Eugene Volokh's Blog, page 10

[Josh Blackman] See The Entire Constitution At The National Archives

[The Constitution, the "Fifth Page," and all 27 Amendments are on display.]

I have visited the Rotunda at the National Archives many times. On permanent display are the Declaration of Independence, the four pages of the Constitution, and the Bill of Rights. At this point, the Declaration is so faded, it is nearly impossible to read. Same for the Bill of Rights. Thankfully, the Constitution was better preserved. Every time I walk into the room, I am overcome by a sense of awe and wonder. I devote my life to teaching these documents, but it is a very different sensation to see them in person.

For the next month, the National Archives has put together a very special presentation: the "fifth page" of the Constitution is on display, along with all twenty-seven amendments. Today, I visited the Archives, and thoroughly enjoyed the new exhibit. The photographs, alas, are not good. The lighting creates a glare on the glass cases, which made them even more difficult to see.

The "fifth page" provided instructions to the states of how to ratify the Constitution. I labored about whether to include this text in the Heritage Guide to the Constitution. I ultimately decided not to, as it was not part of the ratified document, even though it was signed by George Washington, the President of the Convention.

I was struck by how large the proposed Eleventh Amendment was. The piece of parchment was nearly the size of the Bill of Rights.

The Twelfth Amendment had a formatted, printed header at the top. It was also a large piece of parchment.

The Thirteenth Amendment was written in very tight cursive, and took up barely half the page. It is noteworthy that President Lincoln signed the Thirteenth Amendment, even though Article V does not provide a role for the President in the amendment process.

The Fourteenth Amendment was not written on any sort of form, but was written in script on lined-paper.

The Sixteenth Amendment was the first amendment that was typeset. Much less dramatic.

 

I don't think I had ever seen the Twenty-Seventh Amendment before. It includes a fascinating narrative of how the amendment was originally introduced in 1789, but not ratified until 1992.

Visit the Archives soon!

The post See The Entire Constitution At The National Archives appeared first on Reason.com.

[Josh Blackman] Some Things We Learn From Justice Barrett's New Book

[Chapter 4 on "Deciding a case" offers some insights that we didn't know, or at least didn't know for certain.]

I am making my way through Justice Barrett's new book, Listening to the Law. I'll put the praise up front. This is a very well-written book. It is tight, well-organized, and enjoyable. I think a non-lawyer could pick up this book and learn a lot about the Supreme Court. It is also clear to me that Justice Barrett wrote this book herself, and enjoyed writing it. She has a very distinct writing style that comes through on every page. There was no ghost-writer used here.

In due course, I will offer some more in-depth comments, but here, I'd like to highlight some of the new things we learn from the book. In particular, I'll focus on Chapter 4, where she walks through her process of deciding cases.

First, Barrett explains her process before oral arguments. Barrett will read the brief from the Petitioner, Respondent, and when available, the Solicitor General. Barrett is very clear that she does not read amicus briefs "at the outset of [her] preparation." At a recent confirmation hearing, a Senator worried about the dark money that funds amicus briefs. I think this concern is misplaced. Barrett said she will "read some amicus briefs, like those filed by state governments." But she finds less helpful briefs that "dwell on policy arguments." I would know nothing about such briefs!

Second, after reading the briefs, she will read the clerk's bench memo. By contrast, when she served on the Seventh Circuit, she would read the bench memo before the briefs. Why the change? Barrett writes, "At the Supreme Court, by contrast, the question presented is crystallized, and the quality of briefing is almost always superb." Barrett wants to form her own "preliminary views" before reading the recommendation.

Third, Barrett explains that the clerk authoring the memo chats with her co-clerks, as well as the clerks in the other eight chambers:

Though the memo is the clerk's own work product, she doesn't prepare it in a vacuum. In the course of working through the arguments, she has conversations with her co-clerks, as well as with the clerks working on the same case in the other eight chambers.

I don't think this practice has ever been publicly confirmed by a Justice. I find it fascinating that all of the clerks will chat about the case. I suspected this type of shuttle diplomacy happens after a case is happened, but it apparently happens before as well.

Fourth, after reviewing the clerk's memo, Barrett will write up her own analysis. In some cases, Barrett has a strong sense of where she will lean. in other cases, she does not.

After some back-and-forth with the assigned clerk, I sit down at a computer, do additional research if necessary, and write up my own analysis. In some cases, I'm practically certain of my view, particularly if it's an issue that I've dealt with before. In others, I have a preliminary sense, stronger in some cases than others. And there is a small subset of cases in which a first reading of the briefs leaves me evenly divided. Oral argument is most likely to move me in the latter two situations, but I'm always open to hearing what the lawyers say in the courtroom.

Fifth, Barrett offers a detailed analysis of oral argument. Barrett uses two different terms for the phases of OA: "open floor" and "cleanup round." I usually refer to the latter as "seriatim" but I can see why "cleanup" makes sense. Barrett will always re-listen to an argument if she is assigned the opinion. Why does Barrett not read the transcript? "The answer is that audio allows me to multitask, so it is background while I cook or run errands."

Barrett also relates how her parents listened to oral argument in Trump v. Anderson. Of all the cases they attended, it is curious Barrett mentioned this case.

Sixth, Barrett discusses her process after oral argument. She hashes the case out with all four of her clerks. Then, she decides how she will vote:

After all of this input—the briefs, the research, oral argument, conversations with clerks—it's time to decide how I'll vote and what I'll say at conference. I return to the notes that I wrote before argument and edit them as needed based on subsequent developments.

Barrett offers a useful test case to check for potential biases:

To counteract my biases, I substitute a different policy into the legal frame. For example, if the question is whether a statute allows an administrative agency to adopt a regulation that I dislike, I imagine the agency using a statute with the same language to adopt a regulation that I like. If a free speech claim involves a message with which I sympathize, I plug in a message I disfavor. Not every case is susceptible to this exercise, but every case is susceptible to this question: Can I look the losing party and any dissenting colleagues in the eye and honestly defend my conclusion as my best understanding of what the law requires?

I think this analysis usually winds up with "no one has standing."

Barrett relays that Justice Scalia said it took him longer to decide cases earlier in his career. Barrett writes, "I have years to go before I'm at that stage, so at this point, preparing for my conference vote consumes a considerable amount of time." I can sense that Barrett's lengthy deliberations may stand in contrast with how her other colleagues decide cases, even those with shorter tenures.

Seventh, we get a peak inside voting at conference. Barrett relates the dynamics where the Chief Justice votes first:

The justices speak and vote in order of seniority, with the chief justice starting the process. This is different from the practice at the Seventh Circuit, where the most junior judge talked and voted first. I generally like the system at the Court, because it gives me the opportunity to consider and respond to what others have said. The flip side is that it can be frustrating to speak toward the end, because it limits my opportunity to persuade the seven justices who have already voted. (As a junior justice, Justice John Paul Stevens disliked the system for this very reason and advocated for a change of order.) Still, colleagues do listen to those later in line and sometimes adjust their positions after the first round of voting is complete. Conference discussions are respectful and calm, and we do not interrupt one another.

One of my most egregious errors came in my first book, Unprecedented. I was trying to imagine what the conference was like after NFIB v. Sebelius. I didn't know if Roberts would have voted first or last. I asked a friend who knew a lot about the Court, and he said Roberts voted last. And that is how I set up the conference. That error still eats at me twelve year later. Now Barrett has publicly confirmed the voting process.

Eight, Barrett discusses the process of opinion assignments. Here, she relates things that I do not think have ever been confirmed. The assignments are not actually made at the conference. Rather, they come later in an assignment list. The Justices do not know who will write what until the list is circulated on Friday afternoons. Barrett also alludes to how the Chief Justice assigns opinions. Keep in mind that Roberts is in the majority about 95% of the time. It is very rare for anyone else to assign a majority opinion. So when Barrett writes that Roberts "works with other assigning Justices," she is basically saying Roberts works by himself.

A memo containing opinion assignments circulates at the end of the two-week argument session. At that point, based on the justices' votes across the cases, it is clear how many majority and dissenting opinions will be written, so the chief justice, working with other assigning justices, attempts to equitably distribute the work. My clerks wait eagerly for the assignment list to come around on Friday afternoons, to see both what I get and whether their predictions panned out.

I think the emphasis is on "attempts." And later Barrett reveals what we all know--the Chief Justice keeps the most important cases for himself.

Assignments in the most complex and high-profile cases typically go to the more senior justices, and it is the norm for the assigning justice to keep the highest-profile assignment for herself. For example, in the 2022 Term, cases involving affirmative action and voting rights were among the biggest; Chief Justice Roberts wrote the majority opinions in all of them. [FN34]

[FN34] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023); Moore v. Harper, 600 U.S. 1 (2023); Allen v. Milligan, 599 U.S. 1 (2023).

Preach, ACB. We all know this to be true. The opinions are not actually split equitably.

I would favor a reform: the Chief Justice position rotates each month. The Court is in session nine months out of the year, and there are nine Justices. The Justices could draw a number from a hat, and each month there would be a new Chief. That Chief would president over oral argument, preside at the conference, assign opinions, and chair any administrative committees. May and June, which lack oral arguments, would be less desirable, but each term brings a new luck of the draw. I think the Chief Justice exercises far too much power. That much power goes to a man's head. That position needs to be weakened.

I think this reform could be achieved by internal Court rule. I'm not sure Congress could legislate on this matter. Moreover, this plan goes against my interests. On average, I would prefer an assignment from Chief Justice Roberts than from Justice Jackson. But for one month of the year, Justice Jackson, the most junior Justice, would be able to preside, and assign majority opinions. This sort of dynamic, I think, would actually improve the functioning of the Court. Let each member take ownership in the Court. Then again, there is a much easier way for John Roberts to stop assigning opinions, but I repeat myself.

Ninth, Barrett addresses a known phenomenon: the flipped opinion:

One of the most important factors in an opinion assignment is the author's ability to hold a majority. A justice who expressed an idiosyncratic view at conference might produce a draft that others are unwilling to join—and that creates complications. It might prompt some members of the majority to reconsider their votes, potentially flipping the result. The majority opinion might have to be reassigned to another justice, creating delay and unanticipated work. Or members of the majority might find themselves at an impasse, with multiple draft opinions supporting the judgment, each on a different ground and none garnering five votes. . . .

Justices do not frequently change positions after opinions circulate, but it happens. Flipped votes would be disruptive if they occurred too often. But the case isn't over until the judgment issues and, importantly, until the justice who has authored the opinion has gone through the valuable exercise of writing the analysis.

I think Barrett is speaking from personal experience here. In 2024, I speculated that Justice Alito lost the majority opinions in Moody v. NetChoice and Gonzales v. Trevino, as Justice Barrett jumped ship. Joan Biskupic's reporting later confirmed my speculation of the flips. Indeed, this would have been a rare case where Justice Thomas assigned the majority opinion in NetChoice to Justice Alito, who then lost the majority. At the time, I wrote:

But then what happened? Surprise, surprise, Justice Barrett changed her mind. Or, if I had to speculate, she was never much settled on the issue in the first place. She was all over the map at oral argument. She had already stayed the Fifth Circuit's ruling a year earlier, so had been thinking about the case for some time. Yet, there was still no clarity. Justice Barrett, as I've written many times before, is figuring things out as she goes along. Law professors perhaps champion that virtue as one of open-mindedness and reasonableness. But the risk is that she can be unduly influenced. And Biskupic suggests it was Kagan who, once again, won Barrett over. As I presumed.

This must be one of the cases where Barrett was not certain going into oral argument.

At various points throughout the book, it seems clear Barrett is talking about her own decisions, but she frames them more generally.

Tenth, Barrett turns to the process of writing the opinion. This was the portion of Chapter 4 that I had the most difficulty with.

On the one hand, I don't want to lose the majority; on the other, I can't compromise my own principles. Threading the needle can mean relying on one argument rather than another so that more justices can join. This is critical when the majority is slim, because the loss of one vote could turn the opinion into a plurality or even a dissent. But it's important to me even when the margin is comfortable. If I can adjust an opinion to allow more colleagues to join it, I will, so long as the reasoning remains consistent with my own view and others who have joined the opinion agree. Skirting issues is sometimes the price of finding common ground—though it's frustrating to delete points I'd like to make.

Over the last few years, when the "majority is slim,"Barrett is likely the deciding vote. It is the lost of Barrett's vote that turns an opinion into a plurality or dissent. The Justice most likely to "skirt issues" is Barrett herself. She routinely writes concurrences to stress the issues she is not deciding. Barrett tries to frame this paragraph about others, but it aptly describes how she operates.

Barrett is the median Justice. In any contentious case, her vote likely holds the majority together. If the Court's conservative go too far to the right, Barrett will drop off with a concurrence. If Barrett is assigned the majority, and the conservatives disagree with her, the Court's progressives will hold their nose to get a majority. In short, for all the talk about consensus, it is usually Barrett herself who is going to call the shots about what is and is not in an opinion.

I think the book has a certain lack of self-awareness in this regard--especially when it comes to the emergency docket, which Barrett tries really hard not to talk about.

Eleventh, Barrett explains how she actually writes an opinion. The clerk writes the first draft, but Barrett will "always write portions from scratch—sometimes virtually the entire opinion, sometimes sections of it." I believe it. Barrett has a distinct writing style that comes through in every opinion. Barrett also writes with a pen-and-paper:

I typically begin with pen and paper because I write faster that way. At the keyboard, the ease of selecting and deleting text tempts me to perfect each sentence before composing the next—and it's demoralizing to sit at the computer for an hour with only a few sentences to show for it. I'm less inclined to be obsessive on a legal pad, and it's more efficient for me to establish the flow of the argument with a pen before I start typing.

On this point, I cannot relate. I don't write anything by hand. I only type. One of my favorite lyrics in Hamilton is "Put a pencil to his temple, connected it to his brain." My keyboard is connected to my brain. When I think, the words flow onto the screen in full sentences. Perhaps the most valuable skill I ever learned was touch-typing.

Twelfth, Barrett discusses the process of getting other Justices to join her opinion:

Before I joined the Court, I was sometimes frustrated by an opinion's cryptic language or its failure to resolve fairly obvious points. Now I better appreciate that glossing over issues is often deliberate. If justices disagree about an issue that isn't necessary to the bottom line, it can be omitted from the opinion to keep a majority on board. Or, even if justices don't actively disagree, some may not be ready to commit to a position—perhaps because the briefs or lower court gave it too little attention. So there is often a good reason why the Court says less than a reader might want to know.

Again, I think this passage is autobiographical. Which Justice is mostly likely to use cryptic language or fail to resolve an obvious point? Barrett.

Thirteenth, Barrett explains when she will write a concurrence:

Unlike the author of a majority opinion, the author of a concurrence has the freedom to express her own views without worrying about keeping others on board. I write them in a few situations. If I think that lower courts might interpret the majority opinion too broadly or too narrowly, I might use a concurrence to emphasize the scope of the Court's holding.[38] I've also written them to explain my own thinking about an aspect of the majority opinion or to identify areas of the law that could benefit from development by advocates and scholars.[39] And if I refrain from joining part of the majority opinion, I usually write a concurrence to explain why.[40]

Far too "few" concurrences. And I think "usually" is an overstatement. On the Court, Barrett is least likely to write separately. And a common frustration is that Barrett does not explain with any clarity why she didn't join parts of a majority opinion.

That's it for now. I'll have more on the book in due course.

The post Some Things We Learn From Justice Barrett's New Book appeared first on Reason.com.

[David Bernstein] "Pro-Palestine" Groups Rally Behind Man Convicted of Three Violent Antisemitic Attacks in NYC

If you think Students for Justice in Palestine would at least pretend not to support antisemitic violence to make its cause look better, you would be wrong.

The Times of Israel reports:

Anti-Israel activists in the US have rallied behind Tarek Bazrouk, a New York resident who confessed to carrying out antisemitic attacks against three Jews.

In June, Bazrouk, 20, pleaded guilty in a federal court in New York to attacking the individuals because of their Jewish or Israeli identity. The victims of the attacks, which took place surrounding anti-Israel protests in 2024 and early 2025, were all wearing Jewish or Israeli symbols or were otherwise identifiable as such.

According to SJP, Bazrouk is a "political prisoner." Rather than being a perpetrator of antisemitic violence who deserves a long prison sentence, Bazrouk is instead a victim of "repression" by the United States government as part of a campaign "to silence the movement for Palestinian liberation."

Lest you charitably suspect that SJP only wishes to ensure that Bazrouk not receive a disproportionate sentence for political reasons, SJP pledges "unwavering support of him and demands his immediate liberation."

And it's not just SJP that is cool with attacking random Jews on the street: "Other prominent activist groups that have backed Bazrouk include the Palestinian Youth Movement, Within Our Lifetime, Pal-Awda, the anti-Israel campus coalition Columbia University Apartheid Divest, and other student groups around New York City."

What more do we know about Bazrouk?

A US Justice Department statement said Bazrouk self-identified as a "Jew hater." He wrote to acquaintances, regarding Jews, "They are worthless," "Allah get us rid of them," derided a Jewish man as a "Fucking Jew," and threatened to shoot Jews. He also told a friend he was "mad happy" to find out he has family who are Hamas members while he was visiting the West Bank and Jordan.

On Instagram, he posted a video of a Jewish child, told his followers to "get him," and posted the name of the child's Jewish school.

If for some reason you doubted that SJP and its allies are antisemitic hate groups, this should erase those doubts.

The post "Pro-Palestine" Groups Rally Behind Man Convicted of Three Violent Antisemitic Attacks in NYC appeared first on Reason.com.

[Josh Blackman] Would Jimmy Kimmel Have Standing To Bring a Jawboning Claim Under Murthy?

[Whatever standing rule applies to the red team should apply to the blue team.]

Eugene has written a few posts about how the Jimmy Kimmel incident would be analyzed under NRA v. Vullo. I think another relevant precedent to consider is Murthy v. Missouri. In this case, Justice Barrett found that no one had standing to challenge the Biden Administration's "jawboning" of social media companies, despite an overwhelming evidentiary record.

First, here is the test Barrett put forward:

Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.

I'm not sure that Jimmy Kimmel could meet this test were he to sue FCC Commissioner Brenden Carr. First, unlike with Vullo, there was no actual state action taken against Kimmel. At most, Carr made some statements on a podcast about what might happen in the future. Seems speculative. By contrast, in Vullo, the New York government had taken discrete acts against the NRA

Second, consider the traceability prong. It would be difficult to show that ABC's suspension of Kimmel could be traced to Carr's statements. As I understand the facts, several prominent affiliates made the decision to preempt coverage of Kimmel's show due to his statements about Charlie Kirk. ABC, a business entity, may have decided that airing Kimmel's show would be bad for business, and not worth the headache. Relatedly, Comedy Central took a show that mocked Kirk out of the broadcast rotation. Indeed, in light of the cancellation of Colbert's show, ABC may use this suspension as an excuse to cut the costs of a non-profitable late-night show. Again, more business decisions.

Justice Alito's Murthy dissent criticized Justice Barrett's demanding standard for traceability:

What the Court seems to want are a series of ironclad links—from a particular coercive communication to a particular change in Facebook's rules or practice and then to a particular adverse action against Hines. No such chain was required in the Department of Commerce case, and neither should one be demanded here.

Barrett responded:

By acknowledging the real possibility that Facebook acted independently in suppressing Hines' content, we are not applying a "new and heightened standard," as the dissent claims. . . . Nor is our analysis inconsistent with Department of Commerce v. New York, 588 U. S. 752 (2019).

Here, there is a "real possibility" that ABC "acted independently" in taking Kimmel's show off the air. That would seem to be a valid business interest, in ways that suppressing COVID posts was not. I do not see any "ironclad links."

Third, let's turn to redressability. How can a lawsuit against Brendan Carr put Jimmy Kimmel back on the air? Barrett writes:

Far from holding plaintiffs to a "certainty" standard, ibid., we simply conclude that an injunction against the Government defendants is unlikely to stop the platforms from suppressing the plaintiffs' speech. . . . Facebook might continue to remove Hines' posts under a policy that it adopted at the White House's behest (thus satisfying traceability). But if the White House officials have already abandoned their pressure campaign, enjoining them is unlikely to prompt Facebook to stop enforcing the policy (thus failing redressability).

An injunction would not help Kimmel, therefore, there is no obvious redressability.

I don't see how Kimmel would clear the standing bar in Murthy.

To be clear, I vigorously disagree with Murthy. Whatever good that Justice Barrett did in CASA does not come close to making up for her analysis in Murthy. But whatever standing rule applies to the red team should apply to the blue team.

The post Would Jimmy Kimmel Have Standing To Bring a Jawboning Claim Under Murthy? appeared first on Reason.com.

[Stuart Benjamin] The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel

[And Trump's much more extreme one.]

On Monday Jimmy Kimmel said:

We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it. In between the finger-pointing, there was, uh, grieving on Friday − the White House flew the flags at half-staff, which got some criticism, but on a human level, you can see how hard the president is taking this. Yes, he's at the fourth stage of grief: construction. Demolition, construction. This is not how an adult grieves the murder of someone he called a friend; this is how a four-year-old mourns a goldfish, OK? And it didn't just happen once. And then we installed the most beautiful chandelier. Responses you wouldn't believe. Who thinks like that, and why are we building a $200 million chandelier in the White House? Is it possible that he's doing it intentionally so he can be bad about that instead of the Jeffrey Epstein list?

Yesterday, FCC Chair Brendan Carr said:

Public interest means you can't be running a narrow partisan circus and still meeting your public interest obligations. That means you can't be engaging in a pattern of news distortion.

It appears to be some of the sickest conduct possible. In some quarters, there's a very concerted effort to try to lie to the American people about the nature of one of the most significant, newsworthy, public interest acts that we've seen in a long time.

Frankly, when you see stuff like this — I mean, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there's going to be additional work for the F.C.C. ahead.

A few hours after Carr's remarks, ABC indefinitely suspended Kimmel's show.

And this evening, Donald Trump said of broadcasters:

They give me only bad publicity or press. I mean, they're getting a license. I would think maybe their license should be taken away.

What Is the FCC's Statutory Authority?

47 U.S.C. 301 grants the FCC control over the radio spectrum and directs the FCC to grant licenses to use specified frequencies for a specified number of years. So wireless broadband providers, satellite television providers, local broadcast stations, etc. must obtain FCC licenses. Licenses are generally very valuable (broadband auctions for initial licenses have yielded more than $200 billion to the Treasury), and a licensee really wants to be able to renew its license and to sell it to someone else who will then be able to renew it (otherwise, the buyer would not pay very much). This creates two principal levers the FCC uses to control licensees.

First, under 47 U.S.C. 310 the FCC must approve any proposed transfer of a license as long as it finds that "the public interest, convenience, and necessity will be served thereby." This was the source of the FCC's leverage with respect to the CBS/Skydance transaction: CBS wanted to transfer the licenses for the local TV stations it owned, and the FCC had to approve. As readers know, the FCC did approve that transfer after (in the words of the FCC press release) Skydance committed not to have any DEI policies, to "ensur[e] that the new company's array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum," and to invest new capital. And of course the FCC approved the transfer shortly after Stephen Colbert's show was cancelled – at a minimum creating an appearance problem (or an opportunity, for those who want future transferees to fear the FCC).

The second key source of authority is 47 U.S.C. 309, which specifies that the FCC can similarly deny renewal of a license if the FCC does not find that the licensee "has served the public interest, convenience, and necessity."

Is This Consistent with the First Amendment?

At this point a key question may occur to you: how can it be consistent with the First Amendment for any FCC renewal or transfer decisions to turn in any way on the content, much less the viewpoint, of a licensee's speech? Content-based regulation of cable television providers (whose systems often require rights-of-way from a government) or websites that transmit content via wireless frequencies would be subject to strict scrutiny, which is nearly always fatal, and viewpoint-based regulation is always invalidated. Indeed, even without the use of any rights-of-way or frequencies (which the Court never mentioned in its cable and internet cases), the Court would apply strict scrutiny. (And by the way, the Court has invalidated the regulation of knowingly false speech -- indeed, particularly offensive false speech, in the form of lying about receiving military medals.)

So how can the FCC look at content under sections 309 and 310?

The answer in the case law has been that in FCC v. Pacifica Foundation the Supreme Court held that broadcasting is subject to less rigorous First Amendment scrutiny primarily because it is uniquely pervasive, and secondarily because it is uniquely accessible to children. And in Red Lion Broadcasting Co. v. FCC, the Court allowed mandates that broadcasters host speech the government deemed valuable, based largely on spectrum scarcity. (Red Lion does not suggest that scarcity justifies restricting harmful speech, but rather justifies requiring broadcasters to air valuable speech.)

Denying a renewal or transfer based on viewpoint goes beyond Pacifica and Red Lion, and there is a reasonable argument that neither decision extends that far. Even if they did, it would not follow that the Supreme Court would permit such actions.

Pacifica and Red Lion have been subject to persuasive criticism for years. As to Pacifica, broadcasting is just another medium of communication. The government powerfully argued in cases involving cable television, the internet, and telephones, (all of which Congress chose to regulate) that those other media are just as pervasive, and just as available to children, as broadcasting, and in each case the Supreme Court rejected the government's argument and invalidated the regulation under strict scrutiny, making it harder and harder to defend Pacifica.

Regarding Red Lion, to quote from my Internet & Telecommunications Regulation casebook, "almost all resources —e.g., wires, labor, steel, land, and investment capital —are scarce in that (a) if given away at no charge people would request more of them than is available and (b) if we could create more of them, that additional increment could also be put to productive use." Indeed, in some respects radio frequencies are less scarce than land: the range of usable frequencies has increased more than 10-fold in the last 50 years – as if we had discovered 10 new usable Earths. And the Court declined the opportunity to apply Red Lion in later cases like Miami Herald v. Tornillo (newspapers) and Moody v. NetChoice (social media), making it harder and harder to defend Red Lion.

As Justice Thomas noted in FCC v. Fox,

Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so in these cases.[Internal quotation marks omitted.]

FCC commissioners and staff are aware of the First Amendment problems with content-based FCC decisionmaking, and the broader governance concerns raised when government wields so much power. Indeed, the FCC repealed the Fairness Doctrine (whose legal hook was the threat of non-renewal) and later (after much prodding from the D.C. Circuit) the Personal Attack and Political Editorial rules (which were similarly predicated on the threat of non-renewal) on First Amendment grounds. And see the final block quote below. Many people (myself included) expect that if the Supreme Court squarely confronted Pacifica and/or Red Lion, it would overrule them.

But the costs for a licensee to challenge a non-renewal or transfer denial are very high. The Court has made it clear that only it can overrule its cases, so a licensee would face months if not years of delay on a transfer (often fatal to transfer deals) or on a renewal, with no guarantee of success. The obvious incentive is for the private party to do what the government wants. That is why Trump had leverage over ABC, leading it to settle a very weak lawsuit. That's how things work in lots of countries we don't want to emulate.

Would This Be an Ordinary Application of FCC Standards?

First things first: Trump said the quiet part out loud tonight – he thinks that broadcasters have been too critical of him and thus maybe their licenses should be taken away. That has never happened, and here's hoping it never will.

Now to Carr's stated focus – news distortion. First, it has been applied only to news shows. Second, the FCC has created guardrails around it. As the FCC stated in rejecting a news distortion complaint against a Fox television station in 2007:

In evaluating whether an allegation of news distortion impacts the licensee's ability to serve the public interest, the Commission analyzes both the "substantiality" and "materiality" of the allegation. An allegation is "material" only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion. An allegation of news distortion is "substantial" if it meets two conditions: it is deliberately intended to slant or mislead; and it involves a significant event and not merely a minor or incidental aspect of the news report. It is sufficient for a petitioner to raise a "substantial and material question of fact" as to intent, and the Commission cannot require a petitioner to demonstrate "intent." However, the Commission determines in the first instance whether the evidence submitted raises a substantial question of fact.

Section 326 of the Act prohibits the Commission from censoring radio communications, and the First Amendment to the Constitution strictly limits the Commission's authority to interfere with the programming decisions of licensees. In light of these limitations, and because journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment's Free Press guarantee, "the Commission's policy makes its investigation of an allegation of news distortion 'extremely limited in scope.'" In showing an intent to distort, "[i]t is not enough to dispute the accuracy of a news report…or to question the legitimate editorial decisions of the broadcaster." Allegations of deliberate distortion must be supported by extrinsic evidence "such as written or oral instructions from station management, outtakes, or evidence of bribery." With respect to a report's accuracy in particular, the Commission has stated that it possesses "neither the expertise nor the desire to look over the shoulder of broadcast journalists and inquire why a particular piece of information was reported or not reported." To do otherwise "would involve the Commission deeply and improperly in the journalistic functions of broadcasters."

In the Matter of TVT License, Inc., 22 F.C.C. Rcd. 13591, 13592 (2007).

Third, the FCC has found distortion in only eight cases since 1969, and just once since 1982. Fourth, in none of those cases did the FCC revoke the license based on the distortion. A representative example involved a "letter of admonishment" that had no impact on the licensee (and proved to have no impact on its future renewals) despite the FCC

finding "repeated instances of deceptive programming broadcast by the station" in five different news programs over a two-year period. Deceptions included staff members concocting letters and phone calls that were presented on the air as having been issued from viewers, supposedly spontaneous questions by members of studio audiences which were prepared by staff members and fictitious interviews with various people misidentified as members of the public.

The only finding of news distortion since 1982 was a similar letter of admonishment in 1993 for NBC

staging a segment of a "Dateline NBC" report on unsafe gas tanks in General Motors trucks. The report showed video of what it called an "unscientific" test crash in which a GM truck exploded into flames after being hit from the side. GM's investigation found that NBC producers had rigged the test by attaching incendiary devices to the truck's gas tank.

The most recent attempts at news distortions were A) a claim, piggybacking on the state court determination in Dominion Voting System's suit against Fox News, that a Fox television station disseminated false statements about Dominion, and B) claims that CBS distorted the news by airing different footage of Kamala Harris's response to the same question on 60 Minutes and Face the Nation. The FCC rejected all these challenges shortly before Trump took office without holding any hearings, as it should have. It began all the orders by stating:

The freedom of speech and the press is enshrined in the First Amendment of the United States Constitution, and is necessary to promote the vigorous dialogue necessary in a representative democracy. When the government — including Congress, the Courts, and the Executive Branch (and States and local government) — seeks to curtail the freedom of expression on ""matters of valid public interest," doing so implicates the very heart of speech that the First Amendment is meant to protect. Accordingly, for nearly a century since the Commission's inception in 1934, the Communications Act has expressly prohibited the Commission from engaging in the "power of censorship," or issuing regulations or conditions that "interfere with the right of free speech." It has instead plainly recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited." Moreover, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism."

In the Matter of Preserving the First Amendment, Application of Fox Television Stations, LLC for Renewal of License of WTXF-TV, Philadelphia, Pa (Jan. 16, 2025).

(By the way, that last quotation was from a 2020 order rejecting a challenge to the airing of allegedly false statements about Covid-19 by President Trump and others.)

The only remotely analogous FCC action was Carr's decision, upon becoming chair, to reopen the challenges to CBS's handling of Kamala Harris's answers (but not to Fox's statements about Dominion). But it would take chutzpah for Carr to claim that his Kimmel comments are not unprecedented simply because he did something roughly analogous nine months ago.

The bottom line: treating Kimmel's statement as news distortion would be unprecedented. Indeed, that understates the point. The idea that his statement resembles anything the FCC has punished as news distortion is somewhere between strained and frivolous.

The post The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel appeared first on Reason.com.

[Ilya Somin] Abolish the FCC

[The Trump Administration's recent abuses of the agencies powers lend weight to longstanding libertarian arguments for abolishing it, going back to Nobel Prize-winning economist Ronald Coase's classic 1959 article. ]

FCC

The Trump Administration Federal Communications Commission's (FCC) recent efforts to intimidate broadcasters into taking anti-Trump comedians off the air are blatant violations of the First Amendment. They also lend weight to longstanding libertarian arguments for abolishing the FCC.

FCC Chair Brendan Carr threatened to pull ABC's broadcast license unless it stopped broadcasting comedian Jimmy Kimmel's show (which ABC quickly did). Earlier, the FCC similarly threatened CBS, which then canceled Stephen Colbert's show (Colbert is another anti-Trump comedian). Trump now threatens to use similar tactics against other broadcasters who air shows that attack him. Even if there were good market or quality-control reasons to get rid of Colbert or Kimmel, the government has no business trying to coerce such decisions.

Robert Corn-Revere,  First Amendment and media expert at FIRE, has a helpful analysis of the reasons why such coercion is unconstitutional. As he notes, just last year, in NRA v. Vullo, the Supreme Court unanimously reiterated the principle that "the First Amendment prohibits government officials from relying on the threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression of disfavored speech."[quotations omitted]. In Vullo, the Supreme Court struck New York officials efforts to coerce the NRA into curbing its pro-gun rights speech, at the behest of liberal Democratic Gov. Andrew Cuomo. That reasoning applies to Trump and Carr, as well. If anything, their unconstitutional motives are even more blatant than Cuomo's were.

If the Trump FCC targets more broadcasters, hopefully they will sue and win. But there is a deeper problem here: an agency that has broad power to grand or deny licenses to broadcasters is an inherent danger to freedom of speech. That's especially true officials hides their unconstitutional motives more carefully hidden than Trump and Carr have done.

This is not a new problem. Only a few years after the establishment of the FCC in 1934, Franklin D. Roosevelt used the agency to target conservative broadcasters opposed to his New Deal. Later John F. Kennedy and Lyndon Johnson used the "Fairness Doctrine" - developed by the FCC as part of its regulatory authority - to target critics of their policies. The Fairness Doctrine continued to be as a tool to restrict speech until the Reagan FCC got rid of it in 1987.

Until now, recent presidents have not used the FCC as abusively as FDR, JFK, and LBJ did.  But the danger remained, and Trump is now exploiting it. Even if open attempts at censorship are struck down the courts, the FCC can still intimidate broadcasters by using its powers to deny and grant licenses, restrict mergers, and the like, citing seemingly neutral pretexts. Fear of such action may be why ABC and CBS have - so far - chosen not to go to court.

In his classic 1959 article, "The Federal Communications Commission," the great libertarian economist Ronald Coase warned of this danger, and advocated the abolition of the FCC (Coase later won the Nobel Prize in Economics in part for this work):

The situation in the American broadcasting industry is not essentially different in character from that which would be found if a commission appointed by the federal government had the task of selecting those who were to be allowed to publish newspapers and periodicals in each city, town, and village of the United States. A proposal to do this would, of course, be rejected out of hand as inconsistent with the doctrine of freedom of the press. But the broadcasting industry is a source of news and opinion of comparable importance with newspapers or books and, in fact, nowadays is commonly included with the press, so far as the doctrine of freedom of the press is concerned.

If newspapers and magazines had to be licensed by the government before being allowed to publish, there would be obvious opportunities for favoritism and abuse. The exact same danger exists with broadcast licensing.

The standard rationale for broadcast licensing by the state is that broadcast frequencies are scarce resources that government must protect from "interference." If two networks try to broadcast on the same frequency, chaos might ensue and neither would be effectively transmitted. But the same is true of traditional media. Printing presses, ink, and other production supplies are also valuable scarce goods. Two newspapers cannot use the same printing press at the same time, or print their publications on the same pieces of paper. Yet rightly rely on markets and private property rights, not government licensing and central planning, to allocate these resources.

As Coase explained, the same system of property rights can work with broadcast frequencies. Let private broadcasters own individual frequencies, and let free exchange and market competition decide who uses which one.

This solution is even better with the rise of cable television and then internet broadcasting. No longer is it plausible to argue that a fully private system would be dominated by just a handful of major networks, as was perhaps true in the pre-cable age. Owners of individual broadcast networks, radio stations, and websites can decide what viewpoints they want to platform. Market forces will incentivize new entrants to promote viewpoints that incumbents neglect, but audiences might like to see. We have seen how right-wing networks like Fox and Newsmax arose to challenge more liberal traditional media. More recently, there is no shortage of websites (including social media sites) espousing a range of different ideologies. Elon Musk's generally right-wing Twitter/X site, for example, contrasts with more left-wing Bluesky (among others). I am one of many users who have accounts on both.

I oppose Musk's politics and disapprove of  many of his policies for managing X. I don't always love everything that goes on at Bluesky either. But I support both sites' rights to manage the speech on their property without government interference.

This market system isn't perfect. I myself have long argued that consumers do a poor job of acquiring and processing political information, in part because they have bad incentives. That applies to our consumption of both traditional broadcast media, and more recent internet and social media products. But market competition and private property are far preferable to allowing the FCC to decided who gets a license, and to intimidate critics of the incumbent president into submission or self-censorship.

Elsewhere, I have assessed a number of possible approaches to dealing with the problems of misinformation and political ignorance. There is no easy answer, though some options are potentially promising. Letting the FCC intimidate and coerce broadcasters isn't one of them. It's long past time to recognize that Ronald Coase was right, and the FCC should be abolished.

 

The post Abolish the FCC appeared first on Reason.com.

[Eugene Volokh] Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Settled for $1M

From the N.Y. Times (Katie Robertson), published Friday:

The Atlantic quietly agreed to pay more than $1 million early this summer to settle a lawsuit by the writer Ruth Shalit Barrett, who had accused the magazine of defamation after it took the rare step of retracting an article she had written and replacing it with an editor's note, according to a person with knowledge of the settlement….

The lengthy article, "The Mad, Mad World of Niche Sports," published online in October 2020 and in the November 2020 print issue, explored how wealthy parents were pushing their children into extreme training in sports like fencing and lacrosse as a pathway into Ivy League colleges.

The article was published under the byline Ruth S. Barrett. In the 1990s, while writing for The New Republic as Ruth Shalit before she married and was becoming known as a rising star in the journalistic world, the writer was accused of two instances of plagiarism. She said both were inadvertent and apologized. She left the magazine several years later.

Within days of the Atlantic article's publishing, Erik Wemple, then a media critic at The Washington Post, began raising concerns about the article, including the veracity of some details and whether the different byline misled readers….

There's more in the Times article; here's a post of mine from a year ago excerpting a court decision that allowed the claim to go forward (in part).

[* * *]

From Judge Loren L. AliKhan's opinion [Sept. 9, 2024] in Shalit Barrett v. Atlantic Monthly Group LLC:

Ms. Barrett began working as a reporter for The New Republic magazine in the early 1990s after graduating from Princeton University. At that time, she used her maiden name, Ruth Shalit, as her byline. Within her first few years on the job, she published many feature-length stories and was hired to write political stories for The New York Times Magazine and GQ.

In 1994 and 1995, Ms. Barrett came under fire for plagiarism in two articles in The New Republic. First, Ms. Barrett had written a story "in which three sentence[s] of biographical information and a quote" had been taken, without attribution, from a Legal Times article. The second article, a profile of Steve Forbes, "contain[ed] 29 words from a National Journal article" that were also unattributed to the original author…. Also in 1995, a factual error was discovered in an article Ms. Barrett had written for The New Republic about The Washington Post. The error was addressed "using the standard practice of  … a post-publication correction." Ms. Barrett worked at The New Republic for four more years until she departed in 1999. None of Ms. Barrett's articles from 1996-1999 were found to contain factual errors and The New Republic did not issue any corrections to her work in this time span.

Twenty years later,

The Atlantic hired Ms. Barrett to write a long-form investigative article detailing the "efforts of affluent parents to use niche sports to give their already-privileged children further advantages in the competitive admissions process at elite colleges and universities." The eventual article, titled "The Mad, Mad World of Niche Sports Among Ivy League-Obsessed Parents" sparked the controversy that led to this lawsuit.

That controversy chiefly involved the description of a confidential source as having four children rather than three, which was apparently intended to help conceal the source's identity. That was uncovered and led to public criticism, followed by a retraction that Barrett says was libelous. Here's the heart of the court's analysis of the defamation claims:

Ms. Barrett raises four claims of defamation per se based on the following groups of statements: (1) accusations that she acted dishonestly with respect to the article; (2) accusations that she was fired from The New Republic in 1999 for misconduct; (3) statements alleging that she tried to disguise her identity by using "Ruth S. Barrett" in her byline; and (4) statements that she is a dishonest journalist with a history of fabricating facts….

Count One: Accusations that Ms. Barrett acted dishonestly with respect to the article

Ms. Barrett's first claim alleges defamation per se with respect to the following statements made in the Editor's Notes and the Peck Memorandum, specifically, that

Barrett "was complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family;" that her "fabrication" had been "confirmed," and that it was "established" that Ms. Barrett "deceived The Atlantic and its readers";Barrett "lied" to and "misled" the fact-checking department and editors and was "accused of inducing at least one source to lie to our fact-checking department";Sloane's attorney said "[Ms.] Barrett had first proposed the invention of a son, and encouraged Sloane to deceive The Atlantic as a way to protect her anonymity"; and"We have decided to retract this article. We cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article,"

Defendants argue that none of these statements are actionable because the first three are true based on the facts alleged in the complaint and the fourth is a protected statement of opinion. The court agrees ….

Ms. Barrett makes clear in her complaint that she knew before the article's publication that Sloane did not have a son. Ms. Barrett further alleges that she had pitched magazine editors about including such a masking detail, but they declined; that she knew that Sloane planned to tell fact-checkers this fictitious detail and supported it; and that, after the fabrication about Sloane's son was added, she was "aware of the inclusion" and believed it to be "fully justified." This course of events is fully consistent with Defendants' description of Ms. Barrett as "complicit with a source in the story … in an effort to deceive The Atlantic and its readers about the makeup of Sloane's family" and related statements. The "gist" of the statement is that Ms. Barrett allowed incorrect information about Sloane's family into the article—and that is substantially true…. The same is true for Defendants' statements that Ms. Barrett "lied" to and "misled" the fact-checking department and editors and had been "accused of inducing at least one source to lie to our fact-checking department." …

Ms. Barrett takes issue with the fact that The Atlantic did not qualify its statements with her motive to protect Sloane's identity, arguing that this omission suggests that she was acting in "bad faith." She suggests that a juror presented with these facts could choose between "two pictures: one of an insidious scammer out to deceive the world for no good reason … and one of a meticulous writer forced to make an impossible choice between absolute accuracy and … confidentiality … to sources." But, as Defendants note, the alleged defamatory statements do not omit this information. In his Memorandum, Mr. Peck states that the reference to a son was added "to make Sloane less identifiable, because she was concerned about maintaining anonymity." The same is true of the Editor's Notes. No matter how noble Ms. Barrett's motives may have been, it does not change that fact that Defendants' description accurately states the events that transpired.

Ms. Barrett also argues that the phrase "at least one" suggests the existence of multiple accusers and that the Third Editor's Note change of language from "at least one source" to "one source" suggests that Defendants were aware of the falsity and walked it back. But this is the type of "slight inaccurac[y] of expression" that is not actionable because the substance as a whole is accurate. At most, the phrase "at least one" suggests a "lack of definitive knowledge about the issue," comparable to a question, which is rarely a successful basis for a defamation claim…

Finally, Defendants argue that their statement in the Second and Third Editor's Notes that "[w]e have decided to retract this article [because w]e cannot attest to the trustworthiness and credibility of the author, and therefore we cannot attest to the veracity of the article" is not actionable because it is protected opinion. The court agrees….

Count Two: Accusations that Ms. Barrett was fired from The New Republic in 1999 for misconduct

Ms. Barrett's second count alleges defamation per se with respect to the following statement made in each Editor's Note and the Peck Memorandum:

In 1999, when Barrett (her married name) was known by Ruth Shalit, she left The New Republic, where she was an associate editor, after plagiarism and inaccurate reporting were discovered in her work.

Defendants again argue that these statements are technically and substantially true. This time, however, the argument fails because it ignores the most likely interpretation of the statement by readers and the context of the speech overall.

Defendants are correct that it is literally true as a matter of timing that Ms. Barrett left The New Republic after the controversy surrounding her work (several years after, in fact)—but that literal truth is a strained reading of the statement in its full context. A defamation-by-implication claim lies where a statement, viewed in context, is capable of defamatory meaning and implies provably false statements of fact. The court considers "both the words themselves and the entire context in which the statement occurs." In Fells, the D.C. Court of Appeals recognized a defamation-by-implication claim based on a statement that the plaintiff had been terminated after an investigation into sexual misconduct "triggered by allegations that another recently ousted executive … was having inappropriate sexual relationships with  subordinates." While the plaintiff had not been terminated for sexual misconduct, the defendant stated that the investigation had "brought to light the serious problems related to [the plaintiff's] abusive behavior towards staff, predominantly female staff." 281 A.3d at 586 (emphasis omitted). The court held that, although the defendant had not explicitly stated that the plaintiff was terminated for sexual misconduct, the defendant's reference to the other executive's departure and the plaintiff's abuse "towards … predominantly female staff" heavily implied that the plaintiff's termination was related to sexual misconduct.

The statement that Ms. Barrett left The New Republic "after plagiarism and inaccurate reporting were discovered in her work" similarly implies a causal relationship between her departure and the alleged infractions. That meaning is further underscored by the statement's placement alongside allegations that Ms. Barrett had been an inappropriate choice to write the story and that her assignment to the story was "a second chance." Like the mention of the sexual misconduct investigation and abuse toward women in Fells, use of the phrase "second chance" strongly suggests that Ms. Barrett had been driven out of the industry due to her past failings and had yet to receive another chance. This is especially the case considering the court's obligation to draw all inferences in Ms. Barrett's favor at this stage in the proceedings.

Defendants point to Ms. Barrett's concessions that she had been accused of plagiarism and other journalistic malfeasance during her tenure at The New RepublicBut that is beside the point—the defamation claim rests on the implication that she was pushed out of her job because of these incidents, not that they did not occur. Because the "gist" and "sting" of the statements addressed in Count Two are capable of defamatory meaning, they survive the motion to dismiss.

Count Three: Statements related to Ms. Barrett's byline

Ms. Barrett's third claim alleges defamation per se with respect to the following statement, made with slight variation in all three Editor's Notes and the Peck Memorandum:

The assignment [to Ms. Barrett] was a mistake. So was the initial byline under which the piece ran. We typically defer to authors on how their byline appears, and originally we referred to Barrett as Ruth S. Barrett at her request. In the interest of transparency to our readers, we should have included the name that she used in her byline in the 1990s. We have changed the byline on this article to Ruth Shalit Barrett.

Ms. Barrett further points to an additional statement by an editor at The Atlantic—later included in a Washington Post article—that Ms. Barrett "was hoping to disguise her name in her byline to prevent people from realizing that she had once written articles under her maiden name of Ruth Shalit." Defendants argue that these statements are truthful and that the assertion "we should have included the name that she used in her byline in the 1990s" is an inactionable subjective judgment and statement of opinion. The court disagrees and concludes that these statements are capable of defamatory meaning.

A defamation-by-implication claim survives here because the statements, viewed in context, are capable of defamatory meaning and imply provably false statements of fact. As Defendants note, it is literally true that Ms. Barrett requested the "Ruth S. Barrett" byline. But the context of the statement suggests that Ms. Barrett chose this variation to distance herself from her journalism in the 1990s and to mislead readers. However, Ms. Barrett alleges that this is false—she never intended to conceal her identity, and in fact, she affirmatively chose to use the more identifying "Ruth S. Barrett" as opposed to "Ruth Barrett." She even requested that the magazine link to her personal website, which included articles she had penned under her unmarried "Ruth Shalit" byline. The "gist" of the statements is that Ms. Barrett sought to conceal her identity and distance herself from some nefarious past; that is capable of defamatory meaning.

Defendants argue that these statements are inactionable opinion because they "reflect[] a subjective judgment about what The Atlantic 'should' have done to better promote 'transparency' to its readers." To be sure, that is what the text literally says.

But a reasonable reader could infer two negative narratives, both of which "imply unstated defamatory facts": first, that Ms. Barrett sought to conceal her identity and distance herself from her work in the 1990s; second, that her history was sufficiently unsavory to warrant her doing this. Here, a reader cannot understand that The Atlantic's opinion represents its interpretation of the facts presented because no truthful facts in relation to the byline or Ms. Barrett's professional past are presented.

Accordingly, the reader cannot "draw his or her own conclusions" and is instead led to believe the negative implications of the statements. The key question is whether this statement of opinion has an "implicit factual foundation" that would be "objectively verifiable." In this instance, the implicit factual foundation is that Ms. Barrett tried to use an opaque byline to mislead readers because her maiden name evoked a nefarious history from the 1990s. Those facts can be proven true or false. Accordingly, Count Three survives.

Count Four: Statements suggesting that Ms. Barrett is a dishonest journalist with a history of fabricating facts

As her final defamation claim, Ms. Barrett argues that each of the previously addressed allegedly defamatory statements, taken together and with two additional statements, constitute defamation. The two additional statements are substantially similar to each other. In his Memorandum to The Atlantic staff, Mr. Peck stated

We decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

In each version of the Editor's Note, there were slight variations on the statement that

[The Atlantic] decided to assign Barrett this freelance story in part because more than two decades separated her from her journalistic malpractice at The New Republic and because in recent years her work has appeared in reputable magazines. We took into consideration the argument that Barrett deserved a second chance to write feature stories such as this one. We were wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision.

Defendants contend that the newly added statements are inactionable as subjective opinion. As explained in relation to the statements regarding Ms. Barrett's professional past and the byline, Defendants failed to provide the reader with adequate truthful facts from which to infer their own conclusions. Defendants' opinions have "implicit factual foundation[s]" that would be "objectively verifiable"—namely, that Ms. Barrett had committed journalistic malpractice, that she needed a "second chance" as a result of that malpractice, and that her conduct was sufficiently severe that she should not have been afforded the opportunity to write the article.

The question is close with respect to the statements that "[The Atlantic] [was] wrong to make this assignment, however. It reflects poor judgment on our part, and we regret our decision." These two sentences, standing alone, could be classic statements of opinion. But "[c]ontext is critical … '[to] determin[ing] the way in which the intended audience [would] receive'" these statements. These sentences cannot be separated from the preceding statements. A reader would consider them part of a whole in conveying a defamatory narrative….

Further, this count draws in all the defamatory statements together—the scope now captures the larger narrative. Here, the court concludes that a reasonable juror could infer that the full cadre of statements paints a picture of a serial liar who maliciously set out to deceive editors and readers. There is enough in the complaint to survive this initial stage….

The court also concluded that Barrett was not a public figure, and, separately, rejected Barrett's breach of contract claims.

 

The post Ruth Shalit Barrett's Defamation Lawsuit Against The Atlantic Settled for $1M appeared first on Reason.com.

[Eugene Volokh] Suit Against School District for "Actively Concealing" School's Referring to Girl With "Masculine Name and Pronouns" Can Go Forward

From Mead v. Rockford Public School Dist., decided today by Judge Paul Maloney (W.D. Mich.):

Plaintiffs Dan and Jennifer Mead have a daughter, G.M., who attended a middle school in the Rockford Public School district. G.M. asked the school to refer to her using a masculine name and pronouns. The school followed G.M.'s request but did not inform G.M.'s parents of her request. Plaintiffs ultimately discovered the situation. Plaintiffs filed this lawsuit alleging that the school violated their constitutional rights by actively concealing from them information about their daughter….

The court allowed plaintiffs' Fourteenth Amendment parental rights claim to go forward:

The right of parents to direct their children's upbringing originated from three Supreme Court cases: Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Farrington v. Tokushige (1927)…. The Court affirmed the life of this right in Troxel v. Granville (2000). There, the Court held that "the interest of parents in the care, custody, and control of their children [] is perhaps the oldest of the fundamental liberty interest recognized by this Court." … In addition, parents have a fundamental right to control their child's health. See Parham v. J.R. (1979). "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." So "[s]urely, [a parent's right] includes a 'high duty' to recognize symptoms of illness and to seek and follow medical advice." …

Defendants argue that an unconstitutional infringement of parental rights over their children occurs only when the state requires or prohibits some activity. Defendants cite Doe v. Irwin (6th Cir. 1980) to support its argument. Similar to Doe is Anspach v. City of Phila., Dep't of Pub. Health (3d Cir. 2007). Both cases involved a governmental entity providing minors with contraception without parental knowledge. And both courts found no deprivation of the liberty interests of the parents in not notifying them of their child's voluntary decisions[ b]ecause the government did not compel, coerce, or interfere with the parents' rights to care for control their children….

There's a major distinction between those cases and the present case. Plaintiffs plead that the District intentionally deceived them. Plaintiffs claim that the District went beyond failing to notify them of their child's gender transition. According to the complaint, the District "took affirmative steps to deceive the Meads." Taking complaint in its entirety, Plaintiffs' allegations show some amount of coercion or interference from the District, which implicates Plaintiffs' right to make fundamental decisions for G.M….

G.M. was an East Rockford Middle School student from August 2020 to October 2022. When the relevant events occurred, she was thirteen years old and in the seventh and eighth grades at Rockford. Plaintiffs allege that pursuant to the policy, District officials regularly referred to G.M. by male pronouns and a masculine name despite her biological sex being female.

And according to the policy, the District concealed this information from the Meads. The cover-up went so far as to alter any documents the District sent to the Meads by replacing any references to G.M.'s masculine name and pronouns with G.M.'s female name and biological pronouns. But outside of those meetings the District referred to G.M. by her requested masculine name and male pronouns. And when Plaintiffs raised the issue with the principal and requested that issues like this not be kept secret, the principal couldn't guarantee that.

Plaintiffs also allege that the District's actions amount to medical health treatment. They plead that the District engaged G.M. in a "psychosocial intervention for gender dysphoria." Viewing the complaint in a light most favorable to the Meads, Rockford's "psychosocial intervention for [G.M.'s] gender dysphoria" can be seen when Ms. Slater engaged in a confidential evaluation on G.M.: "Ms. Slater's file on G.M. closed on November 14, 2022, with a handwritten note labeled 'Confidential File' at the top memorializing that '[e]vaul. Was not completed due to parent withdrew student to be homeschooled.'"

Plaintiffs plead this "intervention" began when school officials referred to G.M. by a masculine name and male pronouns for G.M.'s social and gender transition. Gender dysphoria, they assert "is complex" and proper "diagnosis very commonly suffer[s] from other clinical mental health conditions, such as Autism Spectrum Disorder, Generalized Anxiety Disorder, and Major Depressive Disorder," three disorders G.M. allegedly suffers from. The District's policy and practice allowed school officials to deceive the child's parents, which undermined their ability to choose appropriate medical treatment for their child (a third-party therapist or psychologist). The District's policy and practice "undermines a meaningful role for parents if the child decides his or her biological gender is not preferential."

In sum, when viewing the complaint in a light most favorable to Plaintiffs, the allegations make plausible that the District's actions infringed upon Plaintiffs' fundamental parental rights in directing G.M.'s medical treatment, and G.M.'s upbringing and choice of education….

Defendants contend they have a compelling interest in "ensuring the safety of its students" [that would overcome the parental rights claim -EV]. That interest, however, does not give school districts carte blanche to tell a child's parents nothing about their child's gender transition. Defendants do not suggest that G.M. faced harm from her parents if the District were to have informed the parents about G.M.'s request. Defendants have not met their burden to show how concealing a child's gender transition from its parents promotes that child's safety.

Defendants also argue they have a compelling interest in promoting student privacy. But school employees did not keep G.M.'s gender transition private. School employees used G.M. by her preferred masculine name openly and publicly at school….

But the court rejected Plaintiffs' Free Exercise Clause claim, chiefly because

[T]he District's policy and practice does not compel students (or their parents) to believe or do anything. G.M. requested the school use a different name and pronouns when referring to her. The District's policy and practice merely directs how District employees act when Defendants receive such a request. The District did not compel[] G.M. to use a different name or pronouns. Nor did the District compel Plaintiffs to use a different name or pronoun.

David Andrew Cortman, John J. Bursch, Katherine L. Anderson, and Vincent M. Wagner (Alliance Defending Freedom) represent plaintiffs.

The post appeared first on Reason.com.

[Eugene Volokh] "Trump's FCC Head Went Too Far When He Threatened Disney over Jimmy Kimmel's Charlie Kirk-Related Comments"

From Paul Mirengoff (Ringside at the Reckoning); much worth reading. Mirengoff and his coauthor Bill Otis are my go-to people for hardheaded, pragmatic, but principled conservative views. They tend to be somewhat more conservative than I am, but I always find their work interesting (and well-written). An excerpt:

ABC pulled Kimmel off the air shortly after Carr's remark. However, the suspension also followed media giants Nexstar and Sinclair saying they would no longer carry Kimmel's show on their affiliates.

Thus, one can argue that Carr's statement did not cause the suspension of Kimmel's show. Maybe it was just Nexstar and Sinclair that caused it. And maybe Nexstar, which like Disney and Sinclair, has business before the FCC (such as seeking approval to acquire Tegna, another media company, in a $6.2 billion dollar deal), wasn't influenced by what Carr said. Maybe Kimmel's weak rating caught up with him.

But even if the decision to suspend Kimmel's show was based purely on market considerations and nothing Carr said, the head of the FCC had no proper business saying what he did. The government shouldn't threaten to use its licensing and other powers for the purpose of coercing TV networks into taking action against hosts who say things the government doesn't like….

For those who genuinely believe in free speech, it follows that television hosts should be free to level such insults — including stupid ones — without the government threatening consequences for their network if the network doesn't take action against the speaker.

In his statement, Carr relied on the obligation of networks "to operate in the public interest." But it is counter to the strong public interest in free speech for the government to make threats against outlets that present speech it doesn't like….

Highly offensive or not, the government shouldn't have threatened consequences for Disney if it didn't take action against Kimmel. If his comments made him too toxic for the network or affiliates to carry him, let market forces work. The government shouldn't put its thumb on the scale. The government should stay out of it.

The post "Trump's FCC Head Went Too Far When He Threatened Disney over Jimmy Kimmel's Charlie Kirk-Related Comments" appeared first on Reason.com.

[Eugene Volokh] David Cole Said It Would Be Like This: The ACLU's Smart Move in Representing the NRA in NRA v. Vullo

[The right would likewise be smart in protecting speech on the left today.]

Back in 2023, the U.S. Supreme Court agreed to hear NRA v. Vullo, where the National Rifle Association alleged that New York government officials violated the First Amendment by pressuring financial intermediaries to cut off or reduce their business ties to the NRA. At that point, the ACLU and its then-National Legal Director David Cole agreed to represent the NRA before the Supreme Court; indeed, Cole argued the case (extremely effectively, I thought).

This decision was controversial within the ACLU; indeed, the New York affiliate of the ACLU (the NYCLU) put out a public statement "strongly disagree[ing]" with the ACLU's decision to represent the NRA. The ACLU of New Mexico likewise dissented. But the ACLU leadership went ahead with the representation, presenting what I thought was a powerful Left-Right coalition before the Court.

And I take it that the ACLU's rationale wasn't just that the NRA deserved to have its rights vindicated; I assume that they also recognized that what New York was doing to a conservative speaker, conservative states (or a conservative federal government) could do to liberal speakers. First Amendment precedents protecting (or restricting) speakers on the left have long been later used to protect (or restrict) speakers on the right, and vice versa. For an explicit statement by Cole along these lines in a different NRA case brought by the New York AG, see here: "If the New York attorney general can do this to the NRA, why couldn't the attorney general of a red state take similar action against the ACLU, the AFL-CIO, Common Cause, or Everytown for Gun Safety?"

Boy, the ACLU sure called that one. NRA v. Vullo is now a staple of arguments against similarly coercive actions by the Trump Administration. It's being talked about now with regard to the Kimmel show suspension, but it has also been relied on by courts in  a challenge to the cancellation of federal grants to Harvard, a challenge to the Department of Education's actions related to DEI programs, challenges to the sanctions imposed by the Administration on various law firms, and more. And of course conservative speakers will be able to take advantage of it as well in future cases, too.

It is trite, but it is true: "[T]he freedoms … guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." Wise people, left and right, have long recognized this. The national ACLU recognized it in NRA v. Vullo. I hope people on the right likewise recognize it today.

The post David Cole Said It Would Be Like This: The ACLU's Smart Move in Representing the NRA in NRA v. Vullo appeared first on Reason.com.