The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Earlier, I blogged about Chief Justice Roberts's letter to Senator Durbin. That letter bore only the Chief's signature, so we do not know if his eight colleagues concurred. (I suspect that Justice Thomas would have dissented from the shoddy historical analysis). Here, I'll turn to the attached "Statement on Ethics Principles and Practices." This 2.5 page document was signed by all 9 of the justices.

The document is significant simply because it exists: all 9 justices were able to come to a consensus on a statement of ethics in a fairly short time. (I was curious why the Court didn't release opinions on a Tuesday when oral arguments were scheduled; now I suspect the Court was putting the finishing touches on this statement). But, if ever the price of the unanimity, the letter doesn't say very much of use.

What did we learn? The statement reiterates a fact that is lost in every single news story about judicial ethics:

The canons themselves are broadly worded principles that inform ethical conduct and practices. But they are not themselves rules. They are far too general to be used in that manner.

Even if the Supreme Court adopted an ethics code, those canons would be no more "binding" than the current canons are "binding" on lower-court judges. These are not bright-line rules that would suddenly make all of the ethics professors happy. The justices would still have to follow their own consciences.

The statement provided that the "Judicial Conference, which binds lower courts, does not supervise the Supreme Court." This sentence is true, as a technical matter. But the joint statement did not go as far as Chief Justice Roberts, who insisted that Congress could not regulate the ethics of the Supreme Court.

According to the statement, the Justices can "seek advice from the Court's Legal Office and from their colleagues." But there is another path for advice. We learn that the Judicial Conference's Committee on Financial Disclosure reviews the disclosures by the Supreme Court justices. And that Committee "either finds them to be in compliance with applicable laws and regulations or sends a letter of inquiry if additional information is needed to make that determination." Plus, "the Committee provides guidance on the sometimes complex reporting requirements." Justice Thomas explained that he consulted with his "colleagues" regarding the disclosures for his trips with Harlan Crow. We do not know if those colleagues included the Financial Disclosure Committee.

The statement explained that at least since 1991, the justices have "adopted a resolution to follow the substance of the Judicial Conference Regulations." The word "substance" demonstrates why the Supreme Court could not wholesale adopt the entire Code of Conduct. Specifically, the recusal rules for the nine-member Court differs from the recusal rules for the lower courts:

In regard to recusal, the Justices follow the same general principles and statutory standards as other federal judges, but the application of those principles can differ due to the unique institutional setting of the Court. In some instances the Justices' recusal standards are more restrictive than those in the lower court Code or the statute—for example, concluding that recusal is appropriate where family members served as lead counsel below. A recusal consideration uniquely present for Justices is the impairment of a full court in the event that one or more members withdraws from a case. Lower courts can freely substitute one district or circuit judge for another. The Supreme Court consists of nine Members who always sit together. Thus, Justices have a duty to sit that precludes withdrawal from a case as a matter of convenience or simply to avoid controversy.

The statement maintains that each Justice must make his or her own recusal decisions. That task cannot be delegated to another member of the Court.

Individual Justices, rather than the Court, decide recusal issues. If the full Court or any subset of the Court were to review the recusal decisions of individual Justices, it would create an undesirable situation in which the Court could affect the outcome of a case by selecting who among its Members may participate.

In related news, Senators King and Murkowksi introduced the Supreme Court Code of Conduct Act. That bill would designate a court employee to make recommendations concerning recusals, and other ethical issues. Presumably, the Justices would see this intrusion as intolerable. Probably a violation of the non-delegation doctrine, or something.

The statement demonstrates that parties would have a strategic interest in forcing a Justice to recuse--another reason the usual rules from the lower court would be difficult to apply.

In some cases, public disclosure of the basis for recusal would be ill-advised. Examples include circumstances that might encourage strategic behavior by lawyers who may seek to prompt recusals in future cases. Where these concerns are not present, a Justice may provide a summary explanation of a recusal decision . . .

The appendix offers some additional thoughts on the federal recusal statute:

Federal Recusal Statute. 28 U.S.C. § 455 provides recusal standards for "justice[s] [and] judge[s] . . . of the United States." The Chief Justice has stated that "the limits of Congress's power to require recusal have never been tested. The Justices follow the same general principles as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court." C.J. Roberts 2011 Year-End Rpt. at 7. First, there is no higher court to review the Justices' recusal decisions. Second, because recused Justices cannot be replaced, a Justice cannot withdraw from a case as a matter of convenience or simply to avoid controversy. In 1993, a Statement of Recusal Policy addressed recusal issues where members of a Justice's family were practicing attorneys. See Statement of Recusal Policy (Nov. 1, 1993).

The statement also seems to greenlight speaking in front of the Federalist Society:

Except in unusual circumstances, no such appearance will be created when a Justice speaks before a group associated with an educational institution, a bar group, or a nonprofit group that does not regularly engage in advocacy or lobbying about issues that may be implicated in cases that come before the Court.

Finally, the statement explains that there are limits on outside income from teaching, but not on writing books:

Justices may not have outside earned income—including income from teaching—in excess of an annual cap established by statute and regulation. In calendar year 2023, that cap works out to less than 12 percent of a Justice's pay. Compensation for writing a book is not subject to the cap.

The emphasized statement is not quite right. Rather, the code of conduct does not place limits on royalties. And publishers routinely grant Supreme Court Justices advances on their royalties in a lump sum, long before the book is even published--or even written. Of course, if the book doesn't sell enough copies, the Justices would have to repay those royalties. But Justices are able to sell books on demand, simply by showing up at an event. I started writing an article on the ethics behind this royalties loophole, but I never finished it. This sentence from the Justices--several of whom received prodigious advances--makes me want to finish that article.

Geraldine Tyler is seen at an assisted living facility — Geraldine Tyler, 94, who had her home seized by the government over a property tax debt. (Courtesy of Pacific Legal Foundation)

Earlier today, the Supreme Court heard oral arguments in Tyler v. Hennepin County, an important Takings Clause case on "home equity theft." In states that allow this practice, local governments can seize the entire value of a property in order to pay off a much smaller delinquent property tax debt. Geraldine Tyler, the plaintiff in the case, is a 94-year-old widow whose home, valued at $40,000, was seized by the County government after she was unable to pay off $15,000 in property taxes, penalties, interest, and fees. The County then kept the entire $40,000 for itself, as Minnesota law allows. Tyler contends that this practice violates the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" when it takes private property, and also the Excessive Fines Clause of the Eighth Amendment. I covered issues in the case in more detail here.

The bottom line takeaway from the oral argument is that Tyler will almost certainly win her case, and it isn't going to be close. This could even be an extraordinarily rare Takings Clause case where the Court is unanimous! By my count, at least eight justices seem to be leaning Tyler's way. The only one that's hard for me to read is Justice Sonia Sotomayor, who is the justice least sympathetic to takings claims on the current court. But if she didn't say much that was supportive of Tyler, she also didn't say much that clearly cuts the other way, either.

Multiple justices were clearly appalled at County's argument that there is no taking in this situation no matter how great the disproportion between the tax delinquency and the amount of money the government gets by seizing the property. For example, Justice Elena Kagan asked whether there are "any limits" here and wanted to know whether there is a taking in a situation where there is "$5,000 tax debt, $5 million house, take the house, don't give back the rest." She wasn't happy when the County's attorney Neal Katyal ultimately conceded that, under his reasoning, there would be no taking here, and the government could keep the entire $5 million.

Similarly, Justice Gorsuch asked whether there's a taking if "the government takes a million dollar property…. for a modest amount owed to the government, a $5 amount." Katyal said there would not be a taking. Gorsuch was not a happy camper.

The justices also had little sympathy for the argument - endorsed by the lower court decision - that there is no taking because state law had defined the surplus equity as the county's property, thereby extinguishing the owner's rights. Justice Gorsuch pushed Katyal to admit that "it can't be pure positive law, state law that governs what is property, right?" Katyal admitted that Gorsuch was right. Along the same lines, Chief Justice John Roberts suggested that "there is an irreducible core of what constitutes property" that states cannot define away, and that core may come from "the Takings Clause itself."

I think the answer to this issue is that the original meaning of the Takings Clause is rooted in natural rights theories of property, and natural law - not state law - is the ultimate source of those rights, though states can regulate the rights, and have some role in defining their precise boundaries.

I don't know exactly how the Court is going to handle this crucial question. One possibility is that they might follow the Sixth Circuit's ruling in a similar case, which concluded that states cannot define away "traditional property interests long recognized under state law." But I am confident the justices will reject the notion that the state can just redefine property rights however it wants. As Chief Justice Roberts suggested, under the County's position in this case, there wouldn't be much point to the Takings Clause.

Another telling indication of where the Court is leaning was that Tyler's attorney, Christina Martin, didn't get asked a single question during her rebuttal time at the end of the oral argument. Usually, the justices will ask at least some questions during rebuttal, if they have any significant reservations about the advocate's position.

If, as is highly likely, Tyler prevails in the Supreme Court, there may be some complex questions about how to calculate the compensation she is owed. The justices struggled with the issue of whether she should automatically get all of surplus value from an auction or whether she should instead get the difference between the amount she owes the government and the value of the property at the time of foreclosure. Some of the justices suggested this issue could be remanded for consideration by the lower courts.

The Excessive Fines Clause issue in this case is a closer call than the takings question. A number of justices suggested that Court won't even have to reach the issue if they rule in favor of Tyler under the Takings Clause. That may well be what happens.

Finally, it may be worth mentioning that Katyal presented a convoluted argument attempting to prove that Tyler lacked standing to file this case. He even led off his oral argument and his brief with this theory, which implies he thought this was his best chance of prevailing (usually appellate advocates put their strongest arguments first).

I'm not going to go into the details of the standing argument, because it's extremely weak and none of the justices seemed to give it any credence. Clarence Thomas said that "I'll bypass the standing [because]… at bottom, she's saying the county took her property, made a profit on it with the surplus equity, and it belongs to her." This strikes me as a very obvious basis for standing, even for judges who favor highly restrictive standing rules.

In my last post about Tyler, I noted the unusually broad cross-ideological support for the property owner's position among the organizations filing amicus briefs in the case. If the oral argument is any indication, a similar broad consensus may be emerging among the Supreme Court justices, as well.

NOTE: Geraldine Tyler is represented by the Pacific Legal Foundation, which is also my wife's employer. She, however, is not one of the attorneys working on the case.

NEXT: Lawfare Podcast on AI Libel, with Prof. Alan Rozenshtein and Me

Property Rights Takings Supreme Court

Last week Senator Dick Durbin invited Chief Justice Roberts to testify before the Senate Judiciary Committee. Despite my hope that the Chief would send Justice Breyer, Roberts respectfully declined Durbin's invitation. And he sent a letter explaining his decision.

The letter is short--only one page--but Roberts packs a lot in there. I'll focus on three primary arguments.

First, Roberts invokes the separation of powers and judicial independence.

Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.

Roberts does not even begin to explain what those "separation of powers concerns" are. Nor does he elucidate why testifying would weaken "judicial independence." To play devil's advocate for a moment, Roberts would be under no obligation to talk about any case or controversy. And, with lifetime tenure and guaranteed salary, the Senators cannot actually do anything that would affect Roberts's ability to decide cases. The Senate could defund the Court, turn off the lights, eliminate law clerks, and so on, but those remedies are unlikely. Roberts's conclusory statements are not self-evident.

Yet, Roberts has made such an unexplained statement before. Every New Year's Eve, the Chief Justice issues an annual report. His statement from December 2011 included this paragraph:

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

In January 2012, I wrote that Roberts issued an advisory opinion. At the time, I was persuaded by the Chief. But for reasons I'll explain later, I now think he's wrong. I'll come back to Roberts's opinion later in the post.

Second, Roberts turned to precedent. He explains that only two Chief Justices have testified before the Senate Judiciary Committee, including Chief Justice Taft in 1921 and Chief Justice Hughes in 1935. And those "hearings involved routine matters of judicial administration relating to additional judgeships in the lower courts and jurisdiction over appeals from lower court injunctions." Chief Justice Rehnquist appeared twice before House committees on similarly mundane matters. According to Roberts, no testimony was offered by Chief Justices Burger, Warren, or Vinson. Roberts mentioned that Chief Justice Warren submitted a prepared statement concerning federal employees salaries.

Roberts's history is incomplete. (He has a bad habit of ignoring unhelpful precedent; See U.S. v. Burr) The Chief omitted a very relevant invitation to testify in 1937. Shortly after President Roosevelt announced his Court packing scheme ("Court reform" in newspeak), the Senate Judiciary Committee invited Chief Justice Hughes to testify against the bill. Richard Friedman described the event in the Journal of Supreme Court History.

The Administration took less than two weeks to present its case, and then it was the turn of the opposition forces. Senator Burton K. Wheeler, the liberal Democrat from Montana, was scheduled to lead off their testimony on Monday, March 22. For some time he and his allies had been trying to bring the Court in on their side of the fight. On March 18 Wheeler, accompanied by Senators Warren Austin, a Republican on the Judiciary Committee, and William King, one of the panel's senior Democrats, called on Hughes to ask him to testify against the bill. The Chief Justice received the delegation "with his usual Jovian affability and expressed willingness to appear. He would not do so, however, unless accompanied by Brandeis, the senior and most revered member of the Court's liberal wing. The Senators left in jubilation, assuming that Hughes would testify with Brandeis and Van Devanter, as he had two years before against a bill aimed at changing the Court's appellate procedure, This time, however, Hughes found that Brandeis stood fast against an appearance in which the Justices would ''testify on a matter affecting their own integrity." Hughes thereupon suggested that he might, in response to a request from the committee, write a letter stating the facts of the court's work. That idea Brandeis accepted and so, Hughes found, did Van DeVanter.

Ultimately, Hughes wrote a letter. But it was not approved by all members of the Court. Only Justices Brandeis and Van Devanter approved. Hughes wrote:

I have not been able to consult with the members of the Court generally with respect to the foregoing statement, but I am confident that it is in accord with the views of the justices. I should say, however, that I have been able to consult with Mr. Justice Van Devanter and Mr. Justice Brandeis, and I am at liberty to say that the statement is approved by them.

Plus Hughes seemed to issue an advisory opinion about whether Congress could divide the Supreme Court into "panels." Roberts issued his own such advisory opinion in December 2011.

Could Roberts have even prepared a letter on behalf of the entire Court in response to Senator? We know from Joan Biskupic's book that some of the other Justices are peeved at how much control the Chief takes over the Court unilaterally. I think it would be impossible for Roberts to gain consensus on such a letter. Speaking of Aaron Burr, Roberts did what he does best: talk less, smile more, don't let them know what you're against or what you're for.

Third, Roberts drew a direct comparison between himself and the President:

Congressional testimony from the head of the Executive Branch is likewise infrequent. According to the United States Senate website, no President has ever testified before the Senate Judiciary, and only three Presidents (in 1862, 1919, and 1974) have testified before any Congressional committee.

In 1862, President Lincoln voluntarily testified about how his annual message was prematurely published in a newspaper. In 1919, President Wilson voluntarily testified concerning the peace treaty with Germany and the League of Nations. And in 1974, President Ford voluntarily testified about his pardon of former-President Nixon.

Once again, Roberts played fast-and-loose with the history. A footnote on the Senate site indicates that George Washington testified before the full Senate in 1789.

1. President George Washington testified before the entire Senate on the subject of Indian treaties on August 22, 1789.

The Senate Judiciary Committee was not formed until 1816. So Roberts's statement was technically accurate, but it was not entirely forthcoming. Washington's meeting was actually quite significant. He sought the Senate's "advice" with regard to treaties with Indian tribes. Of course, the collective Senate was indecisive, and wanted to appoint a committee to study the matter. Washington found the incident to be such a waste of time that he never again sought the Senate's "advice." Going forward, Washington only requested "consent" in the form of a Senate ratification vote. I wrote about this episode in my 2017 article, SCOTUS After Scalia (starting at p. 135):

In a scene too remarkable to imagine, President Washington "started up in a violet fret."449 In words emphasized in Maclay's journal, the General barked, "This defeats every purpose of my coming here."450 Washington had visited the Senate with Henry Knox, the secretary of war, who could "give every necessary information."451 After Washington "cooled, however, by degrees," he did not object to a delay until Monday, "but declared he did not understand the matter of commitment" to a committee. 452 Washington then "withdr[e]w" with a "discontented air," that could be described as "sullen dignity."453 On Monday, the Senate reconvened, with President Washington wearing "a different aspect" from his previous visit.454 After a "tedious debate," and several modifications to the language of the treaty, the Senate provided its advice and consent.455 "This closed the business. The President of the United States withdrew, and the Senate adjourned."456 Presidential frustration with indecisive congresses is as old as the Republic.

Other than Roberts's incomplete account of history, the Chief Justice does not explain why he is analogous to the President. I suspect the answer would go something like this: the Constitution creates the executive branch and the judicial branch. The President is the head of the executive branch and Roberts is the head of the judicial branch. Therefore, they hold equivalent statute in our separation of powers. QED.

I don't think this argument works. The Constitution created the position of the President. No statute was needed when President Washington was elected. Likewise, no statute was needed to create the individual representatives and senators in Congress. No statute was needed to structure the number of Presidents (1) and size of each house. The Constitution took care of that. But a statute was needed to create the position that Roberts currently holds. And a statute was needed to set the size of the Supreme Court. Plus Congress was under no obligation to even create the lower courts, which Roberts now presides over. I discuss some of this history in Part II of my series with Seth Barrett Tillman:

Four years earlier, the Judiciary Act of 1789 stated that the "the supreme court of the United States shall consist of a chief justice and five associate justices." On the same day the Judiciary Act was enacted, President Washington sent a communication to the Senate, which was recorded in the Senate Executive Journal. Washington made nominations for the "Supreme Court of the United States." He selected John Jay for "Chief Justice," and John Rutledge, James Wilson, William Cushing, Robert Harrison, and John Blair as "Associate Judges."

But wait a minute, you might ask. Doesn't the Constitution require the Chief Justice to preside at the impeachment of the President? There is no requirement that the Chief Justice referenced in the Impeachment Clause is the same person as the presiding officer of the Supreme Court. None. Seth and I raised this issue during the first Trump impeachment, where we explained that Justice Thomas could have presided, if Roberts was unable to do so. Or, we think, Congress could designate a different presiding officer by statute. Lots of people offered commentary about our view on Twitter, but to my knowledge, they haven't revisited the issue in four years. It was, and is, very common for people to criticize us on topics they had previously given zero thought, and give zero thought subsequent to that criticism. Weird.

In any event, no the Chief Justice is not equivalent to the President in terms of our separation of powers. Why does this fact matter? Since Congress has created the judges of the Supreme Court by statute, Congress has enacted laws governing what those justices can do. Congress established the date on which the justice assembles (the first Monday in October), the required quorum size, the federal recusal statute, and so on. There are some limits on that authority with regard to judicial independence. But, sorry Chief, Congress could enact an ethics code on the Court. The permissible canons of such a code are a very different matter.

This morning, the Supreme Court heard oral arguments in Tyler v. Hennepin County, an important Takings Clause case involving the practice of "home equity theft," under which local governments can seize the entire value of a property in order to pay off a much smaller delinquent property tax debt. Geraldine Tyler, the plaintiff in the case, is a 94-year-old widow whose home, valued at $40,000, was seized by the County government after she was unable to pay off $15,000 in property taxes, penalties, interest, and fees. The County then proceeded to keep the entire $40,000 for itself, as Minnesota state law allows it to do. Tyler contends this violates the Takings Clause of the Fifth Amendment, which requires the government to pay "just compensation" anytime it takes private property. I went over the issues in the case here.

Takings Clause cases often divide opinion along predictable left-right ideological lines. Strikingly, however, this case features a broad cross-ideological coalition supporting the property owner. Ilya Shapiro of the Manhattan Institute (reminder: he is a different person from me), has a helpful summary of the wide range of groups filing amicus briefs supporting Tyler:

Progressive groups such as the Constitutional Accountability Center are aligned with conservative groups such as the Claremont Institute's Center for Constitutional Jurisprudence. The American Civil Liberties Union is on a brief with the Cato Institute. The National Taxpayers Union Foundation, AARP, Chamber of Commerce, National Association of Home Builders, National Association of Realtors, National Consumer Law Center, and Public Citizen have all weighed in to help Tyler, as have disability advocates and four of Minnesota's congressional representatives. Hennepin County, meanwhile, is supported mainly by state and municipal governments and related associations.

My organization, the Manhattan Institute, joined the Buckeye Institute, the National Federation of Independent Business, and three other groups on a brief supporting Tyler.

I rarely agree with either the AARP or the right-wing Claremont Institute on much of anything. But in this case, I find myself in the highly unusual position of agreeing with both of them simultaneously. The AARP brief, in particular, is absolutely right to point out that elderly homeowners of modest means are particularly vulnerable to home equity theft, especially those who also suffer from declining health and mental capacity.

Much of the political left has a long history of hostility to judicial protection of property rights. But this issue is clearly an exception. For their part, many conservatives have turned against property rights on a variety of issues, in recent years. But not here.

What accounts for the unusual left-right agreement here? I think progressive groups are willing to back Tyler because home equity theft disproportionately harms the poor, elderly, and minorities, and because curbing it is unlikely to impede various types of land-use regulation that the left favors (except in so far as the latter can be facilitated by allowing government to redefine private property rights out of existence, as the lower court ruling allowed Minnesota to do here).

Many conservatives are willing to set aside their traditional support for property rights when they stand in the way of right-wing culture war causes, such as combating vaccine mandates, preventing private property owners from barring guns from their land, and others. But no such culture war issue is at stake here.

As Shapiro notes, almost all the amicus briefs supporting the government in Tyler were filed by local government and tax collection interests, who have an obvious narrowly self-interested stake in the issue.

It's worth noting that only three states joined an amicus brief supporting Hennepin County, one of which is the state of Minnesota, where the county is located. There are twelve states with laws authorizing home equity theft, plus the District of Columbia. The other nine were apparently unwilling to weigh in to support their own laws. Interestingly, a much larger group of states - eight in all - filed an amicus brief supporting the property owner. It's unusual to see state governments taking the side of property owners in takings cases, as that limits the states' own powers.

I should emphasize that the lopsided division of amicus briefs doesn't by itself prove that Tyler deserves to win. An unpopular minority view can sometimes be right on the merits. In this case, however, the Takings Clause argument for the property owner is very strong, and a decision the other way would set a dangerous precedent.

I will post an analysis of the oral argument later today. But my tentative initial view is that most of the justices seem likely to side with Tyler.

NOTE: Geraldine Tyler is represented by the Pacific Legal Foundation, which is also my wife's employer. She, however, is not one of the attorneys working on the case.

From the Lawfare blog (link to my paper revised):

If someone lies about you, you can usually sue them for defamation. But what if that someone is ChatGPT? Already in Australia, the mayor of a town outside Melbourne has threatened to sue OpenAI because ChatGPT falsely named him a guilty party in a bribery scandal. Could that happen in America? Does our libel law allow that? What does it even mean for a large language model to act with "malice"? Does the First Amendment put any limits on the ability to hold these models, and the companies that make them, accountable for false statements they make? And what's the best way to deal with this problem: private lawsuits or government regulation?

On this episode of Arbiters of Truth, our series on the information ecosystem, Alan Rozenshtein, Associate Professor of Law at the University of Minnesota and Senior Editor at Lawfare, discussed these questions with First Amendment expert Eugene Volokh, Professor of Law at UCLA and the author of a draft paper entitled "Large Libel Models."

Free Speech Libel Large Libel Models

Show Comments (4)

[Update 4/27 - This posting has generated an unusually vigorous and enlightening discussion in the Comments section. Recommended reading.]

Several months ago, Eugene posted [here] an article that he and Jack Goldsmith had written for the Texas Law Review regarding the Dormant Commerce Clause and its application to State regulation of online activities. [The final version, in the Texas Law Review, is available here] "The constitutionality of such State regulation," they argue, "should generally turn on the feasibility of geolocation—the extent to which web sites or other Internet services can determine, reliably and inexpensively, which states users are coming from." Their argument goes something like this:

In the Internet's early days - 1995 or thereabouts - websites and other online businesses were unable, as a practical matter, with reasonable accuracy at reasonable cost, to determine user location.
Therefore, requiring websites and other online businesses to "apply the proper state law to each user" - to treat Iowans (and transactions within Iowa) as Iowa law requires them to be treated, Floridians (and transactions within Florida) as Florida law requires them to be treated, etc. - would have imposed an enormous burden on those businesses.
The Dormant Commerce Clause jurisprudence of the time recognized this. Many attempts by States to enforce their laws against out-of-state websites were accordingly struck down as impermissibly burdensome on interstate commerce, in significant part because of these difficulties of determining user location.
But that condition no longer holds. "Geolocation has become feasible in recent years, and is routinely used by major web sites for ordinary business purposes."
Thus there is now "more constitutional room for state regulation of Internet services, including social media platforms, than often believed."

The argument, while plausible enough, strikes me as misguided and deeply flawed, on a number of important dimensions. The legal rule for which they advocate amounts to a declaration that Internet businesses are subject to the local laws of all jurisdictions in which their users may be located, which would constitute a prodigious burden on interstate commerce - precisely the sort of thing the Dormant Commerce Clause protects (and should protect) against.

I was worked up enough to write a (moderately) detailed response (which the Texas Law Review Online has published here). My counter-argument has three parts:

1. Goldsmith/Volokh greatly underestimate the burdens imposed by their multi-jurisdictional compliance scheme. Geolocation technology does not solve the problem of applying local law to online activity, it accentuates it. Determining where users are located is the easy part of the problem; the hard part is figuring out what the laws of the various jurisdictions require in any specific instance, information which geolocation tools do not and cannot provide.

2. Goldsmith/Volokh's argument relies on a transparent legal fiction: that activity on the network can be deemed to take place "in" any jurisdiction from which it can be accessed by users, i.e., that websites are doing business "in Wisconsin" and "in California" whenever they transmit information from or to users located in Wisconsin and/or California. Some legal fictions are useful; this is not one of them.

3. Goldsmith/Volokh's argument relies in large measure on a false equivalence between Internet and real-space commerce. They rely throughout their article on a straightforward analogy: Because brick-and-mortar businesses that deal with customers all over the country have to comply with the laws of the places where they operate, so too should Internet businesses that deal with customers all over the country have to comply with the laws of all of the places where they operate.

Again, it seems plausible. Why shouldn't Internet businesses be treated just like brick-and-mortar businesses for purposes of determining the laws applicable to their conduct?

My answer is a little complicated, but, I think, pretty fundamental. In realspace, the vast majority of businesses of all sizes start their lives with a very restricted geographic reach. Think: Ray Kroc's first hamburger stand in Des Plaines, IL, Sam Walton's general store in Bentonville AR, Howard Schultz's coffee shop in Seattle WA. This is not just a sociological phenomenon; it's inherent in the physics of realspace, where the cost of transporting things (and people) is an increasing function of distance traveled. When their operations began, Schultz did not sell coffee, nor Kroc hamburgers, nor Walton shoes, in Colorado or Florida.

As a consequence, if, say, Colorado enacted a strict coffee-labeling statute, Schultz could ignore it, for he was not doing business in Colorado, and therefore his business was not subject to its law.

He could expand the geographical scope of his operations, of course - opening up a coffee shop in Oregon, or shipping roasted beans to retailers there. This would entail additional costs - not only distribution costs, but legal compliance costs as well; now that he is doing business in Oregon, he'll need to figure out what Oregon requires of retailers who do business in Oregon - its tax laws, employment laws, food-labelling laws, and all the rest - and then to re-configure his business if and as necessary to comply with those requirements.

Those additional costs are part of what we might call "the federalism bargain," costs that are inherent in having a federal system that allows WA and OR to regulate businesses in very different ways. The bargain is pretty straightforward: If you want to take advantage of the Oregon market - interstate commerce - you have to bear these costs; conversely, if you don't want to bear those additional discovery/compliance costs, you are free to stay out of Oregon.

The Internet inverts this logic completely. Again, its the physics of the place; the cost of transmitting bits is not an increasing function of distance in any meaningful sense. As a consequence, Internet businesses start their lives without any limitations on their geographic reach; a website in Bentonville, Arkansas is equally available everywhere on the global network. That's one of the things that has made the Internet the Internet.

So a rule that says "You must comply with the law in all jurisdictions where you conduct business" is vastly more burdensome on Internet businesses than on realspace businesses. Or so I argue.

Comments, of course, welcome.

Monday's Fourth Circuit opinions from Judges Robert King, Marvin Quattlebaum, and Henry Floyd (Smith v. Towson Univ. and Doe v. ABA Accredited Univ.) were nonprecedential, and upheld the lower court decisions under an "abuse of discretion" standard. This basically means that the Court of Appeals concluded that the lower court decisions weren't clearly wrong; it didn't hold that they were the only right possible answer. Nonetheless, the court's action struck me as sufficiently worth noting; here is one of the decisions that the court upheld, Judge Rubin's decision in Smith v. Towson Univ. (D. Md.):

Self-represented plaintiff John Smith, filed the above-captioned Complaint. Plaintiff alleges that, among other things, his rights under the Rehabilitation Act were violated and he was discriminated against based on his mental health disability by Defendant and its employees….

Plaintiff seeks an order allowing him to proceed in this action under the pseudonym "John Smith." In support of this motion, Plaintiff provides minimal information to support his request but states that he is "mentally disabled" and was "stigmatized and subjected to disparate treatment" due to this status.. He states that the claims in his Complaint concern the animus of Defendant's staff toward him and their expectation that due to his mental disability he would be violent. He further contends that

the political landscape [is] increasingly divisive surrounding the stereotypical association between mental illness and school shootings [and he] would be subjected to irreparable harm that would exacerbate his mental disabilities, would permanently expose private and sensitive information that's protected under HIPPA laws, would result in the loss of future career opportunities that would discriminate against Plaintiff for the slander Defendants have created fueled by Plaintiff's mental disabilities, and without such protections, would act as a severe deterrent form similarly situated Plaintiff from pursuing litigation in exercising their rights.

Therefore, Plaintiff claims he should be permitted to pursue his claim under a pseudonym so that he can "expose corruption without the fear of it causing irreparable harm to his medical conditions and his future career." …

Free Speech Right of Access

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My parents were in the tech business, so I always had computers growing up. In the late 1980s, we had a Commodore 64, the original Macintosh (which was released the same year as my birth), a pre-Windows PC running DOS, among other devices. I learned to type at a very young age, and that is a proficiency I keep to this day. (My parents thought it would be fun if I typed an electronic journal, like Doogie Howser.) I quickly realized how typing was, in many ways, superior to handwriting. One of my biggest frustrations with handwriting was the editing process. I would write a draft, then review it for errors, then have to rewrite the entire document from scratch, only to write from scratch all over again if there were more errors. Even in elementary school, this iterative process struck me as waste of time. With word processing, that entire process became unnecessary. I could make any necessary edits, and just click "print" again.

In 1995 or so, I had a disagreement with my fifth grade teacher. He required us to write all of our papers by hand. I wanted to type my papers. He replied (and I'm paraphrasing three decades later), "When you grow up, you won't be able to type everything, so you will need to learn how to handwrite." I grumbled, and acquiesced. Three decades later, my beloved teacher has been proven wrong. I almost never handwrite. I rarely ever touch a pen, other than to sign a receipt or write a greeting card.

Still, I acknowledge my dependency on word processing had consequences. My penmanship was not very good. And because I typed from such an early age, it never became important to improve my penmanship. On my report card, penmanship was consistently my lowest grade--"Needs Improvement" on the old New York City public school rubric. I at least learned how to write in cursive--even if my penmanship was poor. And, I can still read cursive script--a useful skill when reviewing archival documents. Likewise, I grew up with spellcheck. I never had to perfect my spelling, because I could always turn to that useful tool. (Readers of this blog will attest to my poor spelling). Grammar check came around later, but--to this day--it is not very useful. And I came of age just as the internet was booming. Plus we had Microsoft Encarta electronic encyclopedias. Information was usually a few clicks away. My seventh grade teacher criticized me for only using online resources for my research paper. Sensing a pattern? I never really needed to use actual books for research. To this day, I cannot find my way around a library. And so on.

Because of modern technology, I never developed skills that were essential in the past. I suppose I have managed okay, but I recognize these deficiencies.

This long-wind up brings me to the point of this post: I worry that ChatGPT, and similar AI, will make writers far too lazy. The impetus of this post was an Opinion column by Farhad Manjoo in the New York Times. He explains that ChatGPT has changed the way he performs his job as a writer.

First, Manjoo uses ChatGPT for "wordfinding."

Where [ChatGPT} does really help, though, is in digging up that perfect word or phrase you're having trouble summoning. . . I've spent many painful minutes of my life scouring my mind for the right word. ChatGPT is making that problem a thing of the past.

Selecting the right word is indeed one of the hardest parts of writing. For some high-profile op-eds, I can spend an hour thinking about the right word for an opening sentence. I consider so many factors: the length of the word; what sounds it makes (alliteration sometimes works, sometimes doesn't); whether I've used that word elsewhere in the piece; whether the word makes the sentence choppy or flow nicely; whether the word will be understood by my audience; and so on. Maybe ChatGPT can internalize all of those functions. I'm skeptical. But relying on ChatGPT to find words will weaken our ability to find words. Chatbots can only repeat what has said before; AI cannot generate new ideas (yet, at least). The very nature of this technology means literary innovation will be stifled--even with word selection.

Second, Manjoo uses ChatGPT to develop transitions:

Take the problem of transitions — you've written two sections of an article and you're struggling to write a paragraph taking the reader from one part to the other. Now you can plug both sections into ChatGPT and ask for its thoughts. ChatGPT's proposed transition probably won't be great, but even bad ideas can help in overcoming a block.

Transitions are extremely important. The best writers can guide a reader from the beginning to the end, without the reader even realizing they are on a ride. And, for people who skim, a transition can indicate whether a paragraph needs to be read or skipped. Transitions must be smooth, but instructive. Again, delegating this task to a Chatbot will weaken the author's ability to connect with the reader, and make the reading experience inviting.

Third, Manjoo explains that ChatGPT can take the role of a breaking-news reporter.

When big, complicated news stories break — a court ruling, an earnings report, a politician's financial disclosure forms — editors and reporters often have to quickly determine the gist of the news to figure out how to cover it. ChatGPT excels at this sort of boiling down: Give it a long document and it will pull out big themes instantly and seemingly reliably.

This capability can be very useful for legal decisions. When an opinion comes out, editors immediately want to know what happened.

Carlson [an editor] used it this way when Donald Trump was indicted: He gave ChatGPT the charging documents and asked it for a 300-word summary. "I want a reporter to read the whole indictment and understand it extremely well," he told me, but in the moment of breaking news, Carlson just wanted the big picture. "It did it, and it was helpful," he said.

Back in the day, I would do an "instant analysis" of court decisions. As I read through an opinion, I would update the post. They would be works in progress. Over time, I adopted a new policy: I (generally) will not write about a judicial decision till I have read it front to back. Reporters, alas, do not have that luxury. They are always on deadline, and need to produce content right away. And we know reporters have bolloxed that task before. For example, a few journalists completely blew NFIB v. Sebelius in 2012. So in this regard, ChatGPT provides a very valuable function. But again, a skillset is lost. Being able to quickly digest a document is very, very useful. And longtime Court watchers may spot things in an opinion, on quick glance, that a chatbot will not. Lyle Denniston has recalled that he used to dictate an article by phone to his newsroom in Baltimore. If more journalists turn to ChatGTP, the quality of breaking news analysis will ultimately suffer.

Manjoo lists other possible uses for ChatGPT:

There are so many other ways I can imagine ChatGPT being used in the news business: An editor could call on it to generate headline ideas. An audio producer could ask it for interview questions for a podcast guest. A reporter approaching a new topic might ask it to suggest five experts to talk to, to get up to speed.

I love writing headlines! I think carefully about length, concision, possible puns, and so on. Writing questions for a guest is a deeply personal task. Indeed, scripting questions will weaken the ability to generate follow-up questions on the fly. And developing a good network of sources relies on developing human relations. Offloading that task to a chatbot will weaken, in the long run, connections between interviewers and interviewers.

Manjoo compares ChatGPT to an ever-present editor:

"As a writer I like getting an idea from an editor to rewrite till it's mine," Carlson told me. ChatGPT functions as that editor — your always available, spitballing friend.

I don't think this analogy works. Generally, an editor only sees a piece after the author has put all of the necessary effort into the writing. I don't send my editors a half-baked essay, asking which words I can use. Treating ChatGPT bypasses the usual pre-submission labor. Simply put, it allows the author to slack off, and avoid the difficult process of writing.

***

People often ask me how I can write so much. My response is fairly consistent: writing is like a muscle, which you have to exercise. The more you write, the quicker you can write. Eliminating the need to pick out words, or develop transitions, or digest new material, will weaken writers.

I apologize if I sound like a Luddite. I am in the education business, and worry about the writing skills of students today. What will the writing skills of students look like in a decade when chatbots become fully integrated into pedagogy? From a meta perspective, I worry that the next generation will lose many of the essential skills needed to write on their own. We will become dependent on chatbots.

I'll admit, I was curious about this new technology for a bit, but I never actually used it for my own work. Chatbots are a quantum leap from innovations in the past, like a thesaurus, word processing, and spell check. But it's not for me. I take a lot of pride in my writing. I will not let students or research assistants generate prose, in large part, to avoid becoming lazy. But I may be an outlier. This technology will be too appealing for writers, and professors. Perhaps, at first, they'll use it to develop ideas, to brainstorm, or to hep refine writing. But over time, there will be less-and-less original content. Every time writers load the app, they are increasing their dependency on this technology.

4/26/1995: U.S. v. Lopez decided.

The twenty-ninth episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange has us chatting with international sex robots expert and "Turned On" author Dr. Kate Devlin, who explains the current state of technology and her views on the moral panic surrounding parasocial relationships with robots. Kate believes that most of people's fears about sex robots or AI replacing human relationships are overblown in a world in which even carrying around and finding a place to store a robot (the closet?) are challenges.

In the second half of the episode, Kate also shares about her personal life, be it her search for balance with bipolar disorder, her polyamorous and dating app-related experiences, or the loving relationship with her younger (second) husband she found on Twitter. You will not want to miss our conversation with this Northern Irish powerhouse!

The Cato Institute has (with permission) posted a non-paywalled version of my recent Boston Globe article making the case for enacting an adjustment act giving permanent residency and work rights to Ukrainian refugees and others admitted by means of the presidential parole power. Here's an excerpt:

The United States has done much to open its doors to Ukrainian refugees fleeing the brutal Russian invasion that began in February 2022. Since that time, over 117,000 Ukrainians have entered the country under the innovative Uniting for Ukraine private refugee sponsorship program, in which I am a sponsor.…

But unless Congress or President Biden act soon, this success may be seriously compromised. The vast majority of Ukrainians admitted over the last year have so far been given only a temporary right to live and work in the United States. When their time limits expire, they could be subject to deportation or at least be unable to work legally.

Ukrainians admitted under the Uniting for Ukraine program are granted residency and work rights for two years after arrival. For the earliest program participants, those rights will expire in April or May 2024. More will lose legal status thereafter. Ukrainians who reached the United States before April 11, 2022, have been given Temporary Protected Status, which offers similar residency and work permits. But TPS for Ukrainians is currently scheduled to expire on Oct. 19….

Biden could potentially extend the Uniting for Ukraine and TPS deadlines through unilateral executive action. But such an executive fix would still leave refugees vulnerable to the whims of whomever sits in the White House….

The best solution for this problem is for Congress to pass a Ukrainian Adjustment Act, giving Ukrainian migrants who have entered the United States during the war the right of permanent residency and work status. That would give them a secure status no longer subject to the vagaries of politically driven executive discretion.

Such adjustment acts have been repeatedly enacted for migrants fleeing war and tyranny admitted under previous exercises of the presidential parole power used to create Uniting for Ukraine, beginning with Hungarian refugees fleeing the 1956 Soviet invasion. Congress could easily do the same in this case. But it may need to act swiftly. Significant legislation of any kind will be hard to enact during the 2024 presidential election year.

The article also addresses arguments that enacting an adjustment act for Ukrainians would be unfair to migrants from other countries:

One possible argument against a Ukrainian Adjustment Act is that it would be unfair to migrants fleeing similar war and oppression elsewhere. I agree the latter deserve permanent refuge as well. For example, Congress should also enact an Afghan Adjustment Act giving permanent sanctuary to refugees fleeing the cruel Taliban regime that seized power after the 2021 US withdrawal….

I have also advocated giving [permanent] refuge to Russians fleeing Putin's increasingly repressive regime…. The same reasoning applies to migrants fleeing horrific violence and oppression in Cuba, Haiti, Nicaragua, and Venezuela, to whom Biden extended the Uniting for Ukraine model in January.

But if it turns out that it is only politically feasible to enact an adjustment act for Ukrainians…. that is better than refusing to enact such legislation for anyone until we can do it for everyone. The best should not be the enemy of the good.

I have addressed concerns about fairness and discrimination in greater detail here and here.

The 101-page decision is at Nunes v. Lizza. The bottom line:

[D]efendants' motion for summary judgment … is granted as to NuStar plaintiffs' claim of defamation (Count I), granted as to NuStar plaintiffs' claim of defamation by implication (Count II), and granted as to Nunes' claim of defamation by implication (Count I).

Free Speech Libel

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I wrote about the highest-profile feature of the bills—the attempt to get New York Times v. Sullivan overruled—earlier this month, and I was meaning to write about the other portions, but I just learned (see Florida Politics [Jacob Ogles], posted last Friday) that the bills have been shelved:

Free Speech Libel

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Today, the U.S. Court of Appeals for the Sixth Circuit decided Hardin v. BATF, concluding that a bump stock is not a machine gun "part" prohibited under federal law. Judge Gilman wrote for the court, joined by Judge McKeague. Judge Bush concurred in the judgment.

Here's how Judge GIlman summarizes the court's conclusions:

The placement of a bump stock on a semiautomatic rifle causes the rifle to function essentially like a machinegun by dramatically increasing the rate of fire. And the possession of a machinegun is a criminal offense under the Gun Control Act of 1968. This raises the question of whether a bump stock is a machinegun "part" as defined by the National Firearms Act of 1934. The question is a close one on which reasonable jurists have disagreed, a disagreement caused by ambiguities in how the applicable statute defines the term "machinegun."

An Act of Congress could clear up the ambiguities, but so far Congress has failed to act. The Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF) has been on both sides of this issue, with its current regulation (the Rule) banning bump stocks as a machinegun part. In this situation, the rule of lenity that is applicable to criminal offenses requires us to rule in favor of Hardin.

Judge Bush wrote separately to express his view that the government should lose even without the rule of lenity. His separate opiion concurring in the judgement reads:

I agree that the district court's judgment should be reversed. At a minimum, as the majority opinion holds, the National Firearms Act of 1934 admits of an interpretation that excludes a bump stock from the definition of a "part" of a "machinegun" under that statute. Indeed, this is the original interpretation that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) gave to the statute. See ATF Rule 2006-2 at 2; 27 C.F.R. §§ 478.11 (2014), 479.11 (2016). That ATF later changed its views in order to ban bump stocks does not render unreasonable the ATF's first reading of the statute. Indeed, the ATF's first take aligns with the views of numerous judges on this court and elsewhere who have considered the relevant statutory text. See, e.g., Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 910 (6th Cir. 2021) (Murphy, J., dissenting), cert. denied, 143 S. Ct. 83 (2022); Cargill v. Garland, 57 F.4th 447 (5th Cir. 2023) (en banc), petition for cert. filed (April 7, 2023). Therefore, even accepting (as does the majority opinion) that the statute could reasonably be read either way as to the legality of bump stocks, the statute must be read under the rule of lenity to exclude a bump-stock rifle from the definition of a machinegun. See United States v. Granderson, 511 U.S. 39, 54 (1994); Jones v. United States, 529 U.S. 848, 858 (2000) (if there are two possible "readings of what conduct Congress has made a crime," the "harsher alternative" reading should be rejected because "Congress should have spoken in language that is clear and definite") (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 22122 (1952)). That is the import of the majority's reasoning.

But I would go further. As explained by Judge Murphy in Gun Owners of America, Inc. v. Garland, the best reading of the statute is that Congress never gave the ATF "the power to expand the law banning machine guns through [the] legislative shortcut" of the ATF's rule at issue in this appeal, see Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). See 19 F.4th at 910 (Murphy, J., dissenting). Simply put, under the statute as it currently reads, the addition of a bump stock to a rifle clearly does not make it a machinegun.

This is not the first time a Sixth Circuit panel ruled that bump stocks are legal. A prior panel reached the same conclusion (albeit on somewhat different grounds) in March 2021. The court then granted rehearing en banc, and split 8-8, affirming the original trial court's judgment in favor of the government without opinion. It will be interesting to see whether this case also gets an en banc rehearing.

University of Chicago emeritus professor of economics Sam Peltzman has a new paper in the Journal of Law & Economics, "Public Opinion about Regulation," looking at public perceptions of regulation. Here is the abstract:

The paper describes how ordinary citizens view economic regulation and summarizes answers to questions about regulation and regulators since the 1970s from the General Social Survey. The pattern is clear: ordinary citizens are skeptical and wary. They want less regulation and do not trust regulators to do what is right. The mistrust has become stronger over time. However, the public supports environmental and electricity rate regulation. These sentiments are shared across age, sex, race, education, and income groups and the left/right ideological spectrum. The public tends to oppose less traditional regulation, such as wage and price controls, government ownership of some industries, and regulation of steel prices. But there is less consensus across demographic groups: blacks, the less educated, and low-income groups are less hostile, or marginally friendly, to less conventional modes of regulation. The paper concludes by contrasting public opinion with the path of regulation since the 1970s.

And from the body of the paper:

the broad public seems to lean more toward the public choice rather than the public interest view. No single result is definitive, but the pattern is telling: ordinary citizens are not on average confident in regulators, nor do they trust regulators to do what is best for the country. By two to one, they say they want less business regulation. They are also wary of extending the reach of regulation.

This skepticism about regulation is apparently not a new phenomenon and is arguably on the rise. . . .

This skepticism of regulation is not universal, however. Environmental regulation, in particular, seems to be viewed more favorably than some other forms of regulation.

There are exceptions to this general hostility. The middle and lower panels include questions about particular kinds of regulation or government intervention in markets. They are questions of should we or should we not regulate rather than how much. I list the questions according to priors informed by how the typical student in a typical introduction to economics course might respond, that is, probably friendlier to regulation of externalities or natural monopoly than to, say, steel prices. The answers mostly bear out these priors.

For example, the public is nearly unanimous in favoring legal restraint on industrial pollution (see responses to grnlaws). Fans of Coasean bargaining or Elinor Ostrom might take comfort from the diminished support for regulation when the group to be restrained is people (pubdecid) rather than industry. But the overall message is clear: the public likes environmental regulation. The public is also decidedly positive toward regulation of electricity prices, less so toward financial services prices, and negative about steel price regulation. (The first three questions about industry regulation are effectively about price regulation, though they allow a government ownership option.)The public is decidedly hostile to government ownership of banks and electric utilities.

Whether this is due to the apparent need for such regulation, or a lack of examination of the public choice problems that can infect environmental regulation is unclear.

And from Peltzman's conclusion:

This brief tour has shown that public opinion is wary of regulation and skeptical about regulators in general, while making allowance for some particular kinds of regulation. The negative view of regulation is shared broadly across population groups: age, sex, race, education, and income. There is some evidence that this negative view is increasing over time. There is broad consensus favoring environmental and electricity rate regulation. This consensus breaks down for nontraditional government interventions like wage and price controls, maximum hours worked, regulation of bank prices, and government ownership of banks and electric utilities. . . .

I began by noting the muted role assigned to public opinion by interest-group-centric economic theories of regulation. In a way, the evidence here lends weight to those theories. If the general public is wary and skeptical, what has it got? The answer is more regulation, not less. . . .

Not only has the ordinary citizen gotten more regulation rather than less, but the gap between what the public wants and gets seems to be growing over time. This suggests an agenda for further research that might clarify what the public's preference for less regulation means specifically and what obstacles to related changes in policy stand in the way.

Gareth Jones, in an old case comment in the Cambridge Law Journal: "It is, above all, questionable whether judges should be encouraged to ride the unruly horse of public policy, to balance a public interest in confidentiality against a public interest in disclosure."

The Foundation for Individual Rights and Expression reports on the lawsuit, in which FIRE's lawyers represent the student:

Today, two students represented by the Foundation for Individual Rights and Expression sued their Michigan school district for viewpoint discrimination after they were forbidden from wearing apparel critical of President Joe Biden.

"Criticism of the president is core political speech protected by the First Amendment," said FIRE attorney Conor Fitzpatrick. "Whether it's a Biden sticker, 'Let's Go Brandon' sweatshirt, or gay pride T-shirt, schools can't pick and choose which political beliefs students can express."

In Feb. 2022, two Tri County Middle School students wore sweatshirts to school with the phrase "Let's Go Brandon," a political slogan critical of President Biden with origins in a more profane chant. Even though the political slogan is widely used — multiple members of Congress used it during floor speeches — an assistant principal and a teacher ordered the boys to remove the sweatshirts. However, administrators allowed students to wear apparel with other political messages, including gay-pride-themed hoodies.

Free Speech

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T. Markus Funk, a former prosecutor, has written extensively on self-defense law (and I was pleased to have had a chance to author one such piece with him); see, e.g., this post and this one, and also Rethinking Self-Defence: The 'Ancient Right's' Rationale Disentangled (2021), Understanding the Role Values Play (and Should Play) in Self-Defense Law, 58 American Criminal Law Review 331 (2021), Cracking Self-Defense's Intractable 'Difficult Cases,' 100 Nebraska Law Review (Rowman & Littlefield 2021), and What US Law Reformers Can Learn from Germany's Value-Explicit Approach to Self-Defense, 73 South Carolina Law Review 195 (2021).

I thought I'd pass along summaries of two of his recent articles, and also his comments on some recent self-defense stories in the news:

[1.] First, the comments:

As if to underscore my argument that the media—on both sides of the political divide—can't seem to get even the basics right, consider the April 18, 2023, Washington Post reporter's article (here, as reprinted in the Atlanta Journal-Constitution) about 84-year-old Missouri homeowner Andrew Lester's April 16 shooting of 16-year-old Ralph Yarl after the teenager accidentally stopped at the wrong house (that is, Lester's house).

In its initial reporting on the case, the reporter asserted that "'[s]tand your ground' laws say that when a person perceives a threat in a place where they have a right to be … they are permitted to respond immediately with physical, even lethal force."

This is simply wrong. Setting aside for now that the legal provision most likely relevant to this case is the castle doctrine, rather than stand your ground, "perceiving a threat" when you are in a place where you have a right to be is never, without more, enough to trigger deadly defensive force. Not in Missouri and not in any other state of the Union.

Self-Defense Guns

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ChatGPT Will Make Writers Lazy

Today in Supreme Court History: April 26, 1995

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Non-Paywalled Version of My Boston Globe Article Making the Case for Legislation Granting Permanent Residency Rights to Ukrainian Migrants and Others Admitted by Using the President's Parole Power

Ryan Lizza Prevails in District Court Against Devin Nunes (and Nunes' Family Members) in Nunes v. Lizza

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Sixth Circuit Panel Rejects Bump Stock Ban (Again)

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"Students Sue After Michigan School District Forces Them to Remove 'Let's Go Brandon' Sweatshirts"

T. Markus Funk on Self-Defense Law

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