The Volokh Conspiracy

With the U.S. and Europe united in opposing Russia's attack on Ukraine, a few tough transatlantic disputes are being swept away – or at least under the rug.  Most prominently, the data protection crisis touched off by the Court of Justice of the EU in Schrems 2 has been resolved in principle by a new framework agreement between the U.S. and the EU.  Michael Ellis and Paul Rosenzweig trade insights on the deal and its prospects before the CJEU. The most controversial aspect of the agreement is the lack of any change in U.S. legislation. That solution is the result of simple vote-counting if you're from Washington, but the CJEU clearly expected that it was dictating legislation for the U.S. Congress to adopt, so Europe's acquiescence in a no-legislation solution may simply kick the can down the road until the next CJEU ruling. The lack of legislation will be felt in particular, Michael and Paul aver, when it comes to providing remedies to European citizens who feel their rights have been trampled.  Instead of going to court, they'll be going to an administrative body with executive branch guarantees of independence and impartiality. Well, it's worth a try. We congratulate several old friends of the podcast who patched this solution together.

The Russian invasion of Ukraine, meanwhile, continues to throw off new tech stories. Nick Weaver updates us on the single most likely example of Russia using its cyber weapons effectively for military purposes – the bricking of Ukraine's (and a bunch of other European) Viasat terminals. Alex Stamos and I consider whether the social media companies recently evicted from Russia, especially Instagram, should be induced or required to provide information about their former subscribers' interests to allow microtargeting of news that might break through Putin's information management barriers; along the way we examine why it is that tech's response to Chinese aggression has been so less vigorous. Speaking of microtargeting, Paul gives kudos to the FBI for its microtargeted "talk to us" Russian language ads, only visible within 100 yards of the Russian embassy in Washington. Finally, Nick Weaver and  Mike mull the significance of Israel's determination not to sell sophisticated cell phone surveillance malware to Ukraine.

Returning to Europe-U.S. tension, Alex and I unpack the European Digital Markets Act, which regulates a handful of U.S. companies as "digital gatekeepers." I think it's a plausible response to network-effect monopolization, but ruined by anti-Americanism and the persistent illusion that the EU can regulate its way to a viable tech industry. Alex has a similar take, noting that the adoption of end-to-end encryption was a big privacy victory, thanks to WhatsApp, an achievement that the Digital Markets Act may undo in its attempt to force standardized interoperable messaging on gatekeepers.

Nick walks us through the surprising achievements of the gang of juvenile delinquents known as Lapsus$. Their breach of Okta offers an occasion for speculation about how lawyers skew cyber incident response in directions that turn out to be very bad for the breach victim. Alex vividly captures the lawyerly dynamics that hamper effective response.  While we're talking ransomware, Michael cites to a detailed report on corporate responses to REvil breaches, authored by the minority staff of the Senate Homeland security committee. Neither the FBI nor CISA comes out of it looking good.  But the bureau earns more criticism, which may explain why no one paid much attention when the FBI demanded changes to the cyber incident reporting bill.

Finally, Nick and Michael debate whether dream pop musician (and Elon Musk sweetheart) Grimes could be prosecuted for computer crimes after confessing to having DDOSed an online publication for an embarrassing photo of her. Just to be on the safe side, we conclude, maybe she shouldn't go back to Canada. And Paul and I praise a brilliant WIRED op-ed proposing that Putin's Soviet empire nostalgia deserves a wakeup call; according to the authors (Rosenzweig and Baker, as it happens), least ICANN should kill off the Soviet Union's out-of-date .su country code.

And many thanks to the loyal listeners who turned up on line today to watch us record this episode live and with video. It was fun, and we'll do it again some time soon.

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

In light of some recent discussions, I thought I'd repost some tentative thoughts on the subject (based on a 2005 post of mine), and see what the rest of you think.

1. Morality: Government-sponsored assassination is essentially an act of war; it's an attempt to affect another nation's government policy by military force. Nonetheless, if an invasion is morally justified, it seems to me that an assassination is if anything more so. It would be an odd morality that allowed the killing of enemy soldiers, many of whom are personally morally innocent, but forbade the killing of their commander-in-chief—or even ostensibly civilian leaders of the enemy government—who may be morally culpable indeed.

Idi Amin was ultimately driven from power by a Tanzanian invasion (which was prompted by a Ugandan invasion of Tanzania, but would have been eminently justified even without that). If the Tanzanians or others could have stopped Amin's murders by assassinating Amin, and without killing any Ugandan soldiers, that would have been even better.

The same goes for many other tyrants, though naturally not for every leader you dislike: Just as invasions are unjustified in most certain circumstances, so are assassinations (especially of democratic leaders, where the people's self-government as well as the leader's right to live are implicated). My point is simply that assassinations are no morally worse than other acts of war, and likely morally better than many such acts.

(I set aside for purposes of this post questions about whether and when such assassinations violate either domestic law or international law; the "morality" inquiry is about whether they're inherently wrong, not just about whether they violate the legal rules, since presumably we can change any executive orders or statutes, or withdraw from any treaties, that we think are too constraining. For an item on one corner of the legal question, see here.)

Note that I use the term "assassinate" because I don't want to sugarcoat what would be happening—the deliberate killing of a particular person. But if you think that "assassinate" inherently carries a connotation of improper deliberate killing (or has a particular legal meaning that excludes legitimate killing), just mentally replace the use of "assassinate" throughout this post with "targeted killing."

2. Practicality: The chief problems with assassination, it seems to me, are practical ones.

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I came across this one a few days ago, though it was originally posted on Feb. 27, in the first days of the war; many thanks to Iryna Onyshchenko for the translation (here are the Ukrainian lyrics, and also what appears to be the original Facebook post with the video). As you can see, the production values are minimal, but I think that here that makes the song more effective. I think the reference to "fear" rather than fearlessness makes it more effective, too.

Note also that the introduction and closing are in Russian; for many patriotic Ukrainians, Russian is their native language, and much of the resistance to Russia has been carried on in Russian. I'm still trying to learn the name of the author, who is apparently also the one singing the song, and a tank soldier in Kharkiv; if I learn it, I'll post it.

[Introduction, in Russian:] [Inaudible.] Well, we found a guitar here, and so you don't get upset, here's a song from the Ukrainian tank soldiers.

[In Ukrainian:]
The dark nights are disturbed by flashes of light,
Fear in my heart and gunfire all around,
We must move forward, entering the battle,
Ukraine, we are your defenders.

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An increasing number of state and local jurisdictions place limits on how long trucks may sit idle with the engine running. Unnecessary truck idling is a significant contributor to local air pollution and results in additional greenhouse gas emissions to boot.

In New York City, private bounty hunters contribute to the anti-idling law's enforcement. As chronicled the New York Times, local citizens participate in the Citizens Air Complaint Program, submitting reports on trucks that idle longer then three minutes and collecting a portion of fines collected as bounties. As the Times reports:

Those who report collect 25 percent of any fine against a truck by submitting a video just over 3 minutes in length that shows the engine is running and the name of the company on the door.

The program has vastly increased the number of complaints of idling trucks sent to the city, from just a handful before its creation in 2018 to more than 12,000 last year. . . .

The bounty system appears to have been effective at enlisting local citizens to help enforce the law, but it has also led to conflict, as truck operators do not like being reported.

The program and the increased interest in filing complaints have brought a new game of cat and mouse to the city's streets, as citizen reporters prowl in search of idling trucks and drivers, perhaps stung by past fines, are increasingly wary of people with cameras. . . .

Despite efforts to evade citizen enforcers, the program brings in fines, and pays out significant bounties.

The city paid more than $724,000 in bounties last year alone, and $1.1 million since 2019. For its share, the city collected $2.4 million in fines last year, up 24 percent from when the program began in earnest three years ago.

On Thursday, the Supreme Court decided Ramirez v. Collier. Ramirez, a capital defendant, was scheduled for execution. But Texas did not allow Ramirez's pastor to lay hands on him, and engage in audible prayer, during the execution. On appeal to the Supreme Court, Ramirez argued that Texas's policy violated the Religious Land Use and Institutionalized Persons Act, or RLUIPA (one of my favorite acronyms). The defendant did not preserve arguments based on the Free Exercise Clause. (The Becket Fund sought to participate in oral argument to address First Amendment arguments.)

The Supreme Court ruled for Ramirez in a lopsided 8-1 vote. Chief Justice Roberts wrote the majority opinion, and Justice Thomas wrote a solo dissent.

The Court found that Ramirez was likely to prevail on his RLUIPA claim, and instructed the district court, if appropriate, to enter a preliminary injunction: the state must allow the pastor to lay hands and engage in audible prayer during the execution, subject to certain restrictions.

We hold that Ramirez is likely to prevail on the merits of his RLUIPA claims, and that the other preliminary injunction factors justify relief. If Texas reschedules Ramirez's execution and declines to permit audible prayer or religious touch, the District Court should therefore enter appropriate preliminary relief. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. 

This remedy may have a Marbury problem: the Court didn't simply review the lower court judgment--the denial of a stay of execution. Both the majority and dissent agree that the stay issue was already decided. Indeed, the stay on execution was dissolved, so the execution can go forward with religious accommodations. Rather, the Court ruled on an entirely new form of relief. No lower court passed on this injunction. Was the Court exercising appellate or original jurisdiction here? The Solicitor General raised similar objections in the OSHA vaccine litigation. For all the protestations about the insidious shadow docket, we may have an actual Article III problem here. I'll have more on this topic in another post. Here, I want to talk about the merits analysis.

RLUIPA, like RFRA, was enacted in the wake of Employment Division v. Smith. Through RLUIPA, Congress instructed the Courts to review federal laws burdening the free exercise of religion with something like strict scrutiny. Chief Justice Roberts laid out the test:

RLUIPA provides that "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution"—including state prisoners—"even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U. S. C. §2000cc–1(a).

Chief Justice Roberts largely agreed that Texas had several compelling interests:

We do not doubt that prison officials have a compelling interest in monitoring an execution and responding effectively during any potential emergency. . . .

We agree that the government has a compelling interest in preventing disruptions of any sort and maintaining solemnity and decorum in the execution chamber. . . .

They point to three governmental interests they say are compelling: security in the execution chamber, preventing unnecessary suffering, and avoiding further emotional trauma to the victim's family members. All three goals are commendable. . . .

But Texas was not able to show their policy was the "least restrictive means of furthering" these compelling interests.

Justice Kavanaugh wrote a concurrence that criticized the "compelling interest" prong of RLUIPA:

Second, the Court's holding implicates significant issues about how the Court decides whether a State's asserted interest is sufficiently "compelling" and how the Court assesses whether less restrictive means could satisfy that compelling interest. This case illustrates both the difficulty of those inquiries and the important role that history and state practice often play in the analysis. . . .

But what does "compelling" mean, and how does theCourt determine when the State's interest rises to that level? And how does the Court then determine whether less restrictive means would still satisfy that interest? Good questions, for which there are no great answers. 

Kavanaugh expressed a strong discomfort with the judiciary determining which interests are compelling:

The compelling interest standard of RLUIPA—like the compelling interest standard that the Court employs when applying strict scrutiny to examine state limitations on certain constitutional rights—necessarily operates as a balancing test. See generally B. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1914– 1919 (2017).

Kavanaugh's position is not new. Indeed, Kavanaugh's further self-citation points us to his 2017 Notre Dame Law Review article. Kavanaugh explains at some length that determining whether an interest is compelling is inherently a "common law" inquiry.

These verbal formulations are challenging because judges have no objective way of deciding whether an interest is "compelling" or "important" without making a judgment about the desirability of that interest. . . . What is really going on with these tests, it appears, is old-fashioned common- law judging. This may be unavoidable, as I will explain. But we should be under no illusions that this is not what's happening when those tests are being applied.

Kavanaugh expressly cited RFRA as an example of a statute that adopted the "compelling interest" test. The article goes on to discuss the compelling interest in the context of abortion, affirmative action, and the Second Amendment. On this last point, Kavanaugh refers to his D.C. Circuit Heller II decision:

The litigation in the lower courts since Heller has centered on which gun regulations are constitutional and which gun regulations are unconstitutional. 28 Not surprisingly, this has played out as a battle over whether strict scrutiny or intermediate scrutiny applies. Must the regulations serve a compelling interest or merely an important interest? As I have stated, I view much of that debate as a smokescreen that is disguising basic common-law balancing and deciding what is reasonable versus what is unreasonable, what is important versus what is not as important. And in this context in particular, I view Heller as having already told us that the content of exceptions to the Second Amendment right is not to be assessed based on strict scrutiny or intermediate scrutiny. Rather, the exceptions are to be assessed by reference to history and tradition. I wrote an opinion to that effect, although I am the first to acknowledge that most other lower-court judges have disagreed. The issue has not returned yet to the Supreme Court. To be determined.

To be determined, indeed. NYS Rifle & Pistol remains pending.

None of this should come as a surprise. Unlike the most recent Supreme Court nominee, then-Judge Kavanaugh gave extensive thought to his judicial philosophy. Kavanaugh does not like strict scrutiny, and the compelling interest test. He prefers a test based on text and history, which he considers more determinate.

Kavanaugh's prior writings may shed some light on his Fulton concurrence. Recall that Kavanaugh, along with Justice Barrett, declined to overrule Employment Division v. Smith. Barrett's concurrence raised a phalanx of apparently-unanswered questions. But we didn't hear separately from Kavanaugh. I think his Ramirez concurrence speaks directly to his concerns: if Smith is overruled, the compelling interest test would (likely) be restored to Free Exercise Clause jurisprudence. And the "smokescreen" from Sherbert and Yoder would also be restored. Justice Kavanaugh may favor a text-and-history approach to the Free Exercise Clause, but would oppose strict scrutiny--the precise framework adopted by Justices Alito, Thomas, and Gorsuch in Fulton. Indeed, Kavanaugh's concurrence links his analysis to the strict scrutiny debate:

The strict scrutiny test requires the government to demonstrate a"compelling interest" in order to justify imposing a burden on certain constitutional rights. That test was first applied by this Court in certain First Amendment cases in the late 1950s and early 1960s. See R. Fallon, Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1270–1271 (2007); S.Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 Am. J. Legal Hist. 355, 356–357 (2006). The test can be difficult to apply because it arguably "permits and even requires judges to engage recurrently in only minimally structured appraisals of the significance of competing values or interests in many cases." R. Fallon, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny 66–67 (2019). In RLUIPA, Congress used the term "compelling" interest without further defining it.

And guess what case Fallon discussed on pages 1269, right before the pincite to 1270: Smith.

Reading through the Ramirez concurrence made me think of Justice Scalia's objections to the compelling interest prong. In Smith, Scalia wrote:

If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society's diversity of religious beliefs, and its determination to coerce or suppress none of them.

Who wants to court anarchy? Kavanaugh would, instead, turn to a historical approach:

In short, as this case demonstrates, the compelling interest and least restrictive means standards require this Court to make difficult judgments about the strength of the State's interests and whether those interests can be satisfied in other ways that are less restrictive of religious exercise. Although the compelling interest and least restrictive means standards are necessarily imprecise, history and state practice can at least help structure the inquiry and focus the Court's assessment of the State's arguments. 

Kavanaugh's approach is far more favorable than the methodology of his predecessor; Justice Kennedy also rejected the tiers of scrutiny, but preferred appeals to post-modern values like dignity and autonomy.

I think the upshot to this concurrence is that Justice Kavanaugh will not lay a hand on Smith, to borrow a phrase, if doing so means restoring the compelling interest test. He won't even touch Smith's foot. Advocates should instead focus on how historical practice undermines a state's interest to burden free exercise. Ditto for free speech. This approach will be useful in 303 Creative. Stay tuned.

During President Trump's second impeachment trial, Seth Barrett Tillman and I wrote that elected officials, including the President, retained their First Amendment right to freedom of speech. (See here, here, here, and here.) We often quoted from Chief Justice Rehnquist's classic book about presidential impeachments, Grand Inquests. He observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." Yet, some of our critics argued that elected officials had reduced First Amendment rights, and their speech was subject to the Pickering/Garcetti line of cases. In other words, elected officials would be treated in the same fashion as civil servants.

In Houston Community College v. Wilson, the Supreme Court reaffirmed that elected officials have free speech rights. Justice Gorsuch's unanimous majority opinion reflects this position--and it did not seem controversial at all.

First, the Court stated, directly, that elected officials retain their free speech rights. These accountable officials need to exercise those rights to fully represent their constituents.

First, Mr. Wilson was an elected official. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes. As this Court has put it, "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement" that it was adopted in part to "protect the free discussion of governmental affairs." Mills v. Alabama, 384  U. S. 214, 218 (1966). When individuals "consent to be a candidate for a public office conferred by the election of the people," they necessarily "pu[t] [their] character in issue, sofar as it may respect [their] fitness and qualifications forthe office." White v. Nicholls, 3 How. 266, 290 (1845). 

Mills v. Alabama, the cited case, does not directly support the proposition that elected officials retain their free speech rights. But the Court stated the issue clearly: elected officials can "continue exercising their free speech rights when the criticism comes."

Second, Gorsuch expands on this reasoning. He explains that the elected members of the Houston Community College Board can use their free speech rights to censure Wilson, a fellow elected member:

Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson's colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to "examin[e] public characters and measures" through "free communication" may be no less than the "guardian of every other right." Madison's Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mat-tern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process "'makes it all the more imperative that they be allowed to freely express themselves.'" Republican Party of Minn. v. White, 536 U. S. 765, 781 (2002).

Again, the First Amendment protects the rights of politicians to criticize other politicians. Their speech is not subject to the ad-hoc balancing test from Pickering.

Gorsuch's analysis recognizes that elected officials are accountable to the electorate, and not a bureaucracy. Those elected officials are expected to receive public criticism. But more importantly, those elected officials retain their free speech rights to respond to public criticism.

Gorsuch stressed over and over again that the case concerned elected officials:

Given these features of Mr. Wilson's case, we do not see how the Board's censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. 

These First Amendment rights are not diminished by entering elected office, as they perhaps would be by entering the civil service.

In January 2020, Tillman and I wrote:

As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants' speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that the Pickering line of cases was correctly or incorrectly decided. Our point is more limited: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.

I think HCC v. Wilson provides some support for our position.

On Thursday, the Supreme Court decided Houston Community College v. Wilson.  I'll take a point of personal privilege to highlight that the Petitioner was represented by Rick Morris, an alum of the South Texas College of Law Houston. And throughout the case, Rick worked closely with students at the South Texas College of Law Houston to prepare. Their work led to a unanimous majority opinion by Justice Gorsuch.

The U.S. Supreme Court ruled 9-0 today in favor of STCL Houston 1991 alumnus Rick Morris, in a case he argued Nov. 2 – after preparation with STCL students and professors. Read more here: https://t.co/UGsvUa1Djo

#STCLHouston #SCOTUS #STCLAlumni #LawSchool pic.twitter.com/YIDfJGUfyg

— STCL Houston (@STCL_Houston) March 24, 2022

I am very, very proud of our students.

Respondent, on the other hand, was represented by McDermott Will & Emery and the Yale Law School Supreme Court Clinic. And Justice Gorsuch faulted Respondent for not filing a cross-petition:

But as merits briefing unfolded, Mr. Wilson did not just seek to defend the Fifth Circuit's judgment; he also sought to challenge it in part. Specifically, he argued that the Fifth Circuit erred to the extent that it upheld the Board's nonverbal punishments as consistent with the First Amendment. Generally, however, when a respondent in this Court seeks to alter a lower court's judgment, he must file and we must grant a cross-petition for review. See Genesis HealthCare Corp. v. Symczyk, 569 U. S. 66, 72 (2013). Mr. Wilson filed no such petition in this case. As a result, we decline to take up his challenge to the Fifth Circuit's judgment, and the only question before us remains the narrow one on which we granted certiorari: Does Mr. Wilson possess an actionable First Amendment claim arising from the Board's purely verbal censure?

At least in this case, a well-respected Houston law firm and the South Texas College of Law Houston bested a global law firm and Yale Law School. We'll take the victory. Rick now joins the ranks of other South Texas alum who argued at the Supreme Court, including Lynne Liberato.