The Volokh Conspiracy Archive

In Black v. Cakor Restaurant, Inc., decided Thursday by Judge Valerie Caproni (S.D.N.Y.), plaintiff, a bartender at restaurants owned by defendants, claimed that she was paid less than what employment law requires:

Plaintiff was "ostensibly employed as a tipped worker," but her non-tipped duties exceeded the lesser of 20% or two hours of each workday. Plaintiff further alleges that Defendants paid her and all other tipped employees at a rate lower than the required tip-credit rate. Plaintiff alleges that she consistently worked well over 40 hours per week and was paid a fixed salary of $600 per week from approximately March 2018 through September 2019, then $300 per week from November 2019 through April 2021. Plaintiff alleges that she was not required to keep track of the time she worked, and that Defendants did not keep track of the time Plaintiff worked.

Plaintiff sued, and claimed that at some point defendants started to "incessantly" call her and her husband, and also sent her husband a photograph and the text message, "Are you this person [in the screenshot] … I have taken out a video and have reported you to immigration, [Plaintiff] may have married you for money."

The court concluded that plaintiff adequately alleged that this was illegal retaliation under the federal Fair Labor Standards Act and the New York Labor Law; the "threat[] to report Plaintiff's husband to immigration authorities," which could subject "Plaintiff and her husband … to criminal and administrative action," "constitutes an adverse employment action within the meaning of the FLSA." And the court court therefore preliminarily enjoined defendants "from contacting or communicating with, or causing anyone else from contacting or communicating with, in any way, any local, state, or federal government official or agency, or any staff member of any government official or agency," including immigration authorities and other federal and state law enforcement, about plaintiff's or her husband's immigration status:

There is an old VC tradition of occasional Monday blog posts about bears, such as this item from 2015.

Over the weekend, I found an item that seemed appropriate for an ursine entry. Bear 609 was apparently causing trouble at a campsite and was relocated some 1,000 miles away. What happened next is the fun part.

From Backpacker:

On Wednesday, a local broadcast news channel in Knoxville reported the story of a determined black bear that had traveled across four states to return to its favorite feeding grounds, at a campsite in Great Smoky Mountains National Park. The initial episode happened in June, when officials received complaints that a female black bear was grabbing food off picnic tables, sniffing trash cans, and even stealing backpacks. Wildlife crews trapped the animal and relocated her 1,000 miles to an area of South Cherokee National Forest in Georgia. Scientists labeled the animal Bear 609 and attached a geolocating device to it.

According to the report, wildlife biologists tracked Bear 609 as she proceeded to walk across Georgia, South Carolina, and North Carolina and then into Tennessee—eventually returning to the campsite where it had been trapped. . . .

There's one more odd wrinkle to the story of Bear 609: After returning to Great Smoky Mountains National Park, the bear ventured onward to Anderson, South Carolina. While walking through the small town, the bear came into contact with family members of one of the wildlife officials at the national park where its journey began. Lisa McInnis, chief of resource management and science at Great Smoky Mountains National Park, said her relatives sent her a photo they snapped of the bear walking across their driveway. She recognized the animal.

The leaders of the two antagonists in the Russia-Ukrainian war share the same name, albeit with some differences to account for the different languages (Volodymyr / Vladimir). If you prefer, you can say that each name is the commonly accepted translation of the other. In what other wars can the same be said of the heads of state, or heads of government (de facto or de jure), of at least two antagonists?

My nephew Charlie noted that George Washington and King George III shared the same name; that's close, but George Washington, though the commander-in-chief during the Revolutionary War, wasn't at the time the head of government or of state. Charlie also noted another example, much less well-known but likely squarely on point.

Bonus points if these were, as with the Russian-Ukrainian war, the heads of the two primary antagonists, rather than just minor partners in one of those massive coalition wars.

Prof. McConnell noted this, and I'm delighted to be able to pass it along:

In the course of researching an unrelated matter, I stumbled on this speech by Charles Pinckney—a prominent delegate to the Constitutional Convention, from South Carolina. The speech was delivered in 1800 in Pinckney's capacity as United State Senator. It shows remarkable prescience, seeming to anticipate the arguments made by John Eastman and others that Vice President Pence and the Congress should refuse to recognize (or at least delay recognition of) the electoral college votes from states where Trump forces claimed the official election results were based on fraud. I have bolded the most striking parts of Pinckney's speech:

Knowing that it was the intention of the Constitution to make the President completely independent of the Federal Legislature, I well remember it was the object, as it is at present not only the spirit but the letter of that instrument, to give to Congress no interference in, or control over the election of a President. It is made their duty to count over the votes in a convention of both Houses, and for the President of the Senate to declare who has the majority of the votes of the Electors so transmitted. It never was intended, nor could it have been safe, in the Constitution, to have given to Congress thus assembled in convention, the right to object to any vote, or even to question whether they were constitutionally or properly given.

This right of determining on the manner in which the Electors shall vote; the inquiry into the qualifications, and the guards necessary to prevent disqualified or improper men voting, and to insure the votes being legally given, rests and is exclusively vested in the State Legislatures. If it is necessary to have guards against improper elections of Electors, and to institute tribunals to inquire into their qualifications, with the State Legislatures, and with them alone, rests the power to institute them, and they must exercise it.

To give to Congress, even when assembled in convention, a right to reject or admit the votes of States, would have been so gross and dangerous an absurdity, as the framers of the Constitution never could have been guilty of. How could they expect, that in deciding on the election of a President, particularly where such election was strongly contested, that party spirit would not prevail, and govern every decision? Did they not know how easy it was to raise objections against the votes of particular elections, and that in determining upon these, it was more than probable, the members would recollect their sides, their favorite candidate, and sometimes their own interests? Or must they not have supposed, that, in putting the ultimate and final decision of the Electors in Congress, who were to decide irrevocably and without appeal, they would render the President their creature, and prevent his assuming and exercising that independence in the performance of his duties upon which the safety and honor of the Government must forever rest?

Annals of Congress, Sixth Congress, at 130, and reprinted in III Farrand, App. A., CCLXXXVIII (March 28, 1800) (paragraphing altered).

12/19/1940: U.S. v. Darby argued.

12/18/1944: Korematsu v. U.S. decided.

From U.S. v. Rocha, decided Friday by the U.S. Air Force Court of Criminal Appeals, in an opinion by Judge Natalie Richardson, joined by Judge Eric Cadotte:

A general court-martial … convicted Appellant … of … indecent conduct—engaging in sexual acts with a sex doll with the physical characteristics of a female child—in violation of Article 134, Uniform Code of Military Justice (UCMJ)…. The military judge sentenced Appellant to a bad-conduct discharge, 90 days of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1….

Appellant raises several assignments of error, asserting: (1) private masturbation with a doll is constitutionally protected conduct; (2) Appellant did not have fair notice that private masturbation with a doll was subject to criminal sanction; (3) [and various procedural objections] ….. Because we find in Appellant's favor on issue (2), we do not address the remaining issues….

"[A]ll disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital" are punishable at trial by court-martial. Article 134, UCMJ, 10 U.S.C. § 934…. "'Discredit' means to injure the reputation of." The service-discrediting clause of "Article 134 makes punishable conduct which has a tendency to bring the service into disrepute or which tends to lower it in public esteem." …

[The elements] of Indecent Conduct under Article 134 … include: (1) the accused engaged in certain conduct, (2) the conduct was indecent, and (3) that, under the circumstances, the conduct was of a nature to bring discredit upon the armed forces. "'Indecent' means that form of immorality relating to sexual impurity which is grossly vulgar, obscene, and repugnant to common propriety, and tends to excite sexual desire or deprave morals with respect to sexual relations."

Today is Saturnalia, an ancient Roman holiday with a long tradition here at the Volokh Conspiracy. Admittedly, it's tradition only in so far as I have put up a post about it every December 17 for the last several years. But, by internet standards, that's a truly ancient tradition, indeed!

The Encyclopedia Romana has a helpful description of Saturnalia:

During the holiday, restrictions were relaxed and the social order inverted. Gambling was allowed in public. Slaves were permitted to use dice and did not have to work. . . Within the family, a Lord of Misrule was chosen. Slaves were treated as equals, allowed to wear their masters' clothing, and be waited on at meal time in remembrance of an earlier golden age thought to have been ushered in by the god. In the Saturnalia, Lucian relates that "During My week the serious is barred; no business allowed. Drinking, noise and games and dice, appointing of kings and feasting of slaves, singing naked, clapping of frenzied hands, an occasional ducking of corked faces in icy water—such are the functions over which I preside."

As is usually the case, we have no shortage of strong candidates for the position of Lord of Misrule. Plenty of politicians in both major parties qualify, as do many other politically influential people.

Happy Saturnalia to all the friends, Romans, and Volokh Conspiracy readers out there!

NOTE: Most of this post is adopted from previous Saturnalia posts.

In early 2023, Palgrave Macmillan will publish my latest book, Climate Liberalism: Perspectives on Liberty, Property and Pollution, an edited volume that will be part of the Palgrave Studies in Classical Liberalism.

The aim of this book is to critically assess what (if anything) Classical Liberalism has to say about how we should address large-scale externality problems, including climate change. The contributions span multiple disciplines and include both those sympathetic to and skeptical of Classical Liberalism. Contributors include: Karen Bradshaw, Mark Budolfson, Billy Christmas, Daniel H. Cole, David Dana, Ed Dolan, Monika Ehrman, Brian T. Fitzpatrick, Andrew Morriss, Mark Pennington, Dan C. Shahar, Catherine M. Sharkey, and John Thrasher.

Advance praise from Matt Zwolinski, David Schmidtz, Shi-Ling Hsu, and Lynne Kiesling can be found below the fold, along with the table of contents. Like many academic books, it's pricey, but it's a good item for libraries, and the chapters will be available electronically as well through Springer.

From N. Am. Co. for Life & Health Ins. v. Caldwell, decided Thursday by the Eleventh Circuit, in an opinion by Chief Judge William Pryor, joined by Judges Robin Rosenbaum and Stanley Marcus:

This appeal requires us to decide whether a life-insurance policy excludes from coverage a death resulting from suicide-by-cop. North American Company for Life and Health Insurance issued two policies for the life of Justin Caldwell that excluded "suicide" from coverage. According to the insurance company's complaint, Justin successfully carried out a plan to provoke police officers to shoot and kill him. North American sought a declaratory judgment that it did not owe the policies' beneficiaries. But the district court ruled that Justin died "as a result of being shot by another person," not "suicide," and granted a judgment on the pleadings in favor of the beneficiaries. Because the ordinary meaning of "suicide" includes suicide-by-cop, we vacate and remand….

North American issued two insurance policies for the life of Justin Caldwell. On November 9, 2018, it issued a policy that named an irrevocable trust managed by trustee Michael Harner as beneficiary. On July 9, 2020, it issued a policy that named Michelle Caldwell, Justin's wife, as beneficiary. Each policy provided a $1 million death benefit. Each also contained an essentially identical clause that excluded suicide from coverage under the policy. That clause read, "SUICIDE—If the Insured commits suicide, while sane or insane, within two years from the Policy Date, Our liability is limited to an amount equal to the total premiums paid."

On October 8, 2020, Justin began showing signs of suicidal intent after learning that Michelle wanted a divorce. According to his mother, Justin called his parents to say goodbye at 3:00 a.m. Later that morning, he told Michelle that he was "waiting for the police to come and kill [him]." And around 7:00 a.m, Michelle called 911 to report "that Justin was 'suicidal,' that he was in the family garage in possession of a rifle, a shotgun, and another firearm, that he was 'in the process of loading the weapons,' that he 'wanted to die by law enforcement,' and that he 'wanted to commit suicide by cop.'"

12/17/1910: Justice Joseph Rucker Lamar nominated to the Supreme Court.

Editorial, 27 Journal of the American Judicature Society 133 (1944):

"It is characteristic of most reform work that the reforms are to be accomplished on somebody else."

I wrote in October about the decision by Magistrate Judge Michael Hegarty in Luo v. Wang:

Plaintiff requests that the Court [redact certain documents]…. [Plaintiff] alleges that she faces "harassment and violence" but does not connect any specific harm of harassment or violence to the currently public documents. She cites to a restraining order that she sought against Intervenor [Volokh] but does not connect the information she seeks to restrict to any of her allegations in the restraining order. While the Plaintiff has a general fear that "haters" will threaten and harass her, this Court maintains once again, "the public [should not] be prevented from reaching its own conclusion in this case." ….

[T]he Ninth Circuit has cautioned that Plaintiff's habit of attempting to restrict judicial records could abuse the judicial process. O.L. v. Jara (9th Cir. May 12, 2022). Because Plaintiff fails to provide specific facts, much less explain why filing the documents as restricted outweighs the presumption of public access, Plaintiff's Motion is denied….

Today, Judge Regina Rodriguez affirmed Magistrate Judge Hegarty's decision:

From AP (Julie Watson):

U.S. District Judge Roger T. Benitez said he plans to issue an injunction because the law would force people who challenge any of California's famously restrictive gun laws to pay the government's legal fees if they lose.

Benitez said this would have a "chilling effect" on the public's right to challenge the government in court because people would not want to take the risk of being liable for expensive legal fees….

Benitez has not officially issued his ruling yet, but announced his decision during a hearing at a federal courthouse in San Diego….

The law is modeled after a Texas measure passed in 2021 that aimed to enforce that state's ban on most abortions….

I'll blog about the opinion when it comes out; for more on the law, see this post.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

Friends, it's illegal to operate a food truck in 96 percent of Jacksonville, N.C. And at any given time it might also be illegal in the other 4 percent, owing to a ban on food trucks operating within 250 feet of each other. That's no way to treat hardworking, honest folks who just want to earn a living, so this month IJ filed suit under the state constitution, which protects North Carolinians' inalienable right to "the enjoyment of the fruits of their own labor." Click here to learn more.

Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; the abstract (the article is here):

Legal reflection on non-governmental restrictions on free speech runs two risks: the danger of exaggerating these restrictions, and the danger of ignoring them. Non-governmental restrictions are often exaggerated in public discussion, when any vehement criticism is described as a restriction of freedom of expression. However, freedom of expression is not freedom from contradiction. The second danger is to ignore the problem of genuine non-governmental restrictions on free speech through a strict application of the state action doctrine: non-governmental restrictions would simply not be a constitutional issue. The European perspective rejects this view. Where many Americans view free speech as a regulation of governmental motives, Europeans are more attentive to practical outcomes. For a speaker, it might not make a big difference whether an act of censorship comes from the government or from a private actor.

Nevertheless, Europeans also perceive the Constitution primarily as a framework dealing with governmental powers, and the most frequent approach consists in indirectly imposing on private persons the constitutional obligation to respect freedom of expression. This reasoning considers that the government is involved in private restrictions, which are reconceptualized as "GONG restrictions" (government organized non-governmental restrictions). In the end, the European speaker, less protected than her American counterpart against the government, enjoys a greater protection against private actors. This might mean that freedom of expression is better protected in Europe than in the United States.

Some of my reactions to the oral argument in 303 Creative LLC v. Elenis were published as an op-ed in the Boston Globe today. What follows is a summary for those unable to get beyond the paywall:

In short, I think Justice Kagan asked the most damaging hypothetical for Colorado's argument that the website designer has no free speech right to refuse to create custom websites for same-sex weddings because, the state asserts, the public accommodations law targets discriminatory conduct, and only incidentally burdens speech. What if the designer placed the words, "God blesses this union," on the websites she sold to opposite-sex couples but not to same-sex couples, Kagan asked? That would violate Colorado's law, but in context, would have dramatic implications for the designer's own speech. Colorado had no good answer to this question. And although Brian Fletcher, the U.S. Deputy Solicitor General, gamely defended Colorado's position, he conceded that if the state applied its law in that way, it would constitute a direct regulation of speech (not an "incidental" one). The designer's case would then fall squarely within the domain of Hurley, which held that enforcement of the state public accommodations law to a parade violated the First Amendment because it compelled speech. The implication of that concession is that public accommodations laws are subject to rigorous First Amendment scrutiny where they are applied to an activity that is inherently or historically expressive, like a parade or custom website design. And Colorado, the SG's office, and the appeals court all conceded that such designs are "inherently expressive" or "pure speech."

Fletcher also asserted that discrimination against same-sex marriage and status-based anti-gay discrimination cannot be distinguished. This idea has some support in snippets of Supreme Court opinions. But, I argue, it would have unsettling implications if it could be applied to compel speech that opposes same-sex marriage. Such expression could easily be relabelled as "status-based discrimination" based on sexual orientation, which in some contexts violates state or federal law

Finally, I note that several of the justices (including Kavanaugh, Gorsuch, and Barrett) seemed unprepared to hold that even expressive providers could refuse to serve same-sex weddings in all cases. Some website services, like the sale of plug-and-play websites and other pre-made templates, do not have the same implications for the expression of the designer. But the web designer here is proposing to sell custom designs. That's the service or good that should get free speech protection.

I close the op-ed with this thought:

Since Obergefell v. Hodges, the 2015 Supreme Court decision declaring a fundamental constitutional right of gay couples to marry, there have been hundreds of thousands of same-sex weddings in the United States. Only a tiny portion have encountered wedding service providers who decline to take photographs, arrange flowers, or bake cakes because of objections to same-sex marriages.

The nation's tradition of pluralism under the First Amendment can accommodate the few expressive providers who object to same-sex marriages without impairing the very real need to protect gay people in the public marketplace.

First, the backstory from the lower court decision, in Shuman v. New York Magazine:

Plaintiffs commenced the instant action alleging they were libeled in two separate articles published by defendants entitled The Most Gullible Man in Cambridge A Harvard Law Professor Who Teaches a Class on Judgment Wouldn't Seem Like an Obvious Mark, Would He? and The Harvard Professor Scam Gets Even Weirder Six Other Men Describe Their Encounters with the Same Mysterious Frenchwoman. At its most simplistic, the first article pertained to the complicated relationship between the plaintiffs and Harvard professor Bruce Hay ("professor Hay"), but also concerns allegations of rape, paternity extortion, and abuse of process relating to the Title IX process and other judicial proceedings. The second article was a follow up that tells the accounts of six men who reached out to the article's author to recount their allegedly similar encounters with the plaintiffs. Both articles were written by defendant Bolonik. While plaintiffs generally characterize the two articles as completely false and the result of poor investigative reporting, they specifically argue that plaintiffs were defamed through a paternity extortion scheme libel, a "house-napping" libel, a weaponized Title IX sexual harassment investigation at Harvard libel, and by describing their actions as belonging to a "punitive game."

Now, from yesterday's decision by the New York intermediate appellate court:

The content of the magazine articles at issue is well within the sphere of legitimate public concern, and plaintiffs did not adequately allege facts to show defendants acted in a grossly irresponsible manner in writing and publishing them. Where, as here, a publication encompasses matters of public concern and related private behavior, it is not for courts to determine the balance to be stricken; instead, "[t]his is precisely the sort of line-drawing that … is best left to the judgment of journalists and editors."

The Volokh Conspiracy

Court Orders Employer Not to Report Employee's Husband to Immigration Authorities

Monday Bear Blogging: Find Your Way Home Edition

Vladimir v. Vladimir

From Prof. Michael McConnell (Stanford) on the Congress and Presidential Election

Today in Supreme Court History: December 19, 1940

Today in Supreme Court History: December 18, 1944

Military Law Doesn't Clearly Forbid Private Masturbation With Child-Like Sex Doll

Happy Saturnalia!

Coming in 2023: Climate Liberalism: Perspectives on Liberty, Property and Pollution

"Suicide by Cop" Is Covered by Suicide Exclusion in Insurance Policy

Today in Supreme Court History: December 17, 1910

Commonplace Book: "It Is Characteristic of Most Reform Work"

Still No Redaction of Filings Based on Speculation That They'll Lead to "Harassment and Violence" by "Haters"

Judge Plans to Block California Fee-Shifting Statute That Targets Gun Lawsuit Plaintiffs (and Lawyers)

Short Circuit: A Roundup of Recent Federal Court Decisions

Journal of Free Speech Law: "Why Freedom of Expression Is Better Protected in Europe Than in the United States,"

An Assessment of the Oral Argument in 303 Creative

"The Most Gullible Man in Cambridge" Libel Appeal Decided in Favor of New York Magazine

Recent Volokh Posts

Volokh Conspiracy Daily E-mail

For America's 250th, Get 2 Years of Reason for $17.76