Michael Stokes Paulsen, Michael McConnell, Sam Bray, and I recently completed and posted the 2023 online supplement to our constitutional law casebook: The Constitution of the United States. (I shilled for the book earlier on this blog -- at the start of the Trump administration -- as "A new constitutional law casebook for our unsettled age," and I think that claim has aged even better than I could have imagined.) The supplement covers four cases from last term -- National Pork Producers v. Ross; Moore v. Harper; 303 Creative v. Elenis; and Students for Fair Admissions v. Harvard.
The supplement is largely intended for users of the casebook, of course, but I thought the notes might be of interest more generally to those who have read and thought about the cases. In particular, here are the notes for Students For Fair Admissions:
So says the New Jersey intermediate appellate court, in a case involving a Jewish wife who was claiming her husband refused to give her a "get" (a Jewish religious divorce).
In S.B.B. v. L.B.B., decided yesterday by the N.J. appellate court, in an opinion by Judge Greta Gooden Brown joined by Judges Patrick DeAlmeida and Stephanie Mitterhoff, the plaintiff husband and defendant wife were getting divorced, and the wife claimed that the husband wasn't giving her a Jewish religious divorce. (The husband "denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020.") To quote the court,
In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a "get" (pluralized as "gittin"), which must, in turn, be signed by an "eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an "agunah" (pluralized as "agunot"), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a "beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue "psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.
The wife made a video, which ended up getting broadly distributed online, and in which she apparently said:
Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach … the community Rabbi[ ] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [blessing] on his head.
This led to dozens of phone calls from strangers to the husband, and the husband said he feared it might lead to violence (which had sometimes happened to Jewish husbands who refused to give gets). The husband therefore sought and obtained a restraining order that
barred defendant from having "any oral, written, personal, electronic, or other form of contact or communication with [p]laintiff," and specifically ordered defendant to "remove any and all posts from all social media platforms requesting the 'get'" and "cease and desist … creating and posting on all social media platforms." …
One of the most salient indictments of 303 Creative v. Elenis concerned allegedly false facts that supposedly undergirded the case. This post turns to those factual issues. Here's an excerpt from my paper:
Shortly after initiating suit, the designer [plaintiff Lorie Smith] supposedly received a terse request for web services in connection with a same-sex wedding. This asserted fact featured in the designer's briefing throughout the case. Why? Because it is very hard to view such requests as speculative if one has already taken place. Thus, this supposed fact tended to buttress the designer's claim of standing. Yet the district court doubted the significance of the asserted fact, and neither the Court of Appeals nor the Supreme Court explicitly mentioned it at all.
On the eve of the Supreme Court's decision, Melissa Gira Grant of The New Republic broke the news that she had contacted the individual who had supposedly made the request, and he denied doing so. This report was later confirmed. By then, the Supreme Court had issued its decision without commenting on the matter. And Grant's story had set off a firestorm.
Some reactions to Grant's story reveal an assumption that the attorneys in 303 Creative fabricated the apparently bogus request to help their case. Other commentators, however, have expressed doubt on that point, at least until specific proof comes to light. Clearly, any attempt to fabricate evidence—particularly by an attorney—would constitute unethical behavior.
9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.
The court ruled that the definition of "invasion" is a political question, and that Texas therefore could not rely on the Invasion Clause to justify placing buoys in the Rio Grande River in defiance of federal law.
Today, federal district Judge David Alan Ezra issued a preliminary injunction against the state of Texas in United States v. Abbott, a case where the federal government is suing the state of Texas for installing floating buoy barriers in the Rio Grande River, thereby creating a safety hazard and potentially impeding navigation. The Biden Administration claims this violates the Rivers and Harbors Act of 1899. Texas claims it does not, but but also cites one of the "invasion" provisions of the Constitution as justification for the state's actions. Texas relies on Article I, Section 10, Clause 3 of the Constitution, which provides, "[n]o state shall, without the Consent of Congress, . . . engage in war, unless actually invaded, or in such imminent Danger as will not admit of delay." Texas contends that illegal migration and drug smuggling qualify as "invasion," and therefore the Constitution gives the state the power to take military action in response, even if doing so might violate a federal statute, and even if there is no congressional authorization for war. On this view, the use of the buoys is just a modest war measure!
In today's ruling, Judge Ezra concludes that Texas violated the statute. He also rejects the state's invasion theory, primarily on the ground that the issue of invasion is a "political question":
[T]he political question doctrine bars consideration of Texas's "invasion" defense. Texas argues that it constructed the floating barrier pursuant to the Self-Defense Clause, U.S. Const. art. I, § 10, cl. 3,27 because it is being "invaded" by "[t]housands of aliens . . . including members of cartels," and thus asks the Court to exempt Texas's conduct from the RHA…. To credit Texas's allegation of invasion would be to make a policy decision on a topic the Supreme Court and Fifth Circuit have identified as a nonjusticiable political question….
Several constitutional provisions assign the federal government—not states—the authority to recognize and respond to invasions. See U.S. Const. art. I., § 8, cl. 15 (power to call forth militia); art. I, § 9, cl. 2 (power to suspend habeas corpus); art. IV, § 4 (power to protect against invasion). The Constitution's commitment of the question of an "invasion" is especially strong when it involves "the immigration and the status of aliens," which the Constitution assigns exclusively to Congress. Arizona v. United States, 567 U.S. 387, 394-95 (2012)….
Thus, courts of appeals have uniformly declined to consider whether and when an "invasion" occurs because of illegal immigration, as it "involves matters of foreign policy and defense," which the Constitution specifically commits to the federal government. Padavan v. United States, 82 F.3d 23, 28 (2d Cir. 1996) (finding nonjusticiable plaintiffs' claim that "the federal government violated the Invasion Clause because the influx of legal and illegal aliens into New York State represents an 'invasion,'"); New Jersey, 91 F.3d at 470 (finding nonjusticiable New Jersey's claim of invasion by illegal aliens); Chiles v. United States, 69 F.3d 1094, 1097 (11th Cir. 1995) ("[W]hether the level of illegal immigration is an 'invasion' of Florida and whether this level violates the guarantee of a republican form of government present nonjusticiable political questions."); California v. United States, 104 F.3d 1086, 1091 (9th Cir. 1997) ("There are no manageable standards to ascertain whether or when an influx of illegal immigrants should be said to constitute an invasion."). Likewise, the Fifth Circuit has dismissed as nonjusticiable Texas's previous claim that the United States' alleged "fail[ure] to control illegal immigration" violated the Naturalization Clause…..
If the issue is a political question, that means Texas cannot unilaterally decide for itself when an "invasion" has occurred and thereby seize the power to "engage in war" with Mexico:
Texas hopes to distinguish its case from the resounding rejection of similar "invasion" arguments in the cases cited above by centering the argument on the State's right to "engage in War" when "actually invaded." U.S. Const., art. I, § 10, cl. 3….
[A]ll Texas's new argument does is ask the Court to take the additional step—beyond the nonjusticiable question of whether the federal government has failed to protect Texas from invasion—of sanctioning Texas's assertion of plenary power to declare and respond to "all types of invasions, including invasions from non-state or quasi-state actors." (Dkt. # 26 at 24.) Under this logic, once Texas decides, in its sole discretion, that it has been invaded, it is subject to no oversight of its "chosen means of waging war." (Dkt. # 33 at 7-8.) Such a claim is breathtaking.
While Judge Ezra relies mainly on political questions reasoning, he also emphasizes the structural danger of giving states' unilateral authority to decide when an "invasion" has occurred and thereby claim the power to "engage in war."
I have doubts about the entire "political questions" doctrine, and would have preferred for the court to simply rule that illegal immigration and drug smuggling do not qualify as "invasion." Two of the circuit court decisions cited by Judge Ezra (Padavan v. United States and New Jersey v. United States) did exactly that (in addition to ruling against the states on political questions grounds). But, obviously, I understand that a district judge cannot simply ignore the political questions issue. And if the invasion issue in this case had to be decided on that basis, Judge Ezra's approach is the right way to do it.
This is just a ruling on a preliminary injunction, and not a final ruling on the merits. But the former likely prefigures the judge's ruling on the latter. First, however, Texas is probably going to appeal today's decision to the US Court of Appeals for the Fifth Circuit.
I am guardedly optimistic that Texas will lose there, as well. But we'll have to see what happens.
Section 3 disqualification is justifiable as a democracy-limiting tool to protect democracy. But there are slippery-slope issues that deserve serious consideration.
Earlier today, Lawfare published my article on "Section 3 Disqualifications for Democracy Preservation." Here is an excerpt:
There is an ongoing debate over whether Donald Trump must be disqualified from holding the presidency—or any public office—under Section 3 of the 14th Amendment. Enacted in the aftermath of the Civil War, Section 3 states that "No person" can hold any state or federal office if they had previously held state or federal public office in the United States and then "engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."
In a much-discussed new article, prominent conservative originalist legal scholars William Baude and Michael Stokes Paulsen argue that this rule is broad enough to bar Trump because of his efforts to overturn the result of the 2020 election and his role in instigating the Jan. 6, 2021, attack on the Capitol….
Part of the debate triggered by the article focuses on whether Baude and Paulsen have correctly interpreted key terms such as "insurrection" and "aid or comfort." But other critics contend that disqualifying Trump is, as Stanford Law Professor Michael McConnell puts it, likely to have "profoundly anti-democratic" consequences, depriving voters of the opportunity to vote for the candidate of their choice…..
If Baude and Paulsen's analysis of Section 3 is otherwise sound, concerns about democracy should not prevent officials from using it to disqualify Trump and others implicated in the events leading up to Jan. 6. Democracies have good reason to disqualify would-be officeholders whose track records indicate they endanger liberal democratic values. There is plenty of relevant precedent for disqualification for purposes of democratic preservation in both the United States and other democracies, most notably "lustration" laws barring officeholding by former functionaries of communist dictatorships in the newly democratic nations of Eastern Europe. While slippery-slope concerns should be taken seriously, there are safeguards against them, particularly in the form of judicial review.
There is, however, one genuine serious downside of applying Section 3: Some insurrections are actually morally defensible. Disqualifying those who participate in rebellions fighting for a just cause is problematic. But it may be the price we have to pay for Section 3's failure to distinguish between just and unjust rebellions against authority. Some number of unjust disqualifications may need to be accepted in order to reduce the greater menace of allowing would-be authoritarians access to the most powerful office in the land.
The rest of the article develops these points in more detail and addresses a number of potential objections.
The Cyberlaw Podcast is back from August hiatus, and the theme of our first episode is how other countries are using the global success of U.S. technology to impose their priorities on the U.S. Our best evidence is the EU's Digital Services Act, which took effect last month.
Michael Ellis spells out a few of the Act's sweeping changes in how U.S. tech companies must operate – nominally in Europe but as a practical matter in the U.S. as well. The largest social media platforms will be heavily regulated, with restrictions on their content curation algorithms and a requirement that they promote government content when governments declare a crisis. Other social media will also be subject to heavy content regulation, such as a transparency mandate for decisions to demote or ban content and a requirement that they respond promptly to takedown requests from "trusted flaggers" of Bad Speech. Searching for a silver lining, I point out that many of the transparency and due process requirements are things that Texas and Florida have advocated over the objections of Silicon Valley companies. Compliance with the EU Act will undercut the Big Tech claims likely to be made in the Supreme Court this Term, particularly that such transparency isn't possible.
Cristin also brings us up to speed on the SEC's rule on breach notification. The short version: The rule will make sense to anyone who's ever stopped putting out a kitchen fire to call their insurer to let them know a claim may be coming.
Nick Weaver brings us up to date on cryptocurrency and the law. Short version: Cryptocurrency had one victory, which it probably deserved, in the Grayscale case, and a series of devastating losses over Tornado Cash, as a court rejected Tornado Cash's claim that its coders and lawyers had found a hole in Treasury's Office of Foreign Assets Control ("OFAC") regime, and the Justice Department indicted the prime movers in Tornado Cash for conspiracy to launder North Korea's stolen loot. Here's Nick's view in print.
Just to show that the EU isn't the only jurisdiction that can use the global reach of U.S. tech to undermine U.S. tech policy, China managed to kill Intel's acquisition of Tower Semiconductor by slowrolling its competition authority's review of the deal. I see an eerie parallel between the Chinese aspirations of federal antitrust enforcers and those of the Christian missionaries we sent to China in the 1920s.
Michael and I discuss the belated leak of the national security negotiations between CFIUS and TikTok. After touching on substance (there were no real surprises in the draft), we turn to the more interesting questions of who leaked it and whether the effort to curb TikTok is dead.
Nick and I explore the remarkable impact of the war in Ukraine on drone technology. It may change the course of war in Ukraine (or, indeed, a war over Taiwan), Nick thinks, but it also means that Joe Biden may be the last President to walk in sunshine while in office. (And if you've got space in D.C. and want to hear Nick's provocative thoughts on the topic, he will be in town next week, and eager to give his academic talk: "Dr. Strangedrone, or How I Learned to Stop Worrying and Love the Slaughterbots".)
Cristin, Michael and I dig into another August policy initiative, the outbound investment review executive order. Given its long delays and halting rollout, I suggest that the Treasury's Advance Notice of Proposed Rulemaking (ANPRM) on the topic should really be seen as an Ambivalent Notice of Proposed Rulemaking.
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
If you would like to know what's been going on with right to arms litigation in the past two years, you're in luck. Published a few weeks ago is the 2023 Supplement to Firearms Law and the Second Amendment: Regulation, Rights, and Policy, coauthored by me and Nicholas Johnson (Fordham), George Mocsary (Wyoming, Director of the Firearms Research Center), Gregory Wallace (Campbell), and Donald Kilmer (Lincoln). In 330 pages, the supplement brings you up to date on the legal developments on the right to arms in 2022 and 2023.
The third edition of that textbook was published in late 2021. At 1,400 pages and $275, it's a bargain when calculated on cost per word. But the supplement is absolutely free, even if you didn't buy the main textbook.
Of course, the supplement examines in depth the U.S. Supreme Court's monumental Bruen decision from June 2022. That case affirmed the right to bear arms in public for lawful self-defense. More broadly, Bruen instructed lower courts to decide Second Amendment cases the way that Court had decided District of Columbia v. Heller in 2008: based on the original meaning of the Second Amendment, rather than on judges' personal evaluations of the costs and benefits of gun control. The 2023 Supplement catalogues the profusion of cases challenging many different laws on the ground that they are contrary to the Second Amendment's original meaning.
Although Firearms Law and the Second Amendment and its 2023 Supplement were created for use in advanced law school courses, they are also a treatise meant to be useful to courts, practitioners, and interested laypersons. That is why the textbook has been cited in five U.S. Circuit Court of Appeals opinions (including by then-Judge Kavanaugh), by the Illinois Supreme Court, and five other cases from lower courts. The textbook has been cited in 91 briefs in the Westlaw database, including by Everytown for Gun Safety, and twice this August in United States government briefs in the Circuit Courts of Appeals.
Among the many topics in the 2023 Supplement are firearm bans aimed at young adults; various categories of prohibited persons under federal law (such as marijuana users); new federal ATF regulations against pistol braces and other devices; the incompetently-drafted 2022 congressional Bipartisan Safer Communities Act; litigation of some state governments' "massive resistance" to accepting the right to licensed concealed carry; and international developments in Canada and elsewhere.
Starting with the first edition of Firearms Law in 2012, the textbook has been a cyclopedia of the legal history of the right to arms, including the broader social and technological context. That continues with the 2023 Supplement; the final section of the supplement is a detailed explanation of the evolution of firearms technology: in particular, how the kinds of guns—such as breechloading repeaters—that in the 1500s were only available to people like King Henry VIII became affordable for the 1800s to the average American.
As Dr. Seuss observed, "The more that you read the more things you will know." So if you want to know more things, I invite you to read the 2023 Supplement to Firearms Law and the Second Amendment.
[This post will be cross-posted at the Firearms Research Center Forum, the weblog of the University of Wyoming's new Firearms Research Center. I am a Senior Fellow at the Center. Contributors to the FRC Forum include "pro-gun" writers, such as me, and also gun control advocates such as law professors Dru Stevenson (South Texas) and Megan Walsh (Minnesota).]
A few weeks ago I linked to a new draft article with Michael Stokes Paulsen, The Sweep and Force of Section Three, forthcoming in the Pennsylvania Law Review. The article argues that Section Three of the Fourteenth Amendment has continuing, self-executing, legal force and a relatively broad substantive sweep, and that among other things it disqualifies Donald Trump from future office because of his participation in the attempted overthrow of the 2020 presidential election. Since then Prof. Paulsen and I have generally been declining media interviews and the like, preferring to let the article speak for itself.
But we recently made an exception for a long conversation with my former professor, and Paulsen's former law-school roommate, Akhil Amar. In two episodes totaling about three hours we talk about many aspects of the argument about Section Three, including various issues of federal jurisdiction, congressional power over the electoral count, our reactions to the recent blog post here by our friend Professor Michael McConnell, and more. The two episodes are linked below.
In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in this episode they respond for the first time to some of the critiques, explore the implications of their work, and in doing so, they bring an integrity to our civic conversation. This is an important discussion of important issues, by real experts.
We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter the Fed Courts classroom and look at - what else - the Constitution's voice on these matters, in the 14th amendment, and elsewhere.
In my first post, I critically discussed some popular objections to 303 Creative v. Elenis and noted that case law established a "credible threat" test for standing. Now, I'd like to explore the issue of standing more extensively. Was the credible threat test satisfied in 303 Creative? Here's an edited excerpt from my paper:
Drawing on the court of appeals decision below … the Court adduced three reasons why the threat facing the designer [plaintiff Lorie Smith] was credible. First, "Colorado has a history of past enforcement against nearly identical conduct." This factor is very powerful. If someone has done something and been enforced against, that would seem to make it credible that a new person would suffer enforcement for similar conduct.
Second, "anyone in the State may file a complaint against Ms. Smith and initiate 'a potentially burdensome administrative hearing' process." So, even if most or nearly all people in Colorado would decline to initiate enforcement against the designer, it would only take one person to initiate proceedings and generate alleged censorship. This too seems like a significant point in favor of standing.
Third, "Colorado [has] decline[d] to disavow future enforcement proceedings" against the plaintiff. With the case pending at the Court, the State was obviously well aware of what the plaintiff had in mind and could have put everyone at ease by disavowing any interest in enforcement – as sometimes does happen as late as oral argument. Yet Colorado declined to do so. Instead, the State stayed conspicuously quiet about whether it would enforce. Given the circumstances, that silence speaks loudly. Who wouldn't view the threat as very credible indeed?
The Court then wrapped up: "Before us, no party challenges these conclusions." The dissent, too, declined to take any issue with this persuasive and largely undisputed analysis.
9/6/1983: The City of Richmond solicited bids for installing plumbing fixtures at the city jail. The J.A. Croson Company's bid was denied because it did not meet the "set-aside requirement" for minority contractors. The Supreme Court declared this decision unconstitutional in City of Richmond v. J.A. Croson Co. (1989).
[UPDATE 12/5/2023: See the end of the post for links to, and an excerpt from, Seltzer's arguments.]
[UPDATE 4/17/2024: In March, the D.C. Circuit affirmed the dismissal on statute of limitations grounds, without having to reach the arbitral immunity question.]
Plaintiff Susan Seltzer participated in an arbitration proceeding before the Financial Industry Regulatory Authority (FINRA). The arbitration concluded with a written award that was published online. Seltzer alleges that the award defamed her by incorrectly describing her actions in the arbitration proceeding. She also contends that FINRA took actions to "tag" the award to her name in a Google search. Seeking to recover for the harms she allegedly suffered from the publication of those statements, Seltzer sued FINRA….
The Court can make out the following from Seltzer's allegations. The events giving rise to this case involve an arbitration Seltzer initiated in FINRA's arbitration forum in 2017. The arbitration panel issued a written award dismissing Seltzer's claim. The award included some descriptions of the arbitration proceedings and characterized Seltzer as acting "vicious[ly]" and making "ad hominem attacks" against other parties, among other things. Seltzer acknowledges that FINRA's Codes of Arbitration Procedure requires that it make all arbitration awards publicly available. Accordingly, FINRA posted the arbitration award online…. Seltzer knew about the statements as early as November 6, 2018 ….
Seltzer also alleges that on July 13, 2020, FINRA began "publish[ing] the false and defamatory award tagged to [her] name in a Google Search." Seltzer does not clearly explain how she claims FINRA did this, but she seems to allege that FINRA was responsible for the award appearing in Google searches of her name. She alleges that in 2022, FINRA created "knowledge graphs" that also linked the "defamatory award" to her. Her Complaint includes allegations that FINRA altered the complaint that she filed in the arbitration by removing the names of certain individuals, but she does not allege that FINRA altered any allegedly defamatory statements in the award.
The court held that plaintiff's claims were barred by D.C.'s one-year statute of limitations for libel claims:
Plaintiff Nadire Atas, proceeding pro se, brings this action against Defendants The New York Times Company [and others], alleging defamation. According to Atas, The Times—through news articles, podcast episodes, and interviews of its journalists—defamed her by describing her as a mentally ill woman who has engaged in years-long campaigns of harassment against her perceived enemies using the internet and the Canadian court system…. [Defendants'] motions to dismiss are granted….
On January 30, 2021, The Times published an article titled "A Vast Web of Vengeance" on its website and in print. The article, written by Defendant [Kashmir] Hill, described the phenomenon of "complaint sites," which allow anonymous internet users to post malicious and often false accusations about people for the purpose of retribution for perceived slights. It reported that Plaintiff is one such person, responsible for anonymous internet posts targeting those who have slighted her with unfounded accusations of pedophilia, theft, and fraud, among other offenses. The article also reported on Canadian court proceedings against Plaintiff for defamation. It included the statement that in 2017, Judge David Corbett of the Ontario Superior Court of Justice deemed Plaintiff "a vexatious litigant who was 'ungovernable and bent on a campaign of abuse and harassment.'" Additionally, the article reported that on January 28, 2021, the same judge had issued a ruling stating that Plaintiff was responsible for "unlawful acts of reprisal" [referred to as the Caplan Judgment -EV].
On February 10, 2021, The Times published a follow-up article reporting that Plaintiff had been arrested the previous day for harassment and libel. On February 17, 2021, Hill gave an interview on CBC Radio referencing the two articles. On April 6, 2021, Defendant Michael Barbaro interviewed Hill about her reporting on The Daily Podcast, which is published by The Times.
I want to thank Eugene again for inviting me to guest-blog last week about my new article, The Five Internet Rights. See Parts I, II, III, IV, and V. I thought I'd follow up with just one more post to respond to some of the reader comments I received on the series.
In the first place, it was certainly an interesting (and educational) experience trying to distill a 100-page, heavily footnoted, academic article into five short-form blog posts. That translation forced me to elide over many important details and caveats that were addressed in the article, some of which readers focused on. For example:
Technical Objections
On the technical side, the savvy DNS practitioner might point out that having one's domain name suspended doesn't amount to getting kicked off the internet (just ask gab.com and ar15.com). Often, when a registrar suspends a domain name, it gives the registrant an opportunity to find another registrar. Given that more than a thousand ICANN-accredited registrars currently offer their services to the public, a registrant faced with a suspension for purely ideological reasons can usually find a substitute. Or a truly beleaguered speaker could theoretically become her own registrar (with a fair amount of money and effort). And even if a top-level domain registry (as distinct from a registrar) permanently deprived you of your domain name (say, example.com), you could probably register another string in a different top-level domain (say, example.xyz or even example.ru).
Likewise, even if a regional internet registry (RIR) revoked your IP addresses, you might manage to procure substitute address space within another RIR's service region. I address these nuances in a section of the article that distinguishes between "strict" and "fuzzy" classes of intermediaries and notes the hierarchy of control from registrars to registries to ICANN. But obviously, that would have been too in the weeds for a blog series (as would have been any description of the seven-layer OSI network stack).
Another important clarification is that even if a person lost her domain name, IP address, and commercial internet connection, those actions would only kick her website off the internet; they wouldn't necessarily kick her off the internet. She could probably continue to leverage the internet to express her viewpoints using non-web technologies, such as email, FTP, peer-to-peer, or video conferencing. I acknowledge as much in the article. But I also argue that websites enjoy a special status when it comes to online expression. Websites alone combine control, social valence, accessibility, discoverability, authority, and permanency. Not so with spoof-able emails, undiscoverable file objects, or ephemeral Zoom-casts. A viewpoint that is denied a home on every website might not be banished from the internet entirely, but it would be effectively banished from the public internet.
"[The decision] showcases the now-familiar contrast between the Court’s two different approaches to conservative jurisprudence: the strict formalism of Justice Gorsuch—a stern insistence that the United States live up to the letter of its legal obligations come hell or high water—as opposed to the status-quo, stare decisis driven conservative jurisprudence of Justice Kavanagh and Chief Justice Roberts."
As I noted in an earlier post, I'm delighted to report that we have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it's important, and I'm glad to have a chance to pass along these items. This is from Harriet McConnell Retford, who is a member of the American Indian Law group and Greenberg Traurig LLP and the co-author of an amicus brief in Navajo Nation on behalf of the Coalition of Large Tribes (the views expressed are her own and don't reflect those of Greenberg Traurig or the Coalition):
The Supreme Court's decision in Arizona v. Navajo Nation, No. 21-1484 comes at the messy intersection of two of the least functional doctrines in federal Indian law: reserved water rights under Winters v. United States (1908) and Indian trust doctrine under United States v. Mitchell (1980).
It also showcases the now-familiar contrast between the Court's two different approaches to conservative jurisprudence: the strict formalism of Justice Gorsuch—a stern insistence that the United States live up to the letter of its legal obligations come hell or high water—as opposed to the status-quo, stare decisis driven conservative jurisprudence of Justice Kavanagh and Chief Justice Roberts.
Justice Gorsuch would insist that if the United States serves as "trustee" for the lands and waters of Indian tribes then it has a duty to account for those waters and to make absolutely certain that it does not take any action that would divert those waters to other public or private purposes. The majority instead follows a long line of precedents that allow the United States to assert the privileges of trustee over Indian lands without assuming the corresponding obligations.
To be fair, however, there are significant problems with Arizona v. Navajo Nation as a vehicle for addressing these issues, especially the lack of clarity regarding the remedy being sought, so hopefully further opportunities will come to revisit these doctrines in a cleaner case.
Tribes have water rights in theory, but legal obstacles make the use of these rights prohibitively expensive.
"[T]he Court held that despite being a 'trustee' for the Navajo Nation and despite having promised the Navajo water sufficient to make its lands productive, the United States does not have an obligation to help the Navajo obtain that water."
I'm delighted to report that we'll have two items on this June 2023 Supreme Court case today, both from people who know a great deal about Indian law; unfortunately, I know very little about the subject, but I know it's important, and I'm glad to have a chance to pass along these items. First, from Prof. Todd Henderson (Chicago):
Although it did not garner as much attention as the decision in the Indian Child Welfare Act case, the Supreme Court's recent decision in a water dispute in Arizona is potentially more significant. In Arizona v. Navajo Nation, the Court held that despite being a "trustee" for the Navajo Nation and despite having promised the Navajo water sufficient to make its lands productive, the United States does not have an obligation to help the Navajo obtain that water.
The decision is the latest in a series of rulings that effectively gut the affirmative duties necessary under the trust obligation, absent explicit congressional command. Like many aspects of Indian law, the modern Court has flipped the script.
The old rule was the Court would interpret legal texts in favor of tribal interests, absent explicit congressional instructions to abrogate those rights—generally, the tie went to the Indian. Today, the opposite is increasingly true, with the Court looking for specific intent from Congress to give, rather than looking for specific intent to take away. Changing the default rule here, as elsewhere in law, has enormous implications.
An important question, whether the judge orders lawyers to be trained on religious liberty by the Alliance Defending Freedom, on transgender rights by Lambda Legal, or on race discrimination law by the ACLU.
This is one of many interesting free speech questions raised in Carter v. Transport Workers Union of Am. & Southwest Airlines Co. (N.D. Tex.). Let me discuss those questions in turn.
In 2017, a flock of Southwest flight attendants descended upon Washington, D.C. for the so-called "Women's March" protesting President Donald J. Trump. Those flight attendants were also Local 556 members, and one—Audrey Stone—was the union's president. During the march, they carried signage emblazoned with Southwest's logo. Carter, a pro-life Christian, objected to the flight attendants' purported representation of Local 556, Southwest, and, by extension, herself—especially given Planned Parenthood's sponsorship of the protest. To voice her objection, Carter sent Stone several private Facebook messages, some of which contained videos of aborted babies. In one of those messages, Carter said, "[t]his is what you supported during your Paid Leave with others at the Women's MARCH."
Stone filed a complaint against Carter with Southwest. After a hearing, Southwest fired Carter, saying that when Carter messaged Stone, she was "identifiable as a Southwest Airlines Employee and represented our Company in a manner that is disparaging to Southwest Flight Attendants."
Carter sued, alleging that (1) Local 556 had breached its duty of fair representation, (2) Southwest and Local 556 had retaliated against Carter for exercising her protected rights under the Railway Labor Act …, and (3) Southwest and Local 556 had discriminated against Carter for her religious beliefs and practices under Title VII. A jury found for Carter on each claim ….
[This is a guest post by Prof. Richard Re (Virginia); because of a technical glitch, I had to originally post it under my byline.]
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to many commentators, the Court decided what was really a "fake" or "made up" case brought by someone who asserted standing merely because "she worries." As a doctrinal matter, these criticisms are unfounded.
But what makes this episode interesting is that the criticisms came from the legal left, which has long been associated with expansive principles of standing. Doubts about standing in 303 Creative may therefore portend a broader standing realignment, in which liberal justices become jurisdictionally hawkish.
In the past, justices who found themselves out of power have often tried to tighten justiciability principles. So, now that the Court has shifted decidedly rightward, it makes some sense for there to be an ideological reversal on federal court jurisdiction.
