Prof. Tamara Kay's lawyers' response to the motion to dismiss her libel lawsuit against the Irish Rover newspaper argued that the articles about her were unprotected by the First Amendment, partly because:
[G]iven that the mission of the Irish Rover is "to articulate and defend the Catholic character of the University," it seems improbable if not impossible that in publishing the October 12 and March 22 Articles, the Irish Rover and its faculty advisors and other Notre Dame faculty were trying to advance "the public exchange of ideas" essential to a healthy democracy.
The lawyers also argue that the speech in the newspaper was “not made pursuant to its right of free speech, but to instead to advance the personal agendas of male faculty members at Notre Dame [and others].”
[A.] Defendant's Motion Should Be Denied Because the Irish Rover's October 12 and March 22 Articles Regarding Professor Kay Were Not in Furtherance of the Right to Free Speech.
The Irish Rover presumes that as a student newspaper it is somehow automatically entitled to the protections of the First Amendment or the Indiana Constitution. However, this is simply not true. The Irish Rover is not entitled to First Amendment protection as it is a private student newspaper at a private university. The First Amendment was designed by its framers to foster unfettered discussion and free dissemination of opinion dealing with matters of public interest and governmental affairs. Mills v. Alabama, 384 U.S. 214, 218-219 (1966). The First Amendment, however, does not protect rights of speech and assembly against interference or impairment by private individuals. Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
Prof. Tamara Kay, a sociology professor at Notre Dame, sued a student newspaper (TheIrish Rover) for libel. Prof. Kay's position was apparently that these statements—in an October article, a March article, and a Tweet regarding the October article—"were not made in good faith and with a reasonable basis in law and fact" (see also the Complaint):
Keough School Professor Offers Abortion Access to Students
Abortion assistance offered to students despite IN law, ND policy
Notre Dame Professors Help Students Obtain Abortions
Kay used this panel as a platform…complementing her work to bring abortion to Notre Dame students.
The letter "J" on office doors denotes Notre Dame professors who are willing to help students access abortion.
Much of Kay's efforts to help students obtain abortion services…
In yesterday's Kay v. Irish Rover Inc., Judge Steven David (St. Joseph County, Indiana) held that the statements were basically accurate, and as a result granted defendant's "anti-SLAPP" motion to dismiss; an excerpt:
On September 15, 2022, Indiana S.B.1 took effect, limiting abortion in Indiana, although the law was enjoined shortly thereafter.
In addition, on the same day, Dr. Kay affixed a poster to her office door that read: "This is a SAFE SPACE to get help and information on ALL healthcare issues and access –confidentially and with care and compassion. My non-ND email is reprohealthahumanright@pm.me." Dr. Kay also put a J surrounded by a circle on her door.
Around this same time, Dr. Kay tweeted: "Such a devastating day to be a woman in IN. But women faculty @NotreDame are organizing. We are here (as private citizens, not representatives of ND) to help you access healthcare when you need it, & we are prepared in every way. Look for the "J" Spread the word to students!"
Dr. Kay also tweeted links to organizations providing Plan B and Plan C abortifacient pills. Both Abortion Finder and Catholics for Choice provide information on how to receive reimbursement for costs for traveling out of state for abortion and how to get abortion pills by mail and describe what the woman will have to do if her state does not legally permit such abortions.
The Catholics for Choice tweet publicized a Twitter account "@PlanCpills," which provides a guide for abortion pills by mail in all 50 States and encourages women to "Get Abortion Pills Now, Just In Case." See id. Dr. Kay's September 16, 2022, tweet, in which she shared photos of "Need to be un-pregnant" stickers with QR codes that led to "PlanCPills.org," preceded by the text, "DM me if you want some physical stickers. A lot have been ordered. Sharing information is still legal in Indiana!"
The J symbol, which was on Dr. Kay's door, was commonly understood by some people on Notre Dame's campus, and some people outside Notre Dame to symbolize those who were upset about abortion bans/or fighting for abortion rights/access.
Dr. Kay maintained that the "J" in the tweet was only meant to indicate that she was an advocate for victims of sexual assault. The Court finds that the "J" on Dr. Kay's door, particularly when read in context with the other words and statements on her door, and her statements and tweets and work that was being done contemporaneous to this relevant time, can most reasonably mean to infer something much broader than just being an advocate for victims of sexual assault but was being used, in conjunction with the other statements on the door, and her other statements, tweets, writings and social media, to identify her as one who is "willing to help students access abortions," including abortion pills, as well as assist victims of sexual violence. This is consistent with her position on abortion as set forth in her articles and social media communications.
I thought this item from Prof. John Greil at Texas was much worth passing along; he is still developing the syllabus, and comments and suggestions are welcome at john [dot] greil [at] law [dot] utexas [dot] edu:
Next fall semester, I'll be teaching a new course at Texas Law—Understanding Conservative Legal Thought. It's modeled largely off what Steve Sachs and Ernie Young did at Duke, as well as what Judge Katsas and Alida Kass are doing at George Washington. I want to give students a chance to grapple with the big legal debates happening right-of-center today, as well as teach students the skills to effectively advocate in front of today's judges.
The course will likely be seven 2-hour sessions, with (I'm hoping) some excellent guests joining us. In addition to the content, I'm really excited about the structure, where I aim to bring some of the seminar experience I had in Notre Dame's Great Books program (the Program of Liberal Studies) to the classroom. To that end, I plan to have students lead discussions and grade (partially) based on an oral exam.
I'd love to get feedback on the list, and I think your readership is the best place to get that feedback. [The readings largely include excerpts from the cited sources, not the entire works. -EV] I'm especially interested in pieces that work well with newcomers to the debates. The biggest problem (which is a good one to have!) is too much great stuff, and not enough time. I'm doing a one-credit course to get a feel of it, and hope to expand it the year after.
Session 1: What is a seminar?
Vincent Lloyd, A Black Professor Trapped in Anti-Racist Hell, Compact Magazine (Feb. 10, 2023)
Paula Marantz Cohen, The Lost Art of Academic Conversation, The Chronicle of Higher Education (Mar. 14, 2023)
"By contrast, a holding that the President is not an 'Officer of the United States' would authoritatively resolve the Section 3 case against the Petitioner. In that event, it will be the people, and not judges, or state officials, or Congress, who will decide."
On Friday, January 5, the Supreme Court granted certiorari in Trump v. Griswold, the Section 3 case from Colorado. Today, my co-counsel and I filed an amicus brief on behalf of Professor Seth Barrett Tillman in support of the Petitioner. (The Court set January 18 as the deadline for amicus briefs, but we filed early.)
Here is the summary of the argument:
This case turns on two threshold questions: "Can States enforce Section 3 in the absence of federal enforcement legislation?" and "Is the President an 'Officer of the United States'?" Both of these questions were settled long ago. In Griffin's Case, Chief Justice Chase recognized that Section 3 of the Fourteenth Amendment required federal enforcement legislation. And a historical tradition stretching back to the Early Republic establishes that "Officers of the United States," as used in the Constitution, are appointed, and not elected. Yet, this settled tradition was unsettled in the wake of January 6, 2021. The Colorado Supreme Court discarded Griffin's Case and ignored all textual evidence that the President is not an "Officer of the United States."
This Court should reverse on both grounds. First, Griffin's Case settled the meaning of Section 3, is consistent with the longstanding sword-shield dichotomy in federal courts' jurisprudence, and reflects a core premise of reconstruction: Congress, and not the distrusted States, was empowered to enforce Section 3. Second, the four provisions of the Constitution of 1788 that use the phrase "Officers of the United States" do not refer to the President. And the Framers of Section 3 used that older, extant, limited language, in particular the Oaths Clause, and in doing so carried forward the meaning of "Officers of the United States" from that "old soil." In 1788, 1868, and today, "Officer of the United States" in the Constitution extends exclusively to appointed positions and not to elected positions.
A ruling on the first ground would immediately halt the litigation in Colorado and other States. A ruling on the second ground would authoritatively resolve the Section 3 case against Petitioner in the leadup to January 6, 2025.
I am grateful to my co-counsel: Robert Ray, R. Scott Reisch, Jessica L. Hays, and C. Thomas Ludden.
After the jump, I've included key excerpts from the brief.
Returning from winter break, this episode of the Cyberlaw Podcast covers a lot of ground. The story I think we'll hear the most about in 2024 is the remarkable exploit used to compromise several generations of Apple iPhone. The question we'll be asking is simple: How could an attack like this be introduced without Apple's knowledge and support? We don't get to this question until near the end of the episode, and I don't claim great expertise in exploit design, but it's very hard to see how such an elaborate compromise could be slipped past Apple's security team. The second question is which government created the exploit. It might be a scandal if it were done by the U.S. But it would be far more of a scandal if done by any other nation.
Jeffery Atik and I lead off the episode by covering recent AI legal developments that simply underscore the obvious: AI engines can't get patents as "inventors." What's more interesting is the possibility that they'll make a whole lot of technology "obvious" and thus unpatentable. Speaking of obvious, claiming that companies violate copyright when they train AI models on New York Times content requires a combination of arrogance and cluelessness that can only be found at, well, the New York Times.
Paul Stephan joins us to note that the National Institute of Standards and Technology (NIST) has come up with some good questions about standards for AI safety.
Jeffery notes that U.S. lawmakers have finally woken up to the EU's misuse of tech regulation to protect the continent's failing tech sector. Even the continent's tech sector seems unhappy with the EU's AI Act, which was rushed to market in order to beat the competition and is therefore flawed and likely to yield unintended and disastrous consequences, a problem that inspires this week's Cybertoon.
Paul covers a lawsuit blaming AI for the wrongful denial of medical insurance claims. As he points out, insurers have been able to wrongfully deny claims for decades without needing AI. Justin Sherman and I dig deep into a New York Times article claiming to have found a privacy problem in AI. We conclude that AI may have a privacy problem, but extracting a few email addresses from ChatGPT doesn't prove the case.
Paul explains the competition law issues raised by app stores – and the inconsistent outcome of app store litigation against Apple and Google. Apple's app store skated free in a case tried before a judge, but Google lost before a jury and has now entered into an expensive settlement with other app makers. Yet it's hard to say that Google's handling of its app store monopoly is more egregiously anticompetitive than Apple's.
We do our own research in real time to address an FTC complaint against Rite Aid for using facial recognition to identify repeat shoplifters. The FTC has clearly adopted Paul's dictum, "The best time to kick someone is when they're down." And its complaint shows a lack of care consistent with that posture. I criticize the FTC for claiming without citation that Rite Aid ignored "false positive" racial bias in its facial recognition software. Digging into the research, I conclude that, if the FTC itself was subject to penalties for unfair and deceptive marketing, this filing would lead to sanctions.
We move from stories about the government regulating Silicon Valley to stories about Silicon Valley regulating the government. Apple has decided that it will now require a judicial order to give government's access to customers' "push notifications." And, giving the back of its hand to crime victims, Google decides to make geofence warrants impossible by blinding itself to the necessary location data. Finally, Apple decides to regulate India's hacking of opposition politicians and runs into a Bharatiya Janata Party (BJP) buzzsaw.
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, 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
As covered in this week's Cyberlaw Podcast, the AI Act is getting some poor reviews -- from the US Congress as well as Europe's tech sector. How could something like this happen in the home of the vaunted "Brussels Effect?" Fear not. Cybertoonz has the explanation.
In Animal Legal Defense Fund v. Reynolds (8th Cir. 2021) ("ALDF I"), this court considered an Iowa law that prohibited (1) accessing an agricultural production facility by false pretenses and (2) making a false statement or misrepresentation as part of an application for employment at such a facility. We concluded that the prohibition on accessing a facility by false pretenses did not violate the free speech clause of the First Amendment. But we ruled that the prohibition on making false statements in an employment application was insufficiently tailored and unconstitutional, because it encompassed statements that were not material to an employment decision.
A new Iowa law solves the materiality problem in the employment provision by forbidding the use of deception "on a matter that would reasonably result in a denial of an opportunity to be employed." The statute also narrows the scope of both prohibitions by adding an intent element: the law forbids the use of deceptive speech only when the person gains access or employment "with the intent to cause physical or economic harm or other injury" to the agricultural production facility. After several organizations challenged the new law, the district court concluded that the intent requirement renders the law "viewpoint-based" and unconstitutional under the First Amendment. We respectfully disagree, and therefore reverse….
The challenged statute includes two provisions—an "Access Provision" and an "Employment Provision." Both regulate false or deceptive speech. This type of speech is not per se unprotected, but the State may proscribe "intentionally false speech undertaken to accomplish a legally cognizable harm." ALDF I.
The Access Provision and the Employment Provision do just that. The Access Provision proscribes false speech used to commit a trespass. The harm flowing from trespass is legally cognizable. The Employment Provision proscribes gaining employment through false speech on matters that are material to hiring. As the plurality in Alvarez explained, where false claims are made to secure offers of employment, "it is well established that the Government may restrict speech without affronting the First Amendment."
Iowa enacted a trespass-surveillance law penalizing anyone who, while trespassing, "knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property[.]" …
The Act applies only when there has first been a "trespass" as defined in Iowa Code § 716.7(2). When a general trespass does not involve injury to a person or property damage over $300, Iowa punishes the offense as a "simple misdemeanor," with a fine between $105 and $855 and up to thirty days of imprisonment. The Act, however, punishes a first offense of trespass-surveillance as an "aggravated misdemeanor," with a fine between $855 and $8,540 and up to two years of imprisonment. The State argues these steeper penalties are, in part, meant to deter would-be trespassers from placing or using recording devices, in addition to protecting the privacy interests of Iowans on their private property….
Because freedom of speech includes expression through the making and sharing of videos, we assume without deciding that the use of a camera while trespassing implicates the First Amendment as protected activity. We must then review the statute by applying the appropriate level of scrutiny. As the district court correctly assumed, Plaintiffs' facial challenge to the Act should be reviewed under intermediate scrutiny because the Act represents a content-neutral time, place, and manner restriction.
This post is a list of my upcoming speaking engagements for the Spring 2024 semester. Unless otherwise noted, all events are free and open to the public—and in person. The listed times are those in the time zone where the event is being held.
I may add additional events and information to this post, over time.
In the meantime if your university, think tank, research institute or other similar organization would like to invite me to speak (either virtually or in person) on any topic within my expertise, I am open for business! You can get an overview of the issues I write and speak about at my website.
Jan. 9, 12:00-1:15 PM, Brigham Young University Law School, Provo, UT: "The Case for Disqualifying Trump Under Section 3 of the 14th Amendment." Debate with Prof. Kurt Lash. Sponsored by the BYU Federalist Society.
Jan. 10, 2-3 PM, Competitive Enterprise Institute, Washington, DC: "The Case Against Nationalism." This event is by invitation only, I believe.
Feb. 1, noon-1 PM (tentative time), University of Dayton School of Law: "A Qualified Defense of the Major Questions Doctrine." Sponsored by the Dayton Federalist Society.
Feb. 8, 1:15-2:15 PM, University of Michigan, Ross School of Business, Rm. 0420, 701 Tappan Street, Ann Arbor, MI: "Free to Move: Foot Voting, Migration, and Political Freedom." Sponsored by the Adam Smith Society.
Feb. 9, 12-1PM, University of Michigan Law School, Hutchins Hall, Room 138, Ann Arbor, MI: "Sanctuary States of the Left and Right: A Defense of Liberal Immigration Sanctuaries and Conservative Gun Rights Sanctuaries." Sponsored by the Univ. of Michigan Federalist Society.
Feb. 15, noon-1:15 PM (tentative time), Case Western Reserve University Law School, Cleveland, OH: "The Free Market Case for Open Borders Immigration" (tentative title). Sponsored by the Case Western Federalist Society.
Feb. 22, noon- 1 PM, University of North Carolina Law School, Chapel Hill, NC: "Rights and Wrongs of State Preemption of Local Government Policy" (debate with Prof. Rick SU). Sponsored by the UNC Federalist Society.
Feb. 29, noon-1 PM, Scalia Law School, George Mason University, 3301 Fairfax Dr., Arlington, VA, Rm. 120: "Is Trump Disqualified From Office." Panel with Debra Perlin (Citizens for Responsibility and Ethics in Washington, the organization litigating Trump v. Anderson on behalf of the plaintiffs) and John Maier (CREW). Sponsored by the George Mason University American Constitution Society (ACS).
Mar. 6, 12:45-2:00 PM: Boston University School of Law, Boston MA, 765 Commonwealth Ave, Rm. 204: "The Constitutional Case Against Exclusionary Zoning." Sponsored by the BU Federalist Society.
Mar. 6, 4:20-5:40 PM, Law and Economics Workshop, Boston University School of Law, Boston MA: "The Constitutional Case Against Exclusionary Zoning." This event is likely limited to faculty and other invitees. It will focus on different aspects of the article than the Federalist Society event earlier the same day.
April 2, 12-1 PM, Scalia Law School, George Mason University, Arlington, VA, Hazel Hall, Rm. 120: "The Criminal Cases Against Trump." Sponsored by the George Mason Criminal Law Society.
April 5, 10:30-11:00 AM, University of Denver, Denver, CO: "Takings, the Police Power, and the Right to Use," Conference on "The Origins, Justification, and Implications of the Right to Property."
April 11, 11:40 AM-1 PM, MIT Sloan School of Management, Rm. E62, 100 Main St, Cambridge, MA: "Free to Move: Foot Voting, Migration, and Political Freedom." Sponsored by the MIT Adam Smith Society.
April 23, 12-1 PM, Schar School of Policy and Government, George Mason University, Van Metre Hall, Rm. 111, 3351 Fairfax Dr., Arlington, VA: "The Constitutional Case Against Exclusionary Zoning," Panel on "Solving the Nation's Housing Shortage." The other panelists will be Prof. Bryan Caplan, author of Build, Baby, Build: The Science and Ethics of Housing (George Mason University), and Jerry Howard (former Director of the National Association of Home Builders). UPDATE: This event has been postponed till September, for scheduling reasons. I will post the new date and time when it is set.
Today the Supreme Court denied certiorari in American Petroleum Institute v. Minnesota, in which energy companies were seeking to remove state-law claims against energy companies from state to federal court. Thus climate change is not returning to the Supreme Court (at least not yet).
For reasons I explained last month (and reiterated here), the Supreme Court's denial of certiorari was totally warranted. The energy companies' arguments are largely based upon the claim that climate-change-based tort claims necessarily implicate federal law, and are ultimately preempted. As I have explained at length, and has been recognized by virtually every circuit court judge to hear such claims (most recently by a three-judge panel on the D.C. Circuit), that is just not so. And absent a circuit split, there was simply no reason to take this case (though other climate-related cases may find themselves on the Court's orders docket in due course).
As noted on the orders list, one justice -- Justice Kavanaugh -- would have granted the petition for certiorari. As I have notedbefore, Justice Kavanaugh has repeatedly indicated an interest in hearing cases that did not interest his colleagues.
A good illustration of the strong policy of openness in American court cases, even when defendants argue that unfounded allegations in court records are intruding on their privacy and damaging their reputations.
In Magistrate Judge Daphne Oberg's decision Thursday in Schur v. Berntsen, self-represented plaintiffs had sued, "generally alleging Defendants are involved in 'sex trafficking, … labor traf[f]icking, harass[ ]ment, [and] hate crimes.'"
In this case, Plaintiffs alleged Nathan Schur met Ms. Berntsen through a dating application and Ms. Berntsen later sexually assaulted him, filed a false police report about him, threatened him with guns registered to another person, and "continued harassing [him] and asking for sexual favors." They alleged both defendants filed a protective order against Mr. Schur, "making him fear for his safety in the state of Utah." They further alleged Ms. Berntsen "intimidated Mr. Schur and his family in their political asylum case." According to the complaint, Mr. Schur obtained his green card in 2015 but Ms. Berntsen then tried to interfere with his citizenship "with her attempts to turn [Mr.] Schur into a sexual slave." Plaintiffs also allege [plaintiffs] Ana Maria Ravines de Schur (Mr. Schur's mother) and Jessica Johannes were traumatized by Ms. Berntsen's threats against Mr. Schur and by viewing a video of the assault.
The case was dismissed in 2022, largely because plaintiffs had alleged violations of criminal statutes that didn't provide for civil enforcement in private lawsuits, and because the allegations didn't support any claim "under 18 U.S.C. § 1595, which provides a private right of action for victims of slavery and trafficking":
The complaint alleges Mr. Schur was sexually assaulted and harassed, but it does not allege the defendants held him in a condition of peonage, involuntary servitude, or forced labor. And a general allegation that Ms. Berntsen is attempting to make Mr. Schur a "sexual slave" is insufficient to allege the defendants are guilty of or benefitted from trafficking him into slavery. Additionally, the complaint does not allege that either Ms. Ravines de Schur or Ms. Johannes are victims of slavery or trafficking by the defendants—and 18 U.S.C. § 1595 only provides a private right of action for victims. For these reasons, the complaint fails to state a claim under 18 U.S.C. § 1595. And the court is unable to conceive of any other federal cause of action under which the complaint could state a claim.
(Presumably the plaintiffs could sue for ordinary torts, such as battery, but they didn't do so, presumably because such a claim would have had to be brought in state court.) A year later, defendant sought to have the case sealed, but the Magistrate Judge said no:
Ms. Berntsen alleges she and her son … have been victims of Mr. Schur's harassment and Ms. Berntsen is the repeated victim of domestic violence by Mr. Schur. She asserts she has a protective order against Mr. Schur, which he has violated….
From Dekarske v. Lopez, decided Dec. 28 by the Michigan Court of Appeals (Judges Redford, Shapiro, and Yates), which holds that the suspension of supervised parenting time on these grounds was improper:
In 2000, plaintiff was convicted, by a plea of no contest, of fourth-degree criminal sexual conduct (CSC-IV), for which he served five years of probation and completed a sexual rehabilitation program. The parties met in 2016 through an online dating site. Plaintiff disclosed his prior conviction to defendant on their first date, but misrepresented the underlying circumstances. Plaintiff told defendant that, when he was 17 years old, he had sexually abused an 11-year-old girl. In fact, plaintiff sexually abused his half-sister, who was three years old at the time, approximately 30 times.
The parties moved in together in 2017. At that time, defendant had a nine-year-old son, BL, who also resided with the parties. The parties have one child together, CAD, who was born in 2019.
In 2022, defendant discovered the "presentencing report documents" describing the true nature of plaintiff's CSC-IV conviction, and also sexual assaults that he committed on two other children before his conviction in 2000. Defendant, who was concerned that plaintiff had sexually abused CAD and BL, took pictures of those documents and three USB thumb drives to the police, and also contacted Children's Protective Services. The parties' cohabitation and relationship ended around that time.
Detective Kelly Ebersole testified that she was told the drives were encrypted or password-protected, and she contacted plaintiff to obtain the passwords to ensure there was nothing illegal on them before returning them. Plaintiff made approximately 60 attempts to communicate with Ebersole, and, when they finally communicated, plaintiff "became very irate" and refused to provide any passwords, telling Ebersole that she needed to contact his lawyer and to get a search warrant.
1/8/1973: Trial begins for seven men accused of illegal entry into Democratic headquarters at Watergate hotel. The break-in would give rise to U.S. v. Nixon.
Ilya Somin has responded to my post yesterday by denying that Section Three of the Fourteenth Amendment only applies to Insurrections and Rebellions that are akin to the Civil War. He suggests it would have applied to Shay's Rebellion or the Whiskey Rebellion had Section Three been in the Constitution when those rebellions occurred.
Yale Law Professor Jed Rubenfeld has written wisely that all constitutional clauses are written with a paradigmatic wrong that is meant to be righted. The Fourth Amendment "right" to be from unreasonable searches and seizures was meant to right the "wrong" of the British colonial general warrants authorizing sweeping searches of colonial warehouses to look for smuggled goods. The Free Exercise Clause was written to prevent the "wrongs" done to Quakers who were executed for heresy by the Massachusetts Bay Colony, and the exclusion from the franchise of Catholics and Jews by the British government.
The paradigmatic "wrong" underlying Section Three of the Fourteenth Amendment was an insurrection and rebellion during the U.S. Civil War that led to the deaths of between 620,000 and 850,000 Americans. That was 2.5 percent of the population or the equivalent of 7 million people today. Section Three does apply to future "insurrections or rebellions", but they have to be analogous in some way to the Civil War. This is the sense in which the words "insurrection or rebellion" are used in the Fourteenth Amendment.
The January 6th riot let to the death of 5 people, two of whom died of heart attacks. No rioter brought guns to the riot in a country, which is awash in privately owned guns. I am sure many members of the Proud Boys and the Oath Keepers owned guns, but they did not bring them to the ellipse on January 6th. The alleged "insurrection or rebellion" lasted two and one half hours, peacefully dispersed on Donald Trump's request, and occurred in one city in the third most populous country on earth after India and China. The casualties were much smaller than in the many mad gun shooting episodes, which have occurred in schools and other public places like Sandy Hook where 26 people died.
Neither the so-called Shays Rebellion nor the Whiskey Rebellion would have triggered Section Three of the Fourteenth Amendment had it been the Supreme Law of the Land when those popularly labeled rebellions occurred. The "insurrections or rebellions" contemplated by Section Three must be threats to the government akin to that posed by the U.S. Civil War. The January 6, 2001 riot does not even remotely come close to reaching that level.
Steve Calabresi has posted an impressively swift response to my post explaining why the January 6, 2021 attack on the Capitol was an insurrection. But I remain unpersuaded. Steve's emphasis on the use of the word "rebellion" - in addition to "insurrection" - in Section 3 of the 14th Amendment only reinforces my point.
Steve relies on the legal rule of noscitur a sociis, which is the idea that words in a statute should be understood by reference to their "associates," in this case that "insurrection" should be understood as similar to "rebellion" because in Section 3 both occur in the same phrase ("insurrection or rebellion"). He then argues that "rebellion" is limited to uprisings on a scale comparable to the Civil War.
While it is reasonable to read the two words together, one can't be interpreted in such a way as to render the other redundant. That would violate another longstanding rule of legal interpretation: the canon against superfluity, which, as Justice Scalia and Bryan Garner explain in Reading Law, requires courts to give effect to "every word and every provision" in a law and to ensure that "none should be needlessly given an interpretation that duplicates another provision" (quoting US v. Butler (1936)). While "insurrection" and "rebellion" may overlap and be similar, it is perfectly plausible that one may include some uprisings too small to be included in the other. If they were completely identical, one term would be rendered superfluous. Thus, my explanation of how the January 6 attack fits any plausible definition of "insurrection" (including Steve's own preferred definition from the 1828 Webster's dictionary) remains unrefuted.
In addition, the events of January 6 fit any plausible definition of "rebellion," as well - including, once again, Steve's own preferred definition. There is no reason to believe that a "rebellion" must be on a scale comparable to the Civil War, or anything like it. There is nothing incoherent or implausible about the idea of a small-scale rebellion that is quickly suppressed. Such rebellions are actually far more common than large and prolonged ones!
Consider the two most famous pre-Civil War events in American history generally labeled rebellions: Shay's Rebellion (1786-87), and the Whiskey Rebellion (1793). Both were on a scale similar to the January 6 attack. Each involved no more than a few thousand rebels (only about 600 in the case of the Whiskey Rebellion; many fewer than January 6). Each occurred in one part of just one state (western Massachusetts and western Pennsylvania, respectively). The number of combat fatalities (9 for Shay's Rebellion, 3-4 for the Whiskey Rebellion, 5 on January 6) is also similar.
The two 18th century uprisings did take longer to suppress than January 6 did. But that was in large part because a comparable number of rebels were spread over a larger area. Plus, the military response to the two revolts was slow to develop and eighteenth century transportation technology made it harder to move troops quickly than is the case today.
I would add that the objectives of Shays Rebellion (debt relief) and the Whiskey Rebellion (repealing the federal whiskey tax) were more limited than those of the January 6 rebels (seizing control of the most powerful office in the land and denying it to the rightfully elected candidate). In that respect, January 6 was actually more clearly a rebellion than either of the other two.
Relying again on the 1828 Webster's Dictionary, Steve defines "rebellion" as "An open and avowed renunciation of the government to which one owes allegiance; or the taking of arms traitorously to resist the authority of lawful government; revolt." The January 6 attack easily falls within this definition. The people who attacked the Capitol clearly took "up arms" and "resist[ed] the authority of the lawful government." Indeed, their purpose was to enable Trump to illegally continue to wield that authority. The fact they believed it rightfully belonged to him does not change the nature of their actions, for reasons I outlined in a previous post. Notice also that Steve's preferred definition indicates no minimum scale that an uprising must reach before it can be considered a "rebellion." A small "revolt" qualifies no less than a big one.
Steve asks whether, under my approach, the 2020 "Black Lives Matter" riots also qualify as insurrections. In my view, the answer is probably not, because the rioters did not seek to take control of the powers of government. Unlike the participants in the Whiskey and Shays' rebellions, most didn't even seek the repeal of specific laws. But if some did seize government power (the case of the "CHOP" group, which took control of parts of the Seattle for several weeks may be an example), then their actions do qualify as "insurrection." I have no problem biting that bullet.
Of course, only those participants who previously held various types of public offices can be disqualified under Section 3. Some Seattle officials apparently helped CHOP. If Steve - or anyone else - wants to get these people disqualified from future office-holding under Section 3, I think they might have a good case.
In sum, January 6 was an insurrection - including under Steve's preferred definition of that term. And, to the extent it matters, it probably counts as a "rebellion" as well.
UPDATE: Steve Calabresi has posted an additional rejoinder responding to this post here. He argues that Section 3 applies only to "rebellions" or "insurrections" that are comparable in scale to the Civil War, which is the "paradigm" case the section was intended to address. But Section 3 speaks in general terms of insurrection and rebellion, and requires disqualifying all covered government officials who "engage" in them. That strongly suggests it was meant to apply to all insurrections and rebellions, not just some subset that may be seen as similar to the Civil War. Steve provides no textual or original meaning evidence to the contrary.
It would make little sense to exempt insurrectionists from the ban merely because their attempts to overthrow the government were ineffective and relatively easily crushed. The whole point of Section 3 is to prevent such people from getting a second chance to subvert the republic. People who try one insurrection that fails miserably may be more effective the next time around! They could even learn from their previous mistakes.
The Constitution has many provisions that were enacted in response to a "paradigm" case (or cases), but nonetheless apply more generally. The Fourteenth Amendment's restrictions on racial and ethnic discrimination was enacted in response to southern states' oppression of blacks, but nonetheless protects other groups, too, and ban state-sponsored racial discrimination that takes forms different from those of the Black Codes of the 1860s. The First Amendment was enacted in response to specific types of censorship and oppression of religious minorities practiced by eighteenth century Britain, but nonetheless protects freedom of speech and religion more broadly.
Finally, it is not true the mob attacking the Capitol "peacefully dispersed on Donald Trump's request." They fled because they were defeated after extensive fighting, and reinforcements arrived to assist the initially overwhelmed Capitol Police. Trump did not issue any request to disperse until after it was clear that the attack he inspired was on its way to defeat. Until that point, evidence indicates he was cheering on the mob (much of it summarized by the Colorado Supreme Court in its Section 3 decision), and trying to use the attack as leverage to pressure members of Congress into refusing to certify the election results.
At this point, we are probably in the realm of diminishing returns in this exchange. I will leave off, unless some significant new point is raised. Many thanks to Steve for his insights.
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