The 24th episode (Apple Podcasts link here and Spotify link here) of Strangers on the Internet with co-host and psychologist Michelle Lange explores why dating app providers behave the way they do and why they don't do more to protect users.
I talk about my legal research into this area and what has happened when victims have tried to hold providers accountable via the courts (spoiler: not much). We also examine the cultural implications of bad behavior on apps, such as the high frequency at which users lie on them. We discuss how this relates not only to the anonymity of the Internet but also a sadly common general societal willingness to endanger other people's health and wellbeing.
Last, you won't believe Michelle's story about how the app The League tried pushing her to communicate again with a man after she had unmatched him (and what Michelle had to say to The League in response)!
From today's D.C. Circuit opinion in Illinois v. Ferriero, written by Judge David Wilkins and joined by Judges Neomi Rao and Michelle Childs:
The States of Illinois and Nevada … filed this mandamus action in the district court, seeking to compel the Archivist of the United States to certify and publish the Equal Rights Amendment ("ERA") as part of the Constitution of the United States. The States argued that the Archivist had a duty to certify and publish the ERA because it was ratified by the requisite three-fourths of the States of the Union as required by Article V of the Constitution.
Alabama, Louisiana, Nebraska, South Dakota, and Tennessee … joined the litigation as intervenor-defendants. Both Intervenors and the Archivist moved the District Court to dismiss the States' case as a matter of law….
The District Court … ruled the States did not show that the Archivist's failure to certify and publish the ERA caused "a concrete injury that could be remedied by ordering him to act," and that his decision to certify and publish amendments "has no legal effect." The District Court also ruled that Plaintiffs had not established that the Archivist had a clear duty to certify and publish the ERA or that their right to relief was clear and indisputable. The District Court did not reach Intervenors' arguments that the ERA had expired under Article V of the Constitution and that five states had validly rescinded their ratifications. …
The grounds on which a district court may grant mandamus relief are narrow, and the demands are austere. Because we agree that the States fail to show their right to relief is "clear and indisputable," we affirm….
In Doe v. U.N.C. Sys. (W.D.N.C.), a case challenging the expulsion of plaintiff Jacob Doe for alleged sexual assault, the court issued a quite remarkable TRO last week: It, among other things,
required defendants "to direct all individuals"—including UNC students—"over whom they exercise control to refrain from publishing or disclosing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings," and
required defendants "to inform any media outlet, or any other third party, that receives information concerning the Plaintiff's disciplinary outcome about the filing of this motion for a temporary restraining order and preliminary injunction, and notifying such media outlets or other third party, that they are prohibited from publishing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings."
This strikes me as likely unconstitutional, because of its substantive scope, because it was entered as an ex parte TRO with no opportunity for the defendants to be heard, and because it purports to restrict the free speech rights of third parties who also had no opportunity to be heard. But when I tried to figure out why the court entered such a broad restriction, I couldn't, because the motion for the TRO and the supporting memorandum were sealed. And when I tried to figure out the basis for the sealing, I couldn't, because there was no official sealing order authorizing and explaining the sealing (even though the W.D.N.C. local rules seem to require such sealing orders).
I'm therefore delighted that the ACLU of N.C., representing itself and the Freedom of the Press Foundation, joined by my pro bono local counsel Mark Sigmon, representing me, (many thanks!) have just filed a motion to intervene and unseal the sealed documents. (I should note that Kristi Graunke and Samuel Davis of the ACLU of N.C. have taken the laboring oar on the drafting, and I'm delighted to be free-riding on their efforts.) Here's the heart of the argument:
Today the Supreme Court decided Bittner v. United States. Splitting 5-4, the Court concluded that the Bank Secrecy Act's $10,000 maximum penalty for the nonwillful failure to file a compliant report accrues on a per-report, not a per-account, basis. Justice Gorsuch wrote for the Court, joined by the Chief Justice and Justices Alito, and Kavanaugh in part, and Justice Jackson in full. Justice Barrett dissented, joined by Justices Thomas, Sotomayor and Kagan.
To say this is an unusual split among the justices is an understatement. The Court did not divide along clear ideological or methodological lines. There are conservative and liberal justices on both sides of the decision.
Justice Gorsuch's opinion for the Court begins as follows:
The Bank Secrecy Act and its implementing regulations require certain individuals to file annual reports with the federal government about their foreign bank accounts. The statute imposes a maximum $10,000 penalty for nonwillful violations of the law. But recently a question has arisen. Does someone who fails to file a timely or accurate annual report commit a single violation subject to a single $10,000 penalty? Or does that person commit separate violations and incur separate $10,000 penalties for each account not properly recorded within a single report?
The answer makes a difference, especially for immigrants who hold accounts abroad and Americans who make their lives outside the country. On one view, penalties accrue on a per-report basis. So, for example, a single late-filed report disclosing the existence of 10 accounts may yield a maximum fine of $10,000. On another view, penalties multiply on a per-account basis, so the same report can invite a fine of $100,000 even if the individual's foreign holdings or total net worth do not approach that amount. Because the Ninth Circuit read the law one way and the Fifth Circuit the other, we agreed to take this case.
His opinion concludes:
Best read, the BSA treats the failure to file a legally compliant report as one violation carrying a maximum penalty of $10,000, not a cascade of such penalties calculated on a per-account basis. Because the Fifth Circuit thought otherwise, we reverse its judgment and remand the case for further proceedings consistent with this opinion.
The Chief Justice and Justices Alito and Kavanaugh joined all of Justice Gorsuch's opinion save for a subpart of the opinion that relied upon the rule of lenity. Only Justice Jackson joined that portion of the opinion.
Justice Barrett's dissent begins:
Alexandru Bittner, an American citizen, held as much as $16 million across more than 50 bank accounts in Romania, Switzerland, and Liechtenstein. He acknowledges that the Bank Secrecy Act (BSA) and its implementing regulations required him to report his interest in these accounts to the Federal Government annually. Bittner also admits that he failed to comply with that requirement for five consecutive years. Because he failed to report 272 accounts, the Government concluded that he violated the law 272 times and assessed a penalty for each violation. Bittner, on the other hand, argued that he violated the law just five times—once for each annual form that he failed to file.
The Court agrees with Bittner and holds that the failure to file a legally compliant form is a single violation, no matter how many accounts a citizen fails to report. I respectfully disagree. The most natural reading of the statute establishes that each failure to report a qualifying foreign account constitutes a separate reporting violation, so the Government can levy penalties on a per-account basis.
This dissent is Justice Barrett's fourth opinion in an argued case so far this term. She has issued two majority opinions and two dissents in argued cases when some justices have yet to issue a single one. This is more evidence that Justice Barrett is the Court's quickest opinion writer.
It is also interesting that this is another case in which Justices Gorsuch and Barrett have authored dueling opinions. As I noted last June, these two justices have disagreed more than one might have expected, authoring opinions disagreeing with each other's analyses in a surprising number of cases. Indeed, last term, Justice Gorsuch dissented from two-thirds of Justice Barrett's majority opinions. We will see if this division persists this term.
To the junior-most justice goes a case arising out of the Supreme Court's original jurisdiction concerning the Abandoned Money Orders and Traveler's Checks Act.
Justice Ketanji Brown Jackson issued her first opinion for the Court today in Delaware v. Pennsylvania. Justice Jackson had previously authored dissents from denial of certiorari and a stay denial, but this was her first opinion in an argued case.
As is common for a junior justice's first opinion, the subject matter is less-than scintillating -- here a dispute among states over the right to escheat certain prepaid financial instruments under the Abandoned Money Orders and Traveler's Checks Act -- and the Court was unanimous (although four justices -- Thomas, Alito, Gorsuch and Barrett -- declined to join one subpart of the opinion).
Here is how Justice Jackson summarizes the decision:
"Escheatment" is the power of a State, as a sovereign, to take custody of property deemed abandoned. Texas v. New Jersey, 379 U. S. 674, 675 (1965). In the context of tangible property, the escheatment rule is straightforward: The State in which the abandoned property is located has the power to take custody of it. Id., at 677. But determining which State has the power to escheat intangible property, which has no physical location, can be complicated, as multiple States may have arguable claims. See ibid.
These original jurisdiction cases require us to decide which States have the power to escheat the proceeds of certain abandoned financial products that MoneyGram Payment Systems, Inc. (MoneyGram) possesses. Delaware argues that this Court's common-law rules of escheatment apply, which means that the abandoned proceeds should go to Delaware as MoneyGram's State of incorporation. A collective of other States (the Defendant States) argues that a federal statute—the Disposition of Abandoned Money Orders and Traveler's Checks Act (Federal Disposition Act or FDA), 88 Stat. 1525, 12 U. S. C. §2501 et seq.—governs the products at issue, and therefore, as a general matter, the abandoned proceeds should escheat to the State where the products were purchased. We hold that the FDA covers the instruments in question and thus that they should generally escheat to the State of purchase, pursuant to §2503.
I blogged about Justice Jackson's first D.C. Circuit opinion here.
From Friend v. Gasparino, decided yesterday by Second Circuit Judge Steven Menashi, joined by Judges Gerard Lynch and Richard Sullivan:
On April 12, 2018, Plaintiff-Appellant Michael Friend responded to a distracted-driving enforcement operation conducted by Defendant-Appellant Sergeant Richard Gasparino and the Stamford Police Department. Friend stood down the street from where the police were stationed and displayed a sign reading "Cops Ahead." Gasparino twice confiscated Friend's signs and ultimately arrested him for interfering with an officer under Connecticut General Statutes § 53a-167a(a)….
A First Amendment violation, the court held (among other things):
Friend's speech would have lacked First Amendment protection if it were "integral to criminal conduct," a category of speech that historically may be restricted. The "constitutional freedom for speech and press" does not "extend[ ] its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." Thus, "the First Amendment is quite irrelevant if the intent of the actor and the objective meaning of the words used are so close in time and purpose to a substantive evil as to become part of the ultimate crime itself." "In those instances, where speech becomes an integral part of the crime, a First Amendment defense is foreclosed even if the prosecution rests on words alone." Thus, in some cases, speech that helps another person engaged in criminal activity evade detection by law enforcement may be subject to criminal penalties. See, e.g., United States v. Cassiliano (2d Cir. 1998) (affirming an obstruction-of-justice sentencing enhancement because the defendant contacted a "principal target[ ] of the government's investigation[ ]" to "alert[ ]" him "to the investigation and discuss[ ] whether they would lie to" investigators); United States v. Arzola (6th Cir. 2013) (affirming an enhancement because a defendant alerted a co-conspirator before law enforcement executed a search warrant).
Friend's speech does not fall within this category. Friend was not acting in coordination with lawbreakers such that he could be said to have been engaged in a conspiracy to commit violations and evade detection. Gasparino cannot identify a crime that Friend committed, let alone a crime to which Friend's speech was "integral." The only offense with which Friend was charged—and for which Gasparino arrested Friend—was interference with a police officer under § 53a-167a. But … Friend's conduct did not violate that statute. The Connecticut Supreme Court has long construed the statute "to proscribe only physical conduct and fighting words that by their very utterance inflict injury or tend to incite an immediate breach of the peace." Because there is no predicate crime that Friend even arguably committed, Gasparino cannot show that Friend's speech was unprotected for being "integral to criminal conduct."
As promised, the Cyberlaw Podcast devoted half of this episode to an autopsy of Gonzalez v Google LLC , the Supreme Court's first opportunity in a quarter century to construe section 230 of the Communications Decency Act. And an autopsy is what our panel – Adam Candeub, Gus Hurwitz, Michael Ellis and Mark MacCarthy – came to perform. I had already laid out my analysis and predictions in a separate article for the Volokh Conspiracy, contending that both Gonzalez and Google would lose.
All our panelists agreed that Gonzalez was unlikely to prevail, but no one followed me in predicting that Google's broad immunity claim would fall, at least not in this case. The general view was that Gonzalez's lawyer had hurt his case with shifting and opaque theories of liability, that Google's arguments raised concerns among the Justices but not enough to induce them to write an opinion in such a muddled case.
Evaluating the Justices' performance, Justice Neil Gorsuch's search for a textual answer drew little praise and some derision while Justice Ketanji Jackson won admiration even from the more conservative panelists.
More broadly, there was a consensus that, whatever the fate of this particular case, the Court will find a way to push the lower courts away from a sweeping immunity for platforms and toward more nuanced protection. But because returning to the original intent of section 230 is not likely after 25 years of investment based on a lack of liability, this more nuanced protection will not have much grounding in the actual statutory language. Call it a return to the Rule of Reason.
In other news, Michael summed up recent developments in cyber war between Russia and Ukraine, including imaginative attacks on Russia's communications system. I ask whether these attacks – which are sexy but limited in impact – make cyber the modern equivalent of using motorcycles as a weapon in 1939.
Gus brings us up to date on recent developments in competition law, including a likely Department of Justice challenge to Adobe's $20 Billion Figma deal, new airline merger challenge, the beginnings of opposition to the Federal Trade Commission's (FTC) proposed ban on noncompete clauses, and the third and final nail in the coffin of the FTC's challenge to the Meta-Within merger.
In European cyber news, the European Union is launching a consultation designed to make U.S. platforms pay more of European telecom networks' costs. Adam and Gus note the rent-seeking involved but point out that rent-seeking in U.S. network construction is just as bad, but seems to be focused on extracting rents from taxpayers instead of Silicon Valley.
The EU is also getting ready to fix the General Data Protection Regulation (GDPR) -- fix in the sense that gamblers fix a prize fight, as it will make sure Ireland never again wins a fight with the rest of Europe over how aggressively to extract privacy rents from U.S. technology companies.
I am excited about Apple's progress in devising a blood glucose monitor that could go into a watch. Adam and Gus tell me not to get too excited until we know how many roadblocks The Food and Drug Administration (FDA) will erect to the use and analysis of the monitors' data.
And Illinois' biometric privacy law has gone from a really bad idea to a social, economic, and litigation catastrophe. The Illinois Supreme Court could have staved this off but didn't.
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@steptoe.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.
Over in Chronicle of Higher Education, I have a new piece examining HB 999 in the Florida legislature and its implications for the future of Republican politics around higher education.
From the piece:
State universities have never been perfectly independent from political pressure. They are ultimately creatures of the state and dependent on the good graces of political leaders. But American universities have long enjoyed a significant degree of freedom from political meddling in academic affairs, and that insulation from politics has allowed public universities to become intellectual powerhouses.
That long-lived arrangement may be nearing an end in many red states. It is hard to know where this newfound willingness to micromanage state universities will lead, but it would be a radical departure from the past. If conservatives are concerned that the intellectual environment at universities has become too stifling, this program of reform may provide a cure that is at least as bad as the disease.
Virginia Democrats last week rejected a bill that would have required schools to teach about the dangers and victims of communism after the state's largest teachers union argued that it may encourage anti-Asian sentiment.
Emily Yen, a research coordinator for the Virginia Education Association (VEA), said the union opposed HB 1816 because four out of five current communist regimes are in Asian countries.
"We are concerned that this bill would subject Asian-American students to anti-Asian sentiments," she said.
Today the five remaining communist regimes are China, Laos, North Korea, and Vietnam—all in East Asia—as well as Cuba, which is in the Caribbean.
The proposed bill would have required public schools to "suitably observe[] Nov. 7 as Victims of Communism Day"; would have taken the existing provision that, "The Board of Education shall include in the Standards of Learning for history and social science the study of contributions to society of diverse people" (with "diverse" defined to "include[] consideration of disability, ethnicity, race, and gender"), and added "and the study of the dangers of communism"; and would have required school boards to include that in part of the curriculum that they developed.
Last week, the Biden Administration announced plans for a new policy that would make it difficult or impossible for migrants to cross the southern border for the purpose of applying for asylum. The new rule would summarily expel most asylum seekers unless they have 1) been rejected for asylum in a third country they have passed through (usually Mexico), 2) they have used the CBP One cellphone app to make an appointment for an asylum interview with a Customs and Border Protection (CBP) official, or 3) they can prove that an "ongoing and serious obstacle" prevents them from doing one of the above (the burden of proof is on the asylum seeker).
Critics rightly point out that many asylum seekers don't have access to cellphones or cannot use the app for other reasons. Among other problems, it is notoriously prone to various glitches. Even if the app works as it is supposed to, migrants who use it may have to wait months to get an interview, during which time they are likely to be exposed to dangerous conditions in Mexico or Central America.
These and other flaws have led opponents to compare the new Biden policy to Trump-era initiatives designed to bar asylum seekers. In response, the administration points out they have given would-be migrants some alternative options, such as the app, and applying for private sponsorship under a program modeled on the successful Uniting for Ukraine policy. The latter is open to would-be migrants from Cuba, Nicaragua, Venezuela and Haiti. Trump's proposals didn't include any such workarounds.
But even if Biden's new proposal isn't fully Trumpian, it is certainly Trump-lite. While it does not categorically bar all asylum seekers, it does effectively do so for the many who do not qualify for private sponsorship (either because they can't find a sponsor or do not come from the four covered countries), and cannot effectively use the app. The option of proving they face an "ongoing and serious" obstacle to using the app or applying in a third country is unlikely to work for many, given that the burden of proof is on them, and mere lack of access to a cell phone is unlikely to qualify.
When and if implemented (the plan is still under review), Biden's policy will make asylum impossible for many people fleeing horrific conditions, and otherwise legally entitled to it. Nor is the plan likely to achieve any significant good that even comes close to outweighing this evil.
Biden has long played a double game on Title 42, claiming to want to end the policy, but also perpetuating it in an effort to tamp down negative publicity about the border situation. The new proposal is a continuation of that strategy. Sadly, the administration has not yet fully figured out that the best way to prevent border disorder is to make legal migration easy, even though its new policy of using the parole power to grant entry to migrants from four nations is a step in the right direction, and has already greatly reduced the flow of illegal migration. If implemented, the new Biden asylum policy will incentivize many asylum seekers to become illegal migrants, as that would be their only way to find relative safety and opportunity in the US.
In the meantime, the proposal highlights an ongoing tension in Biden's immigration policy. This administration has made many improvements relative to its predecessor, and some of its innovations are major improvements over previous presidents, as well - most notably Uniting for Ukraine and other private sponsorship initiatives. But it has also sometimes perpetuated and extended cruel restrictionist policies, like Title 42, for what seem to be crass political calculations.
Lost in the debate over asylum policy is the reality that even the most generous possible version of it is currently constrained by very narrow criteria for eligibility. Under current US and international law, asylum is only granted to people who qualify as "refugees," defined as those unable or unwilling to return to their home countries due to past persecution or a well-founded fear of being persecuted in the future "on account of race, religion, nationality, membership in a particular social group, or political opinion."
This definition excludes many victims of war, violence, and oppression. I give some examples here:
For example, it doesn't include the vast majority of North Koreans, subjects of the world's most repressive regime. For the most part, that government's victims are targets of what we might call "equal-opportunity oppression" doled out to almost everyone who lives under the regime's rule, not just to members of specific racial, ethnic, religious or other "social" groups. It doesn't even include people subjected to forced labor, as long their enslavement wasn't based on any of the above prohibited characteristics. Thus, the US government's cruel and ridiculous policy barring asylum to people enslaved by terrorist groups is acceptable under this definition, so long as the terrorists are equal-opportunity slaveowners.
The same point applies to most people fleeing violence and war. As long as the threat to their safety emanates from the general conditions facing people in the region, as opposed to being specifically targeted on the basis of one of the prohibited characteristics, they don't qualify as refugees.
Even if terrorists or repressive governments target you personally, you still don't qualify for refugee status unless their motive was one of the criteria listed above.
Congress would do well to fix this problem. But I don't hold out much hope it will happen anytime soon.
Professor Michael McConnell writes to suggest that even if Vice President Pence was performing legislative functions on January 6, the Constitution's text does not extend the privilege to him.
In response to my post yesterday on the scope of the Speech and Debate Clause privilege, Professor Michael McConnell e-mailed to suggest I was too quick to credit claims that the former Vice President is covered by the clause at all. Like others, I had focused on the question of whether the Vice President's duties, as related to counting electoral votes, should be considered "legislative" in character and, if so, the extend to which that privilege would yield to criminal process. Whether the privilege extends to the Vice President at all, however, is an antecedent question.
As Professor McConnell notes, the text of the Constitution appears to limit the privilege to "The Senators and Representatives." Here is the relevant text from Article I, Section 6, clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
As Professor McConnell points out, the antecedent for the pronoun "they" is "[t]he Senators and Represenatives." Thus whether the Vice President may invoke the Speech or Debate privilege would seem to be dependent upon whether the Vice President can claim to be a "Senator" or "Representative," and not merely on whether the Vice President's relevant conduct is somewhat legislative or whether or not it is purely ceremonial.
This strikes me as a powerful point.
One potential counter-argument might be that becuase Article I, Section 3, Clause 1 makes the Vice President the President of the Senate, this makes him a Senator, at least for some purposes. A problem with this counter-argument, however, is that when the word "Senator" is used throughout the Constitution, it is not used in a way that would include the Vice President. For instance, Article, I, Section 3, clause 1 provides that "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote." This language would seem to exclude the Vice President as a Senator (or even as a member of the Senate). Note also that while the Vice President may vote in the Senate when the Senate is tied, that is expressly provided for in a separate provision, and is not accomplished by making the Vice President a Senator.
Another counter-argument could be that since the privilege can extend to legislative staff, it should also extend to the Vice President when the Vice President is performing a legislative function. Yet it is difficult to argue that the "[t]he Senators and Representatives" rely upon the Vice President the way that they may rely upon their staff. Thus, this counter-argument extends the privilege beyond the scope of the text, and does so in a way that cannot be justified as necessary to operationalize the privilege for those who are expressly covered (Senators and Represenatives). One could argue that a Senator cannot fully engage in speech or debate without relying upon staff. One could not argue that a Senator's ability to participate in speech and debate is somehow dependent upon the assistance of the Vice President.
For what it is worth, Professor McConnell also noted that he agrees with me that the Speech or Debate Clause privilege "is not overridden" by criminal investigations, but is skeptical about whether the privilege could be waived.
UPDATE: I should have noted that Josh Blackman made similar arguments about the scope of the Speech or Debate Clause privilege in this post.
Several federal and state courts are relitigating the constitutionality of "assault weapon" bans after the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen. Under Bruen's text-and-history test, government attorneys have argued that such laws fit within a supposed historical tradition of banning what the government calls "unusually dangerous" arms; the attorneys point to not-really-on-point historical laws about weapons such as Bowie knives or slungshots (a type of flexible hand-held impact weapon).
As detailed in a pair of previous posts, the mainstream historical tradition for controversial arms such Bowie knives and slungshots was to forbid concealed carry, to restrict sales to minors (especially without parental consent), or to impose extra punishment for misuse. But not to prohibit possession or sales for adults. See the previous VC posts, The legal history of bans on firearms and Bowie knives before 1900 and Bowie knife statutes 1837-1899. Although the articles are mainly about Bowie knives, many of the quoted statutes also covered slungshots.
"Assault weapons" long have been portrayed as exceptionally powerful firearms that are far more dangerous than other modern firearms and ill-suited for lawful activities like self-defense. When enacting the nation's first "assault weapon" ban in 1989, the California legislature declared that "each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings."
Five federal circuit courts relied on the lethality rationale pre-Bruen to uphold "assault weapon" bans. The First, Second, and Fourth circuits asserted that "assault weapons" have "a capability for lethality—more wounds, more serious, in more victims—far beyond that of other firearms in general, including other semiautomatic guns." The D.C. Circuit claimed that "assault weapons" like AR rifles are designed "to shoot multiple human targets very rapidly" and "fire almost as rapidly as automatics." The Seventh Circuit asserted that such firearms "enable shooters to fire bullets faster" and their "spray fire" design makes them more dangerous in mass shootings. The Fourth Circuit went so far as to hold that "assault weapons" are not protected arms under the Second Amendment because of their deadly similarity to machine guns. The First Circuit cited medical sources claiming that "assault weapons" cause far more devastating wounds that other firearms and declared that using such firearms for home defense "is tantamount to using a sledgehammer to crack open the shell of a peanut."
Thus, the prohibition argument is based on 1. Rate of fire, and 2. The power of the weapons' bullets.
The rate of fire claim is preposterous. Semiautomatic rifles as a class (including those that are supposedly "assault weapons") fire at essentially the same rate as semiautomatic handguns. These handguns, from companies such as Ruger, Smith & Wesson, Springfield, or Glock, are the most common defensive firearms in the United States; under the Supreme Court's decision in District of Columbia v. Heller, they may not be prohibited. As then-Judge Kavanaugh argued in his dissent in Heller II, it is irrational to single out semiautomatic rifles for prohibition based on rate of fire, given that semiautomatic handguns are plainly constitutionally protected. Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
This post will mainly discuss the second argument: that "assault weapon" bullets are much more destructive than bullets from other firearms. This post is co-authored by Campbell University law professor Gregory Wallace, who has published two articles on "assault weapons," the most recent being "Assault Weapon" Lethality, 88 Tenn. L. Rev. 1 (2020). Professor Wallace and I are among the co-authors of the law school textbook Firearms Law and the Second Amendment: Regulation, Rights, and Policy (3d ed. 2022, Aspen Pub.)
As post-Bruen litigation proceeds, more absurd claims are appearing in court filings and opinions about the extreme firepower of "assault weapons" and their unsuitability for self-defense. This post discusses two such examples. The first is from the California Attorney General in Rupp v. Bonta, a case challenging California's "assault weapon" ban. It was remanded by the Ninth Circuit for reconsideration in light of Bruen and is currently pending in federal district court in California. The second is from a recent federal district court opinion in Bevis v. City of Naperville, Illinois, denying a preliminary injunction against state and local "assault weapon" bans.
The discussion below involves precise description of the wounding effects of different types of ammunition. If you don't want to read such things, that is your reasonable choice. Just don't make decisions about what arms persons under your direct or indirect control can possess if those decisions are based on wounding effects and you refuse to be informed about wounding effects.
The question came before the Court in Bd. of Ed. v. Pico, and four Justices (led by Justice Brennan) took the view that "local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books." Four other Justices (led by Chief Justice Burger) expressly rejected this view (except in the narrow situation where the disagreement was based on pure partisanship, for instance if a Democrat-run board removed books because they were written by Republicans or because they praised Republicans). And the swing vote, Justice White, expressly refused to opine on this issue:
The plurality … issue[s] a dissertation on the extent to which the First Amendment limits the discretion of the school board to remove books from the school library. I see no necessity for doing so at this point….
[This case] poses difficult First Amendment issues in a largely uncharted field. We should not decide constitutional questions until it is necessary to do so, or at least until there is better reason to address them than are evident here.
If so, let me know. My theory is that this is likely to become quite common, even despite ChatGPT's attempts to block overt requests to write legal documents. Whether it's a good development or a bad one is a separate matter, but for now I'd just like to see situations where it appears to be happening.
Clobes alleges that she was injured by a defamatory article published by NBC on September 24, 2019. Exactly two years after publication of the article—that is, on September 24, 2021—Clobes filed this lawsuit, but she did not serve the summons and complaint on NBC until December 23, 2021….
In this diversity action, "Minnesota's substantive law, including its statute of limitations, applies." Minnesota's substantive law includes Minnesota's rules about when a claim accrues and when a lawsuit is commenced, because those rules "are 'part and parcel of the statute of limitations.'" Under Minnesota law[,] … defamation claims (and claims, such as Clobes's, that arise from defamation) are subject to a two‐year statute of limitations …. [U]nder these rules it is clear that Clobes's lawsuit is barred. Clobes's cause of action accrued on September 24, 2019 (when NBC published the allegedly defamatory article), and she did not commence her lawsuit for purposes of Minnesota law until December 23, 2021 (when she served her summons and complaint), which was more than two years later.
Clobes argues, however, that her lawsuit is not barred because the two‐year limitations period was tolled by a session law passed by the Minnesota Legislature in response to the COVID‐19 pandemic. In April 2020, the Minnesota Legislature enacted a session law [Section 16] containing a series of COVID‐19 measures, including a provision affecting the running of statutes of limitations. Specifically, Section 16 provided:
Not a hypo! See Zeglam v. Infliction Hall, No. 348-340484-23, filed Thursday in Tarrant County (Ft. Worth area). There's also a #TheyLied libel claim based on allegations that plaintiff had "committed … sexual assault" and more generally "violated consent." An excerpt of one of the allegedly defamatory statements:
The Supreme Court's oral argument in Gonzalez v. Google left most observers in a muddle over the likely outcome. In three hours of questioning, the Justices defied partisan stereotypes and asked excellent questions, but mostly just raised doubts about how they intended to resolve the case. I had the same problem while listening to the argument in for a Cyberlaw Podcast episode (No. 445) that will be mostly devoted to Gonzalez.
But after going back to look at each Justice's questions separately, I conclude that we do in fact have a pretty good idea how the case will turn out: Gonzalez will lose, and so will Google, whose effort to win a broad victory is likely to be killed – and most enthusiastically by the Court's left-leaning Justices.
First, a bit about the case. Gonzalez seeks to hold Google liable because the terror group ISIS was able to post videos on YouTube, and YouTube recommended or at least kept serving those videos to susceptible people. This contributed, the complaint alleges, to a terror attack in Paris that killed Gonzalez's daughter. Google's defense is that section 230 makes it immune from liability as a "publisher" of third-party content, and that organizing, presenting, and even recommending content is the kind of thing publishers do.
I should say up front that I am completely out of sympathy with Google's position. I was around when section 230 was adopted; it was part of the Communications Decency Act, which was designed to protect children from indecent content on the internet. The tech companies, which were far from being Big Tech at the time, hated the decency part of the bill but couldn't beat it. Instead, they tried to turn the decency lemon into lemonade by asking for relief from a recent defamation ruling that online services who excluded certain content were the equivalent of publishers under defamation law and thus liable for any defamatory third-party content they distributed. Services like AOL and Compuserve pointed out the irony that they were being punished for their effort to build family-friendly online communities -- the opposite of what Congress wanted. "If you want us to exclude indecent content," they argued to Congress, "you have to immunize us from publisher liability when we do that." That was and is a compelling argument, but only for undoing publisher liability under defamation law. To my mind, that's exactly what Congress did when it said, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."
But that's not how the courts have read section 230. Seduced by a transformative technology and by aggressive, effective advocacy, the courts read this language to immunize online providers for doing anything that publishers can be said to do. This immunity goes far beyond defamation, as the Gonzalez case shows. There, Google said it should be immune because deciding what content to show or even recommend to users is the kind of thing a publisher does. Of course, carried to its logical extreme, this means that what are now some of the richest companies in the world cannot be held liable even if they deliberately serve how-to-kill-yourself videos to the depressed, body-shaming videos to the anorexic, and ISIS videos to extremists.
So, why not just correct the error, narrow the statutory interpretation to its original purpose, and let Congress actually debate and enact any other protections Big Tech needs? Because, we're told, these companies have built their massively profitable businesses on top of the immunity they sold to the courts. To change now, after twenty-six years of investment, would be disruptive – perhaps even catastrophic. That in a nutshell is the dilemma on whose horns the Court twisted for three hours.
It is generally considered professional folly for appellate lawyers to predict the outcome of a case based on the oral argument. In fact, this is only sometimes true. Judges, and Justices even more so, usually want feedback from counsel on the outcome they're considering. It's hard to get that feedback without telling counsel what they have in mind. That said, some judges believe in hiding the ball, and some just like to ask tough questions. And in complex cases, sometimes the Justices' initial inclinations yield to advocacy in conference or in drafts circulated by other Justices.
That latter fate could be in store for the Gonzalez case. So there's a good chance I'll end up guessing wrong about the outcome. But considering how muddled the argument seemed, I was surprised how much can be learned by going back through each Justice's questions to see what each of them thinks the case is about. It turns out that most of them were very clear about what rules of decision they were contemplating.
