I'm delighted to report that Lael Weinberger (Olin-Searle-Smith Fellow in Law & Lecturer, Harvard Law School) will be guest-blogging this coming week on this forthcoming Notre Dame Law Review article of his; the abstract:
American courts apply "church autonomy doctrine" to protect the self-governance of religious institutions, based on both of the First Amendment's religion clauses. Church autonomy's defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the "sphere sovereignty" theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to articulate them, leaving the case law in a state of ferment.
This article makes the case that, contrary to the critics, church autonomy is limited by an accountability principle, itself resting on the same bases that have been used to defend the most robust version of church autonomy. First, the social pluralist theory of sphere sovereignty does not just defend a place for religious institutions to exercise their own self-governance over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harms. Second, the deep history of church-state relations that has shaped the pro-church autonomy caselaw and scholarship alike also has rich resources to defend a principle of accountability.
After presenting the theoretical case for the coexistence of autonomy and accountability principles, this article presents a doctrinal roadmap for how courts can locate the limits of church autonomy. Drawing on doctrinal elements already present in the case law, the approach outlined here can be applied to provide accountability and limit church autonomy in key cases—and it can be done without contradicting any existing Supreme Court doctrine.
Some implications of the government's decision not to seek a stay of the district court ruling. Plus, the low quality of the trial judge's opinion doesn't necessarily mean there are no good arguments against the mandate's legality.
Last Monday's US district court ruling against the legality of the CDC transportation mask mandate has transformed air travel in the United States, allowing passengers and crew to fly maskless for the first time in many months. While many (myself included!) were happy to be free of masks, it is also true Judge Kathryn Kimball Mizelle's opinion has serious flaws. It was widely panned by commentators, including some (myself again included) who are on the political right, oppose the mask mandate policy, or both. Other examples of such critics include Andrew McCarthy of the National Review, and David French and Sarah Isgur of The Dispatch.
I continue to believe that Judge Mizelle got a lot wrong. But it is important to emphasize there are also some flaws in the administration's position. Appellate judges on the US Court of Appeals for the Eleventh Circuit could still eventually rule against the government. If they do so, that might well be a defensible ruling, so long as they avoid endorsing Mizelle's more dubious claims.
It's important to remember that the Eleventh Circuit's job is not to grade the lower-court judge's performance, but to assess the legal case against the mask mandate. If even one of the arguments against the latter holds, they must rule in favor of the plaintiffs challenging the policy - even if they also conclude (correctly!) that Judge Mizelle made many mistakes in her analysis of other issues in the case.
One development that casts the government's position in a bad light is the Biden administration's apparent decision not to seek a stay of the district court's ruling. The Justice Department has appealed the district court decision. But they have not asked the Eleventh Circuit to issue a stay until the the appellate panel can reach a final decision. As a result, the district court ruling will remain in effect until the Eleventh Circuit resolves the case - which could easily take weeks or even months.
If the administration truly believes the mask mandate is an essential public health measure that saves large numbers of people from death or serious illness, one would expect them to seek a stay! Failure to do so is a sign they may not actually have much faith in the official rationale for the mask mandate policy.
Experts sympathetic to the mask mandate policy conjecture that the decision against seeking a stay indicates the administration does not actually care about perpetuating the mask mandate, but is only appealing to preserve the power of the Centers for Disease Control (CDC) for the future:
Does the Biden administration really want and intend to fight for a higher court reversal of the ruling this week striking down its mask mandate on airplanes, trains and other public transportation — as its high-profile appeal of the case seemed to suggest?
Legal specialists raised another possibility: The administration may instead be buying time and thinking about trying to erase the ruling — a move that would allow it to protect the powers of the Centers for Disease Control and Prevention to respond to a future crisis — but without reviving a mask mandate.
The tell, several outside specialists said, was that the Biden administration was letting days pass without seeking a stay of the ruling, the step that could most immediately resurrect the mask requirement.
"Basically, it is giving up on the mask mandate," said Lawrence O. Gostin, a Georgetown University professor of global health law who advised the White House on the case. "The administration's goal is a legal principle, which is to ensure that the C.D.C. has strong public health powers to fight Covid and to fight future pandemics. And it appears much less important to them to quickly reinstate the mask mandate…"
If the government really wanted to fight its appeal all the way to a decision on whether to overturn Judge Mizelle, said Stephen I. Vladeck, a University of Texas at Austin law professor who specializes in federal courts, "then they totally botched this, because it's Thursday and the ruling was on Monday and they haven't done anything about it yet."
But Mr. Vladeck contended that the failure to seek a stay may make sense if the Biden legal team was instead trying to protect the C.D.C.'s power with no real intention of trying to get a higher court to reinstate the mask mandate.
He pointed to an obscure legal doctrine under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court's ruling — meaning wipe it from the books.
The government, he said, may be giving itself that option after the mandate's planned expiration on May 3.
If Gostin and Vladeck are right, CDC public health policy seems increasingly untrustworthy. In previous posts on the mask mandate policy (see here and here), I noted the serious weaknesses in the case for the transportation mask mandate, and linked it to previous instances where CDC policy seems driven by political pressure rather than by "following the science." But more damning than the skepticism of outside critics like myself is this apparent indication that even the Biden administration doesn't really believe the transportation mask mandate is necessary, and therefore isn't actually trying to get it reinstated as soon as possible.
At the very least, this state of affairs weakens arguments that the CDC deserves special judicial deference to its supposedly apolitical expertise on pandemic-related policy. In reality, agency policy seems heavily politicized.
One can defend the administration and the CDC on the grounds that, while the legal and policy case for the mask mandate is strong, conservative appellate judges on the Eleventh Circuit are likely to uphold Judge Mizelle's decision anyway, because of their supposed bias against public health measures.
This overlooks the reality that conservative judges - including those on the Supreme Court - have voted to uphold many Covid-era public-health measures that have stronger legal support. Notable examples include recent Supreme Court decisions upholding the Biden administration vaccination mandates for health care workers and for members of the armed forces.
The implicit prediction that any appellate ruling against the transportation mask mandate would necessarily be a result of incompetence or bias is also wrong because of factors specific to this case.
Recall that Judge Mizelle's ruling against the mask mandate was based on three justifications: 1) that the policy exceeded the agency's powers under 42 U.S.C. Section 264(a), 2) that the CDC violated the Administrative Procedure Act (APA) by failing to go through the notice and comment rule-making process, and 3) the policy was so irrational as to be "arbitrary and capricious."The plaintiffs challenging the mandate need only prevail on one of these three issues to win the case.
I think Judge Mizelle is pretty obviously wrong about the third issue. While the transportation mask-mandate policy is badly flawed, it is not so completely ridiculous as to be "arbitrary and capricious." By contrast, as I noted in my earlier post, there is a very plausible case that the CDC violated the APA. Even if the emergency nature of the situation justified bypassing notice-and-comment processes when the policy was first adopted in early 2021, there is much less excuse for continuing to circumvent normal procedure during the many months that have passed since then. Notice and comment requirements, it should be emphasized, are more than a mere technicality. They allow people affected by regulations to have some voice, and to influence the government to mitigate their burdens.
The issue of the CDC's authority under Section 264(a) is an intermediate case. The plaintiffs' argument here is weaker than on the APA, but not as weak as on the "arbitrary and capricious" standard.
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. [a later statute gives this authority to the CDC rather than the Surgeon General]
The government argues that the transportation mask-mandate qualifies as a "sanitation" measure under the terms of the statute. For reasons outlined in my earlier post, Judge Mizelle's definition of "sanitation" as limited to "a positive act to make a thing or place clean" doesn't make much sense. But I also emphasized that the definition of "sanitation" under the statute must be narrow enough to avoid making the other powers listed in Section 264(a) redundant. In addition, it must be narrow enough to avoid giving the CDC the power to restrict virtually any human activity that might potentially spread disease - which the Supreme Court (correctly) ruled is unacceptable for a wide range of reasons in the eviction moratorium case, which interpreted the very same law.
In my view, the most plausible definition of sanitation is likely to be one that avoids these two pitfalls, while also allowing the CDC to adopt a transportation mask mandate. But there could potentially be defensible options that exclude the mask mandate - ones more plausible than Judge Mizelle's weak theory.
Some commentators, including Andrew McCarthy, suggest that the mask mandate may be authorized by the very first sentence of Section 264(a), which gives the CDC the power to "make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession." If so, the government need not rely on the word "sanitation" in the second sentence.
But if the first sentence is an independent grant of power, it would run afoul of the Supreme Court's ruling in the eviction moratorium case, which held that Section 264(a) cannot be interpreted to give CDC virtually unlimited authority to restrict or shut down nearly any human activity. After all, as I and other critics of the eviction moratorium repeatedly emphasized, almost any form of human interaction risks spreading communicable diseases in some way. Following the Court's reasoning in the eviction moratorium case, we should interpret the second sentence of Section 264(a) as setting out the types of regulations the CDC is allowed to enact in its efforts to pursue the public health objectives laid out in the first sentence.
There are some other issues in the case, which space constraints preclude me from covering here, most notably the question of whether Judge Mizelle was right to order a "nationwide" or "universal" remedy, as opposed to one limited to plaintiffs. But my tentative bottom-line conclusion is that the case against the transportation-mask mandate is stronger than Judge Mizelle's badly flawed opinion makes it seem. On balance, I still think the government has the better-supported legal position. But a ruling against the mandate would be defensible, so long as it avoids the district court's particularly egregious errors.
Critics are right to point out that some Western nations are treating Ukrainian refugees better than those fleeing similar horrific situations elsewhere. But the right way to address the problem is to increase openness to other refugees, not exclude Ukrainians.
Russia's brutal invasion of Ukraine has created a massive refugee crisis, with over 5 million Ukrainians fleeing the country. Many Western countries have admirably accepted Ukrainian refugees in response. But critics argue that this relative openness by the US and Europe involves a pernicious double standard under which white European refugees from Ukraine are welcomed, but non-white ones from Syria, Africa and elsewhere, are mostly shut out, even though many are fleeing comparably grave dangers from war and oppression. Pope Francis, among others, has said that the differential treatment of refugees is driven by "racism."
The critics have a legitimate point. But the right way to address the problem is not to close our doors to Ukrainians, but to be more open to other migrants and refugees fleeing horrific conditions.
Non-white refugees from Africa and the Middle East really do often face violence and oppression comparable to that which threatens Ukrainian refugees, and many Western nations have been less willing to let them enter. In the case of the US, the difference is less glaring than in Europe, because the Biden administration has so far taken only modest steps to open US doors to Ukrainians. Some of those steps, such as granting Ukrainians already in the US "Temporary Protected Status" have parallels in similar policies adopted towards some predominantly non-white groups of refugees, such as Venezuelans (regardless of their actual skin color, Venezuelans and other Hispanics are usually not considered "white" in the US). The contrast is greater in Canada and various European nations that have been relatively more open to Ukrainians than the United States has been so far.
Although racial and ethnic bias surely plays a role, it probably isn't the only factor at work. It is also significant that the US and its European allies have an important strategic stake in the Russia-Ukraine War that is either smaller or entirely absent in the cases of Syria and various African conflicts. Openness to Ukrainians is not only a moral gesture, but also a way of opposing Vladimir Putin's brutal war of aggression, which threatens Western security interests.
It's also worth noting that the US and its European allies have done little or nothing to open their doors to Russian refugees fleeing Putin's intensifying repression, despite the strong moral and strategic case for doing so. Most Russian refugees are white, just like most Ukrainian ones. Western nations' reluctance (so far, at least) to take them is likely driven by shortsighted unwillingness to distinguish them from the very regime they are fleeing.
That said, racial and ethnic bias clearly is a factor. Some European officials openly admit it. For example, Bulgarian Prime Minister Kiril Petkov said in February that his country is welcoming Ukrainians in part because "[t]hese are not the refugees we are used to.… These people are Europeans…These people are intelligent."
But, as I explained in one of my earliest pieces making the case for admitting Russian and Ukrainian refugees, the right way to combat such disparities is "leveling up" the treatment of non-white refugees, not barring Ukrainians.
There are some cases where it is perfectly legitimate to end discrimination by "leveling down" the treatment of the previously favored group. For example, if the government gives subsidies to white-owned businesses that aren't available to others, there is nothing wrong with just abolishing the subsidy program entirely.
But barring refugees fleeing war or repression is a grave wrong even if it is done in a "race-neutral" manner. It still unjustly consigns people to oppression or even death merely because they happen to be born to the wrong parents or in the wrong place. That itself is an injustice similar to racial discrimination. In the same way, if police brutality is directed against African-Americans more often than whites, the problem could not be justly "solved" by having the police abuse whites more often. Rather, the only defensible approach in that situation is to curb brutality directed at blacks.
In my view, there should be a strong presumption against barring any peaceful migrants, especially those fleeing war, authoritarian regimes, or other severe oppression. But I recognize this ideal is unlikely to be fully achieved anytime soon, if ever. In the meantime, we should seek whatever incremental improvements are feasible, which may include measures focused on specific refugee crises, even as others remain (relatively) neglected.
And while I have long argued it is essential to make the general moral case for migration rights, there is nothing wrong with also noting considerations that may only apply to a specific situation. For example, there are specific strategic advantages to opening our doors to Russians fleeing Putin, because doing so strengthens the West's position against one of the world's most dangerous illiberal authoritarian regimes.
I think Russians fleeing Putin's regime (like others fleeing repression) should be accepted even in the absence of those strategic advantages. But these points still add to the case for openness, and they may be more decisive for observers who are less generally pro-migration rights than I am.
The issue of racial and ethnic double standards on migration rights often comes up when I speak about admitting Ukrainians and Russians during the present war. Reporters and interviewers routinely ask about it. I always emphasize that my support for migration rights is not and never has been bounded by race or ethnicity.
For members of the media and anyone else who may be interested, here is a convenient, though not exhaustive, list of my writings advocating migration rights for predominantly non-white groups (as "white" is usually defined in US political discourse). Unless otherwise noted, these are all posts at the Volokh Conspiracy blog:
8. Free to Move: Foot Voting, Migration, and Political Freedom, (Oxford University Press, rev. ed. 2022). In Chapters 5 and 6 of this book, I include an extensive critique of justifications for racial, ethnic, and cultural discrimination in migration policy. In the case of the US and many other Western nations, such restrictions most often target non-whites.
9. "The Case Against Covid-19 Pandemic Migration Restrictions," Cato Institute, Feb. 1, 2022. In the US, these restrictions have most heavily impacted non-white migrants from Latin America. That's especially true of the Title 42 "public health" expulsions, against which I also authored an amicus brief when their legality was challenged in court.
This list could easily be expanded. But it's enough to give a representative sampling of my work on this issue.
Committed conspiracy theorists (though not Volokh Conspirators!) might still say I only wrote the above because I anticipated there would someday be a refugee crisis involving whites. My previous writings about non-white refugees would store up credibility that I could then make use of. But that just goes to show there's no satisfying hard-core conspiracy theorists!
UPDATE: I have made a few small additions to this post.
Let's recap what happened at NYU Law School recently. NYU Students for Justice in Palestine sent out an email in essence justifying Palestinians terrorists murdering Israeli civilians. In the course of doing so, the author of the email threw some antisemitic tropes regarding Jewish control of the media, including arguing that "framing is everything and the Zionist grip on the media is omnipresent" and referencing the "Islamophobic, Zionist-funded US and Western media." Several other NYU student groups chimed in to endorse the email.
Defenders of the email, as one would expect, argue that vehemently criticizing Israel and Zionism, even arguing that Palestinians have the right to murder Israel civilians to resist "occupation," is not antisemitic. However, as I noted in my original post on the matter, the lines noted in the above paragraph criticize neither Israel as a state nor Zionism as an ideology. Rather, they claim that "Zionists" fund and control the media. And as I noted, the most obvious form of antisemitism that tries to obscure itself behind antizionism is when one can substitute the word "Zionist" for the word "Jew," and one is left with an obvious, longstanding antisemitic trope, as with the NYU SJP email.
I can easily imagine a student or student organization signing on to the statement, not recognizing or noticing the obvious (at least to those with some knowledge of the history and practice of antisemitism) antisemitic implications of claiming that Zionists fund and control an Islamaphobic media. And I can easily imagine them regretting this language, even if they decline to publicly apologize for it or retract it. Indeed, I would think that even antisemitic students would regret the language in question, because it associates a cause they support with antisemitism, which simply isn't a good strategy, at least in the US.
More generally, when someone uses antisemitic language, I'm inclined to point it out, but not suggest that the individual himself or herself is antisemitic. Some people pick up antisemitic tropes unknowingly or negligently. Some use overly provocative language without really thinking of the implications.
I'd prefer that such individuals retract and/or apologize for their language. But even if they don't, I'm still hesitant to judge them more harshly than what I suggested in the previous paragraph. I'm also inclined to give the benefit of the doubt in general to people who are speaking (or tweeting) off the cuff.
Yosmin Badie, a member of NYU Law's Students for Justice in Palestine, said in a statement to the New York Jewish Week that the response to the [Student of Justice in Palestine's] emails was "shameful."
"The effort to silence those who choose to speak out against apartheid and violent occupation is shameful, and equally shameful is the purposeful conflation of antisemitism and anti-Zionism," Badie said.
"I will not be intimidated by those who wish to deny this right and will continue to unequivocally stand with Palestinians in their struggle," she said.
According to Ms. Badie, you see, not only was the email not antisemitic but only "antizionist" (please tell us, Ms. Badie, who these "Zionists" are who control and fund the media?), but pointing out and criticizing the underlying antisemitism is an attempt to silence her.
I'm not here to silence or "cancel" Ms. Badie. But I also don't see that Jews need to sit back and let antisemites like Ms. Badie hide behind "antizionism" while purporting to represent anti-racism and progressive values and not call them out for it. (And by the way, in case you are inclined to think that Ms. Badie must have been traumatized by her experiences as a Palestinian victim of Israel or whatever formulation people use to excuse Palestinian extremism, she identifies herself on Twitter as an "Iranian American" and has been affiliated with the National Iranian American Council, known for running interference in the US on behalf of the Iranian theocracy. Always interesting to find self-proclaimed "human rights activists" with origins in horrible dictatorships who focus their energy on Israel instead.)
So, Ms. Badie, you have a right to spew whatever antisemitic (and genocidal) rhetoric you wish. And I may point out that you are an antisemite. And, for what it's worth, the same applies to any of your classmates who continue to defend the email SJP sent out.
UPDATE: If you thought that perhaps by now SJP at NYU Law would have second thoughts about using antisemitic tropes in its communications, and might acknowledge that it was a mistake to use such tropes, you would be wrong.
"The effect of displaying fatality messages is comparable to raising the speed limit by 3 to 5 miles per hour or reducing the number of highway troopers by 6 to 14%."
Policy-makers are increasingly turning to behavioral interventions such as nudges and informational campaigns …. Guidebooks say that these interventions should "seize people's attention" at a time when they can take the desired action, but little consideration has been given to the costs of seizing one's attention and to the possibility that these interventions may crowd out other, more important, considerations.
We estimated these costs in the context of a … behavioral campaign with the stated objective of reducing traffic crashes. This campaign displays the year-to-date number of statewide roadside fatalities (fatality messages) on previously installed highway dynamic message signs (DMSs) and has been implemented in 28 US states….
We estimated the impact of displaying fatality messages using data from Texas. Texas provides an ideal setting because the Texas Department of Transportation (TxDOT) decided to show fatality messages starting in August 2012 for 1 week each month: the week before TxDOT's monthly board meeting (campaign weeks). This allows us to measure the impact of the intervention, holding fixed the road segment, year, month, day of week, and time of day. We used data on 880 DMSs and all crashes occurring in Texas between 1 January 2010 and 31 December 2017 to investigate the effects of this safety campaign. We estimated how the intervention affects crashes near DMSs as well as statewide. As placebo tests, we estimated whether the chosen weeks inherently differ using data from before TxDOT started displaying fatality messages and data from upstream of DMSs….
Contrary to policy-makers' expectations, we found that displaying fatality messages increases the number of traffic crashes.
The city of Mariupol', which has apparently been almost entirely destroyed by the Russians, but in which the battle seems to still be raging, is on the Azov Sea; "Mariupol'" means "City of Mary." (According to Wikipedia, for some the city was named after a Greek settlement in Crimea, which was named after the Virgin Mary; for others, it was named after the Russian Empress Maria Feodorovna, but of course she in turn was named after the Virgin Mary.)
I just came across this new song (released yesterday, I think, but with over 500K YouTube views) about the defense of the city, by the Ukrainian band Okean Elzy; I liked it a lot, and thought both the words and the music had a very effective tone of defiance and resolution, without excessive shouting or pathos—not subtle, exactly, but subtler than it might have been given the theme:
Here is my very rough translation of the lyrics (I used Google Translate to translate the Ukrainian into Russian—in my experience, that particular sort of translation is generally quite reliable—and then hand-translated the Russian to English; please let me know if I have erred):
The Sun rose over the Azov Sea
The wind blows over the dunes
It's cold, but the sand smells of Spring
My eyes have already gotten used to fatigue
There are too many reasons
I dream of how it will once again be good for you and me
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Michigan friends, we're heading to Plymouth on Friday, May 20 for a forum on the Michigan Constitution, featuring litigators, scholars, and retired Michigan Supreme Court Justice Stephen J. Markman. RSVP today!
During the 2016 presidential election, campaign-finance watchdog files a complaint with the Federal Election Commission, alleging that the Clinton campaign and the Correct the Record PAC failed to properly disclose coordinated expenditures. The FEC dismisses the complaint by an evenly divided vote and the watchdog sues. The district court then dismisses the suit for lack of standing. D.C. Circuit: Which was error. The group has suffered an informational injury (though what value the information has in 2022 is anyone's guess).
Former California Congressman Devin Nunes sues Georgia-headquartered, Delaware-incorporated CNN in Virginia for allegedly defamatory claims made in New York about Nunes' conduct in Austria. The case is transferred to New York, but still governed by Virginia choice of law, and the New York court determines that, under Virginia law, California law governs the claims. The California Congressman objects that Virginia law would have applied New York law. Second Circuit: Virginia law would have applied California law. Dissent: Virginia law would have applied New York law. Or maybe D.C. law.
Drug kingpin commits "an array of crimes worthy of a James Bond villain," including dealing arms and technology to Iran and North Korea, attempts at minor warlordism in Africa, and plotting a coup in the Seychelles. Once the DEA caught up with him in Liberia in 2012, he immediately cooperates, resulting in a 25-year sentence. Three of his underlings are convicted of murdering a Filipino real estate agent and sentenced to life in prison. But wait! The feds didn't hand over certain classified docs, including impeachment evidence against the kingpin, until after trial—and only at the Second Circuit's behest. Brady violation? Second Circuit: No, there was so much evidence against these guys that they would've been convicted anyway. Also Second Circuit: But some parts of the convictions can't stand due to the vagueness of the law. Remanded for resentencing.
West Virginia used-car dealers file motion to suppress evidence obtained during search, and four years later a court agrees that the state trooper who applied for the warrant omitted important facts and made misleading statements and dismisses the criminal charges (failing to disclose to customers that their cars had been totaled before being refurbished) with prejudice. Fourth Circuit: But it's too late for them to sue the trooper over the unconstitutional search. They should have sued while the criminal case was still pending.
Allegation: While nurses treat his alarming symptoms (burning in lungs, bad cough, recurrent fever, loss of 40 pounds) with cough drops and Tylenol, North Carolina inmate's internal organs are being damaged by a flesh-eating organism. The delay in proper treatment nearly costs him his life. Fourth Circuit: And his suit against the nurses, which he filed from prison without counsel and didn't initially name the nurses as defendants, was nonetheless filed on time. Case un-dismissed.
After gunshots are heard in the vicinity, driver of car full of teens, seeking to get away, does not stop for Balch Springs, Tex. police officer, who shoots at the car five times, killing a 15-year-old passenger. Fifth Circuit (over a dissent): No qualified immunity. Whether the car was accelerating toward or away from a second officer is a question for the jury. (A criminal jury convicted the officer of murder, though discretionary review of his appeal has been granted.)
After the Biden administration released a memo outlining the Department of Homeland Security's immigration priorities, the states of Arizona, Montana, and Ohio filed suit in Ohio to enjoin its implementation. The district court issued a nationwide preliminary injunction and the feds sought a stay pending appeal. Sixth Circuit: Stay granted. It's not clear how the states are harmed by the memo or that it is even reviewable, and the states would probably lose on the merits anyway. Self-Concurrence (by Chief Judge Sutton): Stop issuing nationwide injunctions.
Traffic tickets are big business in Chicago. The city issues around 3 million tickets per year, which resulted in $1.8 bil in driver debt last year, and revenue from tickets generated 7% of the city's operating budget in 2016. When the car owner's parking-ticket debt accumulates, the city often impounds the car and attaches a lien for unpaid tickets and fees. These costs often exceed the value of the car and ability of the owner to pay, leaving many to declare bankruptcy. Seventh Circuit: And that lien is avoidable in bankruptcy, meaning that the owner may not have to pay the debt to get her car back.
Does it violate Minnesota's anti-harassment law for a nonprofit to send postcards urging local businesses not to advertise in a particular local paper because the paper also runs ads for strip clubs and pornography? Nonprofit: Well, that law was enforced against us in 2019 for sending out our postcards, and it sure seems to restrict our speech. So we'd like the federal courts to vindicate our First Amendment rights. Eighth Circuit: Except the law doesn't actually apply to what you want to do, so you lack standing to challenge it. Dissent: Except . . . the law was literally enforced against these guys three years ago. For doing precisely what they want to keep doing.
On remand from the Supremes, the Ninth Circuit once again finds that a data analytics company whose business model depends on scraping info from LinkedIn users' public profiles is entitled to a preliminary injunction and continued access to that data while LinkedIn's suit seeking to block the scraping proceeds. (LinkedIn users who don't want their profiles scraped can change their privacy settings.)
Oregon state senators duck out of the senate chamber in 2019 to stop the body from having a quorum. Members of the majority party threaten to have them arrested. To which one of the quorum-breaking senators responds with comments like "[s]end bachelors, and come heavily armed." Which leads the majority leadership to require him to give 12 hours' notice before visiting the capitol. Which leads to the senator's suing a bunch of other senators and staff. Which the district court dismisses. And which the Ninth Circuit reinstates: Could be the 12-hour-notice requirement was retaliation against this guy for engaging in protected speech.
Allegation: In 2020, construction company transfers employees from one job site in San Francisco where there have been lots of COVID-19 infections to another job site, where plaintiff, also an employee, also gets infected and brings the virus home to his wife, who has to be hospitalized for more than a month. Ninth Circuit: And we have some questions about state law we hope the California Supreme Court will clear up.
Man escapes from San Joaquin County, Calif. jail highway work crew, is on the lam for over three weeks before officers and a K-9 catch up to him. Ninth Circuit: Viewing the facts in plaintiff's favor (except those clearly contradicted by bodycam footage), the dog's initial bite did not violate the Eighth Amendment, but any post-handcuff beatings and bitings (if they happened) clearly did, so no QI. Dissent: "I would affirm the district court in full, toss aside [the] excessive force and failure-to-intervene claims, and revel in the sound quality of modern computer speakers."
After jerking environmental group around for more than a decade (and finally being mandamused!), the EPA denies a petition to cancel the registration for a pesticide used in flea collars. Ninth Circuit: We ordered you to provide a "reasoned" explanation, and the explanation you provided is not that. Do it again.
Utah Highway Patrol officer pulls over a car with Kansas plates. After talking with the driver, he returns to his patrol car and calls for a K-9 unit. The K-9 eventually shows up and alerts on the car, and the resulting search turns up some fentanyl and a kilo of cocaine. But did the officer have reasonable suspicion to extend the stop? Tenth Circuit: No. The only things the officer cites are: the presence of a duffle bag in the back seat, the presence of air freshener in the center console, and the facts that the driver did not roll his window down completely, could not locate his rental agreement, and paused briefly before answering questions about his trip. The cop had a hunch, and hunches aren't enough. Suppress the evidence.
Sometimes you read an opinion about the federal government's designation of a critical habitat for the New Mexico Meadow Jumping Mouse and you spend the whole time wondering, "But what does the New Mexico Meadow Jumping Mouse look like?" Not so with this helpfully illustrated opinion from the Tenth Circuit.
Allegation: Kansas inmate's lawsuit over a prison staffer labeling him a snitch is dismissed because his access to the law library is severely restricted while he's in solitary confinement. Tenth Circuit: His new claim over the denial of access to the library should not have been dismissed.
Eleventh Circuit: Not only does the nonprofit group Speech First have standing to challenge the University of Central Florida's discriminatory-harassment and bias-related-incidents policies, it's entitled to a preliminary injunction on the former (and the district court should consider a PI for the latter on remand). Concurrence: "A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum."
And in en banc news, the Eleventh Circuit will reconsider its decision and perhaps its precedent regarding the Prison Litigation Reform Act's "three strikes rule," which prohibits pro se prisoners from filing lawsuits in forma pauperis if they have previously had three lawsuits dismissed for failure to state a claim. Under its earlier ruling, now called into question, the Eleventh Circuit held that lawsuits dismissed for failure to exhaust administrative remedies count as strikes.
And in amicus brief news, IJ is asking the Eighth Circuit to uphold a district court ruling that denied absolute immunity to a Missouri state judge who, on two occasions, jailed two minor siblings because they declined to go home with their mother, preferring instead their father. (On one of those occasions, the judge personally put the children in a cell for over an hour, even though court had closed for the day, they hadn't been held in contempt, and weren't parties to any proceeding.) It's no exaggeration to say the doctrine of judicial immunity is a bit of a bugaboo amongst your otherwise even-tempered Short Circuit staff; for starters, it's irreconcilable with Section 1983, which was passed with the intent to create a civil remedy for bad-acting state judges.
And in additional amicus brief news, IJ is asking the Ninth Circuit to reverse the dismissal of a suit alleging that, without giving orders or warnings, Stockton, Calif. police surrounded and beat a crowd of Cinco de Mayo revelers (who at most were guilty of jaywalking), broke the plaintiff's leg with a baton, and then filed false reports so that he was charged with resisting arrest. The district court said his suit was barred because the plaintiff entered a pre-trial agreement, pleading no contest in exchange for having the charge dismissed. But the Supreme Court has been clear that litigants in his shoes are allowed to proceed.
Gov't officials should not be able to sue their critics into submission. But that's what the Village Attorney of Mt. Pleasant, Wisc. is trying to do, claiming a local activist, Kelly Gallaher, caused him "emotional distress" when she called him out on an inaccurate statement he made to the media. (He said that an ordinance passed earlier this year (extending the terms of Village Board members from two years to three) had been discussed for years when in fact there was very little public notice.) In an attempt to avoid the crippling costs of defending the meritless defamation suit, Kelly acceded to the Village Attorney's demand that she retract her—accurate—claims. But he filed suit anyway, and this week Kelly and IJ joined forces to vindicate Kelly's First Amendment right to criticize the gov't and put a bully in his place. Click here to learn more.
The Florida Legislature has voted to repeal a statute that created a special government district (the Reedy Creek Improvement District) that it had set up in 1967 for Disney, and the Governor is apparently set to sign it. To quote the New York Times (Brooks Barnes),
[The district] was put together in 1967 and essentially allows the megaresort, which employs roughly 80,000 people, to function as its own municipal government…. [The district] gives the company considerable control over the planning and permitting process for construction on its 25,000-acre property, including road building. Reedy Creek also levies taxes on Disney to pay for the resort's own fire and medical response battalions, among other services. Disney World even generates some of its own electricity through Reedy Creek.
The reason for the repeal appears to be Disney's prominent opposition to the Florida law that restricts "classroom instruction by school personnel or third parties on sexual orientation or gender identity … in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards." Is it constitutional for Florida to do this?
[1.] First, the case against: Government decisions that retaliate against people or organizations based on their speech are often unconstitutional. Board of Comm'rs v. Umbehr (1996), for instance, held that the government generally can't deny contracts to a contractor because of the contractor's First Amendment activities. And some appellate decisions have held that withdrawal of legal advertising from a newspaper because the government doesn't like the newspaper's editorial positions violates the First Amendment.
Likewise, the government can't generally fire employees because of their speech or political activity, at least unless the disruption caused by the employee's actions outweighs the employee's free speech rights (whatever exactly that means). Pickering v. Bd. of Ed. (1968). And the government can't strip people of tax exemptions or other benefits based on their speech or political activity. Speiser v. Randall (1958).
[2.] But here's a twist: What Florida is planning to withdraw from Disney is essentially a form of government power that Disney had been specially granted—Disney's ability to effectively run this special district (as I understand it does), with the legal authority this entails under state law. And if we follow the employment analogy, officials exercising political power are generally not protected from retaliation by other political figures, at least when the retaliation consists of benefits conferred by the other political figures in the first place.
I thought I'd mention that this month marks 20 years since we first started blogging. Many thanks to all our co-bloggers over the years, and of course to all our readers!
FromSida v. Murphy, decided Wednesday by Judge Greg Kays (W.D. Mo.):
This case arises from Plaintiffs' allegations that Defendants committed legal malpractice which resulted in a Missouri state court entering default judgment against them for failure to comply with Missouri's Rules of Civil Procedure and the court's orders. Now before the Court is Defendants' Motion to Seal All Filings Made Herein Pertaining to the Undersigned's Ability to Practice Law.
Defendants argue that Plaintiffs have made numerous filings in which they falsely and frivolously alleged that Defendant Mark Murphy ("Murphy") is not authorized to practice law before this Court. They request that the Court strike all filings discussing whether he is authorized to practice law in this Court, namely ECF Nos. 7-12 and Defendants' forthcoming Reply in Support of Their Motion to Compel Arbitration, as well as the pending motion and Plaintiffs' response to it. Plaintiffs oppose the motion, arguing Defendants have not shown a compelling need to seal the documents which overcomes the presumption of keeping court records open for public view.
As discussed in a companion order, Mr. Murphy is an attorney who was suspended from the practice of law by the state bars of Kansas and Missouri but has not been disciplined by this Court, and so he is authorized to practice before it. That said, because Local Rule 83.6 essentially creates a presumption that this Court will impose reciprocal discipline on an attorney who has been disciplined by another court, Plaintiffs had a good-faith basis to allege he was not authorized to practice before this Court when they filed their motions and briefs. So Plaintiffs' filings are not frivolous or otherwise sanctionable, and they should not be stricken.
{The Kansas Supreme Court suspended Murphy on October 16, 2020, for representing both the buyer and seller in the sale of a business that occurred in 2004. The complaint was not filed against him until 2016. The Missouri Supreme Court imposed reciprocal discipline on August 31, 2021. The Tenth Circuit decided that because of the delay in bringing the ethics charge and because Mr. Murphy rarely appeared before it, a reciprocal suspension would have little practical effect and was not warranted under the circumstances. The United States District Court for the District of Kansas also held that a suspension would have little practical effect and declined to enter a reciprocal order of discipline, but publicly reprimanded Murphy for his behavior in the 2004 transaction. Whether this Court—the United States District Court for the Western District of Missouri—should impose reciprocal discipline is an issue which is currently pending.}
The Court also sees no reason to seal the record in this case.
From the Eleventh Circuit panel decision allowing a First Amendment claim based on Univ. of Central Florida's "bias-related incidents policy" to proceed:
There is, we observe, a certain irony in the facts (1) that UCF created the JKRT [Just Knights Response Team] to address situations in which students felt intimidated or marginalized and (2) that now, Speech First's members claim to have been intimidated and marginalized by the JKRT—"kind of like … snowflakes all around." Oral Arg. at 10:10–10:51. We asked Speech First's lawyer at oral argument why everyone shouldn't just "put on their big boy and big girl pants" and deal with some adversity.
His answer, we think, captures a valid distinction: "The state is a really big boy." The University—i.e., the state—can far more easily intimidate, and thereby objectively chill, college students than can those students' peers. And objective chill is the standard.
More from today's Eleventh Circuit decision in Speech First, Inc. v. Cartwright(written by Judge Kevin Newsom and joined by Judge Stanley Marcus and District Judge Richard Story); seems quite right to me:
The bias-related-incidents policy creates a mechanism by which a UCF student can be anonymously accused of an act of "hate or bias"—i.e., an "offensive" act, even if "legal" and "unintentional," that is directed toward another based on any of a number characteristics that echo (but do not precisely mirror) those listed in the discriminatory-harassment policy. The JKRT "monitor[s]" and "track[s]" bias-related incidents, "coordinate[s] university resources," marshals a "comprehensive response[]," and, where necessary, coordinates "interventions" among affected parties….
The district court held that Speech First lacked standing to challenge the bias-related-incidents policy because, the court said, the JKRT couldn't punish students itself but, rather, could only refer them to other university actors for discipline. We hold that the district court erred in focusing so singularly on the JKRT's power to punish. The reason, already explained, is that a government actor can objectively chill speech—through its implementation of a policy—even without formally sanctioning it. Punishment is no doubt relevant to the objective-chill analysis, and may well be sufficient to prove the requisite chill, but analogous precedent makes clear that it is not decisive and, in any event, is not uniformly necessary.
The seminal case is Bantam Books, Inc. v. Sullivan (1963). There, the Supreme Court considered the constitutionality of certain actions of the "Rhode Island Commission to Encourage Morality in Youth," whose charge it was to "educate the public concerning any book, picture, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth." The commission's usual practice was to notify a bookseller "on official stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale," to "thank[ him] in advance[] for his 'cooperation,'" to "remind[ him] of the Commission's duty to recommend to the Attorney General prosecution of purveyors of obscenity," and to inform him that "[c]opies of the lists of 'objectionable' publications were circulated to local police departments."
I join fully in Judge Newsom's opinion for this Court. The University of Central Florida's discriminatory-harassment policy almost surely violates the First Amendment. It is grievously overbroad, and it is a content- and viewpoint-based restraint on free speech.
I write separately to underscore the grave peril posed by a policy that effectively polices adherence to intellectual dogma. History provides us with ample warning of those times and places when colleges and universities have stopped pursuing truth and have instead turned themselves into cathedrals for the worship of certain dogma.
By depriving itself of academic institutions that pursue truth over any other concern, a society risks falling into the abyss of ignorance. Humans are not smart enough to have ideas that lie beyond challenge and debate. A discriminatory-harassment policy that assumes the most popular idea or the idea that least "interferes with, limits, deprives, or alters the terms or conditions of education" is the correct one is plainly at odds with the First Amendment and our notion of free speech.
An excerpt from today's Eleventh Circuit decision in Speech First, Inc. v. Cartwright(written by Judge Kevin Newsom and joined by Judge Stanley Marcus and District Judge Richard Story), which generally strikes me as quite right:
[In] determining the propriety of preliminary injunctive relief[, we consider, among other things, whether plaintiff has shown a] substantial likelihood of success on the merits ….
The discriminatory-harassment policy is almost certainly unconstitutionally overbroad…. [T]he policy (1) prohibits a wide range of "verbal, physical, electronic, and other" expression concerning any of (depending on how you count) some 25 or so characteristics; (2) states that prohibited speech "may take many forms, including verbal acts, name-calling, graphic or written statements" and even "other conduct that may be humiliating"; (3) employs a gestaltish "totality of known circumstances" approach to determine whether particular speech, for instance, "unreasonably alters" another student's educational experience; and (4) reaches not only a student's own speech, but also her conduct "encouraging," "condoning," or "failing to intervene" to stop another student's speech.
The policy, in short, is staggeringly broad, and any number of statements—some of which are undoubtedly protected by the First Amendment—could qualify for prohibition under its sweeping standards. To take a few obvious examples, the policy targets "verbal, physical, electronic or other conduct" based on "race," "ethnicity," "religion [or] non-religion," "sex," and "political affiliation." Among the views that Speech First's members have said they want to advocate are that "abortion is immoral," that the government "should not be able to force religious organizations to recognize marriages with which they disagree," that "affirmative action is deeply unfair," that "a man cannot become a woman because he 'feels' like one," that "illegal immigration is dangerous," and that "the Palestinian movement is anti-Semitic."
