Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion."
BREAKING: The Trump gag order in DC is on hold. Appeals court panel has temporarily stayed it and scheduled a Nov. 20 oral argument. The panel:
Millett (Obama)
Pillard (Obama)
Garcia (Biden) pic.twitter.com/egJGonwsOG— Kyle Cheney (@kyledcheney) November 3, 2023
The answer will be evident from Appendix 4B of this article.
Gift cards, strong medicine, and cloud search warrants.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New cert petition: If the gov't wants to restrict speech based on its content, it bears the burden to show, among other things, why the restriction is necessary. But earlier this year, the Second Circuit upheld New York's restrictions on out-of-state therapists providing teletherapy to N.Y. residents without holding the state to its burden. The decision deepened not one, but two, circuit splits on important First Amendment questions, so we say the Supreme Court should take a look. Click here to learn more.
At Short Circuit, we're thinking of the Roman Empire. Well, at least what happened after it fell. That's because Duke's Judicature just published a piece by IJ's Matt Liles and Anthony Sanders on the history of the phrase "en banc," from its origins in the post-apocalyptic wilds of Gaul through modern-day federal courts. They conclude that "en banc" has no single correct pronunciation. Say it however you want.
Idaho's Attorney General Raúl Labrador so opines, including a rousing defense of academic freedom, including in scholarship and teaching.
From Idaho Att'y Gen. Op. No. 23-04, released Sept. 15 but not widely reported:
The No Public Funds for Abortion Act comprehensively prohibits the use of public funds to, among other things, "provide, perform, or induce an abortion; assist in the provision or performance of an abortion; promote abortion; counsel in favor of abortion; refer for abortion; or provide facilities for an abortion or for training to provide or perform an abortion." However, under a plain language interpretation of the Act applying appropriate canons of statutory construction, the Act does not prohibit university employees from speaking on abortion in their academic teaching or scholarship, even if that teaching or scholarship could be viewed as supporting abortion or abortion rights in general….
[T]he U.S. Supreme Court, in Garcetti v. Ceballos (2006), … held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." However, Garcetti also noted that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence."
Indeed, the U.S. Supreme Court has stated that "[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned." Keyishian v. Bd. (1967). "That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." Thus, the majority in Garcetti determined that "[w]e need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." … In Demers v. Austin (9th Cir. 2014), the court held that "Garcetti does not-indeed, consistent with the First Amendment, cannot-apply to teaching and academic writing that are performed pursuant to the official duties of a teacher and professor." Similarly, courts in the Fourth, Fifth, and Sixth circuits, in addition to the Ninth Circuit, have held that Garcetti does not apply to professors at public universities while engaging in teaching and scholarship….
The controversy is similar to part of the controversy in Murthy v. Missouri (formerly Missouri v. Biden), which also involves allegations of government coercion aimed at interfering with speech.
The case is NRA v. Vullo, and the Court agreed to consider this question (as formulated by the NRA):
Bantam Books v. Sullivan (1963) held that a state commission with no formal regulatory power violated the First Amendment when it "deliberately set out to achieve the suppression of publications" through "informal sanctions," including the "threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation." Respondent here, wielding enormous regulatory power as the head of New York's Department of Financial Services ("DFS"), applied similar pressure tactics—including backchannel threats, ominous guidance letters, and selective enforcement of regulatory infractions—to induce banks and insurance companies to avoid doing business with Petitioner, a gun rights advocacy group. Respondent targeted Petitioner explicitly based on its Second Amendment advocacy, which DFS's official regulatory guidance deemed a "reputational risk" to any financial institution serving the NRA. The Second Circuit held such conduct permissible as a matter of law, reasoning that "this age of enhanced corporate social responsibility" justifies regulatory concern about "general backlash" against a customer's political speech….
Does the First Amendment allow a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government's own hostility to the speaker's viewpoint or (b) a perceived "general backlash" against the speaker's advocacy?
The Court didn't grant review on the second question, which relates to qualified immunity. Here's my post on the petition, from March, though you can read all the filings here:
[* * *]
William Brewer, Sarah Rogers & Noah Peters of Brewer Attorneys & Counselors and I filed a petition earlier this month asking the Supreme Court to review the Second Circuit decision in NRA v. Vullo ….
I generally tend to agree with the NRA's ideological views, to a considerable extent, but I would have been glad to be engaged to argue a similar case on behalf of groups I disagreed with as well; it's a pretty important First Amendment question that can affect groups with all sorts of views. (Note that the ACLU filed an amicus brief on NRA's side in the District Court.) Here's our Introduction:
An excellent article about a recent survey of college students, by a man who knows a thing or two about surveys. A couple of short excerpts, though you should read the whole thing:
[A]fter seeing the latest polling on what college students think about free speech, I don't concern over "cancel culture" or the erosion of free speech norms is just some moral panic. In fact, I think people are neglecting how quick and broad the shifts have been, especially on the left….
College students aren't very enthusiastic about free speech. In particular, that's true for liberal or left-wing students, who are at best inconsistent in their support of free speech and have very little tolerance for controversial speech they disagree with.
Moreover, this attitude is broad-based — not just at elite schools. I was frankly surprised at how tepid student support was. A significant minority of students don't even have much tolerance for controversial speech on positions they presumably agree with….
People obviously have strong feelings about abortion, and a complete abortion ban is unpopular. Still, this is a commonly-articulated, garden-variety unpopular political opinion that doesn't make any sort of factual claim and can't reasonably be construed as hateful. You'd think even students with a tentative, half-baked belief in free speech principles would tolerate it. And yet, 57 percent of students — including 68 percent of liberals — thought a speaker expressing this anti-abortion viewpoint shouldn't be allowed on campus. That number kind of shocked me….
[I]s there a lot of hypocrisy around free speech? Of course there is. Republicans who rail against wokeness put significant limits of their own on academic freedom. Supposed "free speech absolutist" Elon Musk has often taken a censorious approach toward content he doesn't like while tolerating censorship by foreign governments.
Stewart argued Vidal v. Elster, the "Trump Too Small" trademark registration case Wednesday; but after his rebuttal, Chief Justice Roberts added:
Thank you, Mr. Stewart. If you'll linger at the podium just for a moment. Our records reflect that this is your or was your 100th argument before the Court. You are the fourth person to reach this rare milestone this century.
Throughout your career, you have consistently advocated positions on behalf of the United States in an exemplary manner. I recall one case in particular from my days in private practice 23 years ago in which I was counsel for petitioner and you argued in support of respondent.
Now, when the opinion came down, I was just nine votes short of a unanimous result—(Laughter.) for—for my client.
On behalf of the Court, I extend to you our appreciation for your advocacy before the Court and dedicated service as an officer of this Court. We look forward to hearing from you many more times.
From Cody v. Dirir, decided last Friday by Connecticut Superior Court Judge Donna Wilkerson Brillant, the court's findings of fact:
On October 12, 2022 [likely should say 2019 -EV], the plaintiff and the defendant were students at the University of Connecticut in Storrs, Connecticut (University). They did not know each other until October 12, 2022 [likely should say 2019 -EV], when the defendant attended a party at a home of a fraternity that the plaintiff was a member of and where he resided. During the party, the defendant believed that she was called a nigger (N-word) by another member of the fraternity, Frank V., a black male. When the defendant told the plaintiff, a white male, that Frank called her the N-word, the plaintiff tried to convince her that Frank would never say that and if he did, he did not intend it in a negative way as he used the N-word with an "a" at the end of the word and not with an "er" at the end of the word. Frank used the N-word in the defendant's presence, and she believed the word was directed to her.
The defendant was upset by this exchange at the party, and after the defendant left the party, she reported this encounter to her cousin, … Ellie …. With the defendant's assistance of providing a picture of the plaintiff and Frank, Ellie posted on her Twitter page the picture of Frank and the plaintiff with the following statement: "These two called my little cousin a nigga and continued to belittle her infront of their white friends at a UConn frat party. If anyone knows their names, please let me know. And tell them keep that energy." The statement with the picture (also referred to as "post" or "tweet") was seen initially by approximately 700 to 1000 people who are the cousin's Twitter followers. Those followers then forwarded the post/tweet to their Twitter followers, resulting in approximately 5000 or more people viewing the post.
The next day, a meeting was held with the plaintiff and the defendant and their respective friends at the defendant's dormitory hall, at which the defendant admitted to the students in attendance that the plaintiff did not call her the N-word. The defendant invited approximately ten people to the meeting, of whom some were vulgar and did not allow the plaintiff to speak, telling him to "shut up, white boy." The plaintiff, Frank, and two other members of the plaintiff's fraternity, Nihar and Akrash, attended the meeting. Frank apologized to the defendant at the meeting as he explained that his statement was not directed at her but at his fraternity brother.
The Cato Institute is looking to hire a research fellow in the Center for Constitutional Studies. (I am an adjunct scholar at Cato, an unpaid position.) Here is the description:
Cato's Robert A. Levy Center for Constitutional Studies is ground zero-for cutting-edge constitutional advocacy. Whether your passion is vindicating individual rights like free speech, self-defense, and occupational freedom; dumping Chevron deference; ending the immoral and ineffective war on drugs; or confining the federal government to its enumerated powers—you'll find outlets for it here. Do you hate government-empowering nonsense doctrines like qualified immunity, aggregation, and rational basis review? So do we. But don't just complain about overweening government—do something about it by joining our dedicated team of constitutional avengers. . . .
As a Research Fellow in Cato's Center for Constitutional Studies, you will work to thwart Leviathan by spending every waking minute devising creative ways to prevent government officials from exercising powers they do not lawfully possess and riding roughshod over constitutionally protected rights. (Just kidding—we sometimes break for meals and happy hours.) The bread-and-butter work of a Research Fellow in the CCS includes writing Supreme Court amicus briefs, writing amicus briefs for other courts, and writing blog posts, op-eds, and impassioned Twitter threads about those amicus briefs; devising and executing strategic plans for minimizing government, maximizing liberty, and generally making life difficult for freedom-stealing bureaucrats; and educating policymakers, the public, and whoever happens to be sitting next to you on a plane about the virtues of liberty, limited government, and a properly engaged judiciary.
Things you will not do as a Research Fellow include filling out timesheets; anything involving discovery; exchanging vituperative emails with opposing counsel over fripperies; and flying cross-country for a ten-minute status conference.
This is a perfect position for someone 5-7 years out of law school, with a commitment to constitutional law and classical liberal values. If this is you, apply!
Jeff Rosen is the head of the National Constitution Center; David Cole is the National Legal Director of the ACLU; we discuss the Supreme Court's cases on the subject, which were argued Tuesday.
If you want to sue someone, you have to do it in a court that has "personal jurisdiction" over that person; that, courts have held, is required by the Due Process Clause. One way to make sure of this is to sue where the defendant lives (to oversimplify in some measure). But you can also sue in jurisdictions with which the defendant has "case-related contacts," for instance where the underlying tort has been committed.
In libel cases, where speech from one state often causes harm in another, the matter gets extra complicated. Here's an illustration from Johnson v. Griffin, decided Tuesday by the Sixth Circuit, in an opinion by Chief Judge Jeffrey Sutton, joined by Judges Guy Cole and Amul Thapar:
Kathy Griffin, a California-based celebrity and social activist, sent a series of tweets to her two million Twitter followers asserting that Tennessean Samuel Johnson, the CEO of Tennessee-based VisuWell, had engaged in homophobic conduct. She encouraged her followers to make him "online famous" and tagged his company. She then asked his employer to "remove[]" him from the Board of Directors and threatened that the "nation w[ould] remain vigilant" if it did not. Within a day of her first tweets, the company fired Johnson and removed him from the Board.
Johnson and his wife sued Griffin in federal court in Tennessee, claiming (among other things) that she tortiously interfered with his employment. Griffin argued that her tweets did not subject her to the State's personal jurisdiction, and the district court dismissed the case. We disagree and reverse….
Two cases "bookend" [the] application of personal jurisdiction to intentional torts. The first, Calder v. Jones, establishes that the effects of intentional torts sometimes may establish personal jurisdiction. In that case, a California actress sued Florida journalists in California for publishing a libelous article. The Supreme Court permitted the California court to exercise personal jurisdiction over the journalists, observing that they had engaged in intentional conduct "expressly aimed at California," not "untargeted negligence." They consulted "California sources" for the article whose "focal point" concerned California. And they knew that the actress would experience the brunt of the injury in California, where the magazine had its largest circulation and where she lived and worked.
11/3/1845: Chief Justice Edward Douglass White's birthday.
What's on your mind?
Defendant had (among other things) tweeted about Flynn, "He's a traitor. He's being paid by Putin. Stop pretending Flynn hasn't forsaken his oath to the nation for money." Flynn's Complaint, filed today in Flynn v. Wellman (M.D. Fla.), claims this was a deliberate lie.
The Government’s reply brief contains a host of mistakes, some quite elementary.
In two previous posts (here and here) I've pointed out some erroneous arguments by Merrick Garland's Justice Department in its reply brief filed in United States v. Rahimi. That's the case in which the Fifth Circuit recently struck down a federal statute imposing additional penalties, including a ban on the possession of firearms, on individuals subject to state domestic violence restraining orders (DVROs). The Supreme Court will hear argument in the case on November 7.
Here are several more, ranging from basic errors to nonsensical arguments. Each begins with a quote from the reply brief in italics, followed by a rebuttal.
"Rahimi next objects to the government's reliance on 19th-century surety statutes, under which potentially irresponsible persons could be required to post bond in order to carry firearms. But those laws illustrate the principle that legislatures may keep firearms away from those who are apt to misuse them."
Not so. The person would simply post the bond or obtain sureties and keep on carrying. Even if the person violated the conditions imposed on them, the remedy was forfeiture to the government of the sum pledged, not loss of the right to arms. See the note at the end of this post regarding the research of Angus McClellan, Ph.D., that shows how surety laws were used to prevent spousal abuse.
"In criticizing those historical laws, however, Rahimi ignores that past lawmakers' failure to enact firearms laws can likewise reflect prejudice. For example, past generations' failure to disarm domestic abusers may have reflected greater tolerance of domestic abuse, the belief that state intervention would undermine marital harmony, or women's inability to vote before the Nineteenth Amendment."
So the absence of any analogue even though the same societal problems existed somehow becomes an analogue because today we're better than the Founders? In identifying historical analogues, the burden is on the government to point to real laws that were actually passed and enforced, not to make excuses regarding why imaginary laws were not passed. And, by the way, domestic abuse was widely condemned at the time of the Founding, and measures were enforced to prevent or punish it. Again, see the note at the end of this post.
"Rahimi cites no historical sources or judicial decisions—literally nothing—suggesting that legislatures lack authority to disarm dangerous individuals." Read More
The conference includes a variety of legal scholars and other experts on different sides of the issue, including VC bloggers Josh Blackman and myself.
This Monday, the University of Minnesota Law School held a conference on the potential disqualification of Donald Trump from the 2024 presidential election under Section 3 of the Fourteenth Amendment. Participants included a variety of legal scholars and other experts, including Michael Stokes Paulsen (coauthor of a widely discussed article arguing Trump should be disqualified), Kurt Lash (author of an article cutting more the other way), VC blogger Josh Blackman (coauthor of an article defending Trump's eligibility), and myself.
A list of the participants and panels at the conference is available here. I have embedded the Youtube video of the entire event below. I spoke on the last panel of the day, which addressed pragmatic and political implicatoins of Trump's possible disqualification. It begins at around 4:35:00.
The other participants in our panel were Georgia State University law Professor Eric Segall and political scientist Julia Azari (Marquette University). Political scientist Larry Jacobs (University of Minnesota) moderated.
This is a rare instance where I got to outflank Eric Segall on the left! I am far more supportive of disqualification than he is, even though he is generally far more left-wing than I am.
The Lawfare website has posted an audio/podcast version of our panel here.
I developed some of the points I made at the panel in greater detail in this article. I have written about other aspects of the Section 3 debate here and here.
An extensive new study finds that the answer is "no." Belief in conspiracy theories is about equally common on different sides of the political spectrum.
There is a common perception that right-wingers are more likely to believe conspiracy theories than people on the left. But a large-scale new study authored by political scientists Adam Enders, Christina Farhart, Joanne Miller, Joseph Uscinski, Kyle Saunders, and Hugo Drochon finds otherwise. Uscinski is a leading expert on public belief in political conspiracy theories. Here is the abstract of their article, published in Political Behavior:
A sizable literature tracing back to Richard Hofstadter's The Paranoid Style (1964) argues that Republicans and conservatives are more likely to believe conspiracy theories than Democrats and liberals. However, the evidence for this proposition is mixed. Since conspiracy theory beliefs are associated with dangerous orientations and behaviors, it is imperative that social scientists better understand the connection between conspiracy theories and political orientations. Employing 20 surveys of Americans from 2012 to 2021 (total n = 37,776), as well as surveys of 20 additional countries spanning six continents (total n = 26,416), we undertake an expansive investigation of the asymmetry thesis. First, we examine the relationship between beliefs in 52 conspiracy theories and both partisanship and ideology in the U.S.; this analysis is buttressed by an examination of beliefs in 11 conspiracy theories across 20 more countries. In our second test, we hold constant the content of the conspiracy theories investigated—manipulating only the partisanship of the theorized villains—to decipher whether those on the left or right are more likely to accuse political out-groups of conspiring. Finally, we inspect correlations between political orientations and the general predisposition to believe in conspiracy theories over the span of a decade. In no instance do we observe systematic evidence of a political asymmetry. Instead, the strength and direction of the relationship between political orientations and conspiricism is dependent on the characteristics of the specific conspiracy beliefs employed by researchers and the socio-political context in which those ideas are considered.
The authors find that conservatives and Republicans are more likely to believe conspiracy theories that fit their predispositions and biases. For example, they are far more likely than liberals and Democrats to believe that the 2020 election was stolen from Donald Trump. But, by the same token, left-wingers are more likely to believe conspiracy theories that fit their biases, such as 9/11 "trutherism" (claims that George W. Bush knew about the 9/11 attacks in advance and deliberately allowed them to happen). The authors also find that "[t]here are also many conspiracy theories finding equal support among the left and right, including theories involving "chem-trails", the moon landing, fluoridated water, Freemasons, lizard people, and television mind control, to name a few." When a conspiracy theory doesn't have a strong political valence, left and right are usually about equally prone to believe it.
Sometimes conspiracy theories shift valence over time. For example, belief in anti-vaxxer conspiracy theories was about equally common before Covid, but has acquired a right-wing orientation since then. The career of Robert F. Kennedy, Jr. - who used to peddle anti-vaccine conspiracy theories primarily to the left, but now caters more to the right - is a an example of the shift.
This is far from the first study of the distribution of beliefs in conspiracy theories. But it is notable for its extensive scope. It adds to the already extensive evidence that political ignorance and misinformation are serious problems across the political spectrum, not just on the right.
While right-wing susceptibility to conspiracy theories may not be generally greater than that of the left, it can nonetheless be a more severe danger at any given point in time. Right now, widespread conservative/Republican endorsement of Donald Trump's "big lie" about the 2020 election is a greater menace than any currently prevalent left-wing conspiracy theory, because it incentivizes potential future GOP efforts to reverse election results they don't like, and could lead to more violence like that which occurred on January 6, 2021.
But we can recognize the urgency of that issue without falling into the trap of thinking that ignorance, misinformation, and conspiracy-mongering are only significant problems on one side of the political spectrum. Sadly, that just isn't true.
Acknowledging the bipartisan, cross-ideological nature problem is not enough to solve it. But it's at least a good start. I assess a variety of potential ways to mitigate political ignorance and misinformation in this recent article and in my book Democracy and Political Ignorance.
From the Express (UK) (Max Parry) (expurgation, of course, in the news story):
The arrest, made at 9.55pm on Tuesday, October 31 in east London, comes after a video was posted on Facebook where the person behind the camera appears to condemn the number of Palestinian flags on Bethnal Green Road.
The person filming appears to say: "Look at this cr*p here," while zooming in on a number of flags attached to lamp posts and road signs.
"You let them into the country and this the s**** they come up with," the person then adds.
New from Reason: a look into what Javier Milei has accomplished and what it will take to make the most of Argentina’s window for real change. Out now for subscribers.
