Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Music theory, cell phone seizures, and gratuitous strip searches.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: our seventh annual trip to the University of North Carolina for a preview of the Supreme Court's upcoming term.
The Minnesota Supreme Court says "sometimes," and splits 4-3 in favor of a particular allegation being on matters of public concern.
The First Amendment generally protects all sorts of speech, whether about politics, science, morality, or the details of daily life. But in certain situations, First Amendment law draws a line between speech on matters of "public concern" and speech on matters of "private concern"; for instance,
The public/private concern line can get quite mushy, and I'm generally quite skeptical of it, see pp. 785-88 of this article. Still, some cases recognize it, and the Court has definitely blessed it when it comes to libel law; precedents drawing the line are thus quite important. Here's one, Wednesday's Minnesota Supreme Court majority decision in Johnson v. Freborg, written by Justice Margaret Chuchich, joined by Justices Anne McKeig, Paul Thissen, and Gordon Moore (note that it seems to turn considerably on the speaker's inferred motive, an analysis that I generally criticize in this article):
Johnson sued Freborg after a post on Freborg's Facebook page accused Johnson and two other dance instructors from the Twin Cities dance community of varying degrees of sexual assault. Johnson was one of Freborg's dance teachers, and the two previously had a casual sexual relationship that lasted for about a year….
you argue that you're losing job opportunities because employers see that decision.
From Weiler v. Google LLC, decided yesterday by the Ohio Court of Appeals, in an opinion by Judge Emanuella Groves, joined by Judges Michelle J. Sheehan and Sean C. Gallagher:
Shawn Weiler … appeals the trial court's judgment granting summary judgment in favor of defendants-appellees, Google LLC …; Portfolio Media, Inc., Justia, Unicourt Inc., Free Law Project, and Casetext, Inc., on his claim for libel.
On October 23, 2017, Weiler sued the Internal Revenue Service … in a dispute over his federal income tax. The records pertaining to the lawsuit were publicly available on Pacer, the federal court's electronic filing system. Weiler subsequently appealed the decision from his federal suit on August 1, 2019. During the four years that followed, Weiler had difficulty finding employment. He eventually learned from a job recruiter that a potential employer refused to hire him because an internet search of his name revealed the lawsuit and appeal against the government.
Weiler conducted his own internet search of his name, utilizing the Google search engine. The search returned the results of his federal lawsuit on several websites. Weiler attempted to remove any reference to the lawsuit from online public access….
In pertinent part, Weiler alleged that Google recklessly indexes websites with no regard for the consequences of its search results. Weiler claims that Pacer allows Google to return search results from its website without his permission, allowing access to his personal, sensitive information. As a result, Weiler's reputation has been damaged and he has been unable to obtain suitable employment….
9/22/2005: Senate Judiciary Committee votes 13-5 to send Judge John Roberts's nomination to the full Senate.
What's on your mind?
From FIRE's press release (and you can read the Complaint here):
Today, the Law & Religion Clinic at the University of Texas and the Foundation for Individual Rights and Expression filed a lawsuit against the City of Houston, several Houston police officers, and Discovery Green Conservancy after police officers arrested an animal rights advocate for refusing to give up his First Amendment right to free speech in Discovery Green, a public park described as the "crown jewel of public spaces in downtown Houston."
The management of Houston's public Discovery Green Park was concerned that passers-by might be "offended" by the advocates' message. The officers' actions were a clear violation of the advocates' First Amendment right to speak freely in a public park —a park where peaceful protests happen regularly….
Several times during summer 2022, Dubash and Harsini went to Discovery Green to host a series of educational events. They held a television screen playing excerpts from a documentary about the mistreatment of animals, and they only spoke to people who engaged with them.
However, almost every time they demonstrated, park management and security asked them to leave, claiming that passers-by could be "offended" by their message. And so they complied. But the last time, Daraius stood his ground, calmly explaining to park management and security, "You still have to abide by the First Amendment because [the park] is publicly owned."
The park management's response? "Right. But we also choose, [and] we don't feel the content is appropriate."
When two Houston police officers arrived, Daraius again calmly explained his First Amendment rights. Yet the officers still arrested Daraius and handcuffed him to a chair in the park security office for more than two hours until he was taken to the county jail and charged with criminal trespass. The district attorney dismissed the charge….
The protesters were showing "video clips … taken from the documentary film Dominion":
An excerpt from Lessig's article in Slate (read the whole piece for more), discussing the same issue that has been discussed on this blog by Profs. Ilya Somin, Steve Calabresi, Will Baude, and Michael McConnell (and see also Jonathan Adler's post citing Prof. Derek Muller):
The provision of the 14th Amendment that [the advocates of disqualifying Trump] rely upon describes a range of offices that one becomes disqualified from occupying if one, "having previously taken an oath, … shall … engage[] in insurrection or rebellion." …
Imagine that on Jan. 6, Vice President Mike Pence did what Trump's lawyer John Eastman was advising him to do: assert a constitutional authority to decide which electoral votes should be counted. Imagine he then excluded the ballots for Joe Biden in a number of critical states, and instead counted the ballots for Donald Trump in those states. And then imagine, on the basis of that count, that Pence declared Donald Trump reelected….
What, then, would be the status of anyone who would act to resist that outcome? What is the line that would divide "insurrectionists" from protesters? If 50,000 gathered on Capitol Hill to protest the Pence coup, would that render the protesters insurrectionists under Section 3? Would they be acting to overthrow a government? Or would it require violence for resistance to become a violation of Section 3? And if so, how much violence? If protesters on the House side broke into the Capitol, would protesters on the Senate side who didn't break in be disqualified? Or, more pointedly, would those who rallied the protesters to resist the Pence coup then be disqualified from future office?
From the EEOC's press release yesterday (and you can also read the Complaint, in EEOC v. United Healthcare Services, Inc.):
United Healthcare Services, Inc. (United) violated federal law when it discriminated against a full-time telecommuter by refusing to grant her a religious exemption from the company's COVID-19 vaccine requirement, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.
According to EEOC's lawsuit, a supervisor of clinical administration had performed her job entirely from home since 2018 and had no job duties that required her to meet face-to-face or to enter the healthcare provider's facilities. When the company implemented a COVID-19 vaccination policy that required employees to be vaccinated in Oct. 2021, she received notifications directing her to receive the COVID-19 vaccine, even though the company's vaccine policy stated it did not apply to full-time telecommuters. She informed her supervisor and human capital partner of her religious objections to vaccination and filed two requests for religious accommodation in which she sought exemption from the vaccination requirement, but the company denied her requests without any discussion with her and demanded she get a COVID-19 vaccine within 30 days or be fired, the EEOC said. When she did not get the vaccine within that time, she was fired.
9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.
This measure will enable some 472,000 Venezuelans who arrived between 2021 and July 2023 to legally live and work in the US for up to 18 months.
Yesterday, the Biden Administration granted Temporary Protected Status (TPS) to Venezuelans who arrived in the US up through July 31 of this year. TPS enables migrants to live and work in the US legally for 18 months. Up until now, TPS status was only available to Venezuelans who arrived before March 2021. The Department of Homeland Security estimates some 472,000 Venezuelans who did not previously have TPS status will now be eligible for it. Another 242,000 who already had TPS will now be able to extend it.
This move is a valuable step in the right direction. Venezuelan migrants are fleeing a brutal socialist tyranny which has caused horrific poverty and oppression, and created the biggest refugee crisis in the history of the Western hemisphere (some 7 million refugees). Letting them live and work here legally is good for the migrants themselves, and also benefits the rest of us by enabling them to contribute to the US economy.
This step will also ease pressure on New York City and other jurisdictions where many Venezuelan asylum seekers who are legally allowed to stay in the US at least until their cases are decided, have ended up reliant on public assistance and charity, because they are not allowed to work legally for at least 6 months after entering the US (in practice, often longer). They can now support themselves, especially with the economy facing serious labor shortages in many sectors.
Fully resolving New York's issues would ideally also require the city to ease zoning restrictions on the construction of new housing, and drop its guarantee of publicly funded shelter. But the grant of TPS to Venezuelans (who make up a large proportion of the city's recent migrant population) should help. It would also help, of course, if asylum seekers from other countries were also able to work.
Biden recently extended TPS for Ukrainians in the United States, who of course have fled a horrific war and Russian aggression. The expansion for Venezuelans is a similar policy, albeit affecting many more people.
While the expansion of TPS for Venezuelans is a step in the right direction, it is not a substitute for passing a Venezuelan Adjustment Act, allowing Venezuelans to live and work in the US permanently, as has been done for many other groups fleeing war and oppressive socialist regimes in the past. The TPS extension will expire in 18 months, and a hostile president could potentially terminate it even earlier.
Permanent residency and work permits that do not depend on the whims of whoever occupies the White House would allow the Venezuelans and others to better plan and organize their lives, and to make greater contributions to our economy and society. I expanded on the advantages of adjustment acts for Venezuelans, Ukrainians, and other similarly situated groups here and here. Most recently, I urged the passage of the Afghan Adjustment Act, to give permanent residency to Afghans who fled to the US after the Taliban seized control of their county.
My podcast co-host and I appear on Dr. John Schinnerer's show
Dr. John Schinnerer invited my "Strangers on the Internet" podcast co-host Michelle Lange and me to be guests on an episode of his top 10 self-help podcast "The Evolved Caveman." The topic is "Maneuvering Online Dating in Today's World," and we talk about people who lie or make others feel unsafe on dating apps, the different experiences of men versus women on the apps, the criteria that individuals should use to find the right match, and much more.
Some may recall that John was also a guest on an episode of our podcast in which he spoke about evolving out of the man box, as he refers to it. We have enjoyed our conversations with him.
The fight over renewing section 702 of FISA has highlighted a split among conservatives. Former Rep. Bob Goodlatte and Matthew Silver have attacked me and Michael Ellis by name over the issue in recent op-eds.
The issue is whether conservatives should join the left in demanding court orders based on probable cause before the FBI can search for data about Americans in a collection of 702 data that has already been gathered lawfully.
Goodlatte & Silver say yes; Ellis & Baker say no.
Here's the Goodlatte/Silver view. And here's our response, hot off the presses.
The Town of Grand Isle just settled Ross Brunet's lawsuit against it, agreeing that
1. Plaintiff was wrongfully cited for engaging in constitutionally protected speech of flying flags with political messages.
2. Defendants … agree to cease interfering with Plaintiff's right to fly flag(s) with the word "F**k" on them.
3. Defendant, Town of Grand Isle agrees to repeal Grand Isle Ordinance 1012 by October 20, 2023.
The ordinance, which I think was clearly unconstitutional under Cohen v. California (1971) (which reversed a conviction for wearing a jacket that said "Fuck the Draft"), provided, in relevant part:
9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).
"There is evidence that, by opting to portray Fairstein as the series villain who was intended to embody the perceived injustices of a broader system, defendants reverse-engineered plot points to attribute actions, responsibilities and viewpoints to Fairstein that were not hers and are unsupported in defendants' substantial body of research materials."
From today's decision in Fairstein v. Netflix, Inc., by Judge Kevin Castel (S.D.N.Y.):
"When They See Us" is a four-part Netflix series that dramatizes the experiences of the young men dubbed in the press as "The Central Park Five." The underlying events have been the subject of exhaustive reporting and commentary for more than three decades. The Netflix series was promoted as being "[b]ased on the true story of the Central Park Five." It follows the experiences of the Five over many years, from their arrests, trials and convictions for the April 1989 rape and assault of Patricia Meili in Central Park, to their release from prison and struggles to readjust to life as young adults after a serial rapist named Matias Reyes came forward to claim sole responsibility for the Meili rape.
The filmed dramatization of real-world events using famous actors and cinematic production values is a well-established genre. To advance their points of view and heighten dramatic tension, filmmakers will sometimes use a composite character as the stand-in for a real-world figure or groups of persons acting together. For narrative coherence or heightened tension, dramatizations typically contain invented dialogue and condensed timelines. Under New York's common law of defamation, there is neither a wholesale carve-out for dramatizations nor a per se condemnation. Like any work that comments on public figures or reflects an opinion on a matter of public controversy, dramatizations are afforded strong First Amendment protections.
Plaintiff Linda Fairstein is the former head of the Sex Crimes Unit in the Manhattan District Attorney's Office. She asserts that scenes in "When They See Us" depict her by name and portray her in a false and defamatory light. Defendant Ava DuVernay, who is the writer, director and producer of the series, has stated that Fairstein "represents the criminal justice system, and the criminal justice system is the villain in the Series. That portrayal was grounded in, and supported by, both our sources and the point of view we were expressing." The Fairstein role is performed by the well-known actress Felicity Huffman, and, in the series, the character is portrayed as personally responsible for orchestrating nearly every aspect of the investigation and prosecution of the Five.
The "Palestine Writes Literary Festival" is being held at the University of Pennsylvania later this week. This has attracted severe criticism from Jewish groups and individuals within and without Penn because some of the speakers have a history of engaging in antisemitic rhetoric.
The Penn administration acknowledges that people have raised concerns about several speakers who "have a documented and troubling history of engaging in antisemitism by speaking and acting in ways that denigrate Jewish people." Penn nevertheless defends hosting the conference on academic freedom grounds, but adds that the conference was not organized by the university.
OK, but one may wonder why several academic departments are "sponsors" of the festival, meaning that they are providing funding. It's not an academic conference, as such; some of the speakers are neither Palestinians, academics, nor poets; and it's hard to imagine these departments funding a conference featuring speakers with a similar history of denigrating other minority groups.
Be that as it may, the organizers of Palestine Writes want you to know that the charges of antisemitism leveled against their conference are false. Hmm.
Well, if you want to know how NOT to start a letter defending yourself from accusations of antisemitism, you can use this letter as a model. After noting that the festival has been harshly criticized by "the Jewish Federation and the ADL," the organizers have this to say:
unlike our detractors, we do not operate in the shadows nor among elite decision makers and funders. Rather, we value transparency and public access, accountability, and scrutiny. We are also acutely aware of the power disparity between these highly funded, connected and organized Zionist organizations versus our small cultural institution run by volunteers and student organizations, most of them Penn students.
Talk about self-owns… The organizers are so clueless about antisemitism that they engage in classic anti-Jewish tropes while defending themselves from charges of antisemitism. Which kinda undermines anything else they have said or will say in their defense.
UPDATE: I should note that even if PW's detractors really did operate "in the shadows" and so on, it would be at best impolitic to phrase things they way its leaders did. But in fact, ADL and the local Jewish Federation criticized PW openly, and say what you will about the ADL--and it's not exactly my favorite organization, personally--it's basic modus operandi is getting as much publicity and attention for its views as it can. Nor are local Jewish federations (the main communal fundraising arm) exactly known for hiding either their existence or their policy positions.
Next year, I'll become a Professor of Law Emeritus at UCLA School of Law, after 30 years of teaching, and move (effective July 1, 2024) to the Hoover Institution at Stanford, where I'll be a Senior Fellow—essentially like a permanent, tenured research faculty position, but with no teaching obligations.
Technically, I'll be "retiring" from UCLA. But at the ripe old age of 56, I will not be at all retiring from scholarship—I'll just be doing the same sort of research, public commentary (of course, including blogging), and occasional litigation as I have been doing at UCLA, but with more institutional support. Until June 30, 2024, I will be a Visiting Fellow at Hoover, while I finish my full-time obligations to UCLA.
Hoover is a think tank on the Stanford campus; it is a unit of Stanford University, but has a great deal of independence, as well as its own Board of Overseers (and its own endowment). Its current director is Condoleezza Rice, who is a Stanford professor and former Stanford provost, National Security Advisor, and Secretary of State. Past Senior Fellows have included the Nobel-winning economists Milton Friedman and Gary Becker, as well as George Shultz, who had been a professor at MIT and Chicago before serving as Secretary of Labor, of the Treasury, and of State. Hoover Senior Fellows today include, among others, many leading economists, historians, political scientists, national security scholars, and other academics, including law professors Richard Epstein, Jack Goldsmith, Daniel Kessler, and Michael McConnell.
I will continue to have complete academic freedom and security of employment (provided for expressly by the Hoover faculty contract, the same way as it is by Stanford for its tenured faculty members). As to this blog, this of course also means continued editorial independence, which I care about very much.
I expect I'll probably feel pretty much at home ideologically at Hoover, which is on balance an institution of the center-right. Naturally, I'm sure that there will be much my colleagues and I will disagree on, as there of course has been at UCLA—but that is the nature of a healthy academic institution. (For whatever it's worth, my sense is that the median ideological views at Hoover are much closer to the median American voter than are the median ideological views at the median top 20 U.S. law school.)
The important point is that I'll be able to write and say what I think is right, regardless of whether I'm mostly, partly, or not at all in step with my colleagues or the administration. I much look forward to this next chapter of my academic life.
Episode 472 of the Cyberlaw Podcast
That's the question I have after the latest episode of the Cyberlaw Podcast. Jeffery Atik lays out the government's best case: that Google artificially bolstered its dominance in search by paying to be the default search engine everywhere. That's not exactly an unassailable case, at least in my view, and the government doesn't inspire confidence when it starts out of the box by suggesting it lacks evidence because Google did such a good job of suppressing "bad" internal corporate messages. Plus, if paying for defaults is bad, what's the remedy? Not paying for them? Assigning default search engines at random? That would set trust-busting back a generation with consumers. There are still lots of turns to the litigation, but it feels as though the Justice Department has some work to do.
The other big story of the week was the opening of Schumer University on the Hill, with closed-door Socratic tutorials on AI policy issues for legislators, tech experts, and Schumer favorites. Sultan Meghji suspects that, for all the kumbaya moments, agreement on a legislative solution will be hard to come by. Jim Dempsey sees more opportunity for agreement, although he too is not optimistic that anything will pass. He sees some potential in the odd-couple proposal by Senators Sens. Richard Blumenthal (D-Conn.) and Josh Hawley (R-Mo.) for a framework that would deny AI companies 230-style immunity and require registration and audits of AI models, all to be overseen by a new agency.
Section 702 of FISA inspired some rough GOP-on-GOP action last week, as former Congressman Bob Goodlatte and Matthew Silver launch two separate op-eds attacking me and Michael Ellis by name over FBI searches of 702 data. They think such searches should require probable cause and a warrant if the subject of the search is an American. Michael and I think that's a stale idea beloved of left-leaning law professors but one that won't stop real abuses but will hurt national security. We'll be challenging Goodlatte and Silver to a debate, but in the meantime, watch for our rebuttal, hopefully on the same RealClearPolitics site where the attack was published.
No one ever said that industrial policy was easy, Jeffery tells us. And the release of a new Huawei phone with impressive specs is leading some observers to insist that U.S. controls on chip and AI technology are already failing. Meanwhile the effort to rebuild U.S. chip manufacturing is also faltering as TSMC finds that Japan is more competitive in fab talent than the U.S..
Can the "Sacramento effect" compete with the Brussels effect by imposing California's notion of good regulation on the world? Jim reports that California's new privacy agency is making a good run at setting cybersecurity standards for everyone else. And Jeffery explains how the DELETE Act could transform (or kill) the personal data brokering business, a result that won't necessarily protect your privacy but probably will reduce the number of companies exploiting your data.
A Democratic candidate for a hotly contested Virginia legislative seat has been raising as much as $600 thousand in tips by having sex with her husband on the internet. It's a sign of the times (or maybe how deep into the election season Virginia is) that Susanna Gibson and the Democratic party are not backing down. She says, implausibly, that disclosing her internet exhibitions is a sex crime, or maybe revenge porn. All I can say is thank God she hasn't gone into podcasting; the Cyberlaw Podcast wouldn't stand a chance.
Finally, in quick hits:
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