Eugene Volokh's Blog, page 139

[Eugene Volokh] Manny Klausner

Manny, a co-founder of the Reason Foundation, an early editor of Reason, a leading libertarian lawyer, and a happy warrior for a wide range of libertarian causes, died this week. I had the pleasure of knowing Manny for over 30 years, and always much enjoyed his company and his enthusiasm. His fellow Reason Foundation co-founder Bob Poole has a very nice remembrance, and Reason's Brian Doherty has a more detailed obituary. He was a lovely man, and a key figure in the libertarian movement; he will be much missed by many, including me.

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[Josh Blackman] Today in Supreme Court History: March 22, 1957

3/22/1957: Justice Charles Whittaker takes oath.

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Josh Blackman] Thompson v. United States Reminds Me Of How Well Chief Justice Roberts Can Write

[And another 9-0 reversal of a federal prosecution of an elected official. ]

In any given term, a Supreme Court justice will write about six or seven majority opinions. Some Justices, like Thomas and Jackson, routinely write separate concurrences and dissents. By contrast, Chief Justice Roberts rarely writes a separate writing. Usually, the only time we get to see Roberts write is in a majority opinion. And invariably, Roberts assigns himself the most high-profile case. And, more often than not, Roberts is trying to keep together a fragile majority opinion, or is engaging in some act of judicial obfuscation to hide what he is actually doing. In either case, Roberts does not speak plainly, but instead uses locutions and imprecise language.

But every now and then, the Chief assigns himself a "regular" case. These low-profile matters have no obvious political valence, and often command a large majority of the Court. Here, Roberts can demonstrate why he was once the most gifted lawyer of the day. And, despite all I say about the Chief, Roberts is still the best writer on the Court. Justice Kagan used to be a close-second, but her latest opinions have leaned too much into the snark, and have become less pleasant to read. Justice Barrett is third. She can say more in a few paragraphs that others can say in many pages.

Today's decision in Thompson v. United States is a joyous Roberts opinion. He writes for the entire Court and settles the matter in less than 10 pages. This paragraph is a gem.

We start with the text. Section 1014 criminalizes "knowingly mak[ing] any false statement or report." It does not use the word "misleading." Yet false and misleading are two different things. A misleading statement can be true. See Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U. S. 91, 102 (1990) (noting that a "statement, even if true, could be misleading"). And a true statement is obviously not false. See Victor v. Nebraska, 511 U. S. 1, 10 (1994) ("[T]o suppose that the same proposition is both true and false . . . is manifestly absurd." (quoting 1 Works of James Wilson 519 (J. Andrews ed. 1896))). So basic logic dictates that at least some misleading statements are not false.

Most judges would have taken a few paragraphs to convey this concept. Roberts did it flawlessly in a few sentences. Yet, I found this paragraph so bittersweet. Sweet because it shows that Roberts is capable of razor-sharp legal reasoning with tight prose; bitter because it shows how far Roberts falls when he engages into flimsy alternative dispute resolution. If only Roberts could have said "established by the state" means "established by the state." Basic logic so dictates.

And this passage makes me see the Solicitor General holding a dictionary in one hand a thesaurus in another.

The Government wisely agrees that "false" means "not true." Brief for United States 14. But, dictionary in hand, the Government notes that "false" can also mean "deceitful." Id., at 15 (quoting Black's Law Dictionary 748 (3d ed. 1933); alterations omitted). And, thesaurus in the other hand, the Government adds that "false and misleading have long been considered synonyms." Brief for United States 26 (citing Webster's Dictionary of Synonyms 327,549–550 (1942)). Absent from the Government's account, however, is the fact that some misleading statements are not false, as the Government acknowledged at oral argument.

His writing paints a perfect picture. If only the Chief could have said "with taxing power on one hand and the commerce power in the other . . . the fact that an exaction raises money does not make it a tax."

This opinion is important in another respect: yet another 9-0 reversal of a DOJ prosecution of a public official who allegedly engaged in malfeasance. DOJ's track record in this regard is not good. Yet, if you read the opinion, you would have no idea that "Patrick Thompson" was a politician. The case was styled in the cert petition as Patrick D. Thompson. The "D" stands for "Daley." Yes, that Daley--the Chicago family that has yielded many elected officials.

This Daley was the grandson and nephew of two mayors. And this Daley was an Alderman was he was indicted. Anyone doubt that the Feds placed him under a microscope because of his family lineage? And under local law, he was barred from serving as an Alderman because of his conviction. Anyone think the Feds thought it would be good to get this guy out of politics? If only he had just engaged in insurrection. Well, at least for now, Thompson may be eligible to run. But Justice Jackson's concurrence explains this freedom may be short-lived: even though the Judge erred, he seems to have given correct instructions. (Here, the former District Judge actually reads the record and jury instructions; good for her.) Thus, the Seventh Circuit will almost certainly affirm. Or Trump may find this another case of a weaponized justice system and pardon Thompson.

Curiously, the Chief's opinion omits the "D" middle initial from the caption. I wonder if Roberts wanted to keep politics out of the case, and erased how Thompson identifies himself. What, you though I would write an entire post about the Chief without at least some criticism?

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Corner crossing, prison typewriting, and an interview with Webster Bivens.]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Unpublished Opinions podcast (which y'all should subscribe to): Impeaching judges, legal media, AI and corpus linguistics, plus golfing dreams.

Computer scientist creates an AI-generated image and seeks to have it copyrighted, listing himself as the owner of the work, but naming the AI he designed as the work's author. The Copyright Office denies the application. D.C. Circuit: Correctly. The Copyright Act requires eligible works be authored by humans (whether that limitation is constitutionally required is a question for another day). Eight states sue the Dept. of Education, alleging it cut off grants for teacher/principal training without a reasoned explanation as required under the APA. The lower court reinstates funding via TRO; the dept. seeks a stay. First Circuit: The termination letters lacked an adequate explanation, and the agency's attacks on the TRO are mere "speculation and hyperbole." For now, funding flows. Motion for stay denied. Generally, parties charged with burglary, narcotics offenses, sexual assault, and running a prostitution ring do not fare well in federal court. So how badly did Syracuse, N.Y. officers mess up a 12.5-hour search and seizure of the defendant's residence for the Second Circuit to vacate and remand (over a dissent)? Allegation: At 2020 police-brutality protests, NYPD officers used a tactic called "kettling" to trap and arrest and excessively force protesters and non-protesters without first providing them a warning or opportunity to leave. Many lawsuits ensued. Several reached settlement, under which the NYPD agreed to change certain procedures. But one party refused to sign onto the settlement: the union representing line police officers that had intervened in the litigation. District court: Too bad, the union cannot torpedo the settlement agreement, so the case is dismissed via consent decree. Second Circuit (unpublished): Indeed. Fifth Circuit (over a dissent): Coast Guard servicemembers who were reprimanded for refusing to be vaccinated for COVID-19 have standing to seek a court ruling that the now-rescinded vaccination requirement was unlawful. Their refusal might hurt their chances of promotion, so they face ongoing harm. During 2020 police-brutality protests, Dallas photojournalist is arrested because, officers now say, he briefly walked along the right side of the highway (illegal) instead of the left (legal). Photojournalist: Not so! I was arrested for snapping photos of police brutalizing people. Moreover, I couldn't have safely crossed to the other side of the highway. Fifth Circuit (unpublished): Qualified immunity. Gov't punishes pill-mill operator with several decades' imprisonment and the forfeiture of all sorts of assets, including $400k from the pill-miller's individual retirement account. Tax court: And when that $400k was withdrawn (by the IRS) from your retirement account (to go into the IRS's coffers) it became a taxable "distribution" to you, so you owe the IRS $180k in taxes on the $400k. Sixth Circuit: Reversed. (NB: The miller managed to win this appeal, pro se, on a prison typewriter. No mean feat.) Bivens claims (the old chestnut goes) are available in federal court if and only if your name is Webster Bivens. Seventh Circuit: Add Kevin Brooks to the club. His claim—that federal prison staff let him linger for ten days with agonizing appendicitis—is quite similar to one of the rare Bivens claims the Supreme Court approved, back in the '80s. As to the treating staff, his case may proceed. (For the historically minded, take a look at this fascinating piece by Prof. James Pfander, who, in 2008, interviewed the elderly Webster Bivens and one of the Six Unknown Named Agents of the Federal Bureau of Narcotics.) Milwaukee police stop and detain a 16-year-old boy running with a bag. Uh oh! He's up to good, delivering a holiday turkey to a less-fortunate neighbor. Seventh Circuit: No evidence of discrimination, but officers should know that simply running on a cold winter night in a high-crime area does not give rise to reasonable suspicion of a crime. Also, an admonition to keep attorneys awake at night: "We urge [counsel for both sides] to reacquaint themselves with the [rules] before proceeding on remand. It is hardly fair to their clients for lawyers to overlook deadlines and handle facts carelessly." When an opinion begins with the qualification that the necessary second vote joins everything except "Section IV(B)(3)" what do you do? Exactly. And after your summarist skipped straight there he learned that overall the Ninth Circuit (over a dissent) found a Hawaiʻi law unconstitutional under the Second Amendment. The law voids permits to purchase handguns unless the purchase is made within 30 days and requires some guns to be physically inspected by the police. In the juicy section, the judges split on "opaque dicta in footnote 9 of Bruen." No preliminary injunction to prevent enforcement of an Idaho law requiring public school students to use the restroom and changing facility corresponding to their "biological sex." That's partly because, as the Ninth Circuit put it, "not exposing students to the unclothed bodies of students of the opposite sex" and "protecting students from having to expose their own unclothed bodies to students of the opposite sex" are "important" gov't objectives. Second Amendment enthusiasts may want to read the Ninth Circuit en banc decision upholding California's ban on "large-capacity magazines." Dissent: And they may also want to watch, like, and subscribe! In 1990, California inmates file a class action against the state for providing inadequate mental healthcare in prisons. They win, but after 30 years the state has still not come into compliance with the remedial orders. District court: And that's going to cost the state $110 mil in civil contempt. Ninth Circuit: They're definitely in contempt—probably for tens of millions of dollars—but explain that specific number a bit more. Perpetrator of what was then the second largest data breach in U.S. history faces a sentencing guideline range of 14–17.5 years, but the district just sentences her to time served (approximately 100 days) and five years' probation. Unreasonable? Ninth Circuit: Yes. Dissent: That may be the majority's opinion, but it's not an abuse of discretion. Can Kari Lake's lawyers be sanctioned for filing her failed lawsuit challenging Arizona's voting system? Ninth Circuit (over a dissent): Yes. Also Ninth Circuit: But not Alan Dershowitz. "Does a district court have the power to order an intervenor to return or destroy confidential documents that were inadvertently disclosed to it by another party?" Ninth Circuit: Intervenors are parties, so obviously yes. Allegation: Intoxicated woman hits her boyfriend and takes a walk around her neighborhood to cool off. Pierce County, Wash. deputies arrive to the home, not the first time they've been there, and announce a plan to "teach her a lesson." They send Zepp the dog to find her, which Zepp does, causing long-term injuries. Ninth Circuit (unpublished, over a dissent): It's clearly established that letting a dog continue to bite someone who is physically unable to show their hands and surrender is excessive force. No qualified immunity. The American West contains millions of acres platted into alternating squares of public and private land like a checkerboard. Moving diagonally across public property requires corner-crossing: stepping across adjoining corners of public land without actually touching private land—but momentarily occupying private airspace. A ranch owner on Wyoming's Elk Mountain resolutely opposes corner-crossers, erecting chains to prevent crossings, scaring away hunters' game, seeking criminal trespass charges (resulting in acquittals), and suing for civil trespass. Tenth Circuit: There is no trespass so long as the hunters don't physically touch the private land. (Fellow nerds: This case brings it all, from 13th century conceptions of airspace to Manifest Destiny.) Allegation: Douglas County, Colo. deputies responding to 911 call of a break-in arrive at the home, put Sig the dog through a broken window, and order him to bite anyone he finds (child, adult, whomever). Sig obeys, attacking man asleep in bed. Man screams, cops enter house and ask questions while Sig continues to gnaw. They handcuff and arrest the man, he's transported to the hospital, and they search his home. As it's not illegal to sleep in one's own bed, he's not charged with any crime. Tenth Circuit: It was clearly established that all of this violated the Fourth Amendment. No qualified immunity. Can Florida ban those under 21 from purchasing firearms? Eleventh Circuit (en banc): Yes. Dissents: No. This result differs from the Third, Fifth, and Eighth Circuits and puts this issue on everyone's circuit-split bingo card. And in en banc news, the Fifth Circuit will not reconsider its decision that under federal law all mailed-in ballots must be received by election officials (not just mailed to them) by the day of an election.

Friends, there's nothing we love more than winning a big case in court. But sometimes all that's needed to make gov't officials do the right thing is a little nudge, and we'll take that too. Case in point, Broward County, Fla. officials recently ordered Leann Barber to tear out a community garden where she and her neighbors have spent years planting fruit trees, vegetables, and native plants on a vacant lot she owns in her residential neighborhood. It's also the home of her nonprofit, which teaches kids how to garden, cook, and more. Tear all that down? Ridiculous! But as it turns out, a letter from IJ with a friendly reminder that state legislators passed a right-to-garden law in 2019 was enough to get the county to drop the citation (which was purely a zoning-conformity thing, not an actual health-and-safety thing). Huzzah for happy endings! Click here to learn more.

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[Josh Blackman] Nearly Five Years Later, Justice Barrett's Memoir Has A Publication Date

["Listening to the Law: Reflections on the Court and Constitution"]

Earlier this month, I queried where Justice Barrett's book was:

Speaking of Barrett's writings, where is her book? The lucrative deal was announced in April 2021 before she had written a significant majority opinion. Four years later, the book is not on the shelf, and I cannot find a publication date anywhere. By contrast, Justice Gorsuch has already co-authored two books during his tenure, and Justice Jackson published her memoir within two years of her confirmation. Justice Kavanaugh's book deal was announced in June 2024, with a publication date in 2025 or 2026. I know people get upset when I talk about Barrett's publication record as a professor, but her productivity on the bench is much the same. She has not given any speeches of note in years, and had only a light-hearted conversation at the Federalist Society National Lawyers Convention in 2023.

Well, Penguin Random House has finally announced some details. The title is "Listening to the Law: Reflections on the Court and Constitution." And it will be published on September 9, 2025, a few weeks before the Court's OT 2026 term will begin. (I'm sure Penguin was thrilled to have the recent negative press about ACB in advance of the big announcement).

The 304-page book has this description:

From Supreme Court Justice Amy Coney Barrett, a glimpse of her journey to the Court and an account of her approach to the Constitution

Since her confirmation hearing, Americans have peppered Justice Amy Coney Barrett with questions. How has she adjusted to the Court? What is it like to be a Supreme Court justice with school-age children? Do the justices get along? What does her normal day look like? How does the Court get its cases? How does it decide them? How does she decide?

In Listening to the Law, Justice Barrett answers these questions and more. She lays out her role (and daily life) as a justice, touching on everything from her deliberation process to dealing with media scrutiny. With the warmth and clarity that made her a popular law professor, she brings to life the making of the Constitution and explains her approach to interpreting its text. Whether sharing stories of clerking for Justice Scalia or walking readers through prominent cases, she invites readers to wrestle with originalism and to embrace the rich heritage of our Constitution.

There have generally been three genres of books by Supreme Court justices. The first is the memoir: the Justice's life story. For example, Justices Thomas and Sotomayor wrote compelling memoirs about their remarkable journeys from poverty to the highest Court in the land. These books get the biggest advances. Second, there are general books about the law: Justices Gorsuch and Breyer tend to write about their particular understandings about the law. These books get far-smaller advances. Third, there are canonical reference books that everyone needs. Here, Justice Scalia owns the genre: Making your Case and Reading Law and Precedent should be on every (virtual) bookshelf. And Scalia's books will be cited for generations to come.

Barrett's book seems to straddle the first two categories: it is part memoir, and part law. I'm not sure if this will work. The types of people who want to learn about her personal story are likely less interested in "wrestling" with originalism. And the types of people who want deeper insights into Barrett's jurisprudence likely already know about her personal story. Thomas and Sotomayor's memoirs were careful to not focus on current cases. Even Justice Jackson's new memoirs stops short of talking about the Supreme Court. By contrast, Justice Scalia's many books on the law did not even touch his personal life. Barrett's book is both fish and fowl.

The bigger problem is that this memoir will simply not be compelling. Barrett's life was largely one of privilege. She grew up in an affluent family, went to excellent private schools, clerked on the highest court on the land for distinguished jurists, was hired at a top law school, and made it to the circuit court without doing very much. That is not a particularly motivational story. I think it would be useful to hear about how she balanced her work responsibilities with having such a large family, including adopted children. On a personal level, I find Barrett's family quite admirable. But that might take a few pages to describe. The upbringing of Thomas and Sotomayor warrant an entire tome. There is a reason most people do not write autobiographies: there lives simply aren't that interesting.

What about the law? What will Barrett actually tell us about the Constitution?

With the warmth and clarity that made her a popular law professor, she brings to life the making of the Constitution and explains her approach to interpreting its text. Whether sharing stories of clerking for Justice Scalia or walking readers through prominent cases, she invites readers to wrestle with originalism and to embrace the rich heritage of our Constitution.

Here is how Politico described the book when it was launched in April 2021:

Justice Amy Coney Barrett, Trump's last pick for the Supreme Court, has also sold a book — garnering a $2 million advance for a tome about how judges are not supposed to bring their personal feelings into how they rule, according to three publishing industry sources.

I'm not sure if her views on "feelings" have changed.

What is Barrett's approach to interpreting text? Read her Biden v. Nebraska concurrence. It's not very interesting for a lay reader. What about originalism? She invites readers to "wrestle" with originalism because she too wrestles with originalism. She struggles with lawyers who do not (in her view) provide enough evidence to support an originalist ruling. Will the person who never signed a Supreme Court brief complain that actual Supreme Court advocates do not make their cases forcefully enough? Is this what people want to read about? Barrett will walk us through "prominent cases." I hope those sections are more enlightening then her actual opinions, which often leave me confused about what positions she actually takes. But if past is prologue, these teases will not pay off.

Even the title is instructive. Barrett is not talking about her visions for the law or how to change the law. She is just going to "listen" to it, and let things happen around her. This truly is emblematic of the Justice's approach. If Justice Breyer favored active liberty, Justice Barrett favors passive history.

Does any of this sound particularly useful to readers? Enough to justify a two million dollar advance? There can't be that many people still sipping from their dogma mugs. Barrett's standing today is not nearly what her standing was in 2020 before she decided any cases. Will conservative groups invite her to speak, and ask her about her shadow docket votes?

One of my long-running grievances is that these advances are gussied-up interest-free loans that are made without any real expectation of recouping losses. Rather, the publishers use the Justice as a marketing tool to improve the brand's standing. Let's not pretend otherwise. I am doubtful this book comes close to recouping the $2 million that was advanced--especially since it took nearly five years to produce, and who knows how many editorial hours were required. If I had to guess, the publisher kept nudging Justice Barrett to say something, anything, that would attract readers. And she pushed back. Hence, the massive delay.

Plus, Barrett's standing today is not nearly as high as her standing was in 2020 before she decided any cases. Will conservative groups invite her to speak, and ask her about her shadow docket votes? Will they ask her how she exhaled in disgust after talking to President Trump?  Why did she deny cert in the Wisconsin transgender case? When I was writing my first book about the Obamacare litigation, I had a passage that was critical of the Tea Party. Randy Barnett in his infinite wisdom told me, "Who do you think is going to buy your book?" He was right, and I toned the passage. Writing a book is a commercial enterprise. Never forget this. And will liberal media welcome Justice Barrett? Can she go on The View like Justice Jackson did? Will some Broadway show write a role for her?

Finally, I have a long-standing tradition of judging the covers of books about the Constitution.

My reaction to this cover: bland, boring, and unoriginal. There are no colors, no graphics, no design elements. Just plain text. This almost looks like a placeholder that became the final version by default. It is as if the author could not decide what to put on the cover so she simply put nothing. That is on brand for Justice Barrett, the most taciturn and cautious of the Justices. At least based on the description, I think we can judge this book by its cover.

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[Eugene Volokh] Chicago Public Defender's Claim Over Displaying Photo with Israeli Flag and Gun Can Go Forward

[Office leadership allegedly "told Gassman's supervisors that the photo was 'comparable to a Nazi swastika.'"]

From today's decision by Judge Joan Lefkow (N.D. Ill.) in Gassman v. Cook County; as usual on a motion to dismiss, the factual recitation consists of the allegations from plaintiff's Complaint (not any factual findings by a judge or jury):

Debra Gassman is an Assistant Public Defender for the Public Defender of Cook County, Illinois. She has been employed as a lawyer by the Public Defender since 1997 …. Gassman is Jewish and "devoted to Israel."

In 2002, Gassman volunteered for the Israel Defense Forces ("IDF"). In December of 2002, during her volunteer stint, Gassman took a photograph of herself holding a gun in front of an Israeli flag ("the photo"). The photo was taken in Tel HaShomer, an army base near Tel Aviv. The photo is approximately 11 inches tall. It is reproduced below:

When Gassman returned from Israel in 2002, she prominently displayed the photo in her shared office at the Leighton Criminal Courthouse in Chicago. The photo reminds Gassman of her time spent defending Israel and the Jewish people. To Gassman, the photo signals that the Jewish people must "stay strong" when threatened by other nations. The photo remained there, undisturbed, until she transferred to the Public Defender's office in Skokie, Illinois, in October 2020. In Skokie, Gassman again displayed the photo in her shared office "without incident."

On October 7, 2023, Hamas terrorists invaded Israel and attacked civilians. Gassman was "devastated, shocked, and scared by the October 7 attacks." She returned to work on October 10th. Upon returning, Gassman felt upset that "few seemed to care—or even were aware of"—the attack on Israel. "[T]o bring attention to the attacks that had occurred in Israel and the need to support the victims," Gassman brought the photo out of her office and placed it on top of the employee mailboxes for her coworkers to see. Gassman positioned the photo so that it faced the back of the office toward the staff; it was not visible to the public. Public Defender employees regularly display items such as holiday decorations, photographs, art, and cards in the same area.

When executive management (Cook County Deputy Public Defender Parle Roe-Taylor and Rodney Carr) learned of the photo, they instructed the Public Defender "Chief" to remove it. Carr and Roe-Taylor told Gassman's supervisors that the photo was "comparable to a Nazi swastika." Gassman removed the photo and returned it to her private office, where she continued to display it. The photo was "not visible to members of the public."

On October 20, 2023, Mitchell issued a written reprimand to Gassman. The reprimand explained that Gassman's display of a photograph depicting a firearm "can be perceived as threatening and therefore is[] inconsistent" with the Public Defender Employee Manual ("Employee Manual") policy regarding workplace violence. The reprimand further noted, "tragic world events likely motivated this display and may have compromised your judgment. We have considered this in our decision not to pursue any disciplinary action at this time."

On October 30, Roe-Taylor went to the Skokie office. While Gassman worked in court, Roe-Taylor entered Gassman's office and confiscated the photo. Roe-Taylor then requested a meeting with Gassman and "[her] Chief." Roe-Taylor conveyed that the photo amounted to displaying a firearm in public view.

Gassman's Chief obtained the photo and returned it to Gassman but instructed that it could not be displayed inside her office as she had done previously. Executive management further explained that the photo could not be placed where "anyone might see it from any angle of the entryway to her office." The photo was not in public view, however, when Roe-Taylor confiscated it. Gassman's office is in the back corner of the Skokie office and rarely visited. Gassman does not use her office to meet with clients.

The Public Defender generally permits employees to display pictures and other messages inside their offices without censorship or regulation. Public Defender employees have even been permitted to display photographs of guns that did not depict the Israeli flag. A senior supervisor, for instance, once emailed an image of a film character pointing a gun at another to approximately twenty public defenders. The email included the joking remark: "[W]e all know what can happen when there is a difference of opinion." Additionally, Public Defender employees have placed signage in the Public Defender's office to celebrate favorable verdicts.

Images from these congratulatory posts sometimes depict weapons, including guns. The Public Defender has also permitted employees to possess actual weapons in their offices, such as guns and swords.

To Gassman's knowledge, no Public Defender employee has ever been restricted from displaying a photograph of a weapon. Moreover, no one ever complained that the photo was distressing or inappropriate until the events described in her Complaint. To the contrary, those who observed the photo commented favorably on it and expressed admiration for her service in the IDF.

Gassman sued, and the court allowed her First Amendment claim related to the removal of the photo to go forward:

As an initial matter, the court concludes that Gassman's alleged displays of the photo constitute "speech" implicating the First Amendment. T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp. (N.D. Ind. 2011) (displaying photographs "itself expressed an intention to communicate the expression inherent in the … conduct and the images of it … [and] qualifies as 'speech' within the meaning of the First Amendment").

The proper analytical framework here is found in Pickering-Connick which is specific to government employees: the test "weighs a public employee's interest in freedom of speech against the government's interest in the efficient provision of services."

To determine whether a plaintiff engaged in speech protected by the First Amendment, the court first asks if the employee spoke (1) as a private citizen; and (2) on a matter of public concern. If the answer to either of these questions is "no," then the employee has no First Amendment claim. If both initial elements are met, the court next asks whether "'the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees' outweighs 'the interests of the [employee], as a citizen, in commenting upon matters of public concern.'"

Gassman alleges that she displayed the photo on the mailboxes "to bring attention to the attacks that had occurred in Israel and the need to support the victims" and to "share the atrocities taking place." She further alleges that the photo's "core message" is that "Israel and Jewish people have the right not to be exterminated."

Gassman's speech is unrelated to her employment and Defendants concede Gassman was speaking as a private citizen. The court therefore finds that Gassman spoke as a private citizen when she displayed the photo above the mailbox and in her private office.

Next, the court considers whether Gassman spoke on a matter of public concern. Speech is directed at a matter of public concern if it "relates to any matter of 'political, social, or other concern to the community.'" … The court finds that Gassman's speech relates to a matter of political and social concern.

The court next asks whether "'the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees' outweighs 'the interests of the [employee], as a citizen, in commenting upon matters of public concern.'" Defendants argue that Gassman's interest in the speech "is outweighed by the operational interests of the Public Defender." Gassman refutes this and contends that engaging in the Pickering balancing test is premature.

The Pickering balancing test is a fact-intensive inquiry that "[n]ormally … will be possible only after the parties have had an opportunity to conduct some discovery." Accordingly, "the Seventh Circuit has advised that such an issue should not be decided at the pleading stage." The court therefore concludes that conducting the Pickering balancing test at this stage would be premature.

{Gassman alleges that the Public Defender's removal and censorship of the photo was "pretextual and based on its content." "Where a plaintiff claims that the stated grounds for his/her discipline were a pretext for the discipline imposed, the court does not apply the Pickering balancing test solely to the speech that defendants claim motivated the disciplinary action …. Rather, the court considers all of the speech that the plaintiff alleges is protected." Because applying the Pickering balancing test is premature, however, the court need not reach these issues.}

The court rejected, however, Gassman's claims that particular policies related to employee speech were unconstitutional prior restraints; these policies weren't involved in the removal of the photo, but Gassman claimed they would affect her ability to discuss the removal of the photo.

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[Ilya Somin] Two Audio Interviews About the Alien Enemies Act Litigation

[Links to audios of a Cato Institute podcast and an interview with ABC News (Australia).]

I recently did interviews about the currently ongoing Alien Enemies Act litigation for a Cato Institute podcast, and for ABC News (Australia). Here is the audio for the Cato podcast:

The audio of the ABC News Australia interview is available here.

I have previously written about issues related to this case here, here, here, and here.

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[Josh Blackman] Some Questions About An Autodidactic Autopen

In the abstract, the use of an autopen is not problematic. But in practice, there may be serious problems. Consider a few scenarios.

First, imagine the President has a stroke, and is unable to move any parts of his body. He cannot even pick up a pen. But the President retains all of his mental faculties and can communicate instructions orally. The President instructs his trusted aide to use an autopen to sign a bill, pardon, or executive order. Would anyone think that use of an autopen is problematic? I suppose an argument could be made that the enfeebled President is unable to discharge his duties, and should be removed under the 25th Amendment, but I am doubtful that step is necessary.

Second, imagine that the President is about to take an international trip, and he knows that Congress is about to pass an important bill that must go into effect right away. The President instructs his trusted aide to use an autopen to sign the bill as soon as it arrives at the White House. Would anyone think that use of an autopen is problematic? There was once the thought that the President should not leave the country. And in some states, when the Governor leaves the state, the Lieutenant Governor can exercise the powers of the Governor. But under our Constitution, the President can, and indeed is expected to engage in foreign diplomacy, and will often be away from the Capital when important bills are passed. Why should important legislation remain un-enacted because the bill cannot be brought to the President quickly enough?

Third, imagine that the President is about to take an international trip, and Congress is debating a key provision of an important bill. It is unclear how the final bill will be structured. The President instructs his aide to make a judgment: if the aide thinks the final bill is consistent with the President's preferences, he should use the autopen to sign bill; if the aide thinks the final bill is inconsistent with the President's preferences, he should use the autopen to veto the bill. This example strikes me as problematic, as the President is delegating to an aide the  discretion to sign or veto a bill. Here, there are no clear instructions, but rather a judgment call--a call the President has to make.

Fourth, imagine that the President tells his Pardon Attorney to grant any pardons that the Pardon Attorney thinks are consistent with the President's preferences, and authorizes the Pardon Attorney to use the autopen to sign the pardon. The President never even sees the pardon applications. (I thank my colleague Seth Barrett Tillman for this example.)  I do not think the pardon power is delegable in this context. The President must make the individualized determination for each pardon. Now it might be the case that an aide simply puts a piece of paper in front of the President, and the President signs it without reading it--perhaps based on an aide's summary. But that signature is prima facie evidence that the President intended to grant the pardon. With an autopen, by contrast, that prima facie evidence the President intended to grant the pardon is not present. In my hypothetical, the instruction given to the Pardon Attorney rebuts any presumption of presidential determination.

Fifth, imagine that the President is clearly suffering from senility. He is capable of reading from a script, and can sign a paper placed in front of him, but he has no capacity to know what he is doing. Imagine further that his cabinet is unwilling to invoke the 25th Amendment for various reasons. Given these facts, a number of documents are released from the White House signed with an autopen, including statutes, pardons, and executive orders. There is no clear record of whether the President instructed aides to use the autopen on any particular document. The President never made personally any public statements about whether the authorized the signing of any particular document. There may be some press statements attributed to the President, but it is not clear the President authorized such statements. Would this use of the autopen be valid? Is there something like an enrolled bill rule, where a bill that has the President's signature is presumed valid? Or could we consider the President's underlying senility?

Sixth, imagine that the President suffers from a stroke, and the status of his medical condition is kept secret from the public. Given these facts, a number of documents are released from the White House signed with an autopen, including statutes, pardons, and executive orders. We later learn that the President may have been in a coma when some of these documents were signed, and his wife (let's call her Edith Wilson) instructed aides to use an autopen to sign those documents. Would those bills, pardons, or executive orders be valid? Could they be collaterally challenged?

I think the use of the autopen raises some very difficult questions.

The post Some Questions About An Autodidactic Autopen appeared first on Reason.com.

[Ilya Somin] National Constitution Center Podcast on the Alien Enemies Act and Mahmoud Khalil Immigration Cases [Updated]

[The participants were Adam Cox (NYU) and myself. ]

(NCC)

The National Constitution Center recently recorded a podcast on the currently ongoing Alien Enemies Act litigation, and the Mahmoud Khalil deportation/free speech case. The participants were Prof. Adam Cox (NYU), a leading expert on the constitutional law of immigration, and myself. National Constitution Center President Jeffrey Rosen moderated. You can listen to the podcast here or here.

UPDATE: The podcast is now embedded below:

The National Constitution Center compiled this helpful list of links to our writing about these issues, plus a couple cases mentioned in the discussion:

Adam Cox and Cristina Rodríguez, The President and Immigration Law (2020) Ilya Somin, Free to Move: Foot Voting, Migration, and Political Freedom (2022) Adam Cox and Ahilan Arulanantham, "Explainer on First Amendment and Due Process Issues in Deportation of Pro-Palestinian Student Activist(s)," Just Security (March 12, 2025) Ilya Somin, "The Case Against Deporting Immigrants for 'Pro-Terrorist' Speech," Volokh Conspiracy (March 10, 2025) Ilya Somin, "What Just Happened: The "Invasion" Executive Order and Its Dangerous Implications," Just Security (January 28, 2025) Adam Cox, "The Invention of Immigration Exceptionalism," Yale Law Journal (November 2024) Bridges v. Wixon (1945) Harisiades v. Shaughnessy (1952)

The post National Constitution Center Podcast on the Alien Enemies Act and Mahmoud Khalil Immigration Cases [Updated] appeared first on Reason.com.