Like most of us, I've often see this stanza, from a poem by Macaulay; indeed, it's been often quoted in recent weeks, with regard to the valor of the Ukrainians defending their nation:
Then out spake brave Horatius,
The Captain of the Gate:
"To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his Gods."
It's stirring, of course, but I've often found it a bit distanced from us because of the last two lines: My sense is that we don't care as much as did the Romans about the resting places of our ancestors, and those of us who are religious mostly (not entirely, but mostly) don't view any particular temple with great reverence.
More broadly, the last two lines seem to be about fighting for honor or tradition, not for living people who are loved in the way we love the living. It's easy, of course, to view the last two lines as a stand-in for compatriots, friends, family, and the like; but it takes a bit of conceptual broadening.
But just today I came across the next four lines; let me quote again the first stanza, but this time followed by those lines:
Then out spake brave Horatius,
The Captain of the gate:
"To every man upon this earth
Death cometh soon or late.
And how can man die better
Than facing fearful odds,
For the ashes of his fathers,
And the temples of his Gods,
And for the tender mother
Who dandled him to rest,
And for the wife who nurses
His baby at her breast."
A slightly different effect, I think. (There's more to the poem, but I don't find it quite as striking.)
On April 5, in Heights Apartments v. Walz, a unanimous panel of the US Court of Appeals for the Eighth Circuit ruled that a Minnesota state eviction moratorium (enacted for the purpose of mitigating the Covid pandemic) likely qualifies as a taking of private property requiring compensation under the Takings Clause of the Fifth Amendment. They based their ruling in large part on the Supreme Court's June 2021 decision in Cedar Point Nursery v. Hassid, which held that temporary physical occupations of property qualify as "per se" takings, that automatically require compensation. Before Cedar Point, conventional wisdom assumed that most temporary physical occupations are subject to the complicated Penn Central balancing test, under which the government usually prevails.
Here is the key passage from the Eighth Circuit ruling:
Heights alleges the EOs effectuated physical takings because they forced landlords to accept the physical occupation of their property regardless of whether tenants provided compensation.The Walz Defendants contend that no physical taking has occurred because landlords were not deprived of their right to evict a tenant. Rather, they argue, the [governors executive orders] imposed only a restriction on when a landowner could evict a tenant, making it similar to Yee v. City of Escondido, 503 U.S. 519 (1992) (finding a rent control ordinance was not a physical taking). Since the parties briefed this issue, the Supreme Court decided Cedar Point Nursery, which is instructive in this case.
In Cedar Point Nursery, the Supreme Court determined a California regulation requiring agricultural employers to permit "union organizers onto their property for up to three hours per day, 120 days per year" was aper sephysical taking under the Fifth and Fourteenth Amendments….. The Court explained:
"Whenever a regulation results in a physical appropriation of property, aper se taking has occurred." Id. at 2072. It is immaterial whether the physical invasion is "permanent or temporary," "intermittent as opposed to continuous," or whether the government is directly invading the land or allowing a third party to do so.…
Cedar Point Nursery controls here and Yee, which the Walz Defendants rely on, is distinguishable. The rent controls in Yee limited the amount of rent that could be charged and neither deprived landlords of their right to evict nor compelled landlords to continue leasing the property past the leases' termination. 503 U.S. at 527–28. The landlords in Yee sought to exclude future or incoming tenants rather than existing tenants.Id. at 530–31.Here, the EOs forbade the nonrenewal and termination of ongoing leases, even after they had been materially violated, unless thetenantsseriouslyendangeredthesafetyofothersordamagedproperty significantly….
According to Heights' complaint, the EOs "turned every lease in Minnesota into an indefinite lease, terminable only at the option of the tenant." Heights has sufficiently alleged that the Walz Defendants deprived Heights of its right to exclude existing tenants without compensation.The well-pleaded allegations are sufficient to give rise to a plausibleper sephysical takings claim under Cedar Point Nursery.
I think the Eighth Circuit is right about this. The reasoning of Cedar Point readily applies to eviction moratoria. I reached much the same conclusion myself, in a July 2021 post analyzing a takings claim filed against the now-defunct federal eviction moratorium enacted by the Centers for the Disease Control, and later invalidated by the Supreme Court on grounds unrelated to takings. The takings case against the federal eviction moratorium continues, as affected landlords are (if they prevail) still entitled to compensation for the time during which the moratorium was in effect.
Technically, the Eighth Circuit ruling isn't a final decision on the merits. It merely reverses the trial court's decision to dismiss the case, and remands for "further proceedings." However, the appellate panel made clear they think the per se physical takings claim is likely to prevail.
The Eighth Circuit also reversed the trial court's dismissal of the plaintiffs' claims that the eviction moratorium violated the Contracts Clause of the Constitution, and that the moratorium might qualify as a taking even under the Penn Central test. By contrast, they upheld the dismissal of a claim under the Petition Clause of the First Amendment.
I will leave the Contracts Clause and First Amendment issues to experts in the relevant fields. As for the Penn Central claim, I am skeptical that it can ultimately succeed (though the test is admittedly murky). The Eighth Circuit is also more equivocal about that issue than the per se taking argument. They merely concluded that it is plausible enough to survive a motion to dismiss. But the Penn Central argument won't matter if the courts ultimately conclude that the eviction moratorium was a per se taking under Cedar Point.
The Eighth Circuit ruling does not address the argument that an eviction moratorium intended to mitigate the spread of Covid might fall under the "police power" exception to takings liability. This issue might well come up as the case continues. I am skeptical that courts either will or should push the police power exception so far. But the boundaries of that exception are admittedly murky.
The three judges on the Eighth Circuit panel (Erikson, Gruender, and Stras) are all Republican appointees. It is possible that more liberal judges would have adopted a narrower interpretation of Cedar Point, that would exclude eviction moratoria. But I think it would be difficult to do that in a way that is coherent. An eviction moratorium is pretty obviously a temporary occupation of property, as it requires the owner to accept the presence of a tenant whom he or she would otherwise have the right to remove. It thereby goes against the owner's right to exclude, which was the central right at issue in Cedar Point. As Chief Justice John Roberts emphasized in his opinion for the Court, "[t]he right to exclude is 'universally held to be a fundamental element of the property right.'"
Even if property owners ultimately prevail in this case, and other takings claims against eviction moratoria, it remains to be seen how much compensation they would get. Calculating it may not be easy, and there is likely to be considerable case-by-case variation. Nonetheless, these are important cases to follow. They could well set significant precedents constraining future eviction moratoria, and other similar regulations.
NOTE: The property owners in the Cedar Point case were represented by the Pacific Legal Foundation. My wife Alison Somin works for PLF. But she has no involvement in this particular case.
Late-night host Jimmy Kimmel joked about Rep. Marjorie Taylor Greene (R-Ga.) in his opening monologue earlier this week after she labeled some in her party "pro-pedophile" for supporting Supreme Court nominee Judge Ketanji Brown Jackson.
"Where is Will Smith when you really need him?" Kimmel asked, a reference to Smith's Oscar show storming of the stage and slap of comedian Chris Rock over a joke about Smith's wife, Jada Pinkett Smith….
[Greene's] spokesman, Nick Dyer, said Friday that "threats against Congresswoman Greene invoking Jimmy Kimmel have been coming into our office."
Dyer also pointed to a tweet Greene posted Thursday featuring a voice mail she said she received after Kimmel's monologue. "I would pay good money to watch Jimmy Kimmel bash your (expletive) head in with a baseball bat," a male caller said. "It would be so (expletive) hysterical."
But of course Kimmel's line is a joke, and even if serious is a statement of opinion—that Greene deserves to be slapped—and not a true threat that he or someone in league with him would slap her. (For more on the "true threat" exception to the First Amendment, see Watts v. U.S. (1969).) Nor could Kimmel be faulted for supposedly inciting threats by third parties, since there's no reason to think his speech was intended to and likely to produce imminent threats of violence (see Brandenburg v. Ohio (1969)).
To be sure, sometimes it may make sense for a Representative to report to the police things that she knows aren't crimes, but might be useful to know for the future (e.g., "This weird guy from my district has been sending me strange e-mails; nothing to do about it now, but if the mailroom gets any packages from him, they might be worth an extra check"). But that doesn't sound like what Rep. Greene's tweet is referring to.
So a federal district court held, reversing an earlier magistrate judge ruling on this point; the court also rejected the view that the Free Press Clause only protects "members of the press."
From Chief District Judge Philip Brimmer (D. Colo.) on March 31 in Sgaggio v. De Young, largely reversing a contrary Magistrate Judge opinion (which I blogged about here). Note that the Firearms Policy Coalition engaged me to file an amicus brief in the case, together with the FPC's Matt Larosiere (see here for the FPC's press release). From the Chief District Judge's opinion:
The City's Police Department (the "Police Department") executed a warrant to search a residence, which residence was unrelated to plaintiff, for the unlawful possession of marijuana. On or about July 19, 2018, the Police Department posted about the execution of the warrant on its public Facebook page. That day, a Facebook user posted a video about the execution of the warrant with the caption "[d]ad tells a story of the house being raided for MMJ." In response to the Police Post, plaintiff posted on the Police Department's Facebook page a link to the Woodland Park Video with the caption "[y]ou target sick kids to get your overtime pay. . [sic] That's why you are a pig."
Plaintiff later commented, "[w]hy did you punk ass pigs remove my post. This is a pubic [sic] forum. I'm going to sue the chief of police, the city of Woodland Park, and whatever punk ass bitch remove my post. Your actions are unconstitutional and violation of federal law 18 usc 241,242. . [sic] see you pigs in Federal court. . [sic]"; posted a link to the Woodland Park Video with the caption "[y]ou target sick children to Enrich [sic] officers [yellow police officer emoji] with overtime pay. . [sic] dirty ass cops"; and commented, "Tyler Pope they violate the constitution daily. All too stupid to understand the oath they took. We the people will bring these terrorists into federal court."
In this atypical civil-rights case, Plaintiff Shandle Marie Riley brings several claims stemming from a traffic stop that ultimately resulted in her baptism—yes, baptism—by on-duty Hamilton County Sheriff's deputy Defendant Daniel Wilkey. [Deputy Jacob] Goforth, who was also on duty and was present for the desacralized rite, argues that he is entitled to qualified immunity on Riley's 42 U.S.C. § 1983 claims ….
The court concluded that Riley could go forward with:
her claims that the baptism, which she allegedly agreed to in exchange for Wilkey's offer of leniency, violated the Establishment Clause, because it unconstitutionally coerced religion and unconstitutionally endorsed religion (partly because it lacked a "conceivable secular purpose");
her claims that she was seized in violation of the Fourth Amendment for purposes of the baptism, because a seizure for those purposes was not "reasonable"; and
her claims that Goforth could potentially be liable for failing to intervene to stop the allegedly unconstitutional actions.
The court also concluded that, if the facts were as Riley alleged, Goforth's actions wouldn't be shielded by qualified immunity, because they would be clearly unconstitutional. "There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue."
"Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools."
Randy and I are adding several cases for the second edition of An Introduction to Constitutional Law. One of the classic cases, which appears on the AP Government required list, is Tinker v. Des Moines Independent Community School District (1969). I had read the majority opinion before, but never read Justice Black's entire dissent. I suspect this passage from Justice Black's dissent will resonate with many people today:
Change has been said to be truly the law of life but sometimes the old and the tried and true are worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to domestic peace. We cannot close our eyes to the fact that some of the country's greatest problems are crimes committed by the youth, too many of school age. School discipline, like parental discipline, is an integral and important part of training our children to be good citizens—to be better citizens. Here a very small number of students have crisply and summarily refused to obey a school order designed to give pupils who want to learn the opportunity to do so. One does not need to be a prophet or the son of a prophet to know that after the Court's holding today some students in Iowa schools and indeed in all schools will be ready, able, and willing to defy their teachers on practically all orders. This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case, therefore, wholly without constitutional reasons in my judgment, subjects all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court's expert help from Washington, to run the 23,390 public school systems in our 50 States. I wish, therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels the teachers, parents, and elected school officials to surrender control of the American public school system to public school students. I dissent.
I sometimes wonder what schools would look like if Justice Black's views had prevailed.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
New on the Short Circuit podcast: A special live edition on the D.C. Circuit with former D.C. Circuit clerks (as well as frequent Supreme Court arguers) Lisa Blatt, Kelsi Brown Corkran and Paul Clement.
Cemetery company buys 180-acre property in Readington Twp., N.J. (that is zoned for cemetery use) and makes significant concessions to township officials: 73 acres to be available for public use, no herbicides or pesticides, preexisting buildings to be renovated, no headstones visible to passersby, and more. Officials: Yeah, but still. No permit for you. District court: A state law that says localities must consent to new cemeteries is unconstitutional because it gives officials "unfettered discretion" to reject applicants for any reason, including "cronyism, economic protectionism, ethnic or racial bias, or a preference for a particular religion." Third Circuit (nonprecedentially): Reversed. The law gives discretion to local legislators—not police, judges, or juries—so it's fine.
After a trip to the Supreme Court, the question of whether Baltimore officials' suit against 26 multinational fossil fuel companies over climate change (and attendant floods, heat waves, auto accidents, and power outages within city limits) will proceed in state or federal court returns to the Fourth Circuit. Which, over the course of 93 pages, reviews the defendants' eight distinct arguments for federal jurisdiction and rejects all of them. To Baltimore City Circuit Court!
After the Fairfax County School Board in Virginia eliminated standardized tests from the admissions criteria for the prestigious Thomas Jefferson High School for Science & Technology, Asian-American enrollment dropped from an average of 71% to 54% for the class of 2025. District Court: Which violates equal protection. Fourth Circuit (with concurrence and dissent): The ruling is stayed pending appeal.
Attorney Steven Biss is most widely known for filing frivolous lawsuits on behalf of former congressman Devin Nunes against, among others, The Washington Post, Esquire, CNN, and a Twitter cow. As a result, like the boy who cried wolf, judges tend not to give him the benefit of the doubt. But at least in this Fourth Circuit case, the trial court was wrong to impose Rule 11 sanctions against him; on the record before it, the district court could not have concluded that Biss's arguments had "no chance of success" (even if the Fourth Circuit sympathizes with its frustration).
When Defense Distributed put CAD files on the internet for a 3D-printable single-shot pistol back in 2013, the feds went after them for violating international arms-trafficking laws. Because nothing on the internet ever really goes away, the files remain widely available, even though Defense Distributed remains prohibited from sharing them. In the latest update to this First/Second Amendment saga, the Fifth Circuit (over a dissent) issues a rare mandamus order, instructing the district court to undo its partial severance and transfer of claims against the New Jersey AG to the District of New Jersey.
The Federal Reporter abounds with ways lawyers can lose their cases. But district judges within the Fifth Circuit can lose cases too—in the sense of reassignment to different jurists. And if you preside over an antitrust case while criticizing antitrust law and suggesting that Standard Oil wasn't a real monopoly …
By a vote of 2 to 1, the Fifth Circuit dissolves a district court's nationwide preliminary injunction of Executive Order 14043, which requires all federal executive branch employees to get vaccinated against COVID-19. Any employees who get fired for refusing the vaccine can ultimately be reinstated with backpay if the suit is successful, so they don't face irreparable harm in the meantime.
Man flees from police through several downriver Michigan communities, winds up in Detroit River (in January) and, after a bit of a struggle, submits to arrest. When he's handcuffed facedown and no longer resisting, one or maybe two officers allegedly kick him in the face repeatedly, breaking his nose. Officer: Okay, but he said he couldn't be 100 percent sure who kicked him. Qualified immunity? District court: Nope. Sixth Circuit: Nope (on jurisdictional grounds). Concurrence: Nope (on the merits).
Landlord: Minnesota's COVID-19 eviction moratorium prevented me from evicting a tenant who "operated a car and boat repair shop … in violation of city ordinances" and others who "threw raucous parties." An unconstitutional taking? A Contract Clause violation? District court: Party on, raucous dudes! I'm throwing this complaint out. Eighth Circuit: Turn the music down at least. The complaint at least states a cause of action. Remanded.
Randolph County, Mo. court clerk refuses to give 17-year-old an application to obtain judicial permission to get an abortion without notifying her parents. Can she sue the clerk? Clerk: The judge told me to do that! Eighth Circuit: If that's so, the clerk is protected by quasi-judicial immunity, but the judge says he doesn't remember the case and wouldn't usually give such a direction. So (over a dissent) no QJI. And, because the right to apply for judicial permission for abortion without parental notice is clearly established, no qualified immunity either.
Creighton University fraternity brothers get pledge black-out drunk and high on marijuana at chapter house and then leave him on campus at 1 a.m. He wanders into the dorm room of a random student and slashes her across the neck with a pocketknife. (She survives.) Can she sue the fraternity? The Eighth Circuit says no.
Man steals pistol from his parents, starts driving from Wyoming to Washington, DC, with vague plan to shoot then-President Trump. When he reaches Nebraska, he abandons his plan, calls his dad, and accepts his dad's advice to return home and seek psychiatric help. Yikes! He's convicted (and sentenced to time served—20 months) of making a threat against the president based on hearsay testimony from medical staff about the phone call with his dad. Eighth Circuit: Doesn't seem like this was the best use of prosecutorial resources, but the conviction stands.
Oklahoma dental anesthesiologists sue the Oklahoma Board of Dentistry after their requests for specialty licenses are denied (they had wanted to use the licenses in advertisements). Tenth Circuit: But Oklahoma changed the law and the Board says it will now grant the licenses if the dentists reapply, mooting their prospective claims. As for their retrospective claims for damages, the dentists managed to waive all those arguments on appeal.
After two Palm Beach County, Fla. firefighters are disciplined for criticizing their union's executive vice president in violation of the department's social-media policy, the fire fighters sue, alleging a variety of First Amendment theories. Eleventh Circuit: And their free speech and overbreadth claims can go forward. Their vagueness and free association claims, however, are out.
Allegation: Without warning, Madison County, Ala. officer body slams suicidal, non-resisting veteran on his head, causing serious neck injury (requiring the surgical removal of a vertebra, insertion of a metal rod, and fusion of two remaining vertebrae). Eleventh Circuit: The excessive force claim against the officer should not have been dismissed. And, because the then-sheriff apparently never investigated or disciplined officers who used excessive force, the claim for supervisory liability shouldn't have been dismissed either.
On Brittany Coleman's 25th birthday, Brookside, Ala. police pulled her over for a bogus infraction. Then they handcuffed her and forced her to stand in the hot sun for no reason while they searched every nook and cranny of her car for over 30 minutes. Finding nothing, they falsely charged Brittany with marijuana possession as a pretext to tow her car. Even though the charge was dropped, she was forced to pay nearly $1k in towing fees and court costs—making her just one of thousands of victims of the police department's predatory pursuit of profit. In 2020, the last year for which Brookside has made numbers available, the town got 49 percent of its revenue from fines and forfeitures—a more than 1,000% increase in such revenues since 2017. This week, IJ filed a class action. Read all about it in AL.com.
From yesterday's decision by Judge Trevor McFadden (D.D.C.) in U.S. v. Cudd:
Jenny Cudd moves to alter the Court's judgment against her denying her the right to possess a firearm while on supervision. A restriction on the right to possess a firearm is a discretionary condition of probation, not a mandatory one. See 18 U.S.C. § 3563(b). A discretionary condition can only be imposed by the Court "to the extent that such conditions are reasonably related to the factors set forth in section 3553(a)(1) and (a)(2) and to the extent that such conditions involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 3553(a)(2)."
Cudd contends that because she has a nonviolent misdemeanor conviction, the firearms restriction is not reasonably related to her conviction. More, Cudd maintains she has been threatened for her role in the Capitol on January 6 and needs a weapon to defend herself.
The Government opposes the motion. It argues this condition of supervision is reasonably related to "the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the office, and the need for the sentence imposed to afford adequate deterrence to criminal conduct." The Government describes Cudd as courting violence. It highlights that she wore a bulletproof sweatshirt to the Capitol, knew law enforcement was pepper spraying rioters, and yet continued into the building.
Some thoughts for me responding to Rick Hasen's, in a Balkinization symposium on Rick's new book, "Cheap Speech: How Disinformation Poisons Our Politics—and How to Cure It"
The book is available here, and the symposium posts (from many people) are here. Here's my post, which is also available here:
Rick Hasen's book identifies a tremendously serious problem; and it offers only modest solutions. And rightly so, I think: As the book correctly points out, more aggressive restrictions (such as bans on supposedly "misleading" advocacy) will likely be cures that are worse than the disease, however serious the disease might be.
I therefore have little quarrel with many of Rick's suggestions. But I do want to talk briefly about the problem of foreign speech that may influence election campaigns, which Rick suggests should be even more restricted than it is now (see pp. 102-09).
Protecting American self-government from undue foreign influence is of course quite appealing, especially for people (like me) who have a mindset that's more nationalist than universalist. I don't view myself as a citizen of the world; I'm a citizen of a particular nation. If I'm stranded in Elbonia, I'm not going to call the UN for help; I'll call the American Embassy. It is my nation, not the world, that I expect to defend me against peril. In turn, I'd like to see my fellow citizens make political decisions without excessive interference by foreign countries, even friendly ones but especially adversarial ones (such as Russia). "God gave all men all Earth to love / But, since our hearts are small / Ordained for each one spot should prove / Beloved above all." Our spot, for us to govern; and I'm sure many citizens of other countries think the same of theirs.
At the same time, much important information relevant to American political debates comes from foreign citizens. Some are people living in the U.S. on temporary work or student visas. Many are in foreign countries; they could be ordinary citizens, political activists, scholars, or politicians. They may be able to convey important facts and ideas about the effects of American foreign policy; or about American actions bearing on world problems (such as climate change or telecommunications technology or artificial intelligence or food production); or about foreign problems that might call for American help.
4/8/1952: President Truman signs executive order 10340. The Supreme Court declared this executive order unconstitutional in Youngstown Sheet & Tube Co v. Sawyer(1952).
It explains why many of the reasons GOP senators gave for opposing Jackson were ridiculous, but also that there is nothing inherently wrong in opposing a qualified "mainstream" nominee based on differences over judicial philosophy.
Judge Ketanji Brown Jackson. (Tom Williams/CQ Roll Call/Newscom)
NBC has just published my column on the confirmation of President Biden's Supreme Court nominee, Judge Ketanji Brown Jackson. Here is an excerpt:
On Thursday, Judge Ketanji Brown Jackson, President Joe Biden's nominee for the Supreme Court, was confirmed by a 53-47 vote in the Senate. Only three Republican senators joined all 50 Democrats in supporting her. Many of the specific objections that Republicans raised during Jackson's confirmation hearings were ridiculous and off-base. But another line of objection to her nomination was eminently reasonable, even if still disputable: her judicial philosophy….
While GOP senators had every right to oppose Jackson, the reasons many of them gave were dubious, at best. The issue they raised most often during the confirmation hearings was her supposed softness in sentencing defendants convicted of offenses involving images of child sexual abuse. As conservative criminal justice expert Andrew McCarthy explained in detail in two National Review articles, Jackson's rulings in these cases were well within normal parameters.
Even more risible than the pornography accusation was Texas Sen. Ted Cruz's charge that Jackson's pre-judicial career as a public defender indicates she has a "a natural inclination in the direction of the criminal" because a public defender's "heart is with the murderers, the criminals … that's who they're rooting for."
Cruz's demagoguery was topped by that of Sen. Tom Cotton of Arkansas, who charged that Jackson might have wanted to defend the Nazi leaders tried at Nuremberg for war crimes following World War II. The insinuation that she is somehow sympathetic to Nazis is absurd….
Despite such ridiculous excesses, Republicans weren't necessarily wrong to oppose Jackson's nomination because of her judicial philosophy. To his credit, GOP Sen. Ben Sasse of Nebraska clearly stated that he based his opposition on such grounds, while recognizing that Jackson has "impeccable credentials" and "is an extraordinary person with an extraordinary American story."
Sasse and other Republicans could reasonably expect that a liberal nominee would have significant reservations about their preferred approach to interpreting the Constitution, and often cast votes inimical to conservatives on important issues such as affirmative action and gun rights…. My own view is that Jackson probably deserved to be confirmed because her positions are likely as good or better than those of realistically feasible alternatives. But reasonable senators could differ with that assessment….
Senators have just as much right to consider judicial philosophy when voting on confirmation as presidents do when deciding whom to nominate in the first place. The methodology a justice uses in reaching decisions is an important part of the job she performs. As then-Illinois Sen. Barack Obama put it in defending his vote against George W. Bush nominee Samuel Alito, "meaningful advice and consent [by the Senate]… includes an examination of a judge's philosophy, ideology, and record," as well as "intellect" and "personal character."
In today's polarized Senate, such opposition is routine. The last Supreme Court justice to be confirmed with overwhelming bipartisan support was the one Jackson will replace: Justice Stephen Breyer, confirmed by an 87-9 vote back in 1994. Since then, a large percentage of senators in the party opposing the president who made the selection have objected to every nominee, beginning with Chief Justice John Roberts. Roberts got 22 opposing votes among the then-45 Senate Democrats (and one Democrat-aligned independent). After that, every Supreme Court nominee to come to a vote has been opposed by over 75 percent of senators from the other party. Biden was among the Democratic senators who joined Obama in voting against Alito on judicial philosophy grounds. They also both voted against Roberts.
Some argue that differences over judicial philosophy should be set aside if the nominee's views are "mainstream." But most of the Supreme Court's worst decisions were within the judicial mainstream of their day, including Dred Scott and Plessy v. Ferguson. Jackson is well within the mainstream of liberal legal thought, just as recent Republican nominees were all well within the conservative mainstream. That doesn't necessarily mean they will avoid terrible errors. A senator who sincerely believes a mainstream nominee's views will lead to awful results can legitimately take that into account in deciding how to vote.
that a would-be plaintiff claiming that its rights have been violated by anonymous online speech has to make a showing, supported by both legal argument and an evidentiary showing,
that it has a tenable claim before it gets to identify the anonymous speaker and thus obtain the ability to serve the speaker with a summons and complaint and litigate its claim to a conclusion, and
that assuming the plaintiff has made these showings, the court has to balance the right to enforce substantial claims through litigation against the prospective costs of breaching the right to speak anonymously.
The case arises in somewhat peculiar circumstances. Over a period of a few days in October 2020, a Twitter user using the handle "CallMeMoneyBags," who specialized in tweets about private equity figures, posted a series of photographs of nubile women to which he appended texts suggesting that Brian Sheth, a private equity billionaire, was now investing his wealth in such women (the tweets and photos appear at pages 3 to 5 here). A mysterious entity named Bayside Advisory, LLC, which appears to have been first formed in Delaware that same month, and was not even registered to do business in California until January 2021, served a DMCA takedown notice on Twitter, contending that the tweets infringed its copyright in the photos, and followed that notice with a subpoena that it obtained under section 512(h) of the DMCA, seeking to identify CallMeMoneyBags for the claimed purpose of enforcing its copyright.
Twitter objected to the subpoena and, when Bayside persisted, moved to quash on First Amendment grounds, expressing suspicion that Sheth himself was behind the DMCA takedown and subpoena, and insisting that Bayside make a showing that its copyright claim could surmount the anonymous user's potential fair use defense before the user's identification was compelled. Bayside cross-moved to compel compliance.
By way of background, this suit arises out of the Schenks' failure to pay for monthly residency and other attendant recurring service charges beginning in June 2017 and continuing through October of this year. On March 18, 2010, the Schenks entered into the Residency Agreement with Fellowship by which Fellowship accepted the Schenks as lifecare residents in the Fellowship Village CCRC and agreed to provide them with, among other things, housing, certain healthcare as needed, and certain meals (the "Services").
Pursuant to the Agreement, the Schenks agreed to pay Fellowship an upfront entrance fee, plus ongoing monthly service fees and other related fees such as for cable television, carport, telephone and internet connectivity. The parties have asserted various claims, counterclaims, and third-party claims which have largely been resolved by the Schenks' tender of $140,501.36 in partial satisfaction of the outstanding sums due as set forth in the Court's November 7, 2019 Order.
The court entered an order that (among other things) "enjoin[ed] the Schenks from future disparagement or derogatory communications against Fellowship, its Officers, Board Members, Employees, or Agents," but later granted the Schenks' motion to reconsider:
On April 20th, the Supreme Court will hear argument in an important case on Miranda rights, Vega v, Tekoh. The basic question in Tekoh is whether there can be a civil remedy for a Miranda violation. In Chavez v. Martinez, back in 2003, a badly-splintered Court held that the law is not violated if a police officer obtains a confession in violation of Miranda that is never actually admitted in Court. It's the admission in court of the unwarned statement that is the problem, the various opinions concluded, not the obtaining of the statement alone. In the words of Justice Kennedy's partial concurrence, without the admission of the statement there is no "completed constitutional violation actionable under 42 U. S. C. § 1983."
Tekoh raises a follow-up question: If an unwarned statement is wrongfully admitted, is that a completed violation actionable under 42 U. S. C. § 1983? And if it's actionable, who is responsible for it?
I would have thought that the first question was definitively resolved by Dickerson v. United States, which concluded that Miranda is "a constitutional decision of this Court [that] may not be in effect overruled by an Act of Congress." If Miranda is a constitutional decision, and the constitutional wrong is the admission of the unwarned statement, then logically doesn't the admission of the unwarned statement have to be a constitutional violation? Violating a constitutional rule is a constitutional violation, after all.
Not so, says Vega, the officer who obtained the statement. Vega says that Dickerson never explicitly stated that Miranda violations are actually constitutional violations. In Vega's view, this means that Miranda is just a constitutionally-inspired prophylactic rule of evidence, not an actual constitutional rule. As a result, he argues, admission of an unwarned statement can be a subject of a motion to suppress, but it cannot lead to liability under § 1983. Echoing the dissenters in Dickerson, Vega presents Miranda as just a made-up rule that is not part of the real Constitution—and certainly not part of the Constitution as originally understood.
Professor Oliver and his co-authors argue that Miranda v. Arizona was more a return to Framing-era interrogation practices than something entirely novel. Around the time of the Framing, he claims, the common law voluntariness test for the admission of confessions was much more restrictive than it became in the 20th century. In the Framing era, magistrates routinely gave legal warnings to a person about to be interrogated that he had a right to remain silent and that their evidence would be used against them. The warnings were thought necessary, Oliver argues, as a way to meet the very strict voluntariness rule then in place. Only when a person was told of his rights, the thinking went, could a subsequent statement be deemed truly voluntary.
This thinking will ring a bell to modern criminal procedure ears: It's the basic theory of Miranda. What happened, Oliver argues, is that courts loosened the voluntariness test in the late 19th and early 20th centuries. Warnings were then dropped, as they were no longer needed to make sure statements were voluntary. (Almost everything was voluntary under the new voluntariness test; who needs warnings?) But the new looser voluntariness test then led to brutal interrogation practices in the 20th century. And then the Warren Court, entirely unaware of this history, responded to those brutal interrogation practices by devising what it thought was a new idea for how to ensure the voluntariness of confessions: Introduce the requirements of legal warnings.
As Oliver tells it, Miranda inadvertently returned the law to something akin to what it was in the Framing era without actually realizing it:
Miranda-like warnings were part of the historical practice of interrogations. Under the Framing Era voluntariness test, as a practical matter, warnings were often essential to admit a suspect's confession. As the Court often looks to Framing Era practices to understand the original public meaning of the Constitution, this often-overlooked set of practices provides considerable historical support for Miranda warnings as a constitutional protection.
Although the brief doesn't put it this way, the picture drawn hints at a rich irony. The living constitutionalists behind Miranda stumbled upon a rule similar to what was employed in the Framing era, while the originalists who excoriate Miranda are unknowingly advocating a modern judge-made rule very different from that used when the Bill of Rights was ratified.
Full disclosure: I have spoken with Professor Oliver about the case and reviewed a draft of the brief. Also, I have slightly edited this post shortly after publishing it.
