Eugene Volokh's Blog, page 135

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Keith E. Whittington] New Academic Freedom Podcast on the Columbia Situation

[A conversation with David Cole]

A new episode of the Academic Freedom Podcast has been released. The podcast is sponsored by the Academic Freedom Alliance and the Center for Academic Freedom and Free Speech at Yale Law School.

This episode features a conversation with David Cole about the current situation at Columbia University. David Cole is the Honorable George J. Mitchell Professor in Law and Public Policy at Georgetown University Law Center. He is also the former National Legal Director of the American Civil Liberties Union. He is also a principal author of the recently released "Statement from Constitutional Law Scholars on Columbia."

The Trump administration is currently withholding some $400 million dollars in federal grants from Columbia University until it complies with a list of demands that includes everything from reforming undergraduate and graduate admissions to putting an academic department into receivership.

On the podcast, we discuss the legalities of the administration's actions and its implications for higher education broadly and for academic freedom in the United States.

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[Eugene Volokh] Ninth Circuit Declines to Block Idaho's "Biological Sex" Restrictions for Multi-Occupancy School Restrooms, Locker Rooms, and Shower Rooms

[The court leaves open, though, the possibility that a narrower challenge aimed just at restrooms with closed stalls, where students wouldn't generally be partly or fully undressed where others can see them.]

An excerpt from the long Roe v. Critchfield, decided last week by Ninth Circuit Judge Morgan Christen, joined by Judges Kim McLane Wardlaw and Mark J. Bennett:

Before the summer of 2023, public school districts in Idaho were free to adopt their own policies regarding students' access to [multi-occupancy] restrooms, locker rooms, and shower rooms. Approximately one quarter of Idaho's public schools had policies specifically permitting students to use the facilities corresponding to their gender identity. The Idaho Legislature altered that status quo by enacting Senate Bill 1100 (S.B. 1100), which now requires all public-school students in Idaho to use only the restroom and changing facility corresponding to their "biological sex." …

S.B. 1100 also requires that public schools provide a single-occupancy facility as a reasonable accommodation to a student who, for "any reason, is unwilling or unable to use a multi-occupancy restroom or changing facility designated for the person's sex and located within a public school building, or multi-occupancy sleeping quarters while attending a public school-sponsored activity." In order to access such a single-occupancy facility, the student must provide "a written request for reasonable accommodation to the public school." This accommodation does not allow students to access covered facilities designated for use by students of the opposite sex while opposite-sex students could be present. Finally, S.B. 1100 creates a civil cause of action for any student who encounters a student of the opposite sex in a covered facility. The statute entitles students to recover $5,000 from the public school for each such encounter….

The policy was challenged as violating the rights of transgender students, but the appellate court upheld the trial court's decision not to issue a preliminary injunction. As to the Equal Protection Clause, the court reasoned:

It is well-settled that legislative classifications based on sex call for a heightened standard of review. The Supreme Court has required that "a party seeking to uphold government action based on sex must establish an 'exceedingly persuasive justification' for the classification." Accordingly, the State "must show at least that the challenged classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." "The justification must be genuine, not hypothesized or invented post hoc in response to litigation." "And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females." Heightened, or intermediate, scrutiny is thus satisfied when a policy "has a close and substantial bearing on" the governmental objective in question. Under [Ninth C]ircuit precedent, the same framework applies to classifications based on transgender status….

In applying intermediate scrutiny, we first consider whether the State has identified important governmental interests that the challenged legislation purports to serve. The State carried that burden here. S.B. 1100 identifies the legislature's objectives as "protecting the privacy and safety of all students" specifically "in restrooms and changing facilities where such person[s] might be in a partial or full state of undress in the presence of others." The statute memorializes the legislature's judgment that "[r]equiring students to share restrooms and changing facilities with members of the opposite biological sex" undermines the State's privacy and safety objectives and "generates potential embarrassment, shame, and psychological injury." In context, we understand S.B. 1100's use of "privacy" to refer to the State's goal of avoiding situations where students' unclothed bodies are exposed to members of the opposite biological sex.

SAGA does not dispute that protecting bodily privacy is an important governmental objective. See Byrd v. Maricopa Cnty. Sheriff's Dep't (9th Cir. 2011) (en banc) (noting our "longstanding recognition that the desire to shield one's unclothed figure from the view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity" (internal quotation marks and citation omitted and alterations accepted)); see also Sepulveda v. Ramirez (9th Cir. 1992) (considering a male parole officer's insistence on observing a female parolee's production of a urine sample and explaining that "[t]he right to bodily privacy is fundamental").

The district court reasoned that the State's privacy interest is especially important for school-aged children who are still developing mentally, physically, emotionally, and socially, and that "asking them to expose their bodies to students of the opposite sex (or to be exposed to the bodies of the opposite sex) brings heightened levels of stress." Other circuits that have considered and invalidated laws or policies limited to transgender students' use of restrooms agree that protecting student privacy is an important governmental objective. The district court properly concluded, in accordance with our decisions in Byrd and Sepulveda, that the State's interest in protecting students' bodily privacy is an important objective for purposes of intermediate scrutiny.

Having concluded that the State identified an important governmental objective, our analysis turns to whether the State chose permissible means to achieve that objective, i.e., whether S.B. 1100 is substantially related to the State's objective in protecting student privacy. The district court concluded that S.B. 1100 is substantially related to Idaho's interest in protecting students' privacy because the facilities covered by S.B. 1100 are, "without question, spaces in school (and out of school [in the case of multi-occupancy sleeping quarters]) where bodily exposure is most likely to occur."

We acknowledge, as the district court did, that the use of restrooms, locker rooms, shower rooms, and overnight accommodations do not present uniform risks of bodily exposure. We do not presume that S.B. 1100's application to each type of facility will be substantially related to the State's objective of protecting student privacy. Rather, the outcome here is dictated by the type of challenge SAGA raises. To prevail on its facial challenge to S.B. 1100, SAGA must show that S.B. 1100's mandated sex-segregation of all covered facilities is unconstitutional; its equal protection claim fails if S.B. 1100's application to any of the covered facilities survives intermediate scrutiny.

In considering the different types of facilities covered by S.B. 1100, it is plain that the privacy interest in avoiding bodily exposure is most strongly implicated in locker rooms and communal shower rooms that lack curtains or stalls. And we see no argument at this stage that S.B. 1100's mandatory segregation of these facilities on the basis of "biological sex" is not substantially related to the State's interests in: (1) not exposing students to the unclothed bodies of students of the opposite sex; and (2) protecting students from having to expose their own unclothed bodies to students of the opposite sex.

Because this is a facial challenge, our analysis does not change when considering S.B. 1100's discriminatory effect on transgender students because excluding all students, including transgender students who have not undergone gender-realignment surgery, from locker rooms and shower rooms designated for students of the opposite "biological sex" is substantially related to the same privacy interest. Accordingly, whether viewed as classifying students based on their sex or based on their transgender status, we conclude that S.B. 1100 is not facially unconstitutional under the Equal Protection Clause….

The court likewise concluded that the policy likely didn't violate Title IX:

[A provision of Title IX] carves out "living facilities" from Title IX's general antidiscrimination mandate: "Notwithstanding anything to the contrary contained in this chapter, nothing contained herein shall be construed to prohibit any educational institution receiving funds under this Act, from maintaining separate living facilities for the different sexes." A Department of Education regulation states: "A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex." …

SAGA does not challenge the Defendants' authority to maintain the sex-segregated facilities at issue; rather, it argues that the State impermissibly discriminates by requiring transgender students to use facilities that do not align with their gender identity.

So framed, the parties' dispute narrows to a disagreement regarding the definition of "sex" as used in Title IX. Neither Title IX nor its implementing regulations defines the term…. Circuit precedent establishes that discrimination on the basis of transgender status is a form of sex-based discrimination. In Bostock v. Clayton County, Georgia (2020), the Supreme Court held that firing a worker based on the worker's transgender status constitutes unlawful sex discrimination under Title VII because "it is impossible to discriminate against a person for being … transgender without discriminating against that individual based on sex." We applied Bostock's reasoning to Title IX's protections against discrimination on the basis of gender in Doe v. Snyder (9th Cir. 2022) ….

Though we have extended Bostock's reasoning to Title IX, Bostock did "not purport to address bathrooms, locker rooms, or anything else of the kind," and it did not consider whether Title IX or its implementing regulations put states on notice that policies restricting access to these types of facilities on the basis of gender assigned at birth may constitute unlawful discrimination against transgender persons….

Other circuits have disagreed over whether Title IX's use of the word "sex" unambiguously refers to sex assigned at birth…. We have never addressed this question directly, and we need not reach it here ….

Title IX funding is distributed to the states pursuant to the Spending Clause of the Constitution. "Congress has broad power to set the terms on which it disburses federal money to the States, but when Congress attaches conditions to a State's acceptance of federal funds, the conditions must be set out 'unambiguously.'"

Because legislation enacted pursuant to the spending power is in the nature of a contract, recipients of federal funds must accept federally imposed conditions on funds voluntarily and knowingly. "States cannot knowingly accept conditions of which they are 'unaware' or which they are 'unable to ascertain.'" …

Applying the clear-notice rule here, we agree with the State that SAGA failed to establish that Defendants had adequate notice, when they accepted federal funding, that Title IX prohibits the exclusion of transgender students from restrooms, locker rooms, shower facilities, and overnight lodging corresponding to their gender identity. We recognize that "Congress need not 'specifically identify and proscribe' each condition" in Spending Clause legislation. But from the time of the enactment of Title IX and its implementing regulations, the scheme has authorized schools to maintain sex-segregated facilities, and contemporary dictionary definitions commonly defined "sex" in terms that refer to students' sex assigned at birth. Thus, this is an instance in which liability does not arise under Title IX unless the challenged conditions were set out "unambiguously."

And the court rejected plaintiffs' informational privacy claims as well:

The Supreme Court has recognized two types of interests protected by the right of privacy: "the individual interest in avoiding disclosure of personal matters" and "the interest in independence in making certain kinds of important decisions." The former interest, often referred to as the right to "informational privacy," "applies both when an individual chooses not to disclose highly sensitive information to the government and when an individual seeks assurance that such information will not be made public."

SAGA argues that by "excluding transgender students from facilities matching their gender identity, S.B. 1100 exposes their transgender status to others in violation of their constitutional right to privacy." We have not yet addressed whether an individual's transgender status is the type of information protected by this right, but assuming that it is, we conclude that SAGA did not show that it will likely succeed on this claim.

S.B. 1100 requires transgender students to use either the facility designated for persons of their "biological sex" or a unisex single-occupancy facility. The statute does not require or permit Defendants to disclose any information about a student's transgender status to a third party. SAGA may be correct that transgender students' use of single-occupancy facilities will invite unwanted attention from their peers. But S.B. 1100 requires schools to provide an accommodation to a student who for "any reason, is unwilling or unable to use a multi-occupancy restroom or changing facility designated for the person's sex." Because the statute does not limit the use of single-occupancy facilities to only transgender students, we cannot say on the existing record that observing a student accessing such a facility will necessarily disclose that student's transgender status.

We do not preclude the possibility that SAGA may be able to show otherwise after the factual record is more fully developed; at this stage, we merely decide that the district court did not err by denying preliminary injunctive relief on the record currently available….

Erin M. Hawley (Alliance Defending Freedom) argued the case for defendants.

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[Paul Cassell] Boeing Has Confessed to Committing Its Deadly Crime … and Should Now Plead Guilty

[Boeing has no defense to the charged crime of defrauding the FAA. Rather than go through a pointless trial with a preordained result, it should plead guilty straightaway.]

Yesterday Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas set a trial date (June 23rd) in United State v. Boeing. The case concerns a long-pending federal criminal charge filed against Boeing for conspiring to defraud the FAA.  Boeing has reportedly been dragging its heels about pleading guilty. Boeing has no defense. It should do the right thing and plead guilty as soon as possible.

As I've blogged about previously (see here, here, here, and here), the criminal charge pending against Boeing arises out of two deadly crashes of Boeing 737 MAX aircraft in 2018 and 2019. A Justice Department investigation uncovered the fact that Boeing had lied to the FAA about the safety of the aircraft—lies that led directly and proximately to the crashes killing 346 passengers and crew. On January 7, 2021, the Justice Department filed a criminal information with a one-count conspiracy charge against Boeing, alleging that

From at least in or around November 2016 through at least in or around December 2018, in the Northern District of Texas and elsewhere, the Defendant, THE BOEING COMPANY, knowingly and willfully, and with the intent to defraud, conspired and agreed together with others to defraud the United States by impairing, obstructing, defeating, and interfering with, by dishonest means, the lawful function of a United States government agency, to wit, the Federal Aviation Administration Aircraft Evaluation Group ("FAA AEG") within the United States Department of Transportation, in connection with the FAA AEG's evaluation of the Boeing 737 MAX airplane's Maneuvering Characteristics Augmentation System ….

A few minutes after filing the charges, the Justice Department then filed a deferred prosecution agreement (DPA), deferring prosecution on the condition that Boeing take certain anti-fraud and other safety measures over the next three years. Judge O'Connor approved the DPA.

But later that year, I filed a Crime Victims' Rights Act (CVRA) challenge to the "sweetheart" DPA, arguing that the Justice Department had failed to confer with the victims' families about the deal. Following several evidentiary hearings, Judge O'Connor agreed that the Department had violated the CVRA in failing to confer with the victims' families in what can properly be described as "the deadliest corporate crime in U.S. history." But after further litigation—and an intermediate ruling from the Fifth Circuit that further victims' rights challenges were "premature"—the DPA's three-year term expired on January 7, 2024. The Justice Department then reviewed whether Boeing had lived up to its DPA obligations. Noting the blowout of a doorplug on a Boeing 737 MAX on January 5, 2024 (two days before the DPA expired), the Department concluded that Boeing had failed. On May 14, 2024, the Department filed its notice that Boeing had breached its safety obligations under the DPA. In July 2024, the Justice Department and Boeing reached a plea deal, under which Boeing would plead guilty, pay a $455 million fine, but would not admit to causing the 346 deaths. On behalf of my victims' families, I objected. And following a hearing, on December 5, 2024, Judge O'Connor rejected the proposed plea agreement, citing a constitutionally dubious DEI provision and lack of judicial involvement in monitoring Boeing. He gave the parties (DOJ and Boeing) thirty-days to advise how they wanted to proceed.

Since then, the Justice Department and Boeing have asked for—and received—three extensions of time to report back to Judge O'Connor. The extensions were to February 16, 2025; to March 14, 2025; and, most recently, to April 11, 2025. With regard to the last extension, I filed a notice for my victims' families that, if further extensions beyond April 11 were sought, then the families would object. Under the Crime Victims' Rights Act (CVRA), they have a right to proceedings free from unreasonable delay.

But before the April 11 deadline arrived, Judge O'Connor acted to speed things along. Two days ago (late on March 24), the Wall Street Journal (and other media) reported that Boeing was pushing to withdraw from any plea agreement that would require it to plead guilty. And then, less than 24 hours later, Judge O'Connor sua sponte set a trial date in the case:

The Court hereby VACATES its April 11, 2025, deadline in its previous Order and instead sets this case for trial on Monday, June 23, 2025, at 9:00 am in the Second Floor Courtroom, 501 W. 10th Street, Fort Worth, Texas. A separate Scheduling Order shall issue.

Judge O'Connor's order is good news, not only for the victims' families but also for the fair administration of justice. The families have now waited for years for justice in this case. Judge O'Connor's order means that they will either have a resolution by June 23—or a chance to see Boeing stand trial for its crime. Boeing has clearly used its expansive legal team to delay the proceedings. At some point, enough is enough. That point appears to have arrived yesterday.

Since yesterday's order, I've also seen some speculation that Boeing might just decide to go to trial and take its chances with a jury. This speculation does not full appreciate where things stand. Boeing has no defense.

I previously filed a declaration about how simple it would be for the Government to now go to trial and convict Boeing. Boeing has fully and formally "confessed" to its crime in a binding court filing. Specifically, when Boeing entered into the DPA in January 2021, it agreed to provisions that constitute a full confession that it is guilty of the charged crime. DPA Paragraph 2 states that Boeing "admits" that the Statement of Facts is "true and accurate":

The Company admits, accepts, and acknowledges that it is responsible under United States law for the acts of its officers, directors, employees, and agents as charged in the Information, and as set forth in the Statement of Facts, and that the allegations described in the Information and the facts described in the Statement of Facts are true and accurate. 

DPA ¶ 2 (emphases added). Boeing goes on to agree that the Statement of Facts can be used by the Government in any deferred (i.e., any later) prosecution, such as a prosecution that might follow in the wake of the Government's "breach" determination:

The Company agrees that, effective as of the date it signs this Agreement, in any prosecution that is deferred by this Agreement, it will not dispute the Statement of Case Facts set forth in this Agreement, and, in any such prosecution, the Statement of Facts shall be admissible as: (a) substantive evidence offered by the government in its case-in-chief and rebuttal case; (b) impeachment evidence offered by the government on cross-examination; and (c) evidence at any sentencing hearing or other hearing. In addition, in connection therewith, the Company agrees not to assert any claim under the United States Constitution, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, Section 1B1.1(a) of the United States Sentencing Guidelines ("USSG" or "Sentencing Guidelines"), or any other federal rule that the Statement of Facts should be suppressed or is otherwise inadmissible as evidence in any form.

DPA ¶ 2.

The DPA was signed by the highest executive possible in The Boeing Company, specifically David L. Calhoun, then the President and Chief Executive Officer of Boeing—as evidenced by the detailed "Company Officer's Certificate" in the agreement. And there was also a Certificate of Counsel by Boeing's large legal team, attesting to the validity of Boeing's DPA representations.

The DPA's Statement of Facts contains 54 paragraphs. Those paragraphs cover in detail all of the necessary elements and facts required to prove beyond a reasonable doubt that Boeing is guilty of the crime charged in the Criminal Information. In other words, Boeing's attestation that the Statement of Facts is "true and accurate" constitutes a complete, signed confession by Boeing to the pending charge.  That conclusion cannot be reasonably contested by Boeing (or the Government). The DPA's Statement of Facts was designed to undergird a deferred  prosecution agreement, allowing a later prosecution to be effectively based on the representations in the DPA. And on their face, the 54 facts appear to be credible and consistent in describing how Boeing conspired to defraud the FAA.

In its extensive briefing regarding the proposed plea agreement last summer, Boeing only vaguely argued that, in a contested case, "Boeing could bring certain challenges to the admissibility of that statement of facts." Boeing Br. Supporting Plea at 21. Boeing did not identify what those challenges to admissibility might be, since it specifically agreed that "the Statement of Facts shall be admissible as … substantive evidence offered by the government in its case-in-chief …." DPA ¶ 2 (emphasis added). And presumably the only reason that Boeing asserted that it "could" bring a challenge—not that it would bring a challenge—is that Boeing specifically "agree[d] not to assert any claim" that those facts should be suppressed. In light of Boeing's specific and voluntary agreement to the admissibility of the Statement of Facts, any challenge by Boeing to the admissibility of the Statement of Facts in a trial would be not only frivolous but also a violation of its DPA obligations.

Another type of evidence that would be available in a trial of The Boeing Company is  incriminating evidence from the defendant itself (i.e., from Boeing's executives). During the trial of an individual defendant, the Government (of course) cannot call the defendant to the stand and ask him whether he is guilty. Individual defendants are entitled to assert a Fifth Amendment right against Self-Incrimination. But in any trial of The Boeing Company, the Government could simply call a Boeing executive to admit the company's guilt. As a corporation, Boeing has no Fifth Amendment right against self-incrimination. See Braswell v. United States, 487 U.S. 99 (1988).

In short, Boeing is not only guilty of the crime of conspiring to defraud the FAA but it has already given an  ironclad confession of its guilt. It would have to admit the truth at trial. Going to trial would be pointless.

So what should Boeing do? To me, as an attorney for families who lost loved ones as a direct result of Boeing's deadly crime, the answer to that question is obvious: Boeing should stop dragging its heels and simply do the right thing. It should plead guilty to its crime, acknowledge its responsibility for killing 346 people, and then ask the judge to impose an appropriate sentence.

The post Boeing Has Confessed to Committing Its Deadly Crime … and Should Now Plead Guilty appeared first on Reason.com.

[Eugene Volokh] Libel Claims by The Satanic Temple Against Newsweek Over Sexual Abuse Allegations …

[thrown out for lack of evidence of "actual malice" (i.e., knowing or reckless falsehood on Newsweek's part).]

A short excerpt from today's long decision by Judge Mary Kay Vyskocil (S.D.N.Y.) in The Satanic Temple, Inc. v. Newsweek Magazine LLC:

The Satanic Temple, Inc. … [sued] Newsweek Magazine LLC … [for alleged defamation] in the article titled "Orgies, Harassment, Fraud: Satanic Temple Rocked by Accusations, Lawsuit" published by Newsweek. After this Court's [earlier] Opinion and Order on Defendant's motion to dismiss, only one statement, "Accounts of sexual abuse being covered up in ways that were more than anecdotal" (the "Article Statement"), remains at issue….

The court grants Newsweek summary judgment as to that last statement. The court concludes that there's a material factual dispute as to what the statement would mean to a reasonable reader (and whether it's false):

The relevant portion of the Article, with the Article Statement emphasized here (but not in the Article), reads:

He hadn't been involved long when he came to feel that TST 'appeared to be an inept, rudderless organization that had accidentally risen to prominence through something of a disingenuous prank,' referring to the 2013 filming event in Florida.

He soon left the group, then was leaked material about 'leaders posing happily with major alt-right media figures,' he wrote. 'Accounts of sexual abuse being covered up in ways that were more than anecdotal. Dozens of people kicked out for asking for financial records from this alleged-non-profit organization.'

In Newsweek's motion, it argues that the Article Statement is substantially true and therefore cannot be defamatory because the most straight forward interpretation of the Article Statement merely asserts that Jinx Strange, or other members of The Satanic Temple, were no longer involved with The Satanic Temple in part because they "heard about accounts of sexual abuse being covered up." The Satanic Temple argues that the Article Statement does not merely convey that Strange, or other members, were aware of these allegations. Instead, The Satanic Temple asserts that the Article Statement "falsely implies the existence of 'leaked material' which shows sexual abuse and cover-up." …

[I]n reviewing each [side's motion for summary judgment] and drawing all reasonable inferences in favor of the non-moving party, the Court concludes that the Article Statement is reasonably susceptible to multiple meanings, some of which are non-defamatory, and thus the Court cannot conclude as a matter of law that the Article Statement is false and defamatory or true and not defamatory. See Electra v. 59 Murray Enterprises, Inc. (2d Cir. 2021) (rejecting appellants argument that the challenged statements were false and defamatory based on their proposed "most obvious interpretation" as "without merit" because the other side's alternative interpretation was also "a reasonable interpretation" and it was "for the trier of fact, not for the court acting on the issue solely as a matter of law, to determine in what sense the words were used and understood").

But the court concluded that Newsweek was entitled to summary judgment as to the question of "actual malice," which is to say the question whether it knew the statement was false (or at least likely false). Regardless of whether the Satanic Temple was a public figure, the court held, the statement was on a matter of public concern and thus New York's anti-SLAPP statute mandated (just as a statutory matter) that the court apply the actual malice standard:

As an initial matter, The Satanic Temple's argument that this "case presents the need for only a single yardstick, the [Newsweek] Editorial Guidelines because those establish … Newsweek's subjective standard of care" is mistaken…. [A]ctual malice is demonstrated when there is evidence that the Article Statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." Thus, evidence that Newsweek allegedly failed to follow its own internal Editorial Guidelines, without more, does not satisfy the actual malice requirement….

The Satanic Temple argues … that Cooper, as the editor of the Article, generally failed to follow the Editorial Guidelines of Newsweek and also had a personal bias against The Satanic Temple…. The Satanic Temple cites to Cooper's deposition testimony where she admits that she does not know specifically who was sexually abused, what sexual abuse entailed, who engaged in the cover up, or what the cover up entails …. But this lack of knowledge about the underlying facts of the Article Statement does not amount to evidence of actual malice…. "[T]here is a critical difference between not knowing whether something is true and being highly aware that it is probably false. Only the latter establishes reckless disregard in a defamation action." …

Cooper's alleged failure to further investigate the answers to these questions also does not amount to evidence of actual malice because there is no evidence that Cooper had any obvious reason to doubt the Article Statement….

The Satanic Temple claims also that Cooper was biased against The Satanic Temple, and that purported bias combined with her failure to investigate could support a jury's finding of actual malice. The Court disagrees. First, to support its claim that Cooper was biased, The Satanic Temple points to a single email chain between Duin [the article's author] and Cooper in which Cooper asks Duin, "[c]an you add a phrase about the abortion suit—that it's a piece of political theatre; they don't actually have an abortion ritual." In her deposition Cooper said, "I am assuming they don't actually have an abortion ritual, so, before we say that, let's make sure that either is the case or that it's a piece of political theater."

The Court is entirely unconvinced that this single email posing a question to the Duin about The Satanic Temple amounts to evidence that Cooper was biased. Bare assertions of bias are insufficient. Even if this email were somehow illustrative of a personal bias that Cooper had against The Satanic Temple, without evidence to suggest that Cooper had serious reservations about the accuracy of the Article Statement or that she acted pursuant to that bias, this evidence is insufficient to create a triable issue of actual malice….

The Satanic Temple contends that Duin failed to properly investigate and fact-check the Article Statement and this is evidence of actual malice. In support, The Satanic Temple provides evidence that Duin did not ask Strange follow-up questions about who specifically was sexually abused or what he meant by "cover up," and evidence that she did not ask Graves or Dr. Laycock about the Article Statement. However, these facts without evidence that Duin harbored any serious doubts or had uncertainties as to the accuracy of the Article Statement do not constitute proof of actual malice.

The record evidence demonstrates that Duin did not have any serious doubts about the truth of the Article Statement. For example, Duin testified that she found the Article Statement "inherently plausible considering the account from the Seattle [members she interviewed], or the interviews with the Seattle people … and the account from Scott … that what Jinx was saying was true." Furthermore, Duin testified that she looked into Strange's claims and "everything checked out." She testified that there were many complaints about the alt-right figures, and there were multiple people raising flags about The Satanic Temple's finances, including in Dr. Laycock's book. Plus, Duin testified that she "found it plausible [Strange] was correct" because "there were plenty of people who were saying" the same or similar allegations, including in her "other interviews." Therefore, The Satanic Temple merely pointing to potential negligent short comings in her research or investigation are insufficient to support a finding of actual malice.

The Satanic Temple attempts to argue that Duin should have had obvious reasons to doubt the Article Statement because its source, Strange, was biased and semi-anonymous. This also does not satisfy the actual malice standard. While, relying on wholly anonymous sources can be circumstantial evidence of actual malice, the evidence here does not support that Duin relied wholly on anonymous sources. The evidence, as outlined above, shows that Duin relied on a whole multitude of sources before including the Article Statement. While it is true that the Article Statement was supplied to Duin by an individual who utilizes a pseudonym, the record evidence clearly demonstrates that Duin spoke with multiple other individuals, conducted her own research, including reviewing articles, books, and internet sources, and interviewed other individuals, including non-anonymous sources, which all supported her decision to include the Article Statement.

Furthermore, Duin relying on former members of The Satanic Temple whom she described as disgruntled, when there is no evidence that she had doubts about the truth of their statements, does not amount to evidence of actual malice. The Satanic Temple further argues that Duin consciously avoided serious doubts by not asking Greaves about the Article Statement. However, this argument fails because, as the Court explained above, there is no evidence that Duin was faced with subjective doubts that would have required her to investigate further….

Cameron Stracher and Sara Tesoriero (Cameron Stracher, PLLC) represent Newsweek.

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[Eugene Volokh] Parent Submits Photo of School Postings to LibsOfTikTok, Gets Restricted from Accessing School Property or Events

[A federal court, however, has now largely blocked this restriction; the court rejected the argument that the parent violated the school's "bullying" policy.]

From Chief Judge Eric Melgren's opinion yesterday in Schmidt v. Huff (D. Kan.):

Gardner Edgerton High School is a part of USD 231 and is located in Johnson County, Kansas. USD 231's Superintendent is Defendant Brian Huff. Plaintiff Carrie Schmidt is the mother of two students, a sophomore and a senior, who attend Gardner Edgerton High School.

Plaintiff's son, a high school senior, is on the Gardner Edgerton wrestling team. Plaintiff volunteered to help make "snack bags" for the wrestlers on the days they have wrestling matches. With permission, Plaintiff uses the teacher's lounge on the first floor to put together the snack bags. Once the snack bags are made, they are placed in the wrestling team's coolers. Plaintiff often takes pictures of the completed snack bags and sends them to the coaches and Athletic Secretary, so they know where everything is located. This system was already in place before Plaintiff volunteered. Plaintiff has helped make snack bags for the wrestling team since at least 2023.

On May 4, 2023, Plaintiff became a member of the USD 231 Educational Services Advisory Committee. The Committee investigates and reviews USD 231 curriculum, instruction, and assessment topics as well as reviews the accreditation process, progress, curriculum standards, and Federal Programs. The Committee makes recommendations to the School Board and Superintendent Huff about these matters.

On January 29, 2025, President Trump issued Executive Order 14190, entitled "Ending Radical Indoctrination in K-12 Schooling." Based on the advertisements, posters, and stickers placed on the walls and windows of USD 231, Plaintiff believed that the school was in violation of the President's Executive Order by endorsing and otherwise advocating for gender ideology and discriminatory equity ideology.

On February 3, 2025, Plaintiff went to the high school in the evening to prepare snack bags for the next day. Plaintiff went to the teachers' lounge, made the snack bags, and prepared everything she usually does for the wrestling team. After she finished, Plaintiff went upstairs to the second floor and found the room number associated with a promotional poster for the Gay Straight Alliance Club. The classroom's lights were already on, and the door was open.

Plaintiff took pictures of the classroom door, posters displayed on the classroom walls, and books stacked on the classroom bookshelves. The classroom door had multiple posters and stickers on it, including the teacher's last name. Unbeknownst to Plaintiff at the time, the classroom's teacher, Hanna Louvau, was the [study hall] teacher for Plaintiff's sophomore daughter.

"Libs of TikTok" is a popular social media account known for posting photos and videos of individuals or organizations that often express progressive or liberal views, especially those surrounding topics like LGBTQ+ rights, education, and identity. The account typically collects its content by browsing public posts on social media and reposting them, or by directly posting submissions from followers who send in content they believe align with the account's focus. Although named Libs of TikTok on all platforms, the account is active on multiple social media networks, including Instagram, X (formerly Twitter), Facebook, and TikTok.

Plaintiff sent the Libs of TikTok X account the pictures she took at the school. Plaintiff had no control over whether Libs of TikTok saw her photos, decided to post them, picked which ones to post, or would notify her when it did post her photos. On February 7, 2025, at 10:26 a.m., Libs of TikTok posted the photo of the classroom door that Plaintiff had submitted. The post's caption read, "School in Gardner, Kansas (@GEHSBlazers) Strip them of their funding immediately."

That same afternoon, Plaintiff was at the high school making snack bags. While she was in the office, Superintendent Huff confronted Plaintiff about taking pictures and sending them to Libs of TikTok. Defendant Huff told Plaintiff that her actions disrupted the school day because teacher Hanna Louvau—whose name was posted on the classroom door—was so distraught by the comments made on the post that she asked to leave for the rest of the school day.

On February 11, 2025, Defendant Huff emailed Plaintiff a letter on official USD 231 letterhead (the "Letter"). In it, the Letter stated that Plaintiff had taken "certain actions … in violation of Board policy and state law that have resulted in threats, intimidation, abuse and harassment directed at school district personnel and students which has caused a material disruption to the school environment." The Letter further explained that Plaintiff's taking pictures and posting them on social media without the permission and consent of the teacher or the school district contravened "Board Policies KGB {Concealed Observations}, KBC {Media Relations}, KGD {Disruptive Acts at School or School Activities}, KGDA {Public Conduct n School Property}, KFD {School Volunteers} & KM {Visitors to the School} and state law."

As a result of Plaintiff's actions, the Letter informed Plaintiff that she was: (1) removed from the Educational Services Advisory Committee; (2) banned from being on school property through June 30, 2025; (3) banned from attending school events or activities—home or away— without the express written permission from building administration; (4) prohibited from having any contact with the teacher whose classroom was the subject of Plaintiff's photos; and (5) required to make specific arrangements with building administration to schedule parent-teacher conferences.

After receiving this Letter, Plaintiff alleges in her Complaint that Defendant Bell—the school's principal—told her via email that she did not have the district's permission to attend "any future GEHS functions, home or away, including our Graduation Commencement Ceremony." She also alleges that Defendant Bell told her that she must attend all parent-teacher conferences by video conference or telephone. {During the hearing, Plaintiff testified that every request she made to the district to attend a certain event has been granted, including her son's graduation. She maintained that the district enforced its policy about attending parent-teacher conferences virtually. Counsel for the school district stated that he was not entirely certain and did not know the details of what limitations were ultimately enacted regarding parent-teacher conferences.}

The court issued a preliminary injunction blocking the exclusion of plaintiff from school property and school events:

Defendants conclusorily state, "The posting of the picture on February 7, 2025, submitted by Plaintiff … resulted in a disruption to the educational environment all in violation of Board policies, including Policy KGC Bullying by Parents … and state law, K.S.A. 72-6147." Defendants provide no analysis as to what K.S.A. 72-6147 says or how Plaintiff specifically violated it. As such, the Court concludes that Plaintiff's offense, if any, is not based on a violation of state law.

The Court next considers whether Plaintiff violated school policy. The Letter claims that Defendants' decision was based on Plaintiff's violation of Board Policies KGB, KBC, KGD, KGDA, KFD, and KM. Notably, Defendants' Response does not analyze any of these policies; rather, it addresses for the first time a new policy, Policy KGC, Bullying by Parents. At the hearing, Defendant Huff was questioned on each of the listed policies and asked to explain how Plaintiff violated any of them. He was unable to point to any specific language that Plaintiff violated, and instead stated that Plaintiff violated the Board's "interpretation" of each policy.

Even considering the Bullying by Parents Policy, Defendant Huff was unable to explain how Plaintiff bullied any school staff. Instead, he referenced that Plaintiff's behavior generally posed "safety concerns."

First, the school's anti-bullying policy prohibits bullying by a parent towards a staff member "on or while using school property." On February 3, Plaintiff took photos of a public space, i.e., a classroom door. No students or staff were photographed. The photo was sent to a third-party publisher. The publisher, Libs of TikTok, did not post the photo until February 7, four days after the photo was taken.

The harm suffered by the staff member was caused by random, anonymous users who negatively commented on the publisher's post. Those comments were not made on school property, Libs of TikTok did not post the photo on school property, and there is no evidence that Plaintiff sent Libs of TikTok the photo while she was on school property.

Lastly, Defendants argued that even if Plaintiff did not bully the teacher herself, she should still face consequences because she initiated the process and prodded somebody else to be the trigger. Notwithstanding the fact that "instigating" is not against any written school policy, this Court nonetheless finds that this case fails to rise to the level of instigation found in other similar cases.

Here, there is no evidence that Plaintiff provoked Libs of TikTok to post something threatening, harassing, intimidating, or abusive. Rather, she sent publicly posted material to a public platform that disseminated the already-public material to a larger audience.

But even assuming that Plaintiff was responsible for the final Libs of TikTok post, the caption to the post merely says, "Strip them of their funding immediately." This language is patently unthreatening. But even if it were threatening, it is certainly directed at the school district—not at any individual student or staff member.

Several hostile comments from random, anonymous people were added to the online post. The fact that such people posted horrific or disturbing comments to the Libs of TikTok post about the classroom's teacher is twice removed from Plaintiff. No evidence was presented showing that Plaintiff herself committed any bullying, and in response to a direct question, Defendant Huff admitted that he had no evidence she had personally engaged in any bullying activity. Accordingly, because Plaintiff did not violate any school policy, the treatment she faced by Defendants was unwarranted. And the Court further notes that her actions of posting pictures, however such actions might be interpreted or argued, is wholly unrelated to her attendance at school events….

Defendants' ban … deprived Plaintiff of her right to attend irreplicable events such as her son's senior banquet, state wrestling tournament, and graduation ceremony. Although Plaintiff has been granted permission to attend these events, the mere fact that she must obtain permission when other similarly situated members of the public do not is a deprivation of liberty. Defendants cannot strip Plaintiff's rights down to privileges without just cause….

But the court added,

This does not mean that Plaintiff may wander off into restricted areas of the building or facility in which the event is held. Schools have the right to control access to specific locations or events without implicating a liberty interest, so Plaintiff is enjoined from venturing into these restricted areas in the future.

Additionally, this does not mean that Plaintiff is immune from these restrictions being imposed upon her again if Plaintiff engages in public disruptive conduct. Although Plaintiff may attend school board meetings, she is subject to the terms and conditions the Board imposes. This includes strict adherence to time limits and restrictions on promoting salacious material or engaging in threats or bullying. The Board is reminded that it must equally apply its terms and conditions to all speakers and must not engage in viewpoint discrimination against any speaker.

Although Plaintiff may attend parent-teacher conferences in person, she is instructed not to have contact with teacher Hanna Louvau. Although Plaintiff has not had any contact with Louvau to date and is unlikely to have contact with her in the future, the Court maintains this restriction to prevent Louvau from feeling harassed or threatened by Plaintiff in the future.

Lastly, the Court upholds Defendants' removal of Plaintiff from the Educational Services Advisory Committee. USD 231's Standards of Conduct for Volunteers clearly states that "volunteering is a privilege," and "the district may terminate the services of a volunteer at any time." Schools may control who volunteers at its school events and who serves on its school committees. Because Plaintiff has not adequately demonstrated why she has a liberty interest in volunteering, the Court leaves unchanged the school's decision to remove Plaintiff from USD 231's Educational Services Advisory Committee….

Linus Baker represents plaintiff.

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[Jonathan H. Adler] On the Effects of Occupational Licensing on the Legal Profession

[An interesting new study on how state bar requirements may affect the quality and quantity of legal services.]

Are state bar licensing requirements just a barrier to entry that reduces the quantity and increases the cost of legal services? Do they also improve the quality of legal services and protect consumers?

Count me among those who is generally skeptical of state occupational licensing requirements. So I read with interest a new study by Adam Chilton, Jacob Goldin, Kyle Rozema, and Sarath Sanga, "Occupational Licensing and Labor Market Mobility: Evidence from the Legal Profession." Here is the abstract:

We study how state occupational licensing requirements shape labor mobility across U.S. legal markets. Drawing on newly collected data, we link variation in state bar exam waiver policies to lawyers' license acquisitions, professional disciplinary records, and educational histories. We find that bar exam waivers increase the number of experienced lawyers obtaining a new license by 38 percent, but that the additional lawyers are subject to more professional discipline and tend to have graduated from less selective law schools. Our results suggest that state-level occupational licensing regimes can create a trade-off between the supply and quality of professionals in an industry.

And from their conclusion:

In this paper, we investigated the impact of occupational licensing requirements on the labor market mobility of lawyers and on the quality of lawyers offering legal services in a state. We specifically studied the impact of bar exam waivers for experienced lawyers on their likelihood of obtaining a license to practice law in another state and on whether the lawyers induced to move by a bar exam waiver differ in quality. To do so, we assembled novel datasets on bar exam waiver policies, license acquisitions of a sample of 1.7 million lawyers, and the professional disciplinary actions imposed on lawyers in 37 states. By exploiting more than one thousand changes in bar exam waivers between pairs of origin and destination states, we found that bar exam waivers increase labor market mobility by 38 percent. However, we also found that lawyers who are induced to obtain an additional license by a bar exam waiver are of lower quality than lawyers who would have obtained an additional license without the waiver. Taken together, these results imply that, in the legal context, occupational licensing requirements create a trade-off between the supply of labor and the quality of professionals.

Given this trade-off, future research is needed to further understand the welfare implications of occupational licensing in the legal profession. Our research specifically points toward two related topics that would benefit from additional investigation. First, because occupational licensing rules appear to impact both the quantity and quality of lawyers, future research should directly investigate the welfare implications that come from expanded access to legal services relative to potential costs associated with having a higher share of lower quality lawyers. The welfare benefits of increasing the supply of lawyers may far outweigh the costs of additional lower-quality lawyers, but more research is needed to directly explore this possibility. Second, future research should explore whether bar exam waivers create lower-quality lawyers or simply redistribute them. For instance, exam waivers may produce lower-quality lawyers if they lead to experienced lawyers not learning information that could directly improve the quality of legal services they provide; alternatively, exam waivers may simply allow existing lower-quality lawyers to expand their practices to new markets without  producing any new lower quality lawyers. These two possibilities have different welfare implications and suggest different strategies for trying to protect the public.

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[Ilya Somin] Federal Court Rules Migrants Have Right to Hearing to Challenge Alien Enemies Act Deportations

[Judge Boasberg ruled the migrants are entitled to due process in determing whether they really are "alien enemies" covered by the Act. ]

A prison guard transfers deportees from the U.S., alleged to be Venezuelan gang members, to the Terrorism Confinement Center in Tecoluca, El Salvador. Mar. 16, 2025 (El Salvador Presidential Press Office)

 

Yesterday, US district Judge James Boasberg ruled that migrants have a right to a hearing to challenge their deportation under the Alien Enemies Act of 1798. The Alien Enemies Act is one of the notorious Alien and Sedition Acts of 1798, the only one still in force. Trump is trying to use it to deport alleged members of Tren de Aragua, a Venezuelan drug gang. But the Act can only be used in the event of a declared war, or an "invasion" or "predatory incursion" perpetrated by a "foreign nation or government." As explained in my earlier writings about this issue, illegal migration and cross-border drug smuggling do not qualify as an "invasion" or "predatory incursion." Even if they did, they aren't being perpetrated by a "foreign nation or government." Tren de Aragua is a criminal organization, but it is pretty obviously not a "nation or government."

Much of the debate over Trump's invocation of the AEA focuses on whether he can use it all, given the absence of the requisite war, invasion, or predatory incursion. But Judge Boasberg chose not to address that issue (at least not yet), and instead focused on a different point.

The Court need not resolve the thorny question of whether the judiciary has the authority to assess this claim in the first place. That is because Plaintiffs are likely to succeed on another equally fundamental theory: before they may be deported, they are entitled to individualized hearings to determine whether the Act applies to them at all. As the Government itself concedes, the awesome power granted by the Act may be brought to bear only on those who are, in fact, "alien enemies." And the Supreme Court and this Circuit have long maintained that federal courts are equipped to adjudicate that question when individuals threatened with detention and removal challenge their designation as such. Because the named Plaintiffs dispute that they are members of Tren de Aragua, they may not be deported until a court has been able to decide the merits of their challenge. Nor may any members of the provisionally certified class be removed until they have been given the opportunity to challenge their designations as well.

Judge Boasberg cites extensive precedent showing that noncitizens targeted for detention or deportation under the AEA are entitled to a hearing to determine if they really are "enemy aliens" as defined by the statute and the presidential proclamation invoking it. That was true in every previous use of the AEA (always during actual declared wars: the War of 1812, World War I, and World War II). For example, in United States ex rel. Schwarzkopf v. Uhl, 137 F.2d 898 (2d Cir. 1943), a detainee was able to show he was not actually a German citizen, and thus could not be detained under the AEA as an alien enemy.

Georgetown law Prof. Steve Vladeck covers a variety of similar precedents going all the way back to the War of 1812 in a 2007 article.

I would add that this isn't just a statutory right, but also one required by the Due Process Clause of the Fifth Amendment. At the very least, such due process is surely required in a case where the migrants aren't simply being deported, but are instead incarcerated in a horrific El Salvadoran prison.

The need for due process here is more than just a matter of abstract legal theory. Evidence increasingly indicates that many of the people deported under the AEA by Trump are not members of Tren de Aragua at all, and haven't committed any crimes. The government actually admits that "many" of the deportees do not have any criminal record at all.

While Judge Boasberg chose not to resolve the issue of whether the AEA can be invoked at this time at all, he notes that "this Court is confident that it can — and therefore must, at the appropriate time — construe the terms 'nation,' 'government,' 'invasion,' and 'predatory incursion….' While doing so may be no light undertaking, it is a judicial one."

This suggests he is - rightly - skeptical of the notion that all such issues are "political questions" that courts are not allowed to address. Courts are likely to have deal with these questions as the AEA litigation continues.

I have previously why these issues should not be considered unreviewable political questions here, and here. Here's an excerpt:

There is no good reason to hold that the definition of "invasion" is a political question, especially if doing so would give the president a blank check to usurp power over… Congress and suspend the writ of habeas corpus anytime he wants. Such a vast concentration of power would surely go against the original meaning [of the Constitution], as it would enable the president to engage in arbitrary detention at will – exactly the kind of abuse early Americans had experienced at the hands of the British and sought to prevent in the future. "Invasion" has a clear definition readily susceptible to judicial interpretation…

Meanwhile, also yesterday, the US Court of Appeals for the DC Circuit held oral arguments on the government's appeal seeking a reversal of Judge Boasberg's earlier temporary restraining order blocking AEA deportations. The judges seemed to share at least some of Boasberg's concerns about the lack of due process:

"There were plane loads of people. There were no procedures in place to notify people," Judge Patricia Millett said. "Nazis got better treatment under the Alien Enemies Act."

Judge Millett noted that alleged Nazis were given hearing boards and were subject to established regulations, while the alleged members of Tren De Aragua were given no such rights.

"There's no regulations, and nothing was adopted by the agency officials that were administering this. They people weren't given notice. They weren't told where they were going. They were given those people on those planes on that Saturday and had no opportunity to file habeas or any type of action to challenge the removal under the AEA," Judge Millett said.

Judge Millett is absolutely right on these points. And they should trouble anyone who cares about civil liberties, or just simply opposes imprisoning people with no due process at all.

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[Eugene Volokh] Doxing, Not Doxxing

Both "doxing" and "doxxing" are in use, but I want to argue in favor of the one-x spelling, for a simple reason: It's more consistent with the norms of standard English.

To my knowledge, no other standard English words (not counting brand names such as Exxon, or English renderings of Roman numerals) have an "xx" in them. And while the last letter of a verb is sometimes doubled before "-ing" (e.g., "popping," "hitting," and "tanning"), that isn't done for verbs that end with an "x": We write "boxing," "mixing," and "taxing," not "boxxing," "mixxing," and "taxxing."

I appreciate that this is an aesthetic preference, not some rigid law. If enough fellow English speakers come to prefer "doxxing," that will become the standard spelling. But at this early stage, I want to urge people to go with normal English practice.

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[Orin S. Kerr] I Am Not a Fan of Law Professor Books. Why Did I Just Write One?

[The first in a series about "The Digital Fourth Amendment."]

My first book, The Digital Fourth Amendment, came out last month.  I wanted to write some posts on the book over the next week.  And I figured I should start with the most fundamental question: Why on earth did I write this book?

The thing is, I don't really believe in law professor books.  I mean, I know they exist.  But I've usually thought of most law professor books as a waste of time.  First, most law professor books are too long and too dense.  People might buy them and put them on the shelf, but does anyone actually read them?

And second, why hide away your writing in a book, when you could much more easily just write an article and put it on SSRN for anyone to read?  If you're trying to reach an audience, wouldn't you want to make the ideas as accessible as possible for them rather than require readers to pay for the privilege?  In academic fields where books are the coin of the realm, fine, write a book.  But in legal academia, law review articles are still the base currency. Why not stick with that?

For these reasons, I've been a law professor for almost 25 years, but I have never written a book.

But wait, this post is about my new book, The Digital Fourth Amendment.  If I don't really believe in law professor books, why did I write one?

To answer that, I need to give you some background.  I'd guess that I've written something like forty articles on the Fourth Amendment over the years, more than half of which focus on questions of new technology.  The big issue those articles take on is how to interpret the Fourth Amendment in the context of digital evidence.  Most cover what is, at least on the surface, pretty narrow topics.  I like to write quite narrowly, focusing on a very specific problem that the courts are confronting in the field and offering thoughts on how courts should resolve it.

As a strategy, this has pros and cons.  No small number of elite academics think it is weird.  We live in an academic world of grand theorizing.  To a lot of academics, writing a narrow article about a specific new problem courts are starting to confront comes off as small-minded. It's—gasp!— doctrinal. Ew. But my ultimate goal has been to influence a body of emerging law, and you do that by writing in ways that those who will determine the body of law understand and appreciate.  Writing in ways that judges and lawyers can use means writing narrowly.

I decided to write the book because I came to think that although the narrow articles were effective in that way, there could be a lot of value in presenting the big picture.  A book would let me start from the beginning, explain what the Fourth Amendment is about, explain the challenge of digital evidence, and run through a bunch of the main problems that the courts are currently confronting—and what they're doing so far, and should be doing.  In other words, a book would let me put all of these papers in context.  It would give the 30,000 foot perspective for the general reader of the big ideas.

As part of that commitment, I wrote the book from scratch.  Even where I was writing on topics that I had covered in prior articles, I decided to write the chapters without first re-reading the old articles.  My thought was that this kept the chapters more readable and coherent, and it also meant that the argument reflected my current thinking rather than what I thought before when I had first written on the topic (sometimes twenty years earlier).

As for the concern that books are too long and too dense, I did my best to keep it snappy and short.  It's 200 pages of text plus 40 pages of notes, so it's on the shorter side of these things.

Anyway, that's why I wrote the book.  Next up, some of the big themes of the book, as well as some of the specific chapter coverage and new topics.

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