12/22/1789: Justice Levi Woodbury born.
Today in Supreme Court History: December 22, 1789
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Blackman & Tillman, On The Wall
After the Denver trial court held that the President was not an "Officer of the United States," I observed that the Blackman-Tillman position on Section 3 had moved from "off the wall" to "on the wall."
If there is a wall in the conservative movement, it is Fox News. Over the past two days, our work was cited and discussed in some depth on two Fox News programs.
And if there is ever a wall in the mainstream media, it is the New York Times. In the past two days, our work was cited in three articles.
Other scholars, notably Josh Blackman of South Texas College of Law Houston and Seth Barrett Tillman of Maynooth University in Ireland, say that Section 3 does not cover Mr. Trump. There is, they wrote, "substantial evidence that the president is not an 'officer of the United States' for purposes of Section 3."
In 2021, two conservative legal scholars, Josh Blackman of the South Texas College of Law Houston and Seth Barrett Tillman of the National University of Ireland, Maynooth, published a law review article about the clause arguing on textualist and originalist grounds that a president does not count as an officer of the United States. Among other issues, they focused on language about "officers" in the original Constitution as ratified in 1788 — including language about oaths that can be read as distinguishing appointed executive branch officers from presidents, who are elected.
Others have argued the opposite, with the law professors Josh Blackman and Seth Barrett Tillman saying in a recent draft paper that they saw "no sound basis" for Mr. Baude's and Mr. Paulsen's conclusions.
We are grateful to the NYU Journal of Law & Liberty for publishing our article in late 2021. It's impossible to know in advance what pieces of scholarship will ever be relevant. Our article has been getting some attention of late.
There is much to say about what happened in Colorado. In due time. For now, I gave interviews on several radio stations (KPCC in Los Angeles, KOA in Denver, and KFI in Los Angeles.)
The Supreme Court Should at a Minimum Ask Jack Smith to Brief the Question of the Constitutionality of his Appointment
United States v. Trump
As readers of this blog know, I think Special Counsel Jack Smith was unconstitutionally appointed and that he lacks standing to petition the Supreme Court for certiorari before judgement. But what if four justices disagree and vote to grant certiorari? In that case, I think the Supreme Court should ask Special Counsel Smith to brief the question of whether he has standing and whether his appointment was constitutional?
Could an Attorney General appointed by President Trump appoint, as inferior officers, shadow U.S. Attorneys in Cook County, Illinois, or in New York State thus circumventing the requirement of Senate confirmation in two States which have two Democratic Senators?
Could an Attorney General appointed by President Trump appoint, as inferior officers, a Special Counsel to investigate the editorial writers of the New York Times or the Washington Post on the grounds that they are "vermin"?
The Supreme Court needs to know what the Biden Administration's position is on such questions. Moreover, it needs to know if Jack Smith's appointment is constitutional what limits, if any, there are on the Attorney General's power to circumvent Senate confirmation. As former Attorney General Ed Meese, Professor Gary Lawson, and I all argue in our amicus brief, we do not think that the Attorney General has any power at all to appoint inferior officers as powerful as is Jack Smith.
Abortion-Funding/-Supporting Groups' Challenges to Texas Abortion Laws Can Proceed for Now
The district court just dismissed certain procedural objections to them, though it wasn't asked to consider the substantive arguments.
From today's decision by Judge Robert Pitman (W.D. Tex.) in Fund Texas Choice v. Deski:
This case concerns several Texas abortion advocacy groups that seek to fund or support abortion for Texans in states where it remains legal….
Prior to the Supreme Court's opinion in Roe v. Wade, 410 U.S. 113 (1973), the Texas Penal Code contained Articles 1191, 1192, 1193, 1194, and 119625 (collectively, the "Pre-Roe Statutes"), under which abortion was criminalized….
Beyond the pre-Roe laws, Plaintiffs also challenge the constitutionality of SB 8. The law, which went into effect on September 1, 2021, authorizes private citizens to bring a civil action against any person who performs or "aids or abets" certain abortions in Texas. SB 8 provides that a suit may be brought against a person who "performs or induces an abortion in violation of this subchapter" or any person who "knowingly engages in conduct that aids or abets the performance or inducement of an abortion … if the abortion is performed or induced in violation of this subchapter…"
SB 8 delegates enforcement to private citizens and prohibits governmental officials from enforcing the law. A plaintiff under SB 8 need not have an individualized injury to bring suit. It provides a minimum fine of $10,000 for each abortion but provides no maximum penalty. SB8 purports to limit the effect of the judgments of other courts, including federal courts, by denying the defenses of nonmutual preclusion, claim preclusion (also known as res judicata), and limiting recovery of attorney's fees. SB 8 permits a private plaintiff to bring the case in his or her own county of domicile (if in Texas), regardless of whether that county has any connection to the events alleged or the relevant witnesses and prohibits any motion to transfer venue. The law was designed to avoid judicial review….
Thursday Open Thread
What's on your mind?
Nirvana Nevermind Cover Baby's Child Pornography Lawsuit Isn't Barred by Statute of Limitations,
the Ninth Circuit rules, though expressly noting that "The question whether the Nevermind album cover meets the definition of child pornography is not at issue in this appeal."
From Elden v. Nirvana L.L.C., decided today by Judge Sandra Ikuta, joined by Judges Bridget Bade and Daniel Bress:
Under 18 U.S.C. § 2255 (2018) a person who, while a minor, was a victim of specified offenses, including child pornography offenses, could bring a civil suit for damages for personal injuries. The suit must be brought within ten years after the later of the violation or the injury "that forms the basis for the claim." {In 2022, Congress passed an amendment to 18 U.S.C. § 2255 (2018) that eliminated the statute of limitations for claims brought under § 2255. The parties agree that the 2022 version of the statute does not apply here.}
Spencer Elden alleges that he was the victim of a child pornography offense when (as a four-month-old baby) he was photographed naked in a pool for the cover of Nirvana's iconic album Nevermind. Now an adult, Elden argues that the continued use of this photo causes ongoing personal injuries. We hold that, because each republication of child pornography may constitute a new personal injury, Elden's complaint alleging republication of the album cover within the ten years preceding his action is not barred by the statute of limitations set forth in 18 U.S.C. § 2255(b)(1)(B) (2018)….
In 1987, Kurt Cobain and Krist Novoselic formed the grunge rock band "Nirvana." In September 1991, the band teamed up with a record label to produce what ultimately became the hit album Nevermind. Spencer Elden, who was then four months old, was photographed in a pool for the cover of Nevermind. The released album cover depicts a naked baby, with his penis visible, floating underwater toward a superimposed dollar bill on a fishhook.
The album cover art has become iconic and highly recognizable. It has been displayed in the Museum of Modern Art in New York and has been frequently referenced, imitated, and parodied. Commentators have opined that the naked infant reaching for a dollar symbolizes the ills of a capitalistic society.
#TheyLied Libel Lawsuit Over Allegations of Sexual Harassment Can Proceed,
recommends a Magistrate Judge, in a case brought over defendant student organization chair's claims that plaintiff had engaged in "sever[e], consisten[t], and widespread" misbehavior.
[UPDATE 2/2/2024: District Judge Leo Sorokin adopted the Report and Recommendation, and set the matter for trial, tentatively scheduled for May 6.]
From today's report and recommendation in Koppel v. Moses by Chief Magistrate Judge Donald Cabell (D. Mass.):
This case arises from an incident involving two former students at the Massachusetts Institute of Technology …. [The parties], both graduate students at the time, belonged to a student organization known as the Student Information Processing Board ("SIPB"). SIPB leadership decided following certain events to request that Koppel refrain from participating any further in the group and Moses, acting as the organization's chair, sent two emails to other SIPB members communicating the organization's decision. Contending that the emails were false and defamatory, Koppel brought this action which, following prior litigation, asserts a single claim for defamation…. [I recommend that Moses's motion for summary judgment be denied.] …
[Koppel] focuses principally on two purportedly false statements that were present in both emails. In the first, Moses cites "the severity, consistency, and widespread nature of his interactions" in the context of "sexual harassment" …. Regarding the second, Moses writes that Koppel had "been given several opportunities to change his behavior and failed to do so" …. [E]ach statement conveys the same meaning: first, that Koppel engaged in the severe, consistent, and widespread sexual harassment or sexual misconduct; … and second, that he was asked to stop, or given opportunities to change, the behavior but failed to do so.
It is well established that "[w]hen a statement is substantially true, a minor inaccuracy will not support a defamation claim." Here, the court finds based on the record that a jury could find that the first statement, which characterized Koppel's sexual harassment or sexual misconduct related interactions as "sever[e], consisten[t], and widespread," was false when made.
Efforts to Show that Exempting the President from the Scope of Section 3 of the 14th Amendment isn't Absurd Underscore that it Actually is
Harvard law Prof. Larry Lessig's attempt to prove otherwise misfires.
One of the issues addressed in the recent Colorado Supreme Court decision holding that Donald Trump is disqualified from becoming president again under Section 3 of the Fourteenth Amendment is whether Section 3 applies to the presidency. A key reason to think it does apply is that ruling otherwise would lead to absurd results. As the Colorado ruling puts it, "President Trump asks us to hold that Section Three disqualifies every oath-breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land." That sure seems absurd to me! And longstanding precedent disfavors interpretations that lead to absurd results.
In a recent Slate article, Harvard law Prof. Larry Lessig argues that excluding the president from Section 3 is not absurd. But his reasoning ultimately reinforces the very point he is trying to dispute.
Lessig's main argument is that the presidency and vice presidency are unique because state officials barring presidential and VP candidates from the ballot create an "externality":
[T]here is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court's ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system.
Lessig ignores the fact that presidential candidates are far from the only ones whose exclusion has an effects beyond the borders of their state. The same applies to members of Congress. They vote on legislation that applies to the entire country. If Missouri excludes Hawley from the ballot, and a Democrat gets elected senator as a result (or a less MAGA Republican), that impacts the entire nation, not just one state. MAGA Republicans across the country might lose out, not just those in Missouri.
If you object to excluding insurrectionist candidates because doing so might create externalities like this, that's not an argument for exempting the president. It's an argument against having Section 3 at all.
It's true, of course, that partisan state officials could try to manipulate Section 3 to advantage their party. But that's why Section 3 exclusions - like other electoral qualification decisions - are subject to judicial review. If state officials try to bar someone who is not actually disqualified under Section 3, that candidate can sue to overturn their decision.
It's also worth emphasizing that the purpose of Section 3 is to prevent a different kind of externality from the type that concerns Lessig: having potentially dangerous former insurrectionists wield political power. If voters - perhaps due to ignorance or partisan bias - elect such people to public office, the harm these officials might do will affect not only those who voted for them, but the rest of the country as well. Insurrectionists in office could prove to be a menace to liberal democracy throughout the nation. The enactment of Section 3 was based on the assumption that preventing this kind of extremely dangerous externality was worth the cost, including other possible externalities that cut the opposite way.
Lessig's externality theory is at odds with the fundamental reason why Section 3 was enacted in the first place. Excluding the presidency from Section 3 on the basis of arguments that imply we shouldn't have Section 3 at all doesn't make any sense. It would, in fact, be absurd.
Lessig also argues the framers of the Amendment didn't need to worry about former insurrectionists becoming president because Section 3 ensures that presidential electors will be loyal, since it specifically bars insurrectionists from that position, thereby ensuring that "the people who would elect the president were not themselves insurrectionists." I explained why this argument (previously advanced by Kurt Lash) is fallacious here:
This argument ignores the possibility than an insurrectionist former president could still potentially hold other offices, such as being a member of Congress or serving as a member of the cabinet…
In addition, there was no reason to think that electors would necessarily abjure supporting former insurrectionists for the presidency. Since Section 3 only covers former government officials of various kinds, ex-Confederates who had not held public office previously (of which there were hundreds of thousands) could still become members of the Electoral College—and some actually did. Furthermore, by 1868 (as still today), electors were almost always little more than ciphers for their parties, who could be reliably expected to support the party's nominee no matter what. It is highly unlikely that committed partisan Democrat electors (most former Confederates backed the Democratic party in the years after the war) would forgo supporting a former Confederate insurrectionist for the presidency if he were the nominee of their party.
Given how the electoral college worked by the 1860s and the ability of many ex-Confederates to become electors, it is implausible to assume that the president was excluded from Section 3 on the theory that electoral college would prevent ex-insurrectionists from getting to the White House.
Lessig also contends (again, following Lash) that Section 3 was supposed to apply only to Civil War-era insurrectionists, and there was no danger of one of them becoming president. But the text of the amendment is general, and in no way limited to Civil War insurrectionists alone. Moreover, in the 1860s, the Democratic Party was one of the two major parties, and it drew much of its support from ex-Confederate white southerners. Absent Section 3, there was every reason to think such a person could potentially win the Democratic nomination for president. And any winner of a major-party nomination has at least some plausible chance of winning the general election.
The absurdity argument is far from the only reason why courts should conclude that the presidency is covered by Section 3. I think the "ordinary meaning" rule, emphasized in the Colorado Supreme Court ruling, is even more compelling. But the absurdity point is also strong. Indeed, the two are mutually reinforcing. An ordinary person reading Section 3 would be unlikely to interpret it in a way that leads to absurd results, especially if there is a plausible non-absurd alternative.
Jack Smith Lacks Standing to File in the Supreme Court Because He is Only a Private Citizen
The Justices must sua sponte address Jack Smith's lack of standing.
Private citizen Jack Smith lacks standing to petition the Supreme Court for a writ of certiorari before judgement in United States v. Trump for the same reason I do. Jack Smith is in the eyes of the Supreme Court a private citizen not an officer of the United States. Standing issues need not be raised by the parties to a case nor can they be waived. The Supreme Court justices must address them sua sponte.
The Supreme Court in United States v. Nixon overlooked Leo Jaworski's lack of standing because, if one consults the briefs in that case, one will find that no party ever raised the issue. The Court cursorily assumed Jaworski was legally appointed without ever examining the issue raised by me, former Attorney General Ed Meese, and Professor Gary Lawson. We discuss this issue at length in Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment as Special Counsel Was Unlawful, 95 Notre Dame Law Review 87, at pp. 118-125 (2019). The D.C. Circuit and District Courts have declined to readdress this issue because of erroneous precedent in the D.C. Circuit, which does not bind the Supreme Court, and in which the standing issue was never raised. See id., at 125-127.
A more recent D.C. Circuit and District Court affirmed the legality of Robert Muller's appointment without a sustained response to our argument that none of the statutes cited by the Justice Department in support of the legality of Robert Mueller's appointment. Jack Smith's case is a new case.
Standing issues never go away but may be raised at any point in any litigation. The fact of the matter is that everything Jack Smith has done as Special Counsel, since his appointment on November 18, 2022 has been unconstitutional and is null and void. Anyone now in jail, or subject to a plea bargain, with Jack Smith can ask to be released because Jack Smith is, in truth, a private citizen. The judge in the Florida District Court classified documents case is under the jurisdiction of the 11th Circuit and is not bound by D.C. Circuit precedent. Any litigant in a case before her can argue that Jack Smith is not a lawfully appointed officer of the United States.
Zorro and Federal Judges: Compare and Contrast
Judge Zteven Zeeger walks us through it.
From yesterday's decision by Judge Steven Seeger (N.D. Ill.) in Zorro Productions, Inc. v. Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A Hereto:
Zorro is known for his stealth. He wears a mask, dons an all-black costume, sneaks around, and pops out of nowhere on his unsuspecting, soon-to-be-swashbuckling foes. As the complaint puts it, "[t]he character of ZORRO is one of the earliest examples of a fictional masked hero with a double identity." See Cplt., at ¶ 7 (Dckt. No. 1); see also Zorro, Wikipedia (describing Zorro as a "master of escape and camouflage"); id. (identifying The Curse of Capistrano, a Zorro book, as "one of the best-selling books of all time," with more than 50 million copies sold); watch generally The Mask of Zorro (1920) (starring Douglas Fairbanks). He strikes without warning, lurking in the shadows and using the element of surprise to his tactical advantage.
In that spirit, the owners of the Zorro trademarks now seek to take a page out of his book, and strike with stealth of their own. The owners of Zorro filed a complaint against hundreds of would-be counterfeiters, seeking damages for ripping off their intellectual property by selling fake Zorro goods. The list includes fake Zorro lighters, socks, masks, t-shirts, hoodies, onesies, leggings, mugs, hats, greeting cards, and throw pillows. And in the meantime, they ask for a temporary restraining order.
But they don't make that request out in the open. Instead, they request an ex parte TRO, and they filed a motion to seal, too. They want to seal the so-called "Schedule A" to the complaint, which is a list of 310 defendants and their websites. They also ask to seal the screenshots of the infringing websites attached to a declaration in support of the TRO.
In essence, the owners want to sneak up on the defendants and strike a blow to their counterfeiting operation, and do so under the cover of darkness. They want relief without giving defendants a chance to see what hit them – just like Zorro himself.
Judges, too, wear black. But by and large, the judiciary does its work out in the open. The entrance to the courthouse is open to the public every day, and so are the doors to each courtroom. The docket is publicly available, too. Anyone can see what the judiciary is up to, including who is asking the court for what, and how the judiciary responds.
Libel Suit Terminated Because of Plaintiff's Discovery Misconduct
The flip side of what happened with defendant-side discovery misconduct in the Rudy Giuliani and Alex Jones cases, though with much smaller stakes.
From Luo v. Wang, decided last week by the Tenth Circuit, in an opinion by Judge Paul Kelly, joined by Judges Gregory Phillips and Carolyn McHugh:
Xingfei Luo brought this action against Paul Wang asserting various defamation-related claims. After a magistrate judge concluded Ms. Luo "unreasonably refused necessary efforts to conduct discovery and prepare [the] case for conclusion," and disobeyed the magistrate judge's order to answer questions at her deposition, the magistrate judge recommended dismissal of the action as a sanction…. [T]he district court agreed ….
Ms. Luo alleged that she and Mr. Wang began an intimate relationship during Mr. Wang's 2012 visit to China. Mr. Wang returned to the United States and the couple decided to continue their relationship. In July 2013, Ms. Luo moved to the United States to live with Mr. Wang in Colorado.
Ms. Luo alleged that in May 2013, while she was still in China, she was sexually assaulted by a man named Mr. Chen. She reported the assault to Chinese authorities and Mr. Chen was arrested and prosecuted. The rape charges were still pending when Ms. Luo traveled to the United States to live with Mr. Wang.
Today in Supreme Court History: December 21, 1922
How Magazine Bans Thwart Self-Defense
Bans on standard magazines benefit criminals and endanger victims
Proponents of bans on standard firearms magazines claim that the bans do not affect lawful self-defense, and do impair mass shooters. Supposedly, victims will be able to escape or fight back during the "critical pause" when a mass shooter is swapping magazines. The claims are not plausible, as explained in an amicus brief I filed on Nov. 30 in the U.S. District Court in Colorado. The case is Gates v. Polis, which challenges 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).
Below are excerpts from the brief explaining how magazine bans endanger the innocent, and do not impede mass shooters.
Congratulations to My Co-Bloggers on the HeinOnline ScholarRank List
The Top 250 list is an rough measure of recent influence of authors of law review articles, based on citations by articles (especially weighing those in the last 5 years), citations by courts (likewise weighted in favor of the last 5 years), and number of accesses at HeinOnline for the last 12 months. It includes scholars living and dead (#3, for instance, is the great torts scholar William Prosser, who died in 1972). My co-bloggers on the list are:
- Orin Kerr (#11).
- Will Baude (#26).
- Steve Calabresi (#78).
- Randy Barnett (#89).
- Sai Prakash (#113).
- Sam Bray (#136).
- David Kopel (#187).
- Stephen Sachs (#190).
Note that the top 250 are out of the tens of thousands of current and past law professors at U.S. law schools, as well as other law review article authors. Even many top 20 law schools have only a few names on the list (e.g., only four for Georgetown, including Randy). Obviously, the rankings have many limitations—for instance, they don't include citations to books and treatises—and they also vary from month to month; but I thought they were worth noting.
Special Counsel Jack Smith's Appointment Is Unconstitutional
Everything he has done since Nov. 2022 is null and void.
On November 18, 2022, Attorney General Merrick Garland purported to appoint private citizen Jack L. Smith to be a Special Counsel with the power of one of the 93 U.S. Attorneys but with nationwide jurisdiction. This makes Jack Smith more powerful than any of the 93 U.S. Attorneys even though they have been Senate-confirmed to their particular offices, and Jack Smith has not been Senate confirmed for the particular office, which he now claims to hold. A close examination of the Justice Department's (DOJ's) organic statute makes it clear that, unlike at least four other Heads of Cabinet Departments, the Head of the Justice Department has not "in, the words of the Appointments Clause, been "by Law" *** vested" with the power to appoint inferior officers like Jack Smith who have more power than any of the 93 Senate-confirmed U.S. Attorneys. This is made clear by an examination of the DOJ's organic statute, 28 U.S. C. Sections 509, 510, 515-519, 533, and, most importantly, Section 543. This latter statute, 28 U.S.C. Section 543, explicitly allows the appointment by the Attorney General of a Special Counsel to assist a U.S. Attorney but not to replace him. Comparison of the DOJ's organic statute with the organic statutes of at least four other Cabinet Departments illustrates the kind of clear laws by which Congress exercises its power "to by Law vest the Appointment of such inferior Officers, as they think proper, *** in the Heads of Departments."
Since 1999, when the Independent Counsel provisions of the Ethics in Government Act expired, the Department of Justice ("DOJ") has had in place regulations providing for the appointment of private citizens as Special Counsels who possess "the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney." Unlike a U.S. Attorney, however, private citizen Jack Smith has not been nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds. This is blatantly unconstitutional and renders Jack Smith powerless to seek a writ of certiorari before judgment from the Supreme Court, as he is trying to do at the moment.
Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, were patently unlawful, for reasons set forth in great detail in: Steven G. Calabresi & Gary Lawson, Why Robert Mueller's Appointment is Unlawful, 95 Notre Dame Law Review 87 (2019). The same argument renders the appointment of private citizen Jack Smith to prosecute Donald Trump right now unconstitutional. Private citizen Jack Smith, under the regulation, has all of the power of a U.S. Attorney, and also nationwide jurisdiction, but he was never nominated by the President and confirmed by the Senate for the particular office of Special Counsel, which he now holds, in the way that U.S. Attorneys are nominated and confirmed for their particular offices. This is blatantly unconstitutional. It is imperative that the Supreme Court rule on this question right now. I have co-written and co-signed an amicus brief with former Attorney General Ed Meese and Professor Gary Lawson, which was filed in the Supreme Court today in United States v. Trump, which is a petition for certiorari before judgment filed by private citizen Jack Smith purporting to speak for the government of the United States, and which is currently before the Supreme Court, and which makes the argument that Jack Smith's appointment was unconstitutional. Here is a link to the filed Amicus Brief: https://www.supremecourt.gov/DocketPDF/23/23-624/293864/20231220140217967_US%20v.%20Trump%20amicus%20final.pdf
Seven Fifth Circuit Judges Argue for Reading § 230 Narrowly
From Doe v. Snap, Inc., filed Monday, following and repeatedly quoting Justice Thomas's separate statement respecting denial of certiorari in Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC (2020):
Jennifer Walker Elrod, Circuit Judge, joined by Smith, Willett, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges, dissenting from denial of rehearing en banc:
John Doe was sexually abused by his high school teacher when he was 15 years old. {Doe's teacher, Bonnie Guess-Mazock, pleaded guilty to sexual assault.} His teacher used Snapchat to send him sexually explicit material. Doe sought to hold Snap, Inc. (the company that owns Snapchat) accountable for its alleged encouragement of that abuse. Bound by our circuit's atextual interpretation of Section 230 of the Communications Decency Act, the district court and a panel of this court rejected his claims at the motion to dismiss stage.
The en banc court, by a margin of one, voted against revisiting our erroneous interpretation of Section 230, leaving in place sweeping immunity for social media companies that the text cannot possibly bear. That expansive immunity is the result of "[a]dopting the too-common practice of reading extra immunity into statutes where it does not belong" and "rel[ying] on policy and purpose arguments to grant sweeping protection to Internet platforms." Declining to reconsider this atextual immunity was a mistake.
Attempt to Vanish, to the Fourth Power: Turtles All the Way Down
I wrote last week about an attempt to vanish my article about an attempt to vanish my article about an attempt to vanish other articles ("attempt to vanish" here referring to asking Google to remove items from its indexes, so that they disappear from search results). Now I see an attempt to vanish that article as well, submitted the day I posted the article. For more details, I reproduce that article below.
Of course, I'm not the only target of this attempted vanishing campaign. The backstory is that a somewhat noted lawyer Kelly Hyman (see, e.g., this 2021 People story) had sued her father and former Miami Beach mayor Alex Daoud, which led to a good deal of media coverage (see, e.g., this CBS News story).
In 2020 and 2021, there were attempts to get those stories discussing the lawsuit deindexed by Google; I wrote about those attempts. In recent months, there have been five more such attempts, including the one linked to in the first paragraph, the one I wrote about last week, and the ones here, here, and here.
Of course, I'm relatively small potatoes when it comes to the targets: The deindexing requests also target articles in CBS News, the Miami Herald, the Daily Mail, the real estate news site The Real Deal, and the Daily Business Review (South Florida), as well as a blog (ConlinPA.com) run by another lawyer. Two of the requests purport to come from "Kelly Hyman" and "The Hyman Law Firm, P.A.," though I should note that the sender's name isn't verifiable, so I can't be sure who sent them; all I know is that the requests were aimed to remove articles that mentioned Hyman's lawsuit.
The last request I mentioned, by the way, differs from the others, since it's not based on the court order I describe below. Rather, it says,
DESCRIPTION My name is trademark and they are using my name without my permission
ORIGINAL URLS: https://trademark-genius.com/3/searchDetails?id=62ac2fc048370f4c2c31b714
ALLEGEDLY INFRINGING URLS: https://conlinpa.com/2016/04/03/hyman-v-daoud/
As you might gather, you can't stop people from writing about you by registering your name as a trademark.
[* * *]
Here's that post from last week:
Today in Supreme Court History: December 20, 1976
12/20/1976: Craig v. Boren decided.
