways. Dean Erwin Chemerinsky has determined that putting aside any civil rights considerations, these policies violate the university's all-comers policy. Starting next semester, he has told students, work for any of these organizations will not be eligible for course credit. However, the organizations apparently remain free to use the Berkeley Law School name, office space, funding, and faculty advisors. Dean Chemerinsky seems to think this is required by the First Amendment. For my part, I don't see how student organizations have a First Amendment right to violate content-neutral university policy, nor why that any such right would apply differently to course credit as opposed to other privileges.
A lawsuit filed against New York University provides several examples of university officials declining to enforce the university's own regulations against anti-Israel protestors and activists.
Anti-Israel students at MIT blocked entrance to a university building while classes were being held, obviously contrary to university rules. The university declined to suspend them because of "serious concerns about collateral consequences for the students, such as visa issues."
These are just a few of the examples I have come across since October 7 of universities declining to enforce their own content-neutral rules. Such actions leave the universities vulnerable to civil rights complaints, given that failure to enforce these rules (a) can contribute to a hostile environment for Jewish students, as their pleas for the university to enforce the rules are ignored; (b) may permit discrimination against Jewish students (as at Berkeley) contrary to school rules; and (c) may constitute discrimination by demonstrating selective indifference to the concerns of Jewish students, if the rules get enforced in other contexts.
But legalities aside, many people are calling for universities to crack down on "hate speech." Instead, critics should demand that universities enforce existing content-neutral rules--and that they certainly should not, as at Cornell, be actively collaborating with student groups in breaking those rules.
Today in Supreme Court History: December 11, 1922
12/11/1922: Pennsylvania Coal Co. v. Mahon decided.
The Rotten Core Of College Campuses
Many readers may be aware that it is currently the holiday of Chanukkah. And maybe you know that during this holiday, the Jewish people light a menorah (candelabra) with eight candles to remind us of a miracle: in ancient times, there was only enough oil to light a lamp for one day, but the oil lasted for eight days. But why was there so little oil left over? Why was the holy temple destroyed? The Syrians forced the Jewish people to accept their Hellenistic beliefs, and worship pagan idols. A small band of Jewish rebels, known as the Maccabees (Hammers), fled from the Syrians, and hid in the hills. Against all odds, the Jews defeated the Syrian army, and rededicated, or sanctified their temple. Chanukkah translates to dedication.
The Chanukkah story is not an outlier. Throughout the entirety of recorded history, there have been countless attempts to wipe out the Jewish people. It is told that King Louis XIV asked Blaise Pascal, the French philosopher, to provide evidence of miracles. His response was simple: the Jews. As all other civilizations come and go, the Jews somehow continue. Nevertheless we persisted, as the saying goes. This story may be apocryphal, but it conveys an important lesson: in every generation, there are attempts to exterminate the Jews, yet this scrappy minority survived. Indeed, many Jewish holidays can be summed up with some humor: they tried to kill us, they failed, let's eat.
In every generation, different rationales are put forward for why the Jews cannot be accepted: they practice heretical beliefs (monotheism), they reject the true religion (polytheism), they follow laws without reason (chok), they committed deicide (Jesus), they spread disease (the Black Death), they were infidels (Islam), they engaged in harmful practices (usury), they refuse to convert (Inquisition), the holy land belongs to us (multiple crusades), they don't belong (multiple expulsions), they do not belong (pogroms), they cause struggles (Nazis), and so on. The history of civilization can be written based on whatever the elite society of the day thinks about the Jewish people. As Justice Scalia reminded us, the Holocaust "happened in one of the most educated, most progressive, most cultured countries in the world."
In the wake of the Holocaust, there was perhaps a brief moment of lucidity when the nations of the world recognized that the Jewish people needed a home of their own to ensure these atrocities never happen again. To put it in terms even Tirien Steinbach could understand, Israel would be a "safe space," or "affinity housing," for the world's most oppressed minority. (Don't ask her if the Jews are worth the squeeze.)
Regrettably, as soon as Israel was established, the millennia-long train of anti-semitism simply morphed into its latest manifestation: anti-Zionism. They don't hate all Jews, they just oppose all Jews who seek to protect the the only speck on planet Earth devoted for their protection. This doctrine was dressed up in all the academic garb of Marxism, anti-colonialism, and critical racial studies. Anti-Zionism was championed by elite academics on campuses. DEI apparatchiks, ostensibly hired to promote equity, reified the anti-Zionist trope. Students, who are woefully unfamiliar with world history, see the children of the Holocaust as just another oppressor. And, as they are taught, any act of resistance against the oppressors is not only justified, but necessary. The right type of violence demands silence.
The "gotcha" questions about whether a call for genocide is anti-semitic largely misses the mark. The deeper question is why are elites, in every civilization, drawn to theories that antagonize the Jews. Whether it is Hamas, Hitler, Hadrian, the Hellenists, or Harvard, the root cause is always the same: the Jews are different. The wise people of the day can always make up some rationale to get to that conclusion. Really nothing ever changes. Recently, during the oral argument in Students for Fair Admissions v. Harvard, Justice Gorsuch observed "Harvard's move to a holistic application approach happened in the 1920s because it wanted to impose a quota on Jewish applicants, but it didn't want to do through front door, so it used diversity as a subterfuge for racial quotas." There are always subterfuges to treat the Jews differently.
This background brings me to recent events on campus. Let me make two points at the outset. First, I think Eugene has accurately described First Amendment doctrine, as well as the analogous principles that private universities purport to follow. Second, modifying campus speech policies would likely be turned around to censor Jewish students in the future who defend Israel's policies.
The problem here is not the First Amendment or any campus speech protocol. The root of the problem is the rotten core of college campuses. From the earliest age, students are inculcated with a flawed philosophy: the world must be divided between the oppressed and oppressors. And the answer to any question turns not on any sort of objective moral truths, but based on a dogmatic preference for the plight of the oppressed. So long as this ideology predominates, no committees or task forces can make any difference. Simply adding Jews to the list of "oppressed" people masks the underlying rot. Indeed, the past two months have demonstrated the complete failure of DEI as an institution. If DEI could not handle the most blatant outbreak of anti-semitism since the Holocaust, what good does it serve? These apparatuses should be abolished and the intersectional pyramid should be toppled.
I still favor robust protections for free speech on campus, and oppose governmental intervention in academia. I also worry what happens when donors can influence what happens in academic progress. I'll admit, these views are much less sturdy then they were a few months ago. Let's see what the future brings, as Presidents lose their jobs, as donors withdraw donations, and perhaps, a future Department of Education in a Republican administration brings down the Maccabee.
Presidential Immunity Does Not Bar Suits Against Trump for His Conduct on January 6
The U.S. Court of Appeals for the D.C. Circuit rejected the former President's attempt to claim presidential immunity covered his conduct on January 6.
On December 1, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected Donald Trump's attempt to dismiss multiple suits filed against him for his conduct on January 6 on grounds of presidential immunity. Specifically, the Court in Blassingame v. Trump affirmed the district court decision denying Donald Trump's motion to dismiss various federal and D.C. law-based claims filed against him seeking recovery for physical damages and emotional distress allegedly caused by his incitement of the riot at the Capitol.
The opinion for the panel, by Chief Judge Sri Srinivasan, is a careful and reasoned exploration of the law of presidential immunity. It is also quite narrow, in that it does not determine whether the claims filed agaisnt Trump will or can ultimately succeed. Judge Greg Katsas joined the opinon in full, and Judge Judith Rogers concurred in part.
Judge Srinivasan's introduction, which begins after the jump, nicely summarizes the law of presidential immunity and describes the "objective" text for whether a President's conduct -- and, in this case, his speech -- is cloaked with immunity. This approach strikes as quite sound, and directly in line with the few Supreme Court precedents to bear on this question. (And for those who care about such things, was joined in full by an Obama and Trump nominee, and in part by a Clinton nominee.)
"The Trouble with Congress or College Presidents Policing Free Speech on Campuses"
Will Creeley (FIRE) and I have this L.A. Times opinion piece today. I doubt our readers will find anything new here (it's based on FIRE's past work explaining free speech, and on my posts about the absence of any exception for advocacy of genocide), but I thought I'd pass it along.
From Sam Altman (OpenAI) on Anti-Semitism
for a long time i said that antisemitism, particularly on the american left, was not as bad as people claimed.
i'd like to just state that i was totally wrong.
i still don't understand it, really. or know what to do about it.
but it is so fucked.
— Sam Altman (@sama) December 8, 2023
(Apropos The Lesson and the value of free speech; see "Moral Rot": Rude Awakenings, Lessons, and Being Not Sure How to Cope.)
