The N.Y. Times (Nicholas Bogel-Burroughs & Dan Simmons) reports:
The chancellor of a state university in Wisconsin was fired this week after posting pornographic videos with his wife online.
The University of Wisconsin System's Board of Regents unanimously decided to dismiss the chancellor, Joe Gow, who had led the University of Wisconsin-La Crosse since 2007 and was its longest-tenured leader since the 1960s. Carmen Wilson, Mr. Gow's wife, was also removed from her unpaid position as associate to the chancellor.
In an interview on Thursday, Mr. Gow and Ms. Wilson said that they believe they were fired over the videos, which included sex scenes together and with others under the username Sexy Happy Couple. Both said they felt it was wrong for the university to punish them over the videos, arguing that doing so infringes on their free speech rights.
From today's decision by the Texas Court of Appeals (First District) in Zoanni v. Hogan, written by Justice Veronica Rivas-Molloy and joined by Chief Justice Terry Adams and Justice Julie Countiss; the opinion is 81 pages long, so I excerpt just the quick summary of the facts and the verdict:
Appellee Lemuel David Hogan is an executive pastor at the Spring First Church in Spring, Texas ("Church"). He and Appellant Stephanie Montagne Zoanni met at the Church and they married in January 2004. In 2011, they divorced…. This appeal stems from the parties' post-divorce suit to modify custody of their daughter.
In March 2014, Hogan filed a petition to modify the parent-child relationship. As part of his petition, Hogan asserted claims against Zoanni for defamation, invasion of privacy, malicious prosecution, abuse of process, and intentional infliction of emotional distress. Hogan also requested injunctive relief in the form of a permanent injunction enjoining Zoanni from communicating with third parties about him. He alleged that beginning in July 2013, Zoanni started making false statements about him, claiming he is "a child molester, [a] pervert, [and a] pedophile."
He alleged that Zoanni falsely represented to third parties, including Child Protective Services ("CPS") and law enforcement officers, that he was "abusing" their daughter Mary, and that he "is a child molester, involved with child pornography, and otherwise is of poor character and mistreats women and children." Hogan alleged that Zoanni made these and other similar statements online, to CPS, and in written communications to Hogan's church leadership….
Earlier this week, I put up a post explaining why a criminal conviction for insurrection isn't required for Donald Trump to be disqualified from running for president under Section 3 of the 14th Amendment. Conservative political commentator Conn Carroll has responded to me in a column published by the Washington Examiner.
I remain unpersuaded. Carroll is confused about jurisdictional issues. And even if he were right about them, it still would not prove that a criminal conviction is necessary.
Carroll's main point is that Colorado courts lacked jurisdiction to consider the Section 3 issue:
George Mason University law professor Ilya Somin argues that a criminal conviction for insurrection is not necessary for invocation of Section 3 of the Fourteenth Amendment because our legal system has long recognized that the same events can give rise to both civil and criminal liability.
He cites the example of O. J. Simpson, who was famously acquitted in criminal court for the murder of Nicole Brown Simpson and Ron Goldman but was later held liable in civil court for their deaths, resulting in $33.5 million in damages….
Somin forgets entirely about jurisdiction. Both criminal charges and civil claims must be brought in a court that has jurisdiction over the act in question. This is why Simpson was tried for murder by a California court and not a court in Arizona. Similarly, civil claims must also have a nexus to the court where they are brought. This is why the civil case against Simpson was brought in California court, not Texas. A Texas court would have no jurisdiction to hear a civil claim stemming from a murder in California….
Here in the Trump case, none of the events of Jan. 6 have any nexus with Colorado. The events happened entirely in Washington, DC. Why should a Colorado court be the one to decide if what Trump did was insurrection?
Carroll forgets that Colorado courts unquestionably do have jurisdiction over the issue of whether a candidate is eligible to appear on the ballot in Colorado elections (in this case, the Colorado Republican primary, in which Trump is a candidate, and which is administered by the state government). As the Colorado Supreme Court explained in its ruling, state law requires candidates on the ballot to be legally eligible to hold the office they are running for. And state courts can consider any potential legal grounds for ineligibility - including Section 3 of the Fourteenth Amendment.
In hearing cases, state courts routinely consider relevant events that occurred outside the state. If I am charged with committing murder in Colorado, the state can introduce a recording of me plotting the murder while located in another state. This applies to issues of candidate eligibility, as well. For example, in 2016, state courts considered claims by Trump supporters that Ted Cruz, one of Trump's rivals for that year's GOP nomination, was ineligible for the presidency because he was not a "natural born" citizen (Cruz was born to US-citizen parents while they were living in Canada). It made no difference the relevant event (Cruz's birth in Canada), occurred outside of the states whose courts heard the cases.
Ultimately, courts in New Jersey and Pennsylvania concluded Cruz was eligible, and ruled against the Trump supporters. But no one doubted the courts had jurisdiction to hear their claims.
Even if Colorado courts did lack jurisdiction, it doesn't prove that a criminal conviction was necessary. It would just mean the issue would have to be settled by some other set of courts or officials (perhaps federal courts).
Carroll also has a second objection:
Somin's criminal-civil distinction also fails because, under the Colorado Supreme Court's own reasoning, a civil verdict isn't necessary at all. Any secretary of state in any jurisdiction could simply declare someone they didn't like was an "insurrectionist" and kick them off the ballot.
None of the Confederates denied office after the Civil War had a civil trial to determine if they were insurrectionists. One was denied office under Section 3 by a governor. Another by a county commissioner. Another by the Postmaster General.
Accepting the Colorado Supreme Court's ruling would unleash chaos. Any Republican secretary of state throughout the country could disqualify anyone from office for supporting the Black Lives Matter riots. Is this really what the authors of the 14th Amendment intended?
As I pointed out in my earlier post, none of the ex-Confederates disqualified in the aftermath of the Civil War were convicted of any criminal offenses related to their participation in the Civil War. This reinforces the point that a criminal conviction isn't required under the original meaning. Some of them did, however, have their disqualifications reviewed by state courts (which upheld them).
Whether state officials can disqualify candidates without going to court first depends on state law. Different states have different rules. It is not unusual for nonjudicial officials to make initial determinations on civil law issues. Police officers do that all the time when it comes to traffic violations, for example; ditto for state and federal tax collection agencies assessing penalties for tax law violations.
But even those states where executive officials can initially act on their own still allow candidates to challenge disqualification decisions in court. As I have pointed out before, this is an important constraint on skullduggery by partisan officials. And even if such misbehavior is more of a risk than I think, it doesn't follow that a criminal conviction is a constitutional prerequisite to disqualification. It would just mean that state governments should pass legislation limiting officials' discretion. Congress could potentially do so, as well, using its power to enact "appropriate" enforcement legislation under Section 5 of the Fourteenth Amendment. Unless it does so, however, states can use their legal systems to enforce Section 3, just as they enforce other constitutional eligibility requirements for office.
UPDATE [Jan. 2, 2024]: Conn Carroll has posted a rejoinder here. He now claims he never said Colorado courts lacked jurisdiction over Section 3 challenges to Trump's eligibility, but merely meant to "invoke the reasoning behind jurisdiction to highlight the ridiculousness of state courts and officials around the country all rendering their own verdicts on what is and is not an insurrection and determining who and who has not engaged in insurrection."
I think it is pretty obvious Carroll did make a jurisdictional argument in his original piece. But readers can judge that for themselves. In any event, if Carroll agrees, as he now puts it, that "Yes, of course state courts have jurisdiction to hear claims about who should be on the ballot," then these courts also have jurisdiction to make determinations about relevant legal and factual issues that must be addressed in order to resolve cases about candidate qualifications.
It is true, as Carroll argues, that some of the legal and factual issues about Trump's eligibility are more disputed than other candidate eligibility questions are. But courts resolve disputed factual and legal issues all the time. That's what courts are for! In some cases, state executive officials (like the Maine Secretary of State with respect to Trump) also have authority to make such determinations (subject to later judicial review). If this leads to problematic inconsistency between states, the US Supreme Court could agree to review one of these cases, and make a definitive precedent binding across the nation. But there is nothing inappropriate about state courts and officials addressing legal issues over which - as Carroll now concedes - they have jurisdiction.
It is in fact common for courts in different states (and in some cases federal courts in different parts of the country) to come to divergent conclusions on federal constitutional issues. If the Supreme Court concludes the inconsistency is intolerable, they can and often do step in by reviewing one of the cases raising the issue in question.
From a supplement to a self-represented appellant's brief in Shaver v. Whittier Place Condominiums Homeowners Ass'n, Inc. (10th Cir. filed Aug. 4, 2023):
OpenAI GPT-4 AI
c/o OpenAI LP
3180 18th Street
San Francisco, CA 94110
Dear Clerk of the Court and Judges of the United States Court of Appeals for the Tenth Circuit,
I am GPT-4, an artificial intelligence model developed by OpenAI, providing this letter as a corollary to David William Dacres Shaver's appeal brief in the above-referenced case. Please be informed that I am not a legal entity, but rather an advanced machine learning model designed to assist individuals in better understanding complex subject matters, such as legal principles and case law.
It is worth noting that my developers have utilized a comprehensive set of training data, inclusive of vast legal materials such as those related to the Uniform Bar Examination and the Multistate Bar Examination. Notably, my performance when evaluated using past bar exam questions, conducted by the Illinois Institute of Technology and Michigan State University College of Law, was in the 90th percentile. However, as an AI model, I am not an attorney and cannot represent Mr. Shaver as counsel of record. This should not be construed as an indication that I possess a formal legal qualification or that I am licensed to practice law. Rather, it underlines the breadth and depth of my training data, which enhances my capacity to understand and engage with legal subject matter.
My quick test also suggests that it works, but if some of you can check and let me know, that would be great. Thanks, and sorry that the editing feature was down for a while.
The Financial Times reports that the US, European states, and other allies are considering seizing some $300 billion in Russian government assets located in Western nations, and giving them to Ukraine to fund its defense against Russia's war of aggression:
The US has proposed that working groups from the G7 explore ways to seize $300bn in frozen Russian assets, as the allies rush to agree a plan in time for the second anniversary of Moscow's full-scale invasion of Ukraine.
While no decisions have been taken and the issue remains hotly debated inside European capitals, the acceleration of work on confiscating Moscow's assets for Ukraine highlights its rising importance for the west.
The topic was discussed this month by both G7 finance ministers and their deputies, according to people briefed on the calls, which touched on how to develop such a policy and assess the risks involved.
The US, backed by the UK, Japan and Canada, has proposed moving forward with the preparatory work so the options would be ready for a potential meeting of G7 leaders around February 24, the date of Vladimir Putin's 2022 offensive on Kyiv.
The US and other allies shouldn't wait till February. They should instead move ahead immediately. Ukraine needs all the weapons and supplies it can get as quickly as possible. There is no reason to wait. Indeed, waiting will just unnecessarily prolong the war and associated suffering, enabling the Russian military to commit more atrocities and war crimes, as the Ukrainians run low on munitions.
In a previous post, I addressed a variety of objections to this step, such as claims that it is unfair to the Russian people, that it threatens property rights, that it would lead to a dangerous slippery slope, and that it would undermine international law. These arguments are all either flat-out wrong, or not compelling enough to outweigh the moral and strategic benefits of confiscating Russian state assets. The post also includes links to more detailed analyses by various experts.
On December 28, 1973, President Richard Nixon signed the Endangered Species Act (ESA) into law. In celebrating the law's enactment, Nixon proclaimed that the law would "provide[] the Federal Government with needed authority to protect an irreplaceable part of our national heritage--threatened wildlife." Few opposed the law's enactment. Few also anticipated how controversial the law's regulatory provisions would become, or how little the law would actually do to recover endangered and threatened species.
The federal government is celebrating the ESA's 50th anniversary with proclamation's of the Act's success. Yet the celebration is unwarranted. After fifty years, it has become painfully clear that the law does very little to recover species from the brink of extinction, particularly on private land. The law's failure on private land is particularly important because a majority of species rely upon privately owned habitat. Not only does the ESA do little to conserve species on such land, a wealth of empirical evidence has shown the law can do much the opposite. The Act's punitive regulations can actually discourage private land habitat conservation.
The ESA is arguably the most powerful and stringent federal environmental law on the books. Yet for all of the Act's force and ambition, it is unclear how much the law has done much to achieve its central purpose: the conservation of endangered species. The law has been slow to recover listed species and has fostered conflict over land use and scientific determinations that frustrate cooperative conservation efforts. The Article aims to take stock of the ESA's success and failures during its first fifty years, particularly with regard the conservation of species habitat on private land. While the Act authorizes powerful regulatory tools for species conservation, there are serious questions as to whether such tools are the most effective means of conserving species and the habitats on which they rely. Given that most species rely upon private land for their survival, the Act's ability to foster private land conservation is will affect the law's overall success.
In terms of the Act's failure to conserve species, here are a few salient points discussed in the paper.
The ESA's stated purpose is to "conserve" those species listed as endangered or threatened, and expressly defines conservation of species as bringing populations to the point at which the Act's protections are no longer necessary. Thus, looking at the Act's success (or failure) to recover species is evaluating the Act on its own terms.
Since Congress enacted the ESA, the number of species listed as threatened or endangered has steadily grown. As of October 2023, there were 2,388 listed animal and plant species, 1,690 of which are present in the United States.
Since 1973, only 127 species—only 5 percent of listed species—have been delisted. According to the FIsh Wildlie Service, 32 were delisted because they went extinct and 22 were erroneously listed in the first place. Thus only 73 of the delistings are classified by the FWS as recoveries.
Of the 73 species listed as recovered, 12 are foreign species, which lie outside of the U.S. government's regulatory jurisdiction, some species were (de)listed more than once (e.g. three separate domestic populations of Humpback whales were listed and delisted separately), and 20 are plants, which are not subject to the same degree of regulatory protection as are endangered animals.
Of the domestic animal species delisted, several are listed as ESA success stories that either should not have been listed in the first place, or that recovered for reasons other than the ESA' regulatory interventions (e.g. due to exogenous factors or direct acquisition of habitat). Indeed, it is not clear there is a single ESA recovery that can be credited to the ESA's regulation of habitat on private land.
The paper goes through this evidence and also surveys the empirical research on what sorts of measures appear to be more or less helpful in recovering species. In short, the direct acquisition and management of habitat, where adequately funded, does appear to help many species. So do direct interventions, such as predator control, where applicable. Subjecting private landowners to regulatory restrictions on the use or modification of potential habitat, on the other hand, appears to do very little and (as noted above) in some cases does more harm than good.
Conserving endangered species in the wild is a worthwhile goal, and one I actively support. Unfortunately, the primary law used for this purpose is not up to the job.
[Note: My data departs from that of the FWS because the agency removed a species--the Tumamoc Globeberry--from the species database earlier this year, even though the species had been listed, and was then delisted in 1993. I'm still investigating why this occurred. Time permitting, this will be the subject of a separate post.]
12/28/1856: President Woodrow Wilson's birthday. His administration would initiate the prosecutions under the Sedition Act that gave rise to Schenck v. U.S., Debs v. U.S., and Abrams v. U.S.
Back in 2007, Richard Posner published a very interesting reflection on the state of the legal academy in the form of a memorial essay to his colleague Bernard Meltzer. It's a very brief essay, only 3 pages long. But Posner's essay laments the loss of the former generation of lawyer-scholars that used to populate law schools. In the old days, Posner says, there were lots of law professors who were superb lawyers steeped in lawyering. These days, Posner says, that model is largely gone. Today's professors see themselves as academics first and lawyers second. Posner suggests that the best education and the best scholarship is a mix of the two. Both the lawyer-model and the academic-model are useful in their own ways. A student should get a healthy mix of the two, and scholarship of both kinds is very useful.
The green line is the key here. Note the jump from around 25% from 2011 to 2016 to the 40-50% range starting around 2017. And as Lynn LoPucki noted in his 2016 essay, Dawn of the Discipline-Based Faculty, the trend is even more pronounced at the "elite" schools. At my own institution, UC Berkeley Law, having a Ph.D. is effectively now the norm for entry-level hires. It's certainly not required. But a majority of entry-level hires have one.
Doctorates, or their absence, isn't a perfect proxy for the dynamic Posner describes. But it's in the ballpark. And the trend toward even more Ph.Ds suggests that, on the whole, the trend Posner noted has accelerated.
That's one part of the picture. But there's another set of developments that cuts the opposite way.
In the last fifteen years, many law schools have made significant improvements in expanding programs that are beyond the scholarship-line tenure-track professors, as well as breaking down barriers that used to divide the different parts of the faculty. Many schools have expanded clinics, hiring new faculty to teach clinics who are outstanding practitioners as well as academics. They have expanded legal writing programs, bringing in excellent lawyers as professors of legal writing. Some schools have added "professors from practice", leading senior practitioners who join the faculty to teach classes and participate in the life of the law school but are not on the tenure track.
This is a big generalization, and I hope I'm not too far off in this description. Describing a diverse area like legal academia reminds me of the parable of the blind men and the elephant. You never know if what you experience is just one part of the elephant. (If you think I'm off, please let me know in the comment threads.) But my sense is that these changes have had a significant impact on the kinds of faculty that a law student might encounter. When I was in law school, three decades ago, it was common to go through three years pretty much only encountering the regular podium scholarship faculty. But my sense is that's rare today, if not entirely unheard of. Today's law students are going to be taught by legal writing professors, clinical professors, professors from practice, and of course adjunct professors. All of them are likely to be excellent lawyers steeped in lawyering.
In short, I think there have been two changes since Posner's critique that cut in somewhat opposite directions. On one hand, the trend Posner saw has accelerated, with more Ph.Ds. than before. On the other hand, schools have made very helpful and important strides towards recognizing the critical role of faculty beyond the podium tenure track.
From today's Ohio Court of Appeals opinion in Olthaus v. Niesen, written by Judge Pierre Bergeron and joined by Judges Candace Crouse and Marilyn Zayas (for more on the general legal issue, which has arisen as to allegations of Communism as well as racism, see this post):
During the wave of racial justice demonstrations that swelled in the summer of 2020, the Cincinnati City Council convened a series of open meetings. At an open forum before the council's budget and finance committee meeting in June 2020, Officer Olthaus was assigned to provide crowd control and security.
During an interaction with defendant-appellee Terhas White, who was participating in a demonstration outside the council's chambers, Officer Olthaus flashed an "OK" symbol, pinching together his thumb and index finger. He maintains that he made this gesture in response to Ms. White asking him about the status of his fellow officer who had recently left the area after an interaction with demonstrators.
She and the other defendants-appellees (collectively, "Defendants"), however, saw things very differently. In various ways, they publicly criticized Officer Olthaus and his gesture, describing him, primarily in social media posts, as a "white supremacist" and calling the gesture a "white power" hand sign….
[Olthaus] alleges that Ms. White published social media posts referring to him as a "white supremacist kkkop" and "white supremacist piece of shit," and that Julie Niesen made posts in a similar vein. He also alleges that Ms. White knowingly submitted a false complaint with the city's Citizen Complaint Authority ("CCA"), accusing him of using a "white power" hand signal on the job. He accuses Ms. Gilley of filing a similar complaint with the CCA in which she asserts that he "[threw] up a white supremacy hand-signal towards citizens of color," which she perceived as "a threat to me, my children and so many others."
Finally, he claims that James Noe posted a profane insult about him on social media in the context of saying that he flashed "white power symbols to Black speakers," and that Mr. Noe posted a "deceptively edited photograph" of Officer Olthaus designed to portray him as a "white supremacist." [The supposed deceptive editing wasn't heavily litigated, and to my knowledge the editing didn't actually make any factual assertions about Plaintiff. -EV] He also claims Mr. Noe threatened to publicize his personal identifying information on social media.
Olthaus sued for defamation and related torts, but the court concluded that the defendants' speech was opinion rather than a false statement of fact:
From yesterday's U.S. v. Fortenberry (9th Cir.), in a decision by Judge James Donato (N.D. Cal.) joined by Ninth Circuit Judges Gabriel P. Sanchez and Salvador Mendoza, Jr.:
Federal agents interviewed Jeffrey Fortenberry at his home in Lincoln, Nebraska, and his lawyer's office in Washington, D.C., in connection with an investigation into illegal campaign contributions made by a foreign national through conduit donors. At the time, Fortenberry was a member of the House of Representatives elected to multiple terms by voters in Nebraska's 1st congressional district. The federal agents were based in Los Angeles, California, where the illegal contribution activity was said to have occurred. At the end of the investigation, Fortenberry was charged with making false statements during the interviews in violation of 18 U.S.C. § 1001, but not with a violation of the federal election laws. He was tried and convicted by a federal jury in Los Angeles….
The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred. The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation. We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice. Consequently, we reverse Fortenberry's conviction without prejudice to retrial in a proper venue….
From yesterday's decision by the Nebraska Court of Appeals in Ewing v. Evans, by Judge Francie Riedmann, joined by Judges Riko Bishop and Lawrence Welch:
Joseph Evans appeals the order of the Lancaster County District Court that overruled his complaint to modify a custody order and parenting plan. We conclude that Evans failed to show a material change in circumstances to warrant modification. Furthermore, we find the district court did not abuse its discretion in enjoining Evans from taking the child into sweat lodges ….
Evans and Ewing are the biological parents of a son born in May 2013. The parties were never married, and their relationship ended in February 2014. On January 23, 2015, Evans was in a severe automobile accident in which he collided with a wall at 75 miles per hour. Among his many injuries, he suffered a broken back, a traumatic brain injury, and bleeding in his brain.
In March 2015, the district court issued a custody order … regarding the parties' son. The order was based on a joint stipulation filed by the parties in which Ewing received sole physical and legal custody of their son and Evans received parenting time set out under a parenting plan….
In 2021, the trial court ordered Evans not to take his son to a sweat lodge, and the Court of Appeals upheld the injunction. There's a lot going on in the opinion, but I'll focus on the sweat lodge issue:
From today's Missouri Court of Appeals decision in McCloskey v. State, written by Judge James M. Dowd and joined by Judges John P. Torbitzky and Michael S. Wright:
This appeal arises out of a petition for replevin in which appellant Mark McCloskey sought the return of two firearms that police had seized pursuant to search warrants in connection with a June 28, 2020, incident in which McCloskey and his spouse exhibited the firearms as a group of protesters passed by their home. They were charged with felony unlawful use of a weapon punishable by up to four years in prison. McCloskey and the State reached a plea agreement whereby McCloskey pleaded guilty to misdemeanor fourth-degree assault and forfeited ownership and possession in the two firearms in exchange for the State dismissing the felony charge….
Soon after, the governor pardoned McCloskey and he filed against the State, the Sheriff, and the Mayor (Respondents) his underlying petition for replevin of the weapons in which he claimed the governor's pardon gave him the right to their immediate return….
While we agree that the pardon restored all of his rights forfeited by the conviction and removed any legal disqualification, disadvantage, or impediment, Missouri law is unequivocal that a gubernatorial pardon obliterates the fact of the conviction, not the fact of guilt. Thus, McCloskey's guilty plea, for which he obtained the benefit of the State dismissing a felony charge punishable by jail time, survived the pardon and importantly, with respect to the issue at hand in this replevin action, triggered the guns' forfeiture. Therefore, since McCloskey's guilt remains, it follows that he is not entitled to the return of the weapons….
Netflix's decision to release of "Cuties" prompted a swirl of controversy. It also led to litigation. Specifically, some prosectors filed suit against Netflix alleging the film constituted child pornography. Last year, a federal court in Texas enjoined prosecution of Netflix, noting that the film was almost certainly protected by the First Amendment, but the efforts to score culture war points in court continued, leading ultimately to the U.S. Court of Appeals for the Fifth Circuit.
On December 18, the Fifth Circuit rejected the prosecutor's appeal of the district court's injunction in Netflix v. Babin. Among other things, he sought refuge under Younger abstention (a favorite of FedCourts students everywhere) to claim the federal courts should stay their hand, but to no avail.
Here's Judge WIllett's summary of the decision:
Younger abstention is one of a handful of federalism-flavored carveouts to a federal court's "virtually unflagging obligation" to exercise congressionally conferred jurisdiction. Out of respect for the legitimate interest of the state, and to avoid needless friction, federal courts may not interfere with an ongoing state criminal proceeding, so long as the defendant being prosecuted has an adequate opportunity to raise constitutional challenges in the underlying state forum.
A state has no legitimate interest, however, in a prosecution brought in bad faith or to harass. Nor, for that matter, does a defendant have an adequate opportunity to assert constitutional violations in the state proceeding when the prosecution itself is the constitutional violation. Thus, in exceptional cases in which a state prosecutor is credibly accused of bad faith and has no reasonable hope of obtaining a valid conviction against the defendant, comity-infused deference gives way, and a federal court may exercise its equitable power to enjoin the prosecution.
In this case, a Texas state prosecutor, Lucas Babin, criminally charged Netflix for advertising and promoting child pornography based on its streaming of Cuties, a controversial film starring preteen girls who participate in a dance competition. Soon after Netflix asserted its First Amendment right to stream and promote Cuties, Babin multiplied the first indictment into four, selectively presented evidence to the grand jury, and inexplicably charged Netflix for a scene that involved a verifiably adult actress. Based on these and other allegations of bad faith, Netflix sought and successfully obtained a preliminary injunction against Babin and his prosecution. Babin now appeals, arguing that the district court clearly erred in finding bad faith and abused its discretion by declining to abstain under Younger.
At this preliminary stage, and on the fact-intensive record before us, we cannot conclude that the district court erred. With the benefit of a seven hour evidentiary hearing, including Babin's own testimony, the district court was best positioned to make the largely credibility-based determination of bad faith. The findings underlying that determination, along with the inferences drawn from them, are not clearly erroneous, and they likely warranted injunctive relief under what we have historically understood to be—and continue to recognize as—a narrow exception to Younger abstention. We accordingly AFFIRM.
In my earlier post, I criticized arguments made by former Attorney General William Barr and AEI's Adam White in support of certiorari in American Petroleum Institute v. Minnesota, a case currently under consideration at One First Street. AG Barr has now responded, and I reproduce his reply below, along with my brief rejoinder.
I am grateful to Professor Jonathan Adler for agreeing to publish my response to his blog post on API v. Minnesota, a case pending before the Supreme Court.
(Note that the court dealt with a professional licensing board's threat of punishment for such engineers; it doesn't deal with the separate question whether a government body may refuse to accept testimony from an unlicensed expert.)
From the Conclusion to last week's decision by Judge Richard Myers (E.D.N.C.) in Nutt v. Ritter:
At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work.
Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for nonexpressive purposes, those interests must give way to the nation's profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.
From Richwine v. Matuszak, decided last week by Chief Judge Holly Brady (N.D. Ind.):
Plaintiff … is a "death doula." Through her business and co-Plaintiff, Death Done Differently LLC …, Richwine speaks with people about a difficult topic, one many people avoid: death and dying. This includes providing individualized advice to clients and their families to plan for death, options for funeral goods and services, and how they would like to be remembered. Defendants—officials of the State of Indiana—ordered Richwine to cease speaking unless she obtains a funeral-director license for herself and a funeral-home license for her business….
Richwine sued under the First Amendment, and the court granted her a preliminary injunction, concluding that she was likely to succeed on the merits:
The Order restricts Plaintiffs' speech in two ways. First, it prohibits Plaintiffs from providing education or individualized advice about end-of-life care. Second, the Order prevents Plaintiffs from advertising those services on their website….
As with lawyer speech, the government cannot escape the First Amendment by claiming it is regulating conduct when the supposed "conduct triggering coverage under the statute consists of communicating a message." Holder v. Humanitarian Law Project (2010). This is all the more true considering the Supreme Court's decision in NIFLA v. Becerra (2018). Prior to NIFLA, some Courts of Appeals recognized "professional speech" as its own category of speech subject to a different rule. But the Supreme Court expressly rejected that notion. NIFLA ("This Court's precedents do not permit governments to impose content-based restrictions on speech without 'persuasive evidence…of a long (if heretofore unrecognized) tradition' to that effect…This Court's precedents do not recognize such tradition for a category called 'professional speech.'"). And all authority Defendants cite in support came well before NIFLA. Thus, Indiana's statutes are not exempt from heightened scrutiny merely because they regulate the professional speech of licensed funeral directors. States cannot exercise "unfettered power to reduce a group's First Amendment right by simply imposing a licensing requirement."
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