When we prohibit "discrimination" what do we normally mean? It is that the prohibited criteria (race, sex, religion, age) should not be considered. Two people applying for a job, one male and one female; the decision should be made without consideration of either person's sex (assuming that sex is not a bona fide occupational qualification or BFOQ).
The BFOQ is an example of when we make a specific exception to the general rule that a prohibited criteria should not be considered. Another (unwritten) exception would be the "heightened scrutiny" applicable to certain kinds of presumptively unconstitutional discrimination by state actors under the Equal Protection Clause of the Fourteenth Amendment. So states can provide contracting preferences for certain racial groups if the preferences meet the requirements of "strict scrutiny." These exceptions are permissive, not mandatory. A state agency can provide contracting preferences, but generally speaking, it is not required to do so.
As I pointed out yesterday, Title IX has some explicit exceptions (e.g., for father-son and mother-daughter events). These exceptions are permissive. The statute permits sex-segregated housing, but it does not require it.
Does the Massachsuetts Institute of Technology have a free speech problem? Daryl Morey, an MIT alum, thinks so, and wrote about it for the Wall Street Journal. In a new op-ed Morey writes:
The data point to a growing problem: According to the Foundation for Individual Rights and Expression, MIT ranks an abysmal 181st out of 203 universities when it comes to students' belief that the administration will protect their speech rights. FIRE reports that the mistrust extends to MIT faculty: 38% say they don't believe the administration would defend a speaker's rights during a controversy. Forty percent of MIT faculty said they were more likely to self-censor as of summer 2022 than they had been before 2020. Among students, 41% aren't confident in the administration's ability to protect controversial speech. Those are disheartening statistics for one of the world's best research institutions.
If MIT faculty, who are at the cutting edge of science and technology, can't count on their employer to defend open inquiry, it might prevent them from taking innovative risks. This, in turn, would stymie technological progress and the education of the next generation of innovators.
The statement calls on MIT to embrace its tradition of "provocative thinking, controversial views, and nonconformity." While community has the right to expect "a collegial and respectful learning and working environment," the institution "cannot prohibit speech that some experience as offensive or injurious." The statement affirms that debate and "deliberation of controversial ideas are hallmarks of the Institute's educational and research missions and are essential to the pursuit of truth, knowledge, equity, and justice."
A resounding public endorsement of the statement from Ms. Kornbluth would make it clear to current and future faculty and students that speech will be protected by the university.
It is worth noting that Morey has some experience with blowback for controversial speech. Back in 2019, when he worked for the Houston Rockets, Morey tweeted his support of Hong Kong protestors. Given its efforts to cultivate the Chinese market -- which requires staying in the good graces China's government -- the NBA was none too happy with Morey's statement. Morey never apologized for his tweet (nor should he have), however much it displeased others.
Given Morey's support for individual liberty and free expression, it seems appropriate he is now president of basketball operations for the Philadelphia 76ers, a team that takes its inspiration from the nation's founding and the Declaration of Independence.
We kick off a jam-packed episode of the Cyberlaw Podcast by flagging the news that ransomware revenue fell substantially in 2022. There is lots of room for error in that Chainalysis finding, Nick Weaver notes, but the size of the drop is large. Among the reasons to think it might also be real is a growing resistance to paying ransom on the part of companies and their insurers, who are especially concerned about liability for payments to sanctioned ransomware gangs. I also note a fascinating additional insight from Jon DiMaggio, who infiltrated the Lockbit ransomware gang. He says that, when Lockbit compromised and threatened to release Entrust's internal files, the company responded with days of Distributed Denial of Service (DDoS) attacks on Lockbit's infrastructure – and never did pay up. That would be a heartening display of courage on the part of corporate ransomware victims. It would also be a felony, at least according to the conventional wisdom that condemns hacking back. So I cannot help thinking there is more to the story. Like, maybe Canadian Security Intelligence Service is joining Australian Signals Directorate in releasing the hounds on ransomware gangs. I look forward to reading more about this undercovered disclosure.
Justin Sherman, a first-timer on the podcast, covers recent research showing that alleged Russian social media election interference had no meaningful effect on the 2016 US election. That spurs an outburst from me about the cynical scam that the "Russia, Russia, Russia" narrative became – a poisonous brand of election denial not different in spirit from Trump's, but one for which the press and the left have never been held to account.
Nick explains the impact of Twitter's looming interest payment obligation. We're going to learn a lot more about Elon Musk from how he deals with that crisis than from anything he's tweeted in recent months.
It does not get more cyberlawyerly than a case the Supreme Court will be taking up this term – Gonzalez v. Google. The case will put Section 230 squarely on the Court's docket, and the amicus briefs can be measured by the shovelful. The issue is whether YouTube's recommendation of terrorist videos can ever lead to liability – or if any judgment is barred by Section 230. Gus and I are on different sides of that question, but we agree that this is going to be a hot case, a divided Court, and a big deal.
And, just to show that our foray into cyberlaw was no fluke, Gus and I also predict that the United States Court of Appeals for the District of Columbia Circuit is going to strike down the Allow States and Victims to Fight Online Sex Trafficking Act, also known as FOSTA-SESTA – the legislative exception to Section 230 that civil society loves to hate. Its prohibition on promotion of prostitution may fall to first amendment fears, but Gus predicts that the practical core of the law will remain.
Finally, I provide an update on the UK's online safety bill, which just keeps getting tougher, from criminal penalties, to "ten percent of revenue" fines, to mandating age checks that may fail technically, or drive away users, or both. And I review the latest theatrical offering from Madison Square Garden – "The Revenge of the Lawyers:" You may decide to root for the snake or for the scorpions, but you will not want to miss it.
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.
On January 22, 2020, I took what I thought would be a short hiatus from Twitter. One, two, and now three years later, I am very happy with my decision. Hey, I quit Twitter long before it was cool! And no, I have no interest in joining Mastodon (if that is even still at thing).
From Judge Diarmuid O'Scannlain's opinion respecting rehearing en banc released today (and joined by Judges Sandra Ikuta, Ryan Nelson, and Lawrence VanDyke) in Tingley v. Ferguson:
Is therapeutic speech speech? Does a tradition of licensing a given profession override all First Amendment limits on licensing requirements? The three-judge panel answered 'no' to the first question, and a majority of the panel answered 'yes' to the second. In my view, both holdings are erroneous and significant constitutional misinterpretations, and I respectfully dissent from our court's regrettable failure to rehear this case en banc.
First, the panel said that therapeutic speech is non-speech conduct and so protected only by rational basis review. True, it reached this result by faithfully applying our decision in Pickup v. Brown, which held that a California ban on "sexual orientation change efforts" was a regulation of professional conduct only incidentally burdening speech. But the Supreme Court has rejected Pickup by name. Nat'l Inst. of Family & Life Advocates v. Becerra ("NIFLA") (2018). And other circuits have rejected Pickup's holding, concluding instead that therapeutic speech is—speech, entitled to some First Amendment protection. See King v. Governor of New Jersey (3d Cir. 2014); Otto v. City of Boca Raton (11th Cir. 2020). The panel's defense of Pickup's continuing viability is unconvincing. We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.
Second, a majority of the panel purported to discover a "long (if heretofore unrecognized) tradition of regulation" which warrants applying only rational basis review to laws burdening therapeutic speech. In reality, the majority drew out a gossamer thread of historical evidence into a sweeping new category of First Amendment exceptions. If new traditions are so easily discovered, speech-burdening laws can evade any level of scrutiny simply by identifying some legitimate purpose which they might serve. We should have granted rehearing en banc also to clarify that regulation of the medical profession is not a First-Amendment-free zone.
Judge Patrick Bumatay also thought the court should have reheard the case en banc:
The issues at the heart of this case are profoundly personal. Many Americans and the State of Washington find conversion therapy—the practice of seeking to change a person's sexual orientation or gender identity—deeply troubling, offensive, and harmful. They point to studies that show such therapy ineffective. Even worse, they claim that conversion therapy correlates with high rates of severe emotional and psychological trauma, including suicidal ideation. Under the appropriate level of judicial review, these concerns should not be ignored.
We've gotten a lot more submissions to the Journal of Free Speech Law over the last month and a half than we had been getting before, and we've just accepted two of them (and are still considering a third): one of the accepted articles is on the history of Beauharnais v. Illinois (the group libel case), and the other is on shifts in the Chinese government's approaches to speech regulation, both at home and abroad. But of course we'd love to see more submissions, including of course traditional U.S.-focused doctrinal and theoretical work—which has been the bulk of what we've published so far—as well as empirical articles and pretty much anything else that deals with free speech questions. And we're glad to publish articles on statutory, regulatory, common-law, and state constitutional free speech rules and not just on First Amendment questions.
As we've noted before, the journal is peer-reviewed, and now two years old. It has published dozens of articles, including by Jack Balkin (Yale), Mark Lemley (Stanford), Jeremy Waldron (NYU), Cynthia Estlund (NYU, forthcoming within a week or so), Christopher Yoo (Penn), Danielle Citron (Virginia), and many others—both prominent figures in the field and emerging young scholars (including ones who didn't have a tenure-track academic appointment).
If you or some colleagues are planning to submit articles on free speech to the usual law reviews when the submission cycle begins in February, just submit them exclusively to us before that. We will give you an answer within 14 days (our guarantee, which we have so far never broken); and then if you'd like to have it published quickly, we can publish it in within several weeks, if it's sufficiently clean and cite-checked by your research assistant. (We can also have it cite-checked for you by one of our student staffers, but that takes a bit longer.) This means your article can be published by us, if it's accepted, almost a year (or more) before it would be published by the law journals.
Please pass this along to friends or colleagues who you think might be interested. Note that the submissions don't compete for a limited number of slots in an issue or volume; we'll publish articles that satisfy our quality standards whenever we get them.
All submissions must be exclusive to us, but, again, you'll have an answer within 14 days, so you'll be able to submit elsewhere if we say no. Please submit an anonymized draft, together with at https://freespeechlaw.scholasticahq.com/. A few guidelines:
The Jan. 6 committee exposed norm-breaking in surprising places. Take the conduct of Joint Chiefs of Staff Gen. Mark Milley, who abused the classified information system to hide information about how the Pentagon reacted to the Capitol riot. In my latest piece for Lawfare, I argue that Gen. Milley's conduct overclassified information in violation of the relevant executive order. Worse, it may have prejudiced some of the Jan.6 defendants and denied FOIA access to the most important DOD documents about that day. The press and Congress bitterly criticized a similar handling of the Trump-Zelensky phone transcript, but it's been silent about Gen. Milley. Excerpts from Lawfare below.
Here's Gen. Milley's candid statement about what he did:
The document—I classified the document at the beginning of this process by telling my staff to gather up all the documents, freeze-frame everything, notes, everything and, you know, classify it. And we actually classified it at a pretty high level, and we put it on JWICS, the top secret stuff. It's not that the substance is classified. It was[.] I wanted to make sure that this stuff was only going to go [to] people who appropriately needed to see it, like yourselves. We'll take care of that. We can get this stuff properly processed and unclassified so that you can have it … for whatever you need to do.
In short, Milley overclassified those records to keep them from leaking—to make sure that the Pentagon and those investigating Jan. 6 would control the story.
By now, this story should sound eerily familiar. In 2019, President Trump held a phone call with President Volodymyr Zelenskyy of Ukraine. The call was immediately controversial inside the administration, and White House staff quickly restricted access to the call's transcript by moving it to a server designed to protect highly classified intelligence activities. That move attracted press attention that was harsh, breathless, and extensive—even though such transcripts are usually classified, just not at a level that justifies use of the intelligence activity server. Former CIA Director Leon Panetta said that the use of a top-secret system was "clearly an indication that they were at least thinking of a cover-up if not, in fact, doing that. It's a very serious matter because this is evidence of wrongdoing." After considerable delay, the Trump White House released the transcript publicly, and one official acknowledged that it had been a mistake to move the transcript to a highly classified system.
That was the right answer. Overclassifying government records because of their political sensitivity is a direct violation of the executive order that governs classification. The order, signed by President Obama, says, "In no case shall information be classified in order to prevent or delay the release of information that does not require protection in the interest of national security."
This is an important principle. Classifying information because it's politically sensitive, however appealing it may be to government officials in the moment, undermines the public trust on which the entire system of national security secrecy rests.
But even setting aside the principle of the thing, overclassification is not a victimless crime. Take Milley's decision to withhold records of the Pentagon's response to Jan. 6. It raises serious questions that the chairman wasn't asked in his testimony and that haven't been answered since.
How long was this material locked up? Milley testified on Nov. 17, 2021, almost a year after Jan. 6, and he gave a clear impression that he was disclosing the Pentagon timelines and their underlying information for the first time.
Who was entitled to earlier access to the information he withheld? By the time of his testimony, many Jan. 6 defendants had already been charged. Many had already pleaded guilty. With exceptions I'll get to, criminal defendants have a right to know about government records that would help them to defend themselves. It is not far-fetched to think that the overclassified records would have helped some of these defendants. To take one example, some defendants urged their compatriots to prepare for violence on that day. In an effort to take some of the sting out of their statements, many are claiming that they expected violence not from their allies but from their opponents on the left. This claim would be bolstered by evidence, referenced by Milley, including records showing that national security officials saw a serious risk of antifa and BLM attacks on Jan. 6, particularly the national security adviser's belief that "the greatest threat is going to come from Antifa and Black Lives Matter assaulting the protesters."
Did Milley's overclassification of these records deprive the defendants of access to this information?
What about Freedom of Information Act (FOIA) requests? As Milley makes clear, "almost all" of the substance of the material isn't classified at all. Did his overclassification of this information delay disclosure of important insights about the Pentagon's actions on Jan. 6?
I frequently defend broad national security authorities for government. That's because I've seen some of the threats the government faces. But if it wants to keep those authorities in a time of deepening public suspicion, the government must show that it has internal checks and real accountability to prevent abuse.
In the 1930s, Monica Toth's father fled his home in Germany to escape the swell of violent antisemitism. Eventually, he found his way to South America, where he made a new life with his young family and went on to enjoy a successful business career in Buenos Aires. But perhaps owing to his early formative experiences, Ms. Toth's father always kept a reserve of funds in a Swiss bank account. Shortly before his death, he gave Ms. Toth several million dollars, also in a Swiss bank account. He encouraged his daughter to keep the money there—just in case.
Ms. Toth, now in her eighties and an American citizen, followed her father's advice. For several years, however, she failed to report her foreign bank account to the federal government as the law requires. 31 U.S.C. § 5314. Ms. Toth insists this was an innocent mistake. She says she did not know of the reporting obligation. And when she learned of it, she says, she completed the necessary disclosures.
The Internal Revenue Service saw things differently. Pursuant to § 5321, the agency charged Ms. Toth with willfully violating § 5314's reporting requirement and assessed a civil penalty of $2.1 million—half of the balance of Ms. Toth's account—plus another $1 million in late fees and interest. Initially, Ms. Toth sought to represent herself in proceedings challenging the IRS's assessment, but that did not go well. Later, Ms. Toth engaged counsel who argued that the IRS's assessment violated the Excessive Fines Clause of the Eighth Amendment. But the First Circuit rejected this line of defense. It held that the Constitution's protection against excessive fines did not apply to Ms. Toth's case because the IRS's assessment against her was "not tied to any criminal sanction" and served a "remedial" purpose.
Today the Supreme Court issued its first opinion for the October 2022 term, a short unanimous opinion by Justice Amy Coney Barrett in Arellano v. McDonough. The Court ususally issues a few opinions in the Fall, but not this year. For the first time in modern memory, the Court failed to issue any opinions until January. It has been a term of longer arguments and fewer opinions.
Arellano concerned veterans' disability benefits, and Justice Barret authored a clear and brief opinion. Here is her summary:
This case concerns the effective date of an award of disability compensation to a veteran of the United States military. The governing statute provides that the effective date of the award "shall not be earlier" than the day on which the Department of Veterans Affairs (VA) receives the veteran's application for benefits. But the statute specifies 16 exceptions, one of which is relevant here: If the VA receives the application within a year of the veteran's discharge, the effective date is the day after the veteran's discharge. We must decide whether this exception is subject to equitable tolling, a doctrine that would allow some applications filed outside the 1-year period to qualify for the "day after discharge" effective date. We hold that the provision cannot be equitably tolled.
That Justice Barrett authored the first opinion of the term is no surprise. More junior justices tend to get the less desirable opinion assignments, so they tend to draw less controversial (and often quite technical) cases. These decisions tend to be unanimous, and unanimous opinions are often produced more quickly because there is less back-and-forth between dueling opinions.
The most junior justice, Ketanji Brown Jackson, is likely getting similar opinion assignments, but she is also brand new to the Court. It is likely she is still gaining her sea legs, so it would have been surprising had she been first out of the gate. She was also not a particularly quick opinion writer on the D.C. Circuit, authoring her first opinion eight months after joining that court.
This morning the Court also DIGged a case (as in, Dismissed as Improvidently Granted): In re Grand Jury, which concerned the extent to which attorney client privilege applies to communications containing both legal and non-legal advice.
The Court also denied certiorari in a number of cases, one of which -- Toth v. United States, which concerns the Excessive Fines Clause -- produced a Justice Gorsuch dissent.
No word yet on when the Court may issue more opinions.
[Note: Post revised as I initially referred to Justice Jackson as next-most junior justice, when she is the most junior justice.]
I love to eat meat. I don't believe meat is murder (or chicken is manslaughter, or eggs are kidnapping, or milk is sexual harassment). But just because I don't object to people killing animals for food doesn't mean that I affirmatively demand it. If people can develop delicious, safe, low-cost vat-grown meat, presumably grown from actually animal cells, that would be excellent. Indeed, it may well help generate tastes and textures that are hard to obtain through normal animal growth. It may reduce food-borne diseases. And it may have lower environmental burdens; regardless of whether one thinks we need to sacrifice to reduce such environmental burdens, in principle it may be possible to get better taste, lower financial costs, and lower environmental burdens as well. What's not to like about that?
Again, that's if all is done right, and many initial attempts will be failures. But that's how so many excellent products were developed. Many companies engage in many experiments; the unappealing ones fail, the appealing ones succeed, and the next generation of products is improved. Vat-grown meat, like many technological developments, is likely to improve markedly over time, and become less costly (as it already apparently has); hoof-grown meat isn't.
Is there a risk that such developments, though at first just offered voluntarily to consumers, will lead to government coercion (such as a ban on traditional cultivation of meat) even when the vat-grown product remains inferior to the traditional product? Yes, there is such a risk (cf. my article on slippery slopes); indeed, as Virginia Postrel notes,
Barring a new backlash, the long-term trajectory seems certain. Within a generation, vat-grown meat may be not merely common but normal. Within two, it could be morally imperative. Economics and technology can transform ethical expectations and practices.
But that strikes me as a poor reason to resist development of products that could end up being so valuable. It would have been unwise to fight central gas heating on the theory that it might eventually lead to bans on burning wood in fireplaces, or to fight the automobile on the theory that it might lead to limits on where one can ride one's horse or horse-drawn carriage. Likewise here.
Unsurprisingly, I agree on this with Postrel, which is why I was troubled (but not surprised) by her recent newsletter item on how some people reacted to her article praising vat-grown meat. Here's an excerpt:
Resolution 21-01, modeled on the American Bar Association's proposed Rule 8.4(g), would allow lawyers to be punished for "engag[ing] in … harassment," defined as "in representing a client or operating or managing a law practice or in the course and scope of employment in a law practice, engag[ing] in conduct that the lawyer knows or reasonably should know is harassment":
Harassment is derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status. To constitute a violation of this subsection, the harassment must be severe or pervasive enough to create an environment that is intimidating or hostile to a reasonable person. This subsection does not limit the ability of a lawyer to accept, decline, or withdraw from a representation as otherwise permitted in these Rules or preclude advice or advocacy consistent with these Rules.
Comment: … Harassment includes sexual harassment such as unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal, written, or physical conduct of a sexual nature. Factors to be considered to determine whether conduct rises to the level of harassment … include: the frequency of the harassing conduct; its severity; whether it is threatening or humiliating, or a mere offensive utterance; whether it is harmful to another person; or whether it unreasonably interferes with conduct related to the practice of law. Petty slights, annoyances, and isolated incidents, unless extremely serious, will not rise to the level of harassment …. The substantive law of … anti-harassment statutes and case law may guide application of [this provision].
"In representing a client or operating or managing a law practice or in the course and scope of employment in a law practice" does not include participation in bar association, business, or social activities outside the context of representing a client or operating or managing a law practice or acting in the course and scope of employment in a law practice.
Resolution 21-01 favors one viewpoint over another (tolerance for a protected class of persons versus intolerance for a protected class of persons); therefore, it is also a viewpoint-based restriction. The resolution is not limited to speech directed at a person based on that person's protected status, but instead prohibits speech because the speech is derogatory or demeaning and the speech is based on a specified protected status….
For example, an attorney could speak favorably about same-sex marriage without running afoul of the Bar's rule, but another attorney who speaks disparagingly about same-sex marriage could potentially be engaging in misconduct. Resolution 21-01 applies to "derogatory or demeaning verbal, written, or physical conduct toward a person based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status" that is so severe and pervasive as to create an environment that is intimidating or hostile to a reasonable person….
I want to begin by thanking Eugene for inviting me to blog on my new article about Title IX and Sports, Gender Identity, Sports, and Affirmative Action: What's Title IX Got To Do With It? I'm a long-time reader and fan of the VC.
Back many years ago (more than I care to remember), my organization (the Center for Individual Rights) and I represented plaintiffs in lawsuits challenging the elimination of male sports teams at colleges or universities, usually wrestling teams. Our mantra was that the Department of Education demanded, and the schools applied, a "quota" for female sports teams based on the percentage of females in the undergraduate population. (Calling things we sued over a "quota" was the legal strategy du jour back in the day.) We consistently lost.
Fast forward fifteen or twenty years. The new Title IX-related issue was whether transgender females should be permitted to play on female sports teams. The odd thing about the debate was that both sides claimed Title IX required its position. Those on the side of trans females playing on female teams said that precluding them from doing so was sex discrimination in violation of Title IX. Those against trans females playing on female teams said it would be sex discrimination if they did.
A guest commenter on the VC, Professor Doriane Coleman wrote some very interesting blog posts in March 2019 on this topic and piqued my interest. The next year, Professor Coleman co-wrote an article (with Michael Joyner and Donna Lopiano) called Re-Affirming the Value of the Sports Exception to Title IX's General Non-Discrimination Rule.
Whoa! There's a sports exception to a general rule about non-discrimination in Title IX? What is it? When did it get there? How did it get there?
Recently, state and local jurisdictions have held that schools cannot discriminate against individuals on the basis of gender identity with respect to separate sex sports teams. That is, they have held that biological males who identify as females—whom I will refer to as "trans females"—must be permitted to participate on female sports teams. Some have relied upon Title IX of the Educational Amendments of 1972 to justify this position, claiming that Title IX's prohibition of discrimination on the basis of sex requires the policy.
This, in turn, has led others to claim that the policy is both unwise (a point I will not address), not required at all by Title IX, and in fact, illegal discrimination against biological females in violation of Title IX. In essence, opponents argue that males possess unfair biological advantages compared with females, and that forcing biological females to compete against biological males, including trans females, constitutes sex discrimination against biological females….
These differing views of Title IX start with the same statutory language. One takes that language and concludes that certain conduct (allowing trans females to play on female teams) is mandatory, while the other asserts that the same conduct is prohibited.…
For more on resolving this puzzle, tune in to the forthcoming posts.
From yesterday's Seventh Circuit decision in Miller v. Smith, by Judges Joel Flaum, Ilana Rovner, and Michael Brennan:
Appellants Darin and Jennifer Miller are both licensed foster home caretakers, and Jennifer Miller is licensed to operate a home day care. Illinois statutes and regulations restrict how the Millers may possess and store firearms and ammunition in their home. The Millers challenge the constitutionality of those statutes and regulations. The district court granted summary judgment for the State of Illinois, and the Millers appealed.
After the Millers filed their opening brief, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen (2022), in which the Court ruled that means-end scrutiny does not apply in the Second Amendment context. The Court made more explicit the constitutional standard endorsed in District of Columbia v. Heller (2008), requiring courts to assess whether modern firearms regulations are consistent with the Second Amendment's text and historical understanding. After Bruen was published, briefing continued in this case, and we heard oral argument.
We now remand for additional proceedings to receive the full benefit of the district court's decision applying the "text, history, and tradition" test of Bruen. On remand, the district court should allow the parties to engage in further discovery, including seeking additional expert reports. The district court should then evaluate any subsequent motions under Bruen's text, history, and tradition framework. In doing so, the court should permit briefing on and consider the interaction of Bruen and the unconstitutional conditions doctrine, including but not limited to the employment context. See, e.g., NASA v. Nelson (2011); Engquist v. Oregon Dept. of Agri. (2008). The court should also allow discovery and briefing on the sensitive places doctrine, and on any other matter that the court and the parties find relevant in light of Bruen.
UPDATE: Here are the plaintiffs' allegations about the scope of the restrictions that they are challenging:
Defendant Department of Children and Family Services' ("DCFS") regulations flatly ban law-abiding citizens who serve as foster caregivers from having firearms immediately operable for self-defense in their own homes at any time. 89 ILL. ADMIN. CODE § 402.8(o) provides:
Any and all firearms and ammunition shall be stored and locked up separately at all times and kept in places inaccessible to children…. Loaded guns shall not be kept in a foster home unless required by law enforcement officers and in accordance with their law enforcement agency's safety procedures.
Apart from the carve-out for law-enforcement officers, there are no exceptions to this ban—not for licensed foster caregivers who do not currently have a foster child placed with them, not for homeowners who possess an Illinois Concealed Carry License, not for homeowners who employ storage mechanisms inaccessible to children (such as biometric gun safes), and not even for loaded firearms kept in the homeowner's immediate possession….
Defendant DCFS has promulgated regulations (1) flatly banning the possession of handguns in any day care home (except for law-enforcement officers or others required to possess a handgun as a condition of employment), (2) requiring all other firearms (i.e., long guns) to be "kept in a disassembled state, without ammunition, in locked storage in a closet, cabinet, or other locked storage facility inaccessible to children" (except, again, in the case of law-enforcement officers); (3) requiring that all "[a]mmunition for such firearms shall be kept in locked storage separate from that of the disassembled firearms, inaccessible to children"; and (4) requiring the homeowner operating the day care to "post a 'no firearms' sign" and "notify the parents or guardian of any child accepted for care that firearms and ammunition are stored on the premises," "locked in storage inaccessible to children."
On their face, these restrictions admit of no exceptions. Defendants have asserted, and the district court held, that these restrictions on day care homes have effect only during business hours, when the day care is operating. No such limitation appears in the text of the statutory or regulatory provisions at issue, however—and on their face, those provisions apply absolutely, at all times. Like the foster care ban, the day care home ban likewise includes no other exceptions, apart from the carve-out for law-enforcement officers—no matter how carefully the homeowners have been vetted or how securely they store their firearms.
Western nations should adopt a general policy of granting refuge to Russians seeking to avoid conscription, and otherwise fleeing Vladimir Putin's increasingly repressive regime.
Canada recently granted refugee status to a Russian man seeking to avoid conscription into Vladimir Putin's brutal war against Ukraine:
Trofim Modlyi is breathing a sigh of relief.
The 19-year-old, who is from Khabarovsk in eastern Russia, near the border with China, received notice at the end of 2022 that his claim for refugee status in Canada had been accepted.
I no longer need to worry about going back to Russia. Obviously I felt, like, fully safe that I don't need to go to Ukraine and take part in this war, Modlyi said.
Modlyi was visiting his sister, Valeriia Granillo, in Grande Prairie, Alta., when Russia invaded Ukraine last February. Granillo, who moved to Canada in 2012 in search of better opportunities, now works in cancer care and is a Canadian citizen.
While he was in Canada, his parents received a conscription notice for him. That is when Modlyi said he decided to apply to become a refugee.
There is no possibility for me to [go] home because I would be drafted [into] the war, and I don't want to take part in it. I don't want to kill innocent people in Ukraine, he said….
Modlyi was determined by the Immigration and Refugee Board (IRB) to be a Convention refugee — a status that is granted to someone who is outside their home country and is not able to return because of a well-founded fear of persecution.
He and his sister and his parents back home strongly believed that if he goes back there, there would be a strong opportunity that he will be sent to the conflict area — he would be fighting in Ukraine, the lawyer said…
The Canadian decision is just a ruling by an administrative agency in this individual case. It does not, by itself, entail a general policy of granting refugee status to Russians fleeing conscription. But, hopefully, Canadian officials will indeed generalize the policy, and other Western nations will follow suit.
Sadly, however, Western nations have largely refused to grant refuge to Russians fleeing Putin, even as many adopt more generous policies towards Ukrainian refugees. Even Russians with an extensive record of opposing Putin have sometimes been subjected to unjust immigration detention at the hands of US border authorities. Since the start of the conflict, I have been making the case that this rejection of most Russian migrants is a mistake, on both moral and strategic grounds. For some of my writings on this topic, see here, here, here, and here.
Because I am a Russian Jewish immigrant myself, some readers may suspect that I have become an advocate for Russians fleeing Putin out of ethnic or racial sympathy or bias. Not so. I have also long advocated for openness to Ukrainian refugees, as well, and am a sponsor in the Uniting for Ukraine program facilitating entry of Ukrainians fleeing the war. In a previous post, I listed some of my extensive writings advocating for opening Western doors to predominantly non-white groups of migrants and refugees.
In this context, is also worth noting that the Russian government's conscription drive has disproportionately targeted ethnic minority groups, such as the native peoples of Siberia and the Caucasus. Such ethnic discrimination further strengthens the case for granting refugee status to Russian citizens fleeing conscription, at least those who belong to the discriminated-against groups.
The 1951 Refugee Convention (as later amended) bars governments from deporting refugees, defined as people whose "life or freedom would be threatened on account of [their] race, religion, nationality, membership of a particular social group or political opinion." US law has a very similar definition. People targeted for conscription based on their race or ethnicity are pretty obviously facing threats to their "life or freedom" because of their "race" or "nationality" or "membership of a particular social group."
