Eugene Volokh's Blog, page 104

[Eugene Volokh] Can the President Fire the Librarian of Congress? Turns Out That He Likely Can

Last week, the President fired the Librarian of Congress, and then the Register of Copyrights, who is the Librarian's subordinate. I will set aside the question of whether that was a good idea, and focus on the legal question—how can the President fire the Librarian of Congress?

The answer appears to be that the Library of Congress is actually an Executive Branch department for legal purposes, though it also provides some services to Congress. Indeed, I think it has to be such a department in order to have the authority that it has over the implementation of copyright law (via the Register of Copyrights): As Buckley v. Valeo (1976) made clear, in a less famous part of its holding, Congress can't appoint heads of agencies that exercise executive powers.

Indeed, the U.S. Court of Appeals for the D.C. Circuit held last year,

As we have recognized, the Librarian is a "Head of Department" within the Executive Branch.

And that is particularly true when it comes to the appointment of the Librarian: A federal statute expressly provides that,

The President shall appoint the Librarian of Congress, by and with the advice and consent of the Senate.

Likewise, Eltra Corp. v. Ringer (4th Cir. 1978) held that,

The Register [of Copyrights] is appointed by the Librarian of Congress, who in turn is appointed by the President with the advice and consent of the Senate. By the nature of his appointment the Librarian is an "Officer of the United States, with the usual power of such officer to appoint 'such inferior Officers (i. e., the Register), as (he) think(s) proper." …

The operations of the Office of the Register are administrative and the Register must accordingly owe his appointment, as he does, to appointment by one who is in turn appointed by the President in accordance with the Appointments Clause.  It is irrelevant that the Office of the Librarian of Congress is codified under the legislative branch or that it receives its appropriation as a part of the legislative appropriation.

And that is true even though "The Librarian performs certain functions which may be regarded as legislative (i.e., Congressional Research Service)" as well as "other functions (such as the Copyright Office) which are executive or administrative." The purely legislative functions might well be done by an entity controlled by Congress, and perhaps that would be a good reform for the future, to avoid undue Executive control over research done on behalf of members of Congress. But because the Librarian and the Librarian's appointees (such as the Register) currently also perform executive functions, the Librarian's office is part of the Executive Branch for purposes of appointment and removal.

To be sure, the statute provides that the Librarian serves 10-year terms; but it's not clear that this would be seen as prohibiting removal by the President before the end of the term. See, e.g., NLRB v. Aakash, Inc. (9th Cir. 2023), upholding President Biden's dismissal of the NLRB General Counsel:

Title 29 U.S.C. § 153(d) provides that the Board's General Counsel "shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years." The statute contains no provision precluding removal of the General Counsel or requiring cause for removal.

Aakash argues that the existence of a term of office implicitly carries with it a prohibition on removal without cause during that term. The Supreme Court rejected that argument 125 years ago in Parsons v. United States (1897). There, the President appointed a United States Attorney for the Northern District of Alabama to a four-year term but removed him before that term ended. The Attorney argued that he was entitled to serve for the entire four-year term to which he had been appointed. The Court held that the President acted appropriately in removing the Attorney before the end of his four-year term because a statutory provision establishing a fixed four-year term, without any additional limitation, does not affect the President's discretionary power of removal. See also Shurtleff v. United States (1903) (The right of removal "does not exist by virtue of the [statutory text], but it inheres in the right to appoint, unless limited by constitution or statute. It requires plain language to take it away."). The Supreme Court has cited Parsons for the proposition that fixed terms do not confer removal protection. Myers v. United States (1926).

Beyond this, Myers concludes that Congress couldn't limit the President's removal power as to these sorts of individual executive officers even if it wanted to. (The main debate about the President's removal power—the Humphrey's Executor / Seila Law question—is about Presidential power to remove members of multi-headed independent agencies, such as the FTC.)

So in any event, it appears that the removal of the Librarian of Congress is legal, and the President is entitled to appoint a replacement (with the advice and consent of the Senate).

The post Can the President Fire the Librarian of Congress? Turns Out That He Likely Can appeared first on Reason.com.

[Eugene Volokh] Naples (Florida) Restrictions on Drag Performance at Pride Fest Likely Unconstitutional

Today's long decision by Senior Judge John Steele (M.D. Fla.) in Naples Pride, Inc. v. City of Naples so holds (to oversimplify matters slightly). First, the court concludes the drag performance is symbolic expression that's presumptively protected by the First Amendment:

To determine whether conduct is inherently expressive, "we ask whether [a] reasonable person would interpret it as some sort of message, not whether an observer would necessarily infer a specific message." In making that determination, a court looks to the context and circumstances surrounding the conduct. For example, the Supreme Court has found that nudity is not protected by the First Amendment, but that nude dancing is protected expressive conduct….

For purposes of this preliminary injunction motion, the Court finds that Naples Pride's drag performance is symbolic conduct that is inherently expressive and constitutes "speech" within the meaning of the First Amendment. The circumstances surrounding the drag performance would lead a reasonable person to view the performance as conveying some sort of message. The performance is part of a festival conducted in a month associated with LBGTQ+ issues. Pridefest and the drag performance raise matters of concern to the community, as shown by the vigorous debate before the City Council regarding this year's Permit and those of prior years.

Those who weighed in on the proposed drag performance understood that their disagreement was with the performance's inherently expressive meaning. Some strenuously oppose the performance's symbolic message, others are ardently in favor of it. The City Council made its permitting decision after considering the expressive meaning conveyed by the anticipated drag performance. The very nature of the restrictions imposed by the City Council — the indoor-only and age restrictions and a portion of the increased security fees — indicate that the performance's message was a motivation for the restrictions….

The court then concludes that ordering the performance to be moved indoors was likely unconstitutional:

Naples Pride argues that its drag performance has been shunted to a tiny building alongside Cambier Park because of public opposition to the performance's expressive content. The City responds that the indoor restriction is not content based, but driven by realistic security concerns that are proper matters of consideration for local government. Experience, the possible impact of protesters, potential and credible threats, and trends in violence worldwide may all properly be considered, the City asserts, and in this case, justify the level of security planned for Pridefest. The City also asserts that it "must plan for every contingency," given the potential number of the attendees.

The City disputes the contention that it has given way to a "heckler's veto," and asserts that it has properly engaged in "target hardening." The City argues that even if strict scrutiny applies, the location condition survives because it is a reasonable time, place, and manner restriction. Finally, the City contends that "[a]s a matter of common sense and logic, an outdoor performance is less secure and more susceptible to a violence incident than an indoor one."

Naples Pride does not dispute that safety and security are proper government interests, and indeed, agrees that the City should provide adequate levels of security. Naples Pride is not against the use of security measures, but objects to concealing the performance in a small building due to the City's concerns that an outdoor performance may inflame others who are exercising their First Amendment rights to protest the drag performance. The City's valid concerns of "best practices" and "target hardening" in the name of security cannot overcome the First Amendment.

The City's requirement of an indoor location for the drag performance, even if a good faith attempt to mitigate risk, is clearly viewpoint and content based. It is the perceived expressive conduct of the drag performance, and the potential hostile reaction it may engender in others, that caused the City to restrict the drag performance to the inside of a small building, and to disallow a performance at Cambier Park's bandshell….

The court likewise concludes that the age restriction mandate was likely unconstitutional as well, partly because the performance was likely to be "devoid of any nudity, explicit content, or adult themes":

[T]he age restriction is [likewise] clearly viewpoint and content based. The City argues that the age restriction is based on security needs caused by the anticipated reaction of others to the drag performance's content, while Amici argue that the age restriction is justified by the impropriety of the performers' conduct for viewers, especially children. A restriction imposed on speech deemed immoral or scandalous is clearly a viewpoint-based restriction.

The City argues that the age restriction is justified by its concern that the City, its agents, and/or employees may be prosecuted under the Florida Drag Law if the permit is granted without an age restriction…. [But] there is no uncertainty about the law's current lack of binding effect: the statute has been declared unconstitutional; the official charged with enforcing it has been enjoined from doing so; and both the Eleventh Circuit and Supreme Court have so far declined to stay or modify the injunction. Furthermore, nothing in the record establishes that the anticipated "family friendly" drag performance meets the requirements of the statute or justifies a prior restraint….

As to the security fee, the court reasons:

The Court agrees with the City that it may charge a fee for the actual burden on public services arising from Pridefest. The Court also agrees that the City may properly consider the professional judgments of police and law enforcement officials about the need for security measures.

The City asserts that the imposition of the security fee in this case "is rational, logical, and viewpoint neutral" and has been tailored to the location and logistics of Pridefest after considering "the complex logistics, expected attendance, the history of Plaintiff's desire for security, Plaintiff's concern for attendees, anticipated protestors, strain on City resources, and the continued need to provide essential public safety services to the public at large[.]" The City rejects the idea that the amount of the security fee constitutes a "heckler's veto" because that concept contemplates silencing speech in its entirety, which has not occurred here. Additionally, the City asserts that there will be no hostile crowd, and hence no hecklers, within the festival because as a limited private forum, Pridefest "can exclude anyone they please that they disagree with."

The City also asserts that the sharp security-fee increases between 2022 to 2024 — $3,867, $5313.75, and $15,520 — are attributable to content-neutral factors. First, the City approved a new contract with NPD on July 1, 2023, which raised rates for off-duty law enforcement personnel who work special events. Second, in 2024, the City abandoned its prior policy of writing off the cost of SWAT deployments for largeevent organizers, as it was no longer fiscally responsible to do so. The City thus asserts that invoices charged to other large events, like Cars on 5th, show similar security-fee increases. Indeed, the February 8, 2025, estimate provided to Cars on 5th has an almost identical security-fee of $33,070, which covers the cost of 31 personnel.

The Court finds that Naples Pride is substantially likely to show that a portion of the security fee estimate is viewpoint and content based. Even so, the Court declines to grant a preliminary injunction as to the estimate because such an injunction would exceed what is needed at this time. It is undisputed that Naples Pride and the public are entitled to security at Pridefest, and that some security fee can be properly assessed.

The precise amount subject to dispute cannot be accurately computed at this time. It will be necessary to determine what portion of the security fee is attributable to concerns over other individuals' exercises of First Amendment rights (e.g., protesters) and may not be shifted to Naples Pride. However, no amount is due until after Pridefest, and even then, only 60 days after the City invoices Naples Pride. If at that point, the parties cannot agree to a delay of the payment due date until after this matter is litigated, the Court may consider by motion a stay of the payment deadline….

Seems generally correct to me.

The post Naples (Florida) Restrictions on Drag Performance at Pride Fest Likely Unconstitutional appeared first on Reason.com.

[Eugene Volokh] Prof. Michael McConnell on the Tariff Lawsuits

Prof. Michael McConnell at the Stanford Law School, a leading constitutional law scholar (and former Tenth Circuit judge), passed this along, and I'm delighted to be able to post it:

As of this writing, seven lawsuits have been filed challenging the legality of President Trump's unilateral imposition of tariffs. The briefing is farthest along in V.O.S. Selections, Inc. v. Trump, pending in the Court of International Trade. That court has scheduled a hearing for May 13 on all pending motions, including a motion for a preliminary injunction. Appeals from the Court of International Trade go to the Federal Circuit. Arguably, of all the cases challenging Trump administration actions, the tariff cases have the greatest consequence for the national economy as well as the division of authority between Congress and the Executive.

Both sides agree that the President has no inherent constitutional authority to set tariffs. President Trump's power, if it exists, must come from statute. The government relies on the International Emergency Economic Powers Act of 1977 (IEEPA). IEEPA gives the President power to take certain actions upon declaration of an emergency. The statute does not contain any reference to a power to impose, raise, withdraw, or alter tariffs or any other taxes. Until President Trump, no President ever asserted a tariff power under IEEPA.  Instead, IEEPA has always been used to impose non-tariff economic sanctions, such as the freezing of assets. The government contends, however, that the statutory phrase to "regulate … imports" is broad enough to include the power to set tariffs.

I thought it would be helpful to quickly summarize the arguments on both sides (note that I am a signatory to an amicus brief supporting the challengers). Boiled down to its essentials, the government's argument on the merits is as follows:

Tariffs are an important instrument for the conduct of foreign affairs, which is squarely in the domain of presidential authority. Delegations of power in this area should therefore be read broadly. IEEPA is a successor statute to the Trading With The Enemy Act (TWEA), passed during World War I, which gives the President power to "regulate … imports" from certain countries. In 1971, President Richard Nixon declared a 10% tariff surcharge under the authority of TWEA. The purpose of the surcharge was to reduce the balance of trade deficit. The surcharge was temporary, lasting less than five months. Although the Customs Court held that Nixon's tariff surcharge was not authorized by TWEA, the Court of Customs and Patent Appeals (the predecessor court to the Federal Circuit) reversed, holding that the power to "regulate … imports" is "broad indeed," and sufficient basis for Nixon's order. United States v. Yoshida International, Inc., 526 F.2d 560 (Cust. Ct. 1975). Two years later, Congress repealed the TWEA, replacing it with IEEPA. The new statute contains the same language, "regulate … imports," that the Yoshida court held authorized the Nixon tariff surcharges. Therefore, IEEPA should be interpreted as authorizing the imposition of tariffs by President Trump.

Challengers to the tariff power counter:

Tariffs are taxes, and the taxing power is reserved to the legislative branch. Congress does not delegate discretion over taxation lightly, or by silent implication. As a textual matter, the power to regulate does not subsume the power to tax. Congress may use its plenary taxing power to achieve regulatory ends, but the converse does not follow. IEEPA does not mention tariffs, or any other powers of taxation, and they should not be read into the statute, which is focused on a different set of authorities. The government's argument based on Richard Nixon's imposition of a 10% tariff surcharge under the TWEA is backwards. No President until Nixon ever interpreted the TWEA as delegating tariff-setting power, and when Nixon did so in 1971 – over 50 years after enactment of the TWEA – this aroused opposition in Congress and the courts. The Customs Court ruled that the tariff surcharges were unlawful. While that decision was on appeal, Congress enacted the Trade Act of 1974, which gave the executive express authority (for the first time) to "proclaim an increase in, or the imposition of, any duty on the imported article" in response to trade imbalances, but subject to tight substantive, procedural, and temporal limits. The Act capped tariff surcharges at 15%, limited them to 150 days in the absence of "affirmative authorization" by Congress, and required specific findings of unfair trade practices by the nations subject to the surcharges. The Trump tariffs do not satisfy those limits, and the government does not claim they do. Only after the Trade Act was passed did the Court of Customs and Patent Appeals hold that the Nixon tariff surcharge was authorized under the TWEA. Basing its decision on the logic of Justice Jackson's three-part framework for separation of powers analysis in Youngstown, the court concluded that the presidential order was lawful "in the absence of any statute 'providing procedures' for dealing with a national emergency involving a balance of payments problem such as that which existed in 1971." Yoshida Int'l, Inc. v. United States, 526 F.2d 560, 574-75 (C.C.P.A. 1975). Once Congress had enacted a law "providing procedures prescribed by the Congress for the accomplishment of the very purpose sought to be attained by Presidential Proclamation," it would be that law, not the general authority of TWEA, which would govern. Id. The effect was to approve Nixon's order retrospectively, while denying the executive any power to increase tariffs unilaterally in the future without following the procedures of the Trade Act. Congress then enacted IEEPA, with no mention of tariffs. At that point, the Yoshida court had held that legislation (like the Trade Act) setting "specific procedures" for the imposition of tariffs would displace any more general authority under the TWEA. That would have been Congress's understanding when it enacted IEEPA. Far from reenacting the relevant authorities from the TWEA as interpreted by President Nixon to allow tariff increases, the House Committee Report explains that IEEPA was designed to provide "a new set of authorities for use in time of national emergency which are both more limited in scope than those of [TWEA] and subject to various procedural limitations." H.R. Rep. No. 95-459, at 2 (1977) (emphasis added). The Report also expressed Congress's view that President Nixon had used the TWEA for purposes "which would not be contemplated in normal times." Id. at 5. The government is thus wrong to claim that IEEPA reaffirms the very power that Congress had criticized and sought to limit. The government's interpretation of IEEPA violates three important principles of statutory interpretation. First, if the government's interpretation of IEEPA is accepted, it would implicitly repeal the limitations on presidential tariff authority that had just been enacted in the Trade Act of 1974. Repeals by implication are disfavored. Second, in matters of vast political and economic consequence, the Supreme Court insists on clear statements of legislative authority before allowing the Executive Branch to act. IEEPA contains no such clear statement. Third, if interpreted to give the President carte blanche to set tariffs whenever he declares an emergency, the statute would violate the nondelegation doctrine for lack of any "intelligible principle." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928) (upholding an express delegation of tariff-setting authority only because it was governed by an "intelligible principle" and confined to narrow bounds). President Trump's claim of "emergency" is refuted by his own statements that his tariffs are necessary to remedy long-standing trade imbalance and to raise revenue.

Readers will draw their own conclusions, of course. But I think there is a substantial probability that the Court of International Trade will hold the Trump tariffs unlawful.

The post Prof. Michael McConnell on the Tariff Lawsuits appeared first on Reason.com.

[Eugene Volokh] "Europe Really Is Jailing People for Online Speech," by Prof. Yascha Mounk

From the introduction to his April 24 post, which is much worth reading in its entirety:

Imagine this scenario.

The interior minister of a country that considers itself a democracy reports scores of citizens to the police for making critical statements about her while she is in office. Many of them are given hefty monetary fines or even prison sentences.

In protest, a journalist publishes a satirical meme. It features a real photograph of the interior minister holding a sign that is digitally altered so that, apocryphally, it reads: "I hate freedom of speech."

As if to prove the point, the interior minister reports the journalist to the police. He is duly prosecuted and, after a brief trial, given a seven-month suspended prison sentence.

Would you say that this nation has a problem with free speech?

If you do, then you should be very concerned about what has happened in Europe over the last few years. For, as you may have suspected, this scenario is not fictional; rather, it depicts the true facts of a recent German court case—one that is far less of an outlier than most otherwise well-informed observers recognize….

Mounk goes on to offer many examples and analysis, and closes with:

Yes, some extremists invoke the cause of free speech for their own sinister agenda. And yes, J. D. Vance's stark criticisms of European restrictions on free speech reeked of hypocrisy in light of the Trump administration's own attempts to chill the speech of its critics. But the fact that some of the people who point to a problem aren't trustworthy doesn't miraculously mean that the problem isn't real—and anybody who insists on blindly taking the opposite stance of people like Vance on any issue in the world effectively outsources to him the decision of what they themselves believe.

Europe's far-reaching restrictions on free speech have already resulted in many serious miscarriages of justice. They now have a significant "chilling effect" on the ability to engage in robust political speech, which must include the freedom to express unpopular opinions and to satirize—whether in good taste or bad—the most powerful people in society. Far from helping European countries contain the extremists now knocking on the doors of power, that chilling of speech has likely turned them into martyrs and grown their public support.

Europe has a serious free speech problem. Instead of taking ever more measures to punish their citizens for what they say, it's time for countries from Germany to Britain to abolish the deeply illiberal legislation they have, with little attention from the press or the public, introduced over the course of the last decades. To live up to the most basic values of the democracies that are now under threat, the continent needs to reverse course—and restore true freedom of speech.

The post "Europe Really Is Jailing People for Online Speech," by Prof. Yascha Mounk appeared first on Reason.com.

[Eugene Volokh] Cancellation Litigation: Alabama Court Partly Reinstates Lawsuit Over Getting Someone Fired for Tweet

Friday's Alabama Supreme Court decision in Flickinger v. King stemmed from a June 2020 Facebook post "apparently regarding the death of George Floyd" by Flickinger:

Things I think about: If I were a seven-time felon, with my most recent prison stint stemming from robbing and holding a pregnant woman at gunpoint in her home, would I choose to die in a fentanyl and methamphetamine numbed strangulation if it meant being worshipped in a nationwide funeral and my family receiving millions of dollars? Purely hypothetical.

King then got in touch with Flickinger's employer, Wainwright, Pope & McMeekin, P.C. (a law firm at which Flickinger had worked 11 years) about the post. The firm threatened to fire Flickinger unless he resigned, which he did. He then sued (among others) King, alleging that King "had shared a 'counterfeit' social-media profile that appeared to show that Flickinger was making a controversial political statement on behalf of WPM":

According to Flickinger, the allegedly "counterfeit" social-media profile contained a professional photograph "appropriated" from WPM's Web site that, he said, he had never used on any of his personal social-media platforms as well as the name of Flickinger's employer, which, he maintains, he had "never advertised or shared in conjunction with any of his personal social media posts."

According to Flickinger, digitally merged with this "counterfeit" social-media profile were additional social-media posts appropriated from his personal social-media platforms that were critical of the mass nationwide violence that had been going on in the wake of George Floyd's death….

The court held that Flickinger's claim against King could proceed under a theory of tortious interference with a business relationship; Alabama follows the Restatement (Second) of Torts approach to the tort, under which such intentional interference can be actionable even without a showing that the defendant's conduct was independently tortious. (Many other states bar such liability unless the defendant's conduct was independently tortious, e.g., defamatory, threatening of violence, etc.; that is now the Restatement (Third) of Torts approach.)

The court first held there was sufficient evidence that King's communication to Flickinger's employer caused Flickinger's firing:

[T]he WPM partners were not monitoring Flickinger's social-media posts and had no knowledge of his social-media activity before King sent the George Floyd post to Wainwright. In addition, Wainwright admitted in his deposition that he "immediately" telephoned King after receiving the George Floyd post because he was "a little shook up," was "very concerned about [the WPM] firm," and was "thinking about damage control." Pope likewise contacted King "some few minutes … after [Wainwright] did" and was "upset" and "asked [King] what [WPM] should do about [its] reputation."

Thus, although the WPM partners later conducted their own research into Flickinger's other social-media posts, the evidence, when viewed in a light most favorable to Flickinger, indicates that they were considering terminating Flickinger's employment before they ever conducted that research. Indeed, Wainwright [Flickinger's immediate supervisor] testified that it was his receipt of the George Floyd post that prompted the WPM partners to "start looking to see what else was out there." Also, … we "cannot ignore the fact that the termination of Flickinger's employment occurred almost immediately after WPM was contacted by King."

Granted, … there is no evidence indicating that King recommended or suggested that the WPM partners terminate Flickinger's employment. However, … a defendant's acts in an intentional-tort case need not be the "proximate" cause of the plaintiff's harm, at least as that term is used in negligence cases. Rather, a defendant's acts may subject him to liability for an intentional tort if the acts "'were substantial factors in bringing about the harm,'" and "even very remote causation" may be a basis for imposing liability in such cases.

Viewed in a light most favorable to Flickinger, the evidence provides a basis upon which a jury could find that King's act of sending the George Floyd post to Wainwright was one of the "substantial factors"—if not the primary factor—"in bringing about" the WPM partners' decision to terminate Flickinger's employment. The fact that the WPM partners claimed that the decision to terminate Flickinger's employment was "theirs alone" and had not been recommended or suggested by King does not change the fact that King set in motion the chain of events that culminated with that decision….

The court also concluded that any defense that the interference with Flickinger's employment was "justifi[ed]" was for the jury:

[J]ustification is an affirmative defense to be pleaded and proved by the defendant. Whether the defendant is justified in his interference is generally a question to be resolved by the trier of fact. Whether a defendant's interference is justified depends upon a balancing of the importance of the objective of the interference against the importance of the interest interfered with, taking into account the surrounding circumstances…. Section 767 of the Restatement lists … several items that we consider to be among the important factors to consider in determining whether a defendant's interference is justified:

(a) the nature of the actor's conduct,

(b) the actor's motive,

(c) the interests of the other with which the actor's conduct interferes,

(d) the interests sought to be advanced by the actor,

(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,

(f) the proximity or remoteness of the actor's conduct to the interference, and

(g) the relations between the parties….

W]hether King was justified in sending the George Floyd post to Wainwright is to be evaluated in light of [these] factors …, and, as noted, the evaluation of those factors "'is generally a question to be resolved by the trier of fact.'"

Finally, the court rejected a defense under § 772 of the Restatement, which provides that,

One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other's contractual relation, by giving the third person

(a) truthful information, or

(b) honest advice within the scope of a request for the advice.

The court concluded that in this instance § 772(a) didn't apply because King's statement wasn't merely truthful information ("i.e., what Flickinger had undisputedly posted about George Floyd's death") but also included an untruthful element:

Flickinger alleged in his complaint that the King defendants had shared a "counterfeit" social-media profile that appeared to show that Flickinger was making a controversial political statement on behalf of WPM. Although Flickinger does not dispute that the statement in the post that was shared was his and was, therefore, truthful, he pleaded that the remainder of the post—coupled with the "counterfeit" social-media profile—falsely associated his political views with WPM.

The affirmative association of a potentially incendiary social-media post with the employer of the writer of the post could be relevant to a reader and would certainly be relevant to the employer. In fact, one of WPM's partners admitted to Flickinger that he "did not understand social media" and was not "on social media." It would be reasonable to conclude that he believed that readers of the post might make this false association. Thus, under these circumstances, we agree with Flickinger that the nature of this social-media post was in fact "false."

In an earlier decision dealing with the same litiation, the court concluded that King's alleged inclusion of Flickinger's social media profile and the firm's name wasn't actionable defamation, because:

[U]nder these circumstances, we agree with Flickinger that the nature of this social-media post was in fact "false." However, our caselaw makes clear that it is not enough for a statement to be "false," it must also be "defamatory." This Court has previously stated that "[t]he test to be applied [by the court] in determining the defamatory nature of an imputation is that meaning which would be ascribed to the language by a reader or listener of ordinary or average intelligence, or by a common mind." Writings — or, in this case, screenshots depicting images of writings — can be "defamatory" if they "tend[] to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." …

In order to adequately allege a claim of defamation, Flickinger must allege that the false association — i.e., that in making that post he was doing so as a representative of his law firm — is what brought him "into public hatred, contempt or ridicule" or "imput[ed] dishonesty or corruption" to him. Nowhere in his second amended complaint, however, does Flickinger allege that the "counterfeit" social-media profile associated with the post generated such outrage and hatred. Instead, it was the content of his post that he alleges generated such outrage and hatred. Thus, under these circumstances, Flickinger has failed to demonstrate that the "counterfeit" social-media profile associated with the post at issue amounted to defamation.

But though the falsehood here was not sufficiently for a showing of defamation, it was sufficient to reject the § 772(a) defense. And, more broadly, under the court's reasoning, it appears that an interference claim based on a cancellation attempt might proceed even if in the absence of a false statement—for instance, if the attempt consisted of unsolicited opinion, threat of withdrawal of business or boycott, and so on.

The post Cancellation Litigation: Alabama Court Partly Reinstates Lawsuit Over Getting Someone Fired for Tweet appeared first on Reason.com.

[Eugene Volokh] "Alleged Discrimination at the University of Oregon School of Law," by Prof. Ofer Raban

Ofer Raban, who is a professor at the University of Oregon School of Law (but who, even more clearly than usual for a law professor, is speaking on behalf of himself and not the law school), passed along this item. I have no direct personal knowledge of the matter, but I thought Prof. Raban's report was interesting and potentially important. I have tried to obtain statements for publication from the law school and the law review, but have not gotten any; naturally, if I do get contrary accounts or perspectives, I'd be happy to pass them along.

From Prof. Raban:

The University of Oregon, the state's flagship public university, is presently investigating a claim of discrimination against an Israeli professor by the Oregon Law Review. Several law school administrators apparently knew of the discrimination, and a high-ranking administrator had even approved it. The target of the discrimination holds an American law degree and has been teaching intermittently in the U.S..

The events unfolded in 2024, after an Oregon Law Review editor recommended the publication of an article written by the Israeli professor. Conceding the article's merits, a second law review editor rejected the recommendation because the author was a faculty member at an Israeli university. The law review management agreed, claiming that publishing the article would be perceived as an endorsement of Israel in the Israeli-Palestinian conflict—although the article dealt with environmental law and had nothing to do with that conflict.

When the original reviewer objected that this may amount to unlawful discrimination, the matter was taken to a high-ranking law school official. A meeting was held, and the official reportedly gave the green light to the discrimination. At least two law school administrators, possibly more, were aware of the stated basis for the rejection and connived in it. A concerned member of the law review (who did not attend the meeting) was told that the law school's administration had cleared the discrimination.

The allegations may involve violations of state and federal anti-discrimination statutes, violations of the state and federal constitutions, violations of the university and the law school's own policies and regulations, and infringements of federal policies, the policy of the Association of American Universities (of which the University of Oregon is a member)—and the university's own statement—regarding academic boycotts of Israel.

The basis for rejecting the article appears to constitute, at a minimum, discrimination on the basis of national origin (putting aside the related issues of discrimination on the basis of race, ethnicity, and antisemitism). Federal courts have long recognized discrimination by proxy—cases where "the defendant enacts a law or policy that treats individuals differently on the basis of seemingly neutral criteria that are so closely associated with the disfavored group that discrimination on the basis of such criteria is, constructively, facial discrimination against the disfavored group." Davis v. Guam, 932 F.3d 822, 837 (9th Cir. 2019). See also Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1160 (9th Cir. 2013) ("In a case of proxy discrimination the defendant discriminates against individuals on the basis of criteria that are almost exclusively indicators of membership in the disfavored group.")

Although the use of a proxy means that individuals who are not members of the protected class may be ensnared by the discrimination (say, American citizens who teach at Israeli universities), or that individuals who do belong to the protected class may not be ensnared (say, Israeli professors who teach in France), the lack of a perfect overlap makes no difference. Discrimination against a protected class need not be directed at the entire class (see, e.g. Bostock v. Clayton County, 590 U.S. 644 (2020); Rice v. Cayetano, 528 U.S. 495 (2000)); and "willingness to inflict collateral damage… does not cleanse the taint of discrimination; it simply underscores the depth of the defendant's animus." Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1160 n.23 (9th Cir. 2013). "The principal focus of [anti-discrimination statutes] is the protection of the individual [], rather than the protection of the minority group as a whole" (Connecticut v. Teal, 457 U.S. 440 (1982)).

The allegations may also support a finding of intent to discriminate on the basis of national origin—given the usual factors informing such determinations (the historical background of the challenged decision, the specific antecedent events, departures from normal procedures, and contemporary statements of the decisionmakers (see Village of Arlington Heights v. Metropolitan Housing Development Corp, 429 U.S. 252 (1977)). Indeed the claim that publication of the article would amount to an endorsement of Israel in the Israeli-Palestinian conflict makes so little sense—and could have been so easily cured by a one-sentence disclaimer—that ill-disguised hostility to Israelis may provide a simpler and more accurate explanation.

The University of Oregon's Office of Investigations and Civil Rights Compliance has been investigating the matter since February, with little to show for it. To date, as far as we know, no action has been taken against any official at the law review or the law school, and the sole action by the university has been a muted request for anti-bias training for new members of the Oregon Law Review.

Unfortunately, open discrimination against Israelis is the unsurprising culmination of messages emanating from the highest levels at the University of Oregon. Like many other institutions, the University experienced anti-Israel demonstrations that included the by-now familiar "from the river to the sea" banners and other denials of Israel's right to exist. The University of Oregon's response to these protests has been a shameful capitulation. A 2024 agreement between the university and the protestors included the issuance of a statement by the University of Oregon President calling for a permanent ceasefire in Gaza (a position long advocated by Hamas); the creation of two new faculty positions (presumably tailored to the ideological preferences of the demonstrators); and a taskforce that would consider the university's economic divestment from Israel.

This February, four University of Oregon departments (Sociology, Anthropology, Religious Studies, and Women's Gender and Sexuality), along with one University Institute (the Global Studies Institute) and one academic center (the Global Justice Program) co-sponsored and paid for a visit to the university by a pro-Palestinian activist who denies Israel's right to exist (which passes for the same thing in some circles), had celebrated the October 7 atrocities, and has since declared that she stands by that sentiment.

To be sure, we haven't yet seen the official conclusions of the university's investigation; and an internal law school inquiry would hopefully follow suit. (The Law School is yet to conduct its own inquiry, and is presently awaiting the result of the University's investigation.) But given the ideological messages sent by the University of Oregon to its students, its faculty, and its staff, one can be scandalized, but not surprised, by what had transpired at its law school.

The post "Alleged Discrimination at the University of Oregon School of Law," by Prof. Ofer Raban appeared first on Reason.com.

[Eugene Volokh] Iowa S. Ct. Adopts Federal Courts' Presumption Against Pseudonymity

[Specifically, the court holds that parents can't sue under a pseudonym together with their minor child, even though state rules provides that minors' names are pseudonymized.]

Federal courts have long had a strong presumption against pseudonymity; the cases I discuss in The Law of Pseudonymous Litigation are mostly federal cases. Some states have done the same, but many states don't have a lot of caselaw on the subject. In Friday's Doe v. Western Dubuque Comm. School Dist., the Iowa Supreme Court (in a unanimous opinion by Justice Christopher McDonald), generally adopted the federal approach:

Minor Doe, Father Doe, and Mother Doe filed suit against a school district and several school district officials and employees after Minor Doe was attacked by another student during school. The Does asserted claims for negligence, breach of fiduciary duty, and loss of consortium….

On January 12, 2023, Minor Doe was an eighth-grade student attending Drexler Middle School in the Western Dubuque Community School District. She was participating in an industrial arts technology class when another student assaulted her over the head with a board…. According to the petition, the school did not contact proper medical personnel or Minor Doe's parents after the assault…. Minor Doe was diagnosed with a concussion and other injuries….

The substantive analysis in the decision discussed governmental immunities, fiduciary duties, and related matters, but the court had this to say about pseudonymity:

We conclude that pseudonymous petitions are generally disfavored but that there may be some circumstances in which they are allowed. Those circumstances were not met here ….

[Iowa Rule of Electronic Procedure] 16.602(4) provides that the "[n]ames of minor children" are protected information. This means only that the "names" of minor children are not included within filings. Under our practice, parties use the minor's initials to avoid disclosure of the name. While the rule treats the "names" of minor children as protected information, the rule does not treat the "identity" of the minor child as protected information.

In other words, the rule does not require the omission of any and all information in a filing that could be used to discern the identity of the minor. Any such reading is impractical and inconsistent with actual practice. For example, spouses in a dissolution proceeding typically use their real names in filings and the initials of any children mentioned in the filings even though the children are easily identifiable….

In federal courts, the use of fictitious names is disfavored. "The use of fictitious names runs afoul of the public's First Amendment interest in public proceedings and their common law right of access thereto. Proceedings are only truly public when the public knows the identities of the litigants." … "Certainly, '[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.'" …

Despite being disfavored, most circuits have nonetheless concluded that the use of fictitious names is permissible and have adopted a balancing test to determine when parties can proceed under a fictitious name. Relevant factors to consider typically include whether the party seeking anonymity is challenging government activity, whether identification of the party would threaten revelation of sensitive and highly personal information, the risk of prosecution, the risk of retaliation, fundamental unfairness to the defendant, the public interest, and the existence of alternative options. These considerations are not exclusive.

Under federal law, even when no party objects to an anonymous pleading, "the judge has an independent duty to determine whether exceptional circumstances justify such a departure from the normal method of proceeding in federal courts." "Because a district court must exercise discretion in the course of weighing competing interests, … an abuse of discretion standard of review is appropriate." "Under this deferential standard of review, we must affirm the district court's ruling unless the district court failed to consider a factor that should have been given significant weight, considered an improper factor, or committed a clear error of judgment in the course of weighing proper factors."

We agree with these persuasive precedents and hold that there is a presumption against allowing a party to proceed under a fictitious name and that a party may proceed "under a fictitious name only in those limited circumstances where the party's need for anonymity outweighs countervailing interests in full disclosure." A party seeking to file under a pseudonym should do so on motion and bears the burden of establishing that the need for anonymity outweighs the countervailing interests.

We need not identify all of the factors relevant to this determination at this point in time because the plaintiffs have not even made a threshold showing that there is a need for anonymity here. The record demonstrates that the plaintiffs and defendants were in communication prior to the filing of this suit and that the defendants already knew the identity of the plaintiffs, including the identity of Minor Doe. In addition, the plaintiffs have not, on this record, identified any serious threat or irregularity that would require anonymity. On remand, the plaintiffs shall be afforded an opportunity to amend their pleadings and use their real names in accordance with the Iowa Rules of Civil Procedure and Iowa Rules of Electronic Procedure. The plaintiffs shall use Minor Doe's initials rather than identifying her by name….

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[Josh Blackman] Today in Supreme Court History: May 12, 1790

5/12/1790: Justice James Iredell takes the judicial oath.

[image error]Justice James Iredell

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[Josh Blackman] My Prediction For The Birthright Citizenship Cases: The Court Will Rule Against Trump On The Merits And Bypass All Other Procedural Issues

[There are certainly five votes on the meaning of the Fourteenth Amendment, but there are not five votes about nationwide injunctions.]

On Thursday, the Supreme Court will hear oral argument in the birthright citizenship cases. The government's emergency application presents several significant issues about the scope of the nationwide injunctions and other pressing procedural issues. Will the Court settle any of these long-standing, nagging issues? I doubt it. There are certainly five votes, and probably seven votes, and maybe even eight votes, to declare the executive order unconstitutional on its face. That ruling would bring all litigation to a halt. But I doubt there are five votes to reach a consensus about nationwide injunctions. That's why the Court rushed oral arguments: to put together a merits ruling against Trump, and make this case vanish. Chief Justice Roberts has bigger fish to fry in his quest to save democracy from itself.

I think the Court will do something similar with the Alien Enemies Act cases. There are a host of complex procedural issues. Can you certify a class under Rule 23 for a TRO? What is the interaction between the APA and Habeas Corpus? What level of deference is due when the President declares an invasion? And so on. It is far simpler to find that Trump's order was invalid because reasons. The Chief will make up some rationale that does not foreclose a future president from exercising his statutory powers. I offered this prediction a few weeks ago:

I actually think the Court will bypass the 5th Circuit and all of the procedural issues by simply ruling against Trump on the merits.

Meanwhile, deep in the heart of Texas, Judge Hendrix declined to certify a class of the aliens in Abilene Division, even though the Supreme Court's granted relief to the "putative" class on a temporary basis nearly a month ago. I doubt the Supreme Court will ever let a case arrive from the Fifth Circuit. Far easier to affirm a ruling from one the sensible judges in the Beltway who orders planes to turn around.

The post My Prediction For The Birthright Citizenship Cases: The Court Will Rule Against Trump On The Merits And Bypass All Other Procedural Issues appeared first on Reason.com.

[Josh Blackman] The Foreign Emoluments Clause, A Qatari Jet, and Honorary Irish Citizenship

[More than 100 days into the new administration, the Foreign Emoluments Clause returns to the fore.]

Shortly after President Trump's inauguration in 2017, he was sued for violating the Constitution's Foreign Emoluments Clause. That litigation stretched the entirety of Trump's first term in office, but did not reach a clear resolution. After Trump's term concluded, all of those cases fizzled out. Now, we are more than 100 days into Trump's second term. And, to my surprise, there has been zero litigation about the Foreign Emoluments Clause. Likewise, there has been no litigation following Trump v. Anderson about whether Section 3 disqualifies Trump from office. I suppose these were not the constitutional crises that we were told.

Yet, the Foreign Emoluments has still returned to the fore. ABC News reports that the royal family of Qatar will gift a 747-8 jumbo jet to the Air Force for its use as Air Force One. And at the end of Trump's term, the plane will be transferred to the Trump Presidential library foundation. ABC reports that White House Counsel, David Warrington, asked the Department of Justice for an opinion on the gift. The opinion has not (yet) been made public, but ABC offers this account:

Anticipating those questions, sources told ABC News that lawyers for the White House counsel's office and the Department of Justice drafted an analysis for Defense Secretary Pete Hegseth concluding that is legal for the Department of Defense to accept the aircraft as a gift and later turn it over to the Trump library, and that it does not violate laws against bribery or the Constitution's prohibition (the emoluments clause) of any U.S. government official accepting gifts "from any King, Prince or foreign State."

Sources told ABC News that Attorney General Pam Bondi and Trump's top White House lawyer David Warrington concluded it would be "legally permissible" for the donation of the aircraft to be conditioned on transferring its ownership to Trump's presidential library before the end of his term, according to sources familiar with their determination.

The sources said Bondi provided a legal memorandum addressed to the White House counsel's office last week after Warrington asked her for advice on the legality of the Pentagon accepting such a donation. . . .

Both the White House and DOJ concluded that because the gift is not conditioned on any official act, it does not constitute bribery, the sources said. Bondi's legal analysis also says it does not run afoul of the Constitution's prohibition on foreign gifts because the plane is not being given to an individual, but rather to the United States Air Force and, eventually, to the presidential library foundation, the sources said.

It would be useful to see this opinion at some point. It is not presently posted on the OLC web site.

Still, I can imagine what one of the leading authorities might be.

In 1963, there was discussion whether Ireland could confer honorary Irish Citizenship on President Kennedy. The Office of Legal Counsel provided an opinion on this potential gift. Seth Barrett Tillman and I discussed the gift in Part V of our ten-part series. Here is an excerpt:

 McGeorge Bundy, National Security Adviser to the President, asked Attorney General Robert F. Kennedy for advice on whether the President could accept this title of honor. In turn, Norbert A. Schlei, the Assistant Attorney General for the Office of Legal Counsel, prepared a memorandum opinion. He concluded that "acceptance by the President of honorary Irish citizenship would fall within the spirit, if not the letter, of" the Constitution's Foreign Emoluments Clause. At least in the short term, the certificate should be deposited with the Department of State, such as "in the hands of the United States Ambassador to Ireland." Schlei observed that "a custom has developed under which officers of the United States may accept foreign honors tendered to them and subsequently have them deposited in the Department of State." This custom arose because "it avoids offense to other countries." President Quincy Adams and Lincoln apparently followed this custom. OLC suggested this procedure would affect "substantial compliance" with the Foreign Emoluments Clause. Congress could enact legislation to permit Kennedy to accept the honorary citizenship.

Schlei proposed an alternative path that would not involve Congress: "the President could probably have the document conferring honorary Irish citizenship delivered to him by the Department of State after he leaves the White House." OLC observed that:

it is the practice of the Protocol Office of the State Department . . . to deliver to a former officer who has severed any official relationship with the United States, upon his request and without referral to Congress, a gift or other mark of honor tendered to him during his incumbency and deposited under the Act.

Thus, even if Congress does not act, "the President could probably obtain the warrant when he no longer holds office."

OLC did not exactly commit to this approach. The opinion hedges with the phrase "could probably." We are skeptical of this proposal. Perhaps this approach does not raise flags for an  item of no intrinsic value, like a warrant of honorary citizenship. However, one could imagine that a President could easily deposit all valuable gifts he receives in a "special" archive, which he can access as or after he leaves the presidency. There are problems with this approach. First, the President need not even notify Congress he received a valuable gift. The presents can be quietly given to a diplomat, or to the President himself. Second, the President can quietly deposit the valuable gift in government archives, which are under the supervision of his Secretary of State. Government warehouses can be vast and hard to catalogue—think of the final resting spot of the Ark of the Covenant in the Indiana Jones movie. Third, after the President's term concludes—or even shortly beforehand—he can direct one of his subordinates in the State Department to deliver the valuable gift to his private residence or to a third party. And few would know what had occurred. The OLC's workaround can easily bypass the Foreign Emoluments Clauses strictures, assuming the provision applies to the President.

Perhaps President Andrew Jackson was right—the only way to comply with the Foreign Emoluments Clause is to let Congress decide how to proceed. Any unilateral action would not suffice.

Ultimately, Ireland never gave Kennedy honorary citizenship.

I see some parallels between the Qatari Jet and the Irish citizenship. In 1963, OLC said that the certificate of citizenship could be maintained by the State Department during the President's term. And in 2025, OLC said the plane could be maintained by the Air Force during the President's term. In 1963, OLC suggested that the State Department could deliver the certificate to Kennedy after his term concluded. And in 2025, OLC (apparently) suggested that the Air Force could transfer the plane to the Trump presidential foundation at the end of Trump's term. It is not clear if Trump would ever take personal ownership of the plane.

As the excerpt above suggests, Tillman and I were skeptical about this work-around. Of course, there is still the threshold issue of whether the President is subject to the Foreign Emoluments Clause. It is worth noting that David Warrington was one of President Trump's lawyers during the Section 3 litigation. Warrington's team argued both that the President was not an "Officer of the United States" and did not hold an "Office under the United States." (I recount this litigation a recent article for the Mississippi Law Journal.) At least before the Colorado Supreme Court, Trump's counsel seemed to argue that the Presidency was not an "Office . . . under the United States" for purposes of the Foreign Emoluments Clause. Scott Gessler explained:

How could you possibly believe a president would not be part of the [Foreign] Emoluments Clause? Well, I would suggest you walk into Mount Vernon, and you will see above the fireplace a full-length portrait of King Louis . . . the XVI. That was given to George Washington, by the French government. And no one batted an eye, it was never viewed as a violation of the Emoluments Clause, because no one thought that it applied to George Washington, there's also the key to the Bastille that was given [to] him by a representative of the French government.

The Washington gifts are strong evidence that Washington did not view himself as bound by the Foreign Emoluments Clause. We discuss these gifts at some length in Part V. However, Trump's counsel before the Supreme Court in Trump v. Anderson did not advance this argument.

It is not clear if the 2025 OLC Opinion addressed the threshold question of whether the President was subject to the Foreign Emoluments Clause. Anything OLC says about this issue could affect the applicability of Section 3 to President Trump.

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