The Volokh Conspiracy

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

From Does 1-6 v. Mills, decided yesterday by Judge Jon Levy (D. Me.):

The Plaintiffs are eight Maine healthcare workers and one individual healthcare provider who challenge an August 2021 change to Maine law that requires employees of designated Maine healthcare facilities to be vaccinated against the COVID-19 coronavirus. The Media Intervenors now seek an order unsealing the Plaintiffs' identities, arguing that the Plaintiffs should not continue to be permitted to proceed pseudonymously because the Plaintiffs' alleged fear of harm no longer outweighs the public's interest in open legal proceedings….

At the outset of this litigation, the Plaintiffs moved to proceed pseudonymously, contending that their reasonable fear of harm if their identities were revealed outweighed the public's interest in open litigation. I granted the Plaintiffs' motion in part after taking judicial notice of the substantial public controversy that surrounded COVID-19 vaccination mandates at the time, but I reserved the authority to revisit the issue if the case proceeded beyond the preliminary-injunction stage. {The motion was granted in part to permit the Plaintiffs to proceed pseudonymously as to the public but denied as to Plaintiffs' request to conceal their identities from the State Defendants' counsel of record, the individual State Defendants, and State employees with knowledge of the facts alleged in the complaint and who were determined by State Defendants' counsel to be reasonably necessary to respond to the Plaintiffs' motion for preliminary injunction.} I subsequently denied the Plaintiffs' request for preliminary injunction …, [and the denial] was affirmed by the U.S. Court of Appeals for the First Circuit….

The Federal Rules of Civil Procedure require that all parties be named in the caption of a complaint and do not provide a mechanism for pseudonymous litigation. Fed. R. Civ. P. 10(a) ("The title of the complaint must name all the parties."). "This rule serves more than administrative convenience." "It protects the public's legitimate interest in knowing all of the facts involved, including the identities of the parties." Id. (quoting Frank, 951 F.2d at 322). Additionally, "[t]here is a strong common law presumption favoring public access to judicial proceedings and records," and in general, a case must proceed in the actual names of the parties. In the context of public access to judicial records and documents, the First Circuit has repeatedly explained that such access "allows the citizenry to 'monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system.'" In addition to the common law presumption of public access, courts have generally acknowledged the existence of a qualified First Amendment right of access to certain proceedings and documents in criminal cases, and likely in civil cases as well.

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I am a huge advocate of using pulse oximeters, which measure blood oxygen saturation levels, to help monitor how Covid is affecting one's lungs. A pulse oximeter may have even saved my life; when I caught Covid in fall 2020, I had no trouble breathing but my handy pulse oximeter told me that my measurements were at a level where I should seek medical attention, and physicians in my family told me to go immediately to Georgetown Hospital. Once there, they found significant pneumonia in my lungs, admitted me, treated me, and released me good as new (after a few weeks recovery).

One concern about pulse oximeters, however, has been that they may work less well on people with dark skin. Specifically, that they slightly overestimate blood saturation levels; that slight overestimation, however, can have significant consequences regarding medical attention and treatment.

Today, the Wall Street Journal breathlessly reports on a study that seems to confirm that the concern is warranted.

The recent study looked at more than 7,000 patients diagnosed with Covid-19 between March 2020 and November 2021 at five hospitals in the Johns Hopkins Health System.

Pulse oximeter measurements were taken for all 7,000 patients. More-accurate but invasive arterial blood gas measurements also were taken from about 1,200 of the patients.

When the researchers compared measurements from the arterial blood gas tests with pulse oximeter readings, they found discrepancies among patients of all races but a more pronounced difference for patients of color. Compared with white patients, pulse oximeters overestimated oxygen saturation by an average of 1.2 percentage points among Black patients, 1.1 percentage points among Hispanic patients and 1.7 percentage points among Asian patients.

Some doctors, not quoted, expressed reservations to the Journal, but Dr. Martin Tobin stated that the study shows that pulse oximeters are "intrinsically biased against people of color." That's an oddly unscientific way of putting it; at most, we can say that the device gives less accurate results for people with darker skin pigmentation. Many "white" people have darker skin than many Hispanic, Asian, and some Black Americans.

Which brings me to some concerns about the study. First, you want to measure how accurate pulse oximeters are for people with dark skin, why not directly study that? Self-identified race and ethnicity is a crude substitute for skin tone.

This is particularly true given the internal diversity within each category. The study in question used data from the Johns Hopkins health system. Is the Hispanic and Asian population of the mid-Atlantic representative of the national Hispanic and Asian population in terms of skin tone, given that they have populations with different national origins (e.g., way fewer Mexican Americans on the East Coast than in the nation as a whole)? If so, how dark-complexioned are they compared to whites and African Americans? I doubt anyone has even considered those questions.

And then the results themselves are odd, if skin tone is really the decisive factor. Recall that the study finds that "pulse oximeters overestimated oxygen saturation by an average of 1.2 percentage points among Black patients, 1.1 percentage points among Hispanic patients and 1.7 percentage points among Asian patients." I don't need a scientific study to tell me that the average African American is darker-complexioned than the average Hispanic or Asian American (though if you want scientific studies, we do know from DNA studies that Hispanic Americans have a much higher percentage of European ancestry than do African Americans, which would be reflected in average skin tones.) If dark complexion were the issue, we would expect the overestimation to be greatest among Black patients, not Asians, and we would expect the gap between Black and Hispanic patients to be greater.

The reporter, apparently caught up in the "people of color" paradigm, does not seem to even notice these questions.

The article concludes:

The FDA recommends accuracy studies include 10 or more healthy subjects who vary in age and gender. At least two participants, or 15% of the participant pool, should be "darkly pigmented." The FDA said it was evaluating whether its guidance should be modified.

It strikes me that what needs to be done is a wide scale study that ignores America's unscientific official racial and ethnic categories and directly measures subjects' skin pigmentation, and measures whether darker skin pigmentation correlates with less accurate results. And if the government wants to measure whether pulse oximeters indeed work less well on, e.g., "Asian Americans" for reasons other than complexion, it needs to break the categories down by subgroup; there is no particular genetic or sociological commonality between South Asians like Indians and Pakistanis and East Asians like Chinese and Vietnamese.

[This month, I'm serializing my 2003 Harvard Law Review article, The Mechanisms of the Slippery Slope; I'll begin here with a slightly reordered introduction, which generally summarizes my analysis, but if you want more details, you'll get them in later posts.]

Consider one classic slippery slope claim (more shortly on why it makes sense to so label it): the claim that gun registration (A) might lead to gun confiscation (B). (This was written before D.C. v. Heller (2008) held that gun confiscation is unconstitutional; but Heller, which is a 5-4 decision, may be seen as potentially vulnerable to overruling in the future, and in any event may leave room for confiscation of particular categories of weapons.) Setting aside whether we think this slippery slope is likely—and whether it might actually be desirable—it turns out that the slope might happen through many different mechanisms, or combinations of mechanisms:

Registration may change people's attitudes about the propriety of confiscation, by making them view gun possession not as a right but as a privilege that the government grants and therefore may deny.
Registration may be seen as a small enough change that people will reasonably ignore it ("I'm too busy to worry about little things like this"), but when aggregated with a sequence of other small changes, registration might ultimately lead to confiscation or something close to it.
The enactment of registration requirements may create political momentum in favor of gun control supporters, thus making it easier for them to persuade legislators to enact confiscation.
People who don't own guns are more likely than gun owners to support confiscation. If registration is onerous enough, over time it may discourage some people from buying guns, thus decreasing the fraction of the public that owns guns, decreasing the political power of the gun-owning voting bloc, and therefore increasing the likelihood that confiscation will become politically feasible.
Registration may lower the cost of confiscation—since the government would know which people's houses to search if the residents don't turn in their guns voluntarily—and thus make confiscation more appealing to some voters.
Registration may trigger the operation of another legal rule that makes confiscation easier and thus more cost-effective: if guns weren't registered, confiscation would be largely unenforceable, since house-to-house searches to find guns would violate the Fourth Amendment; but if guns are registered some years before confiscation is enacted, the registration database might provide probable cause to search the houses of all registered gun owners.

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6/1/1925: Pierce v. Society of Sisters is decided.

In April, Justice Barrett urged everyone to "read the opinion." I did so with Netchoice LLC v. Paxton, and so can you. It will only take about fifteen seconds. Indeed, my prefatory remarks here are longer than the opinion itself. Ready, here goes!

The application to vacate stay presented to JUSTICE ALITO and by him referred to the Court is granted. The May 11, 2022 order of the United States Court of Appeals for the Fifth Circuit staying the district court's preliminary injunction is vacated.

Why was the stay granted? Who knows? The shadow docket works in mysterious ways. Indeed, in Doe v. Mills, Justice Barrett laid out an intricate framework to explain when the Court should grant emergency relief. Does the Netchoice case meet that standard? Who knows? Barrett was silent. Alas, there is no opinion to read. Indeed, Barrett has been silent in many cases on the shadow docket. By my count, since Tandon v. Newsom in April 2021, Barrett has ruled against every single religious liberty claimant on the shadow docket. Swipe right for big tech, swipe left for the Becket Fund.

The "read the opinion" line illustrates one of my ongoing concerns with Justice Barrett. In her brief tenure on the Court, she has made several unforced errors in public speeches. You can't tell people to "read the opinion" when you don't write an opinion on the shadow docket. It is such an obvious sinkhole that she fell into. Likewise, her "partisan hacks" line at the McConnell Center, of all places, was tone deaf. Both of these lines came during Q&A, so they were not part of her prepared remarks. Yet, she exercised poor discretion. But more importantly, she created wedges from which people can criticize her, and pressure her to adhere to certain positions.

Even before these two statements, I was extremely worried about the risks of Barrett's lucrative book deal. In April 2021, I wrote:

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let's say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. . . . Justice Barrett's job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Why is Justice Barrett making these errors? I have my own theories. Quickly peruse then-Professor Barrett's Senate Judiciary Committee questionnaire from 2017. Section 12.e asks the nominee to "List all interviews you have given to newspapers, magazines or other publications, or radio or television stations." At that time, Barrett was a professor for approximately fifteen years. Barrett lists 13 items. Most of entries are internal Notre Dame media sources. Barrett had only three interviews on national media. She was on NPR's On Point in 2005 and 2015, and appeared on CBS News in 2016. Section 12.a asks the candidate to list all "letters to the editor" and "editorial pieces." Barrett has none, though she does list comments she left on Prawfsblawg in 2008.

By contrast, then-Professor Stephanos Bibas, who was a professor for roughly the same period, had more than thirteen pages of media hits. Indeed, his questionnaire is nearly three times as long as Barrett's.

I've long worried about Barrett's lack of media experience. It is not a skill that comes naturally. (Over the years, I've worked very hard on my press chops; there is a reason reporters keep calling me back.) And on at least two prominent occasions, Barrett blundered. Twice, she made a tone-deaf statement that would be instantly turned around against her, and pin her into taking certain actions. She treats these discussions like she is still a law professor--open and frank high-minded discourse without much concern for the consequences. Alas, that life of near-anonymous intellectual curiosity must be relegated to her past. Take a page from Justice Kagan's CV, and focus on the job at hand.

Barrett should keep these lessons in her mind for future public events, and for certain when writing this book. Then again, Barrett said at Notre Dame that she has "a policy of trying not to read any coverage that addresses" her. So this message may never make it to her.

The Supreme Court issued orders today, denying certiorari in a raft of cases, temporarily staying the mandate of a Third Circuit decision in a Pennsylvania election dispute, denying a petition for a stay to prevent Texas legislators from having to testify in a voting rights suit, and (perhaps most notably) vacating the Fifth Circuit's stay of a district court order enjoining Texas's social media law, 5-4, in NetChoice, LLC v. Paxton (about which Eugene, Will, and Josh have posts below). Yet somewhat unusually for the day after Memorial Day, the Court issued no opinions.

Despite the relatively spare docket, the Supreme Court has issued opinions in argued cases at the slowest rate in at least a decade. Eight months into the term the Court has issued only 29 opinions in argued cases. There is one month left (assuming the Court sticks to its traditional schedule), and there are thirty-three argued cases to go.

Normally the Court tries to finish up its work by the end of June, but that is looking ever less likely this year. It would be quite something for the Court to average over eight cases per week between now and July 1, but I doubt we can expect that. There are only twenty-one potential opinion days in June, and yet no hand-down days have been announced.

What accounts for the delay? Perhaps the Court is still somewhat slowed by Covid. Perhaps justices and their clerks have been diverted by the high volume of applications and orders on the "shadow docket." Perhaps the high number of contentious high-profile cases has slowed things down. Some have speculated that the recent mass shootings in Buffalo and Uvalde prompted rewrites in the much-awaited gun rights case. Perhaps there are shifting coalitions in one or more cases that kept them from being issued.

I would not be at all surprised if the unprecedented leak of a draft opinion concerning the future of abortion rights in Dobbs is part of the reason for the Court's slow pace. The disclosure of Justice Alito's Dobbs draft almost certainly shattered trust among and between the justices and their respective chambers. The draft's disclosure, followed by the continued leaks of information from within the Court, has likely made the justices more reticent about sharing drafts, distributing memos, or trying to negotiate changes in opinions. What justice wants to propose a compromise that might end up in the Wall Street Journal? Who wants to distribute a path-breaking opinion if a rough draft will be fly-specked on Twitter?

One would expect a breakdown of trust within the institution to affect the Court's internal functioning and deliberation, so it may have contributed to the Court's slow pace. Add to that, the justices and their clerks are also now subject to investigation, leaving less time and attention for the Court's work.

Whatever the cause, the Court has been unusually slow to issue opinions this term. There are many important cases left to decide, and not much time before the Court's traditional summer break.

Critics often accuse the Texas Attorney General of improper forum shopping--picking certain district courts in Texas where there are extremely high odds of drawing a specific judge. This criticism should be directed at Congress, which creates single-member districts. (Chief Justice Roberts made this point in his end-of-year message.) The Attorney General, like any other litigant, should select the forum that is best suited for his case. And forum shopping is rational. Moreover, it is unfair to criticize the judges who receive these forum-shopped cases. They do not have control over their dockets--unless the Chief Judge randomly takes a certain percentage of their cases, which does happen.

Still, conservatives are not the only litigants who forum shop in Texas. Progressive groups have found their court of choice. No, it is not in Brownsville or Amarillo or Victoria or Tyler or Lubbock or Galveston or Fort Worth. It is the U.S. District Court for the Western District of Texas, Austin Division. By my count, virtually every high-profile litigation brought against the state of Texas begins in that division. The division has two active district court judges, one appointed by President Obama and one appointed by President George W. Bush. And there is one senior judge appointed by President George H. W. Bush. On paper at least, the bench looks balanced, perhaps even with a slight conservative tilt. But in reality, the Austin division is the Wichita Falls for progressives. This forum selection appears neutral--sue the Governor and Attorney General in the state capital--but the choice is quite strategic.

I've lost count of how many high-profile Texas laws and policies were preliminarily enjoined in that division. Consider a few: the Texas Israeli boycott law, the Texas social media law, the S.B. 8 fetal heartbeat law, the Texas ban on masks in schools, a limitation on ballot drop-off locations, restrictions on abortion during the pandemic, law concerning fetal remains, the abortion law at issue in Whole Woman's Health v. Hellerstedt, Planned Parenthood's ability to participate in Medicaid, and so on and so on. (I've also had my fair share of losses in that division--which we selected--and I've always felt like I had a fair shake.) Invariably, most of these injunctions are stayed in the Fifth Circuit.

This history brings me to Netchoice, LLC v. Paxton. Once again, a high-profile Texas law was challenged in the Austin Division. And once again it was preliminarily enjoined. And once again, the Fifth Circuit stayed that injunction. The Plaintiffs filed an emergency application with the Supreme Court. And, on the shadow docket, the Court ruled for the Plaintiffs. Here, I wish to flag one line that rings true for Texas court watchers:

While I can understand the Court's apparent desire to delay enforcement of HB20 while the appeal is pending, the preliminary injunction entered by the District Court was itself a significant intrusion on state sovereignty, and Texas should not be required to seek preclearance from the federal courts before its laws go into effect.

Or at least preclearance from the U.S. District Court for the Western District of Texas, Austin Division.

Capitalism is sweet — Victor Fischer/Dreamstime

Earlier today, a California state appellate court ruled that bees qualify as "fish" under the state's Endangered Species Act, and thus four species of bees could be listed as endangered under a provision of the Act that covers "fish." The court indicated that "Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited."

The decision is not as ridiculous as it may seem at first sight. While courts generally interpret words in statutes in accordance with their ordinary meaning, many precedents also hold that this rule can be set aside in situations where it is clear that the legislature used the word as a specialized "term of art" that diverges from common usage. That's what the court concluded here:

A fish, as the term is commonly understood in everyday parlance, of course, lives in aquatic environments. As the Department and the Commission note, however, the technical definition in section 45 includes mollusks, invertebrates, amphibians, and crustaceans, all of which encompass terrestrial and aquatic species.… Moreover, by virtue of the express language in section 2067, the Trinity bristle snail -- a terrestrial mollusk and invertebrate --is a threatened species under the Act and could have qualified as such only within the definition of fish under section 45. In the end, we do our best to determine the Legislature's intent when it enacted the Act, while construing the Act liberally, as we must. (In re Pedro T. (1994) 8 Cal.4th 1041, 1048 ["[i]t is axiomatic that in assessing the import of a statute, we must concern ourselves with the Legislature's purpose at the time of the enactment"]; San Bernadino Valley Audubon Society v. City of Moreno Valley, supra, 44 Cal.App.4th at p. 601 ["[l]aws providing for the conservation of natural resources are of great remedial and public importance and thus should be construed liberally"]….

We conclude a liberal interpretation of the Act,12 supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate is a threatened species (express language we cannot ignore), is that fish defined in section 45, as a term of art, is not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act.

I myself am not entirely convinced that this context is enough to overcome the strong presumption that courts are usually supposed to interpret words in accordance with ordinary meaning. It seems to me that the inclusion of mollusks under the same category as fish could have been treated as an ad hoc exception explicitly added by the legislature, rather than as a general change in the meaning of "fish" that allows almost any type of wildlife to be included in that category.

I will leave further analysis to those with greater expertise on the relevant statute than I have. For now, I will only note that this is the kind of ruling that gives lawyers a bad reputation among laypeople. Few if any nonlawyers could take seriously the notion that bees qualify as fish!

That doesn't mean that the lay reaction to a case like this is necessarily right. When experts disagree with laypeople on technical matters, the former are often right precisely because of their specialized knowledge. But if interpreting the meaning of a simple term like "fish" can lead to counterintuitive conclusions that only experts can fathom, that seriously undercuts the idea that law is supposed to be clear and accessible to ordinary people.

Imagine an ordinary Californian reading the state Endangered Species Act to try to determine what actions might violate it. Such a person would be hard-pressed to figure out that harming bees is a no-no because the latter legally qualify as fish! That's the kind of thing you pretty much have to be a lawyer to think of.

UPDATE: Co-blogger Jonathan Adler, an expert on environmental law, has a post on the case here. I wrote the above before noticing that he had beaten me to the punch by a few minutes.

UPDATE 2: Robert Thomas offers a more critical view of the court's ruling at the Inverse Condemnation blog.

Concerned for the plight of bumble bees, environmental organizations petitioned the California Fish and Game Commission to list four bumble bee species--the western bumble bee, Franklin's bumble bee, Crotch's bumble bee and the Suckley cuckoo bumble bee--as "endangered" under the California Endangered Species Act (CESA). There was only one problem: The CESA provides for protection of "native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct." Notice anything missing? There is no mention of insects, or even invertebrates, let alone bees.

Concerned about the potential economic impact of listing bumble bees as "endangered species," various agricultural groups sued to stop the Commission from listing the bees, arguing that the Commission lacks the authority to list bumble bees (or other insects) as "endangered" under the the CESA. A trial court initially agreed with the agricultural groups. Today, however, an appellate court sided with the environmental groups, concluding that bumble bees could be "endangered species" under the CESA because they qualify under the Act's definition of "fish."

In Almond Alliance of California v. Fish and Game Commission, the court concluded that "[a]lthough the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 [of the CESA] is not so limited." Because the definition of "fish" includes invertebrates, the court concluded, and bees are invertebrates (albeit not of the aquatic kind), bees are covered by the CESA. This interpretation, the court argued, was also consistent with prior case law adopting an expansive definition of the CESA's provisions and the statute's purpose and legislative history.

From the opinion:

We conclude a liberal interpretation of the Act, supported by the legislative history and the express language in section 2067 that a terrestrial mollusk and invertebrate is a threatened species (express language we cannot ignore), is that fish defined in section 45, as a term of art, is not limited solely to aquatic species. Accordingly, a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under the Act. . . .

Reading the opinion reminded me of me of why I considered using this case in my Legislation and Regulation exam (though some of the technical detail also reminded my why I ultimately chose to take a different course).

More from the opinion:

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list. In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature's approval of the Commission's listing of a terrestrial mollusk and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein. We thus decline to apply the statutory interpretation canon here.

So while bees are generally not considered to be a type of fish, they qualify as such under California law (at least under this one court opinion).

UPDATE: Ilya has some thoughts on the opinion here.

I also strongly recommend this thread by Lawrence Solum on the court's use of "Semantic availability" to reach its conclusion that the CESA's definition of "fish" includes terrestrial invertebrates such as bumble bees.

Among other things, Solum observes that the CESA (like the federal Endangered Species Act) uses a stipulated definition to define a term (in this case, "fish") to include more than the term would normally be understood to cover. So "fish" includes more than just fish under the CESA, just as the term "species" in the federal ESA is defined to include more than just species (specifically, subspecies and distinct populations). [Also, the federal ESA defines "endangered species" to exclude "species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man."]

The question, of course, is how far the new definition extends. As Rick Hills notes, Justice Scalia had a thought on this question in his Sweet Home dissent: "The tempting fallacy…is to assume that once defined, [the defined term] loses any significance, and it is only the definition that matters." Thus the court here interprets the broadened definition of fish to include non-aquatic species, even though most interpreters would recognize the text of the language as substituting a colloquial understanding ("fish" are those animals that live in water) for a technical one. The court justifies this move by invoking the CESA's purpose. Like Ilya, I am not convinced.

SECOND UPDATE: Maybe this opinion is simply more evidence that fish is an indistinct category.

As Eugene Volokh notes, the Supreme Court today reinstated a trial court preliminary injunction blocking enforcement of Texas' social media law. This reverses a 2-1 Fifth Circuit court of appeals ruling lifting the injunction and ensures that the law cannot go into effect as the appeals process proceeds. Among other things, the law in question bars major social media sites like Facebook and Twitter from imposing almost any content-based restrictions on the material users are allowed to post on their sites.

Eugene and Will Baude have useful commentary about various aspects of this ruling. I would add the point that, while this is not a final decision on the merits, it strongly suggests that at least five Supreme Court justices believe the law is unconstitutional, violating the First Amendment.

One of the criteria for granting a preliminary injunction in federal court is that the plaintiff must prove they are likely to succeed on the merits. The five justices who voted to reinstate the preliminary injunction - Chief Justice Roberts, Breyer, Sotomayor, Kavanaugh, and Barrett - are well aware of this fact. They almost certainly would not have voted as they did unless they believe the law is indeed likely to be unconstitutional.

Obviously, they also must have concluded that the case meets the other standards for a preliminary injunction. As Judge Robert Pitman explained in the trial court ruling granting the injunction, these are that the plaintiff must show "he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."

It's also possible that one or more of the dissenting justices also might ultimately conclude that the law is unconstitutional. Justice Elena Kagan dissented without opinion. Thus, we don't know which factor she believes the plaintiffs failed to prevail on. It could be she thinks they are wrong on the merits. But it could also be she concluded they fall short on one of the other three requirements.

Justice Samuel Alito wrote a dissent joined by Clarence Thomas and Neil Gorsuch. That dissent does indeed focus on likelihood of success. But significantly, it does not conclude that Texas is actually likely to prevail, merely that the plaintiffs haven't met their burden because "I have not formed a definitive view on the novel legal questions that arise from Texas's decision to address the 'changing social and economic' conditions it perceives." Alito suggests, therefore, that he is uncertain about the right outcome here. Thus, it is possible that one or more of these justices could also rule in favor of the plaintiffs if the Court ever decides to address this issue on the merits.

Such a vote in favor of the plaintiffs is unlikely in the case of Justice Clarence Thomas, who has previously expressed sympathy for the argument that the government can treat social media firms as "common carriers" required to post virtually any content without discrimination. But it is more plausible for Alito and Gorsuch, neither of whom joined Thomas' 2021 concurring opinion expressing that view.

I have previously argued that the Texas law and others like it do indeed violate the First Amendment, and would pose a grave threat to freedom of speech if upheld (see also here for my critique of the common carrier theory). I agree with Judge Pitman's analysis in his ruling against the Texas law, and with the recent Eleventh Circuit appellate ruling against Florida's similar legislation. The Eleventh Circuit decision was authored by Judge Kevin Newsom, a conservative Trump appointee.

While today's Supreme Court ruling is far from the end of the litigation over these issues, it sends a strong signal that the Court is likely to strike down laws like those enacted by Texas and Florida, should they ever take a case addressing these matters. And there is a good chance the issue will indeed eventually get to the Supreme Court, if lower appellate courts end up being divided on it. It's an obviously important cutting-edge constitutional question, and the justices are unlikely to allow a circuit split on it to persist for long.

Paul Rosenzweig and I butt heads over the recent 11th Circuit decision mostly striking down Florida's law regulating social media platforms' content "moderation" rules. We disagree flamboyantly on pretty much everything else – including whether the Court will restore the district court injunction blocking Texas's similar law. He thinks it will, I think it won't. And, by 5-4, the Court gives Paul the win. Just after the podcast ended, we learned that the Court had made its decision and blocked the Texas law.

When it comes to content moderation, it turns out, Silicon Valley is a lot tougher on the Libs of TikTok than on the Chinese Communist Party (CCP). Instagram just suspended the Libs of Tiktok account, I report, while a recent Brookings study shows that the Chinese government's narratives are polluting Google and Bing search results on a regular basis. Google News and YouTube do the worst job of keeping the Chinese party line out of searches. Both Google News and YouTube return CCP-supportive links on the first page about a quarter of the time.

I ask Sultan Meghji to shed some light on the remarkable TerraUSD cryptocurrency crash. Which leads us, not surprisingly, from massive investor losses to whether financial regulators have jurisdiction over cryptocurrency. The short answer: Whether they have jurisdiction or not, all the incentives favor an assertion of jurisdiction, so buckle up. And Nick Weaver is with us in spirit when we flag his rip-roaring attack on every bit of cryptocurrency – a don't-miss-it interview for readers who can't get enough of Nick.

It's a big episode for Artificial Intelligence (AI) news too. Matthew Heiman contrasts the different approaches to AI regulation in three big jurisdictions. China's is pretty focused, Europe's is ambitious and all-pervading, and the United States isn't ready to do anything.

Paul thinks DuckDuckGo should be DuckDuckGone after the search engine allowed Microsoft trackers to follow users of its browser.

Sultan and I explore the many ways to bias AI algorithms. It turns out that skimping on datasets makes the algorithm especially sensitive to the order in which the data is presented. Debiasing with synthetic data has its own risks, Sultan avers. But if you're looking for good news, here's some: Self-driving car companies who are late to the party are likely to catch up fast, because they can build on a lot of data that's already been collected, as well as new training techniques.

Matthew breaks down the $150 million fine paid by Twitter for allowing ad targeting of the phone numbers its users supplied for two-factor authentication (2FA) security purposes.

Finally, in quick hits:

Matthew recommends that we all get popcorn for Spain's planned investigation of its intelligence services following a phone hacking scandal.
Sultan and I call time of death for the Klobuchar bill regulating Silicon Valley self-preferencing. It was the most likely of all the Silicon Valley competition bills to pass, but election year tensions and massive lobbying campaigns by industry have almost certainly made its path to enactment too steep.
And Sultan notes that the Commerce Department has published with relatively little change its rule restricting exports of hacking tools.

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I'm on the run and can't discuss this in detail, but I thought that I'd link to it (Palin v. N.Y. Times Co.) and excerpt the opening:

Now before the Court is plaintiff Sarah Palin's post-trial motion. She first seeks the Court's retroactive disqualification, arguing that various aspects of the Court's management of her libel trial suggest bias against her. In the alternative, she seeks either a new trial or reconsideration of the Court's prior ruling that entered final judgment in favor of defendants The New York Times Company and James Bennet based on their motion under Fed. R. Civ. P. 50 for judgment as a matter of law. Because Palin's instant motion is wholly lacking in merit, the Court denies it in full.

Whatever she may have claimed in her complaint and pre-trial submissions, Palin was unable to deliver at trial admissible evidence that remotely supported her claim that she was intentionally or recklessly defamed by the defendants. As the Court clearly explained at some length in its Rule 50 Opinion dated March 1, 2022, which is re-adopted here by reference, Palin wholly failed to establish several essential elements of her claim.

Among other things, in the end she offered no affirmative evidence that Bennet or others who worked on the Editorial that is the subject of her claim knew or suspected before publication that the Challenged Statements, which linked Palin's Crosshairs Map to the Arizona shootings of Representative Gabby Giffords and others, were false. Indeed, none of the sources or research upon which the Editorial Board relied to draft, revise, and publish the July 14, 2017 Editorial expressly denied Bennet's inference that Palin's Crosshairs Map had played a causal role in the Arizona shooting. And when cautionary information was brought to defendants' attention, the Times promptly retracted the Challenged Statements. No reasonable juror could therefore have found by clear and convincing evidence that Bennet and the Times published the Challenged Statements with actual malice.

Free Speech Libel

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Today Eugene and I filed an amicus brief in the Supreme Court in support of the petitioners in 303 Creative LLC v. Elenis, arguing that wedding-website designers cannot be required by a state public accommodations law to create website designs for same-sex couples. The Tenth Circuit erred in concluding otherwise, undermining a freedom critical to the LGBT-rights movement itself.

Here is the Summary of Argument:

This case is about protecting the constitutional right to free expression while allowing government to generally ensure equal access to commercial goods and services.

"Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth," this Court wrote in Masterpiece Cakeshop, Ltd. v. Colorado C.R. Comm'n, 138 S. Ct. 1719, 1727 (2018), another case involving Colorado's ongoing efforts to eliminate the discrimination it once fostered (see Romer v. Evans, 517 U.S. 620 (1996) (invalidating state constitutional amendment denying civil rights protections to homosexuals)). "For that reason," this Court continued, "the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts." Masterpiece Cakeshop, 138 S. Ct. at 1727.

At the same time, the First Amendment freedom not to speak must include the freedom not to create speech, and the freedom to choose which speech to engage in or create based on the religious, political, or sexual-orientation-related content of the speech. A freelance writer cannot be punished for refusing to write press releases for the Church of Scientology, even if he is willing to work for other religious groups. A musician cannot be punished for refusing to play at Republican-themed events, even if he will play at other political events, and even if the jurisdiction bans discrimination based on political affiliation in public accommodations. See Eugene Volokh, Bans on Political Discrimination in Places of Public Accommodation and Housing, 15 NYU J. L. & Liberty 490 (2021). Likewise, a photographer or a wedding singer should not be punished for refusing to take photographs celebrating a same-sex wedding, or for refusing to sing at such a wedding.

Indeed, this Court has generally recognized that the First Amendment protects the right of individuals to speak, or to refrain from speaking, even when the government cites a compelling interest in forbidding discrimination. In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), for example, this Court held that a state public accommodations law could not constitutionally require that organizers of a St. Patrick's Day Parade let an Irish gay, lesbian, and bisexual contingent march behind a banner merely proclaiming their presence.

Of course, the First Amendment shields refusals to speak, but does not extend to refusals to do things that are not a form of speech. Limousine drivers, hotel operators, and caterers should not have a Free Speech Clause right to exempt themselves from antidiscrimination law in their professional activities, because in those cases the law is not compelling them to speak or to create First Amendment-protected expression. Likewise, though the First Amendment shields refusals to participate as a co-creator in others' speech— say, as an actor or a musical accompanist or a singer— again the limousine driver, hotel operator, or caterer would not qualify as co-creators of the speech involved in the wedding. This Court has rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O'Brien, 391 U.S. 367, 376 (1968). There must also be limits set on the variety of conduct compulsions that can be labeled "speech compulsions," and on the degree and quality of involvement that can be labeled compelled "participation" in a ceremony.

Fortunately, this case does not call on this Court to define such limits with precision, because there is no serious question that it involves compelled speech. The Tenth Circuit recognized that Smith's "creation of wedding websites"—through her sole proprietorship, 303 Creative—"is pure speech." Pet. 20a. It acknowledged specifically that the Accommodations Clause of the Colorado Anti-Discrimination Act ("CADA") "compels [Smith] to create speech" celebrating marriages that her conscience tells her she cannot celebrate and understood that such compulsion necessarily "works as a content-based restriction." Pet. 22a–23a. The lower court even recognized that Smith is willing to work with, and design websites for, LGBT customers in nearly all other circumstances. Pet. 6a.

Yet the Tenth Circuit failed to follow this Court's speech-protective lead in Hurley and other decisions. Pet. 19a–34a. If Smith sells graphic designs celebrating the marriages of some couples, according to the Tenth Circuit, Colorado can demand that she create and sell similar graphic designs to celebrate the marriages of all couples. Pet. 27a–28a. In essence, even though comparable website-design services are widely available, the lower court believed that the harm of being denied access to a single person's creative designs is sufficient to let the government compel that person to speak in ways that violate her conscience. See Pet. 26a–32a. That cannot be correct.

Because it is easy to appreciate how this case implicates speech rights—as even the Tenth Circuit did—it affords this Court a prime opportunity to affirm the basic holding of Hurley, Wooley v. Maynard, 430 U.S. 705 (1977), and Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974): the First Amendment's protections for the "individual freedom of mind" mean that the government may not require people to create and distribute speech with which they disagree and cannot force them to change their message because they have decided to speak. Wooley, 430 U.S. at 714.

In Masterpiece Cakeshop, this Court expressly recognized the "authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services." 138 S. Ct. at 1723. This case allows this Court to add that, despite their importance, state laws prohibiting discrimination in such public accommodations are subject to the First Amendment's limits on governmental power. And it provides this Court the opportunity to reject the corrosive version of strict scrutiny applied by the Tenth Circuit, which defers to the state's choice of means in any case involving custom expressive products in the commercial marketplace

And we offer this thought from the Conclusion:

The First Amendment has historically protected the rights of Americans to organize politically and to advocate unpopular causes. This protection has been especially critical for the LGBT-rights movement. See Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, 72 SMU L. Rev. 375 (2019); Carpenter, Expressive Association, 85 Minn. L. Rev. at 1525-33. With such expressive freedom secure, "[m]illions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives." Bostock v. Clayton Cty., 140 S. Ct. 1731, 1837 (2020) (Kavanaugh, J., dissenting).

Joining us as amici were Ilya Shapiro (formerly with the Cato Institute), the American Unity Fund (AUF), and the Hamilton Lincoln Law Institute (HLLI). Contributing as counsel were Devan Patel of AUF, and Theodore Frank, Anna St. John, and Adam Schulman of HLLI. I want to thank my research assistant Joshua Diaz (SMU Law '23) for his invaluable assistance on the brief.

The Supreme Court has just vacated the Fifth Circuit's stay of a district court's preliminary injunction against HB20, Texas's new social media law by a 5-4 vote. Justice Alito (joined by Justices Gorsuch and Thomas) wrote a dissent. (Justice Kagan also noted that she would deny the stay, but did not say why.) I'm sure that these issues will go to the Supreme Court reasonably soon and that others will have much to say on the merits. (I note that the dissent cites Eugene's recent article on social media companies as common carriers.) But I wanted to flag a little procedural question about how the Court handles these applications.

When the Supreme Court grants these applications, one of the things it is supposed to consider is the likelihood that the applicant will eventually succeed before the Supreme Court. This is especially tricky because the Supreme Court has a lot of degrees of freedom. It can overturn and distinguish its own precedents in a way that lower courts don't feel free to do. How should that factor in? Should the Court consider the cases under "existing law" or under what it thinks the law should look like after it decides the case?

Here is what Justice Alito says:

I cannot agree with the Court's disposition. To be entitled to vacatur of the stay, applicants must show, among other things, a "substantial likelihood of success on the merits." Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 5). Members of this Court have argued that a determination regarding an applicant's likelihood of success must be made under "existing law," Merrill v. Milligan, 595 U. S. ___, ___ (2022) (ROBERTS, C. J., dissenting) (slip op., at 1); Wisconsin Legislature v. Wisconsin Elections Commission, 595 U. S. ___, ___ (2022) (SOTOMAYOR, J., dissenting) (slip op., at 1) ("existing precedent"). And whether applicants are likely to succeed under existing law is quite unclear. . . . .

There is a funny ambiguity here. Justice Alito does not come out and say that you should judge these cases under "existing law." Instead he just cites other Justices who have said so. And what's more, he is citing dissents in cases where he was in the majority. In those earlier cases (especially Merrill v. Milligan, which is likely to dramatically change the standard for suits under Section 2 of the Voting Rights Act), Justice Alito did not seem to think he should judge the cases under existing law.

But in Netchoice, Justice Alito goes on to judge the case only under existing law. Is he concluding that the dissents were right, at least on that point about the legal standard? Or is the idea that a Justice can choose whether to judge the case under existing precedent, or under anticipated future precedent? (If so, we can add yet another example to Precedent and Discretion.) It's curious.

(I know I said I'd leave the merits to others, but since it is a hobbyhorse of mine I will add that I think Justice Alito makes a fair point about severability, elsewhere in his dissent. It seems at least plausible that what the Supreme Court should have done is lift the stay as to Section 7's anti-censorship provisions, while leaving the stay in place as to some of the other provisions. It's unclear to me whether a majority of the Court concluded that there was a likelihood of success as to all of the challenges, or whether it just didn't want to think about severability for some reason.)

From the Supreme Court today in Netchoice, LLC v. Paxton; this isn't a decision on the merits, but only a decision on whether the Texas social media viewpoint neutrality law should be stayed pending appeal. The district court, which said the law was likely unconstitutional, had said stay; the Fifth Circuit, which hasn't yet announced a decision on the merits, had said no stay; the Supreme Court, again without a decision on the merits, says stay (again, pending appeal).

Chief Justice Roberts, joined by Justices Breyer, Sotomayor, Kavanaugh, and Barrett voted to vacate the Fifth Circuit's decision, which is to say voted to put the Texas law on hold pending appeal.

Justice Kagan voted to deny the application to vacate the stay (with no further comment), which means she would have kept the Texas law in effect pending appeal.

Justice Alito, joined by Justices Thomas and Gorsuch, would have kept the Texas law in effect pending appeal, and wrote this dissent:

This application concerns issues of great importance that will plainly merit this Court's review. Social media platforms have transformed the way people communicate with each other and obtain news. At issue is a ground-breaking Texas law that addresses the power of dominant social media corporations to shape public discussion of the important issues of the day.

The law in question, HB20, regulates "social media platform[s]" that are "open to the public;" that "enabl[e] users to communicate with other users for the primary purpose of posting information, comments, messages, or images;" and that have at least "50 million active users in the United States in a calendar month." Section 7 of HB20 prohibits these platforms from "censor[ing]" users based on viewpoint, and §2 requires covered platforms to disclose certain information about their business practices, including an "acceptable use policy" and "a biannual transparency report." These platforms must also establish procedures by which users can appeal a platform's decision to "remove content posted by the user." …

To be entitled to vacatur of the stay, applicants must show, among other things, a "substantial likelihood of success on the merits." Members of this Court have argued that a determination regarding an applicant's likelihood of success must be made under "existing law."

And whether applicants are likely to succeed under existing law is quite unclear.

Social Media Common Carrier Free Speech

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From Parrot Pointe Marine, Inc. v. Sandow, decided two weeks ago by the Illinois Appellate Court, in an opinion by Justice Thomas Welch joined by Justices Judy Lynn Cates and Milton Wharton; the dispute stemmed out of a marina's eviction of a boat owner, but the trial court also included this in its order:

The Parties shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks which are disparaging, deleterious or damaging to the integrity, reputation or good will of the other Party.

Unconstitutional, said the appellate court:

Free Speech Libel

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As I noted in my introductory post today, I'm planning on serializing my The Mechanisms of the Slippery Slope article; and in between the substantive posts, I'll be posting some examples of slippery slope arguments from various famous sources (and responses to such arguments). It's mostly for fun, though partly to remind us about how deep these arguments run; here's the first, from Aristotle's Politics:

In well-blended constitutions therefore, if care must be taken to prevent men from committing any other breach of the law, most of all must a small breach be guarded against, for transgression of the law creeps in unnoticed, just as a small expenditure occurring often ruins men's estates; for the expense is not noticed because it does not come all at once, for the mind is led astray by the repeated small outlays, just like the sophistic puzzle, 'if each is little, then all are a little.' This is true in one way but in another it is not; for the whole or total is not little, but made up of little parts. One thing therefore that we must guard against is this beginning ….

Slippery Slope Arguments Law & Government

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District of Columbia v. Heller was decided during the OT 2007 Term. Justice Scalia wrote the majority opinion and Justice John Paul Stevens wrote the principal dissent. In 2019, Justice Stevens wrote an article for the Atlantic charging that Heller was the worst decision of his tenure. And in the essay, he highlighted the role his law clerk, Kate Shaw, played during that case.

Before the argument, I had decided that stare decisis provided a correct and sufficient basis for upholding the challenged gun regulation, but I nonetheless asked my especially competent law clerk, Kate Shaw, to make a thorough study of the merits of the argument that an independent review of the historical materials would lead to the same result. I wanted that specific study to help me decide which argument to feature in my dissent, which I planned to complete and circulate before Scalia completed his opinion for the majority. Shaw convinced me that Miller had been correctly decided; accordingly, I decided to feature both arguments in my dissent, which we were able to circulate on April 28, 2008, five weeks before Scalia circulated the majority opinion on June 2, 2008.

Shaw, now a law professor at Cardozo, wrote an op-ed in the New York Times with John Bash, who clerked for Justice Scalia during OT 2007. I am not aware of any public statement that Justice Scalia made identifying Bash's role in the process. The Op-Ed is titled, "We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong." And the authors acknowledge that they had assisted their bosses with their respective opinions:

We each assisted a boss we revered in drafting his opinion, and we're able to acknowledge that work without breaching any confidences. Justice Scalia had a practice of signing one opinion for a clerk each term, which permitted the clerk to disclose having worked on that case, and for John, that was Heller; Justice Stevens noted in his 2019 autobiography, "The Making of a Justice," that Kate was the Heller clerk in his chambers.

It is common for a Supreme Court clerk to disclose that he or she worked on a particular opinion. But the New York Times did not give Shaw and Bash a byline to disclose an anodyne fact. The authors proceed to then discuss the very decision they helped write. Much of the guest essay consists of quoting the opinion itself. Again, any competent Second Amendment scholar can quote from Heller. Their expertise lies, if at all, in what they know about the case from their personal experiences.

Rather, we think it's clear that every member of the court on which we clerked joined an opinion — either majority or dissent — that agreed that the Constitution leaves elected officials an array of policy options when it comes to gun regulation.

It is clear that every member of the Heller majority signed onto the qualifying language that limited the Second Amendment. But did everyone, including Justice Thomas, actually "agree" with that language? Presumably, judges of all stripes sometimes put their name on something they do not fully agree with. We have no idea what the members agreed to. And there is no guarantee they still hold those views, or would sign a similar opinion today. Still, there is at least an implication that this use of "agree" has some greater meaning. Maybe it does. Maybe it doesn't. But because Shaw and Bash were behind the curtains, we cannot know what they know.

I have some pause with the notion that law clerks can become the expositors of the opinions they helped draft. Their role lends them a credibility that they should not tread on. The authors admit that their views are not "authoritative."

Justices don't control the way their writings are interpreted by later courts and other institutions; certainly law clerks don't. So we're not asserting that our views on Heller are in any way authoritative. But we know the opinions in the case inside and out.

Of course. But many people know the case inside and out. I've read Heller more times than I can count. The reason the NYT gave Shaw and Bash this byline was because of their personal work.

Moreover, the timing of this piece is even more problematic in light of the leak. At this moment, law clerks should not take any step to publicize their personal roles inside the Court. Do not glamorize the aura of the elite. This op-ed, whether deliberate or not, sets a precedent for the clerks assigned to Dobbs to later interpret that decision.

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