Eugene Volokh's Blog, page 147

[Eugene Volokh] South Carolina City's Restriction on Loud "Vulgar" Music Violates First Amendment

From Moshoures v. City of North Myrtle Beach, decided today by Fourth Circuit Judge Toby Heytens, joined by Judges Albert Diaz and Julius Richardson:

A city ordinance makes it a crime "to broadcast obscene, profane or vulgar language from any commercial property" above certain volumes at certain times. A bar owner sued, arguing the ordinance violates the First Amendment. This appeal involves only the portion of the ordinance restricting "vulgar" language. [The district court enjoined the "profane" language restriction, and the City didn't appeal that decision. -EV] …

While restricting noise generally, the ordinance creates special rules for "[t]he use of sound equipment to broadcast obscene, profane or vulgar language" from specified locations. The ordinance also defines "obscene," "profane," and "vulgar." As defined by the ordinance:

Obscene means description of sexual conduct that is objectionable or offensive to accepted standards of decency which the average person, applying North Myrtle Beach community standards would find, taken as a whole, appeals to prurient interests or material which depicts or describes, in a patently offensive way, sexual conduct or genitalia specifically defined by S.C. Code Ann. § 16-15-305, which, taken as a whole, lacks serious literary, artistic, political, or scientific value….

Profane means to treat with irreverence or contempt, crude, filthy, dirty, smutty, or indecent….

Vulgar means making explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions.

[T]he ordinance's restrictions on broadcasting obscene language are a perfect match with the Supreme Court's constitutional definition of obscenity and thus cover all language that meets that constitutional definition and no language that does not.

In sharp contrast to its definition of obscene, the ordinance's definition of vulgar uses none of the buzzwords associated with the canonical constitutional definition of obscenity, including "prurient interest," "patently offensive," or "community standards." The ordinance's definition of vulgar also is not limited to "sexual conduct specifically defined by the applicable state law," and instead sweeps in any "explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions." Finally, the ordinance's definition of vulgar also omits two critical constitutional limits that are present in its definition of obscene: that the work in question must be "taken as a whole" and that even the most disturbing or patently offensive speech is not obscene so long as it has "serious literary, artistic, political, or scientific value." …

Older readers may be familiar[, for example,] with the Miami-based hip hop group 2 Live Crew, whose 1989 album As Nasty as They Wanna Be generated numerous threats of obscenity prosecutions. Any person who hears nearly any song on that album would likely agree that it "mak[es] explicit and offensive reference to sex, male genitalia, female genitalia or bodily functions" and thus falls squarely within the heartland of how this ordinance defines vulgar…. Yet that same album was deemed not obscene in a constitutional sense because it had not been shown to lack "serious artistic value" and was thus constitutionally protected. As we have explained, that same limitation is present in the ordinance's definition of obscene but absent from its definition of vulgar….

"[C]ontent-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." We conclude the vulgar-language provision triggers and fails that level of strict constitutional scrutiny.

First, the vulgar-language provision is content-based. That provision is not a generally applicable noise ordinance. Instead, it imposes strict limits on "[t]he use of sound equipment" based solely on the type of "language" being broadcast….

Second, the vulgar-language provision reaches at least some "constitutionally protected" speech. The First Amendment "permit[s] restrictions on the content of speech in a few limited areas." One such category is "obscene" speech, which is "fully outside the protection of the First Amendment," and thus may be regulated by laws that single out obscene speech for disfavored treatment. But as we have explained, the vulgar-language provision reaches past the constitutional definition of obscenity and grabs hold of some speech that is simply, well, vulgar. And speech that is "vulgar or offensive"—but not obscene—"is protected by the First and Fourteenth Amendments." ….

Third, the vulgar-language provision fails strict scrutiny. The defendants identify various interests served by that provision, including "the protection of children and of captive audiences and unwilling listeners, as well as the protection and preservation of the City's neighborhoods." Those are all legitimate interests, and, like the district court, we assume for purposes of our analysis that at least some of them can sometimes be compelling. We nonetheless conclude that the vulgar-language provision cannot survive strict scrutiny because it is not "narrowly tailored to serve" the interests the defendants identify here.

To begin, the vulgar-language provision suffers from the same over-inclusiveness problem that the district court identified with the profane-language provision. As the district court explained, the vulgar-language provision "necessarily interfere[s] with Moshoures' First Amendment freedom to broadcast [vulgar] language which may be heard by adults," including those who "consent" to hearing such language "outside of Sky Bar." Cf. Cohen v. California (1971) ("one [person's] vulgarity is another's lyric").

The vulgar-language provision is also "wildly underinclusive" with respect to the city's asserted aims. Most obviously, if the goal is to "protect[ ] and preserv[e]" the city's neighborhoods from excessive noise, there is no need for a content-specific ordinance at all, much less one that requires certain categories of disfavored speech to be played at much lower volumes than all others….

The city's avowed interest in protecting children fares no better. On this record, we cannot say how many of the children the city seeks to shield from hearing vulgar music in public places "have parents who care whether they" hear it, so the vulgar-language provision may well be overinclusive as to those "young people whose" caretakers think such music is "a harmless pastime" or even has affirmative value. And the defendants' suggestion that the city may limit speech in public spaces "to only what is fit for children" is unavailing. Reno v. ACLU (1997); see Cohen (rejecting the argument that California could make it a crime to wear a jacket with the words "Fuck the Draft" in public to protect "unwilling or unsuspecting viewers"); Butler v. Michigan (1957) (government may not "quarantin[e] the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence")….

Like the problems of excessive or ugly signage involved in Reed, policymakers have ample tools to deal with loud and offensive speech in public spaces. Speech that is not protected by the First Amendment may be prohibited outright—including obscenity, defamation, incitement, and "speech integral to criminal conduct." Policymakers may also impose generally applicable time, place, and manner restrictions—including limits on the use of amplified sound—without triggering strict scrutiny so long as they do so "in an evenhanded, content-neutral manner." What the city may not do is single out a subset of constitutionally protected speech for special disfavored treatment in public spaces because some (or even most) citizens would prefer not to hear it.

The court didn't discuss the holding of FCC v. Pacifica Foundation (1978) that upheld a restriction on broadcasting vulgarities on radio and television, likely because that case has essentially been limited to over-the-air broadcasting; indeed, the City didn't cite Pacifica in its brief.

Meredith Dyer McPhail and Allen Chaney (ACLU of S.C.) represent plaintiff.

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[Josh Blackman] Family Guy on SCOTUS

[Justice Kavanaugh visits a brewery and then switches places with Peter Griffin. ]

I recently wrote about a Supreme Court joke on the Simpsons. Now, Family Guy has taken on SCOTUS.

In this episode, Justice Brett Kavanaugh visits the Pawtucket Patriot Brewery where Peter Griffin works. Kavanaugh runs into the brewery screaming, "I love beer" and is panting in excitement.

Peter asks why Kavanaugh keeps screaming "I love beer." He replies, "It's kinda how I got my job." Peter and Kavanaugh proceed to do a double keg stand. Peter says "you're pretty cool for a Supreme Court Justice." Kavanaugh replies, "That's all I want people to say."

They proceed to a synchronized swimming routine in a vat of beer.

Kavanaugh says, "All people want to do is scream at me in steak houses." Griffin replies, "My wife hates you which makes me secretly like you." Griffin wakes up in a drunken stupor wearing Kavanaugh's robe. Kavanaugh wrote Griffin a note, saying "I don't want my life anymore, you take it, Brett." Griffin then pukes all over the Marshalls, who say "it's him." Griffin says, "it's so cool that a guy named Brett gets to decide if women can have abortions."

The next scene jumps to the Supreme Court. The Justices are not sitting in the correct order, but I'll allow it. The Chief asks "So did anyone watch anything interesting last night?" Justice Thomas, thinking to himself, says he will finally say something after thirty years. But then Griffin, posing as Kavanaugh, interrupts. Griffin turns to Justices Sotomayor and Barrett, and says "Dears, can I get a cup of coffee?" He then asks Justice Jackson. Justice Kagan replies, "stick it, Brett!" She then takes out a cigar and puts her feet on the bench.

 

 

 

 

 

The next scene parodies the Justices as the "Supreme Friends," like the classic D.C. Comics "Super Friends." It begins "Gathered together from Harvard and Yale, except the last lady Trump appointed…" Roberts is depicted as Superman, and smashes asteroids that say "Precedent." (If only they knew.) Justices Thomas and Alito are depicted as Batman and Robin. Justice Kagan is Wonder Woman, driving an invisible car. Justice Sotomayor is Aquawoman. Justices Barrett and Jackson are the Wonder Twins. Justice Kavanaugh is the space monkey. Justice Gorsuch, alas, was forgotten. The announcer blares, "They're trying not to die until someone from their party is President."

In the next scene, Peter's friends are at the bar. They order beer, but they are all out. "The Kav drank it all." Kavanaugh says that "We got to party together, this weekend, at Squee's mom's beach house."

The Supreme Court is transformed into "The Voice" where the judges sit in swivel chair as contestants sing. All nine Justice start singing Watermelon Sugar High by Harry Styles.

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[Josh Blackman] Why the Supreme Court's "Order" In The USAID Case Was An Advisory Opinion (Updated)

[If the Court denies the writ or application, the Court cannot instruct the lower court.]

I wrote a series of posts about the Supreme Court's decision in the . Most of the critics focused on my criticisms of Justice Barrett, but as could be predicted, they completely missed why I was criticizing Justice Barrett.

Here are the facts. The Solicitor General made two requests. First, the government sought an immediate administrative stay of the District Court's ruling. Second, the government sought to vacate the order issued by the District Court. Chief Justice Roberts promptly granted the temporary administrative stay. A week later, the Court, by a 5-4 vote, vacated the temporary administrative stay. The Court also denied the government's application.

Consider what the Court stated:

THE CHIEF JUSTICE entered an administrative stay shortly before the 11:59 p.m. deadline and subsequently referred the application to the Court. The application is denied. Given that the deadline in the challenged order has now passed, and in light of the ongoing preliminary injunction proceedings, the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines. The order heretofore entered by THE CHIEF JUSTICE is vacated.

Justice Alito dissented from the denial of the application to vacate the order:

JUSTICE ALITO, with whom JUSTICE THOMAS, JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, dissenting from the denial of the application to vacate order.

I see three significant problems with the majority "order," if I can even call it that.

First, if the only action taken was to vacate the temporary administrative stay, what basis is there to instruct the District Court on how to take some action in the future: "the District Court should clarify what obligations the Government must fulfill to ensure compliance with the temporary restraining order, with due regard for the feasibility of any compliance timelines." The Court vacates a stay because the Court declines to exercise further supervision of the lower court. By vacating the stay, the Court eliminates its power to supervise the lower court.

Second, given that the Court denied the government's motion, it is not clear how it would have jurisdiction to say anything at all about the case. The Court has jurisdiction under the All Writs Act by granting relief to an aggrieved party. The Court cannot exercise the judicial power in the abstract, without even granting the writ. The Supreme Court lacks any sort of free-floating authority to issue commands or suggestions.

Third, if the Court is giving an instruction to the lower court, without actually availing itself of appellate jurisdiction, then the Court issued an advisory opinion. I made this point last week:

Third, given that the Court denied the application, any discussion of the merits would be an advisory opinion. Yet the Court strongly hints that the lower court was wrong on the merits. "Clarifying" the obligations of the government is a nice way of saying the prior ruling was not quite clear enough. If the order against the government was insufficiently clear, the remedy would be to vacate the lower court opinion with instructions to clarify. (Then again, the Supreme Court "clarified" Bruen in Rahimi by partially overruling it, so words really have no meaning on the Roberts Court.) But the Supreme Court asked the District Court to clarify its ruling, without ordering it to do so. The Supreme Court cannot make suggestions. It can only issue orders.

I have racked my brain, and cannot think of a case where the Supreme Court gave a substantive instruction to a lower court without also granting some form of relief. In the Hampton Dellinger case, the Court did nothing--neither grant nor deny the motion. It simply held the motion in abeyance, which was procedurally proper, if unusual. On the emergency docket, the Court will sometimes deny the application with the understanding that the lower court will move promptly. I suppose those instructions are acceptable, since there is no actual lower court ruling to affirm or reverse. The Court is denying the request to order the lower court to rule more quickly. Moreover, in an emergency posture, where the issue may become moot if there is too much delay, the Court should have power to protect its own jurisdiction. In candor, I think it would be better for the Court to grant the writ solely for the purpose of sending the "hurry up" instruction to the lower court. But I'm not sure it is needed. If I'm missing any obvious case, please email me. I suspect if there is an example here or there from Chief Justice Roberts, it will suffer from similar problems.

But here, the Supreme Court told the lower court to pare back its ruling. And so it did. Yesterday, Judge Ali issued a lengthy opinion explaining what funds should be paid out. Would he have done any of this absent the Supreme Court's admonition? I am doubtful. You see, the Court was able to effectively vacate a lower court opinion without saying so. Why would it do that? My theory: the Chief Justice and Justice Barrett do not want to be seen as ruling for Trump by granting the application, so instead they denied the application, hoping that the lower court narrows the ruling against Trump, thereby giving Trump a victory. The difference between the majority and Justice Alito's dissent is not as large as it may seem. But the dissent at least had the forthrightness to not pass the buck to the lower courts. This is the inversion of Article III I wrote about.

To use an example, could the Supreme Court deny a petition for a writ of certiorari, but in the same order say the lower court should do X, Y, and Z in future proceedings? Of course not. By denying the writ, the Court declines to exercise jurisdiction over the case. That is the end of the matter, full stop.

Now, it is true that individual Justices routinely dissent from the denial of certiorari, and offer guidance of what the lower court can do. In Texas v. Hopwood, Justice Ginsburg concurred in the denial of certiorari. In American Tradition Partnership v. Bullock, four Justices dissented from the grant of certiorari. I've never fully understood the legal basis for dissentals and concurrals, but I do not see any jurisdictional problems. The individual member is complaining that the Court should have exercised jurisdiction, but in the absence of that grant, the Justice is telling the lower court how he or she sees the issue.

But you will never see a dissent from the denial of certiorari from four or five justices. Why? If that many Justices agree, then the case will be granted. Yet this is basically what happened in the USAID case. Five members of the Court effectively denied the exercise appellate jurisdiction, but still gave an instruction to a lower court. This was an abuse of process. And I doubt anyone in the majority even noticed. That's what happens when you are more focused on these creative compromises then deciding the legal issues presented.

I think Justice Barrett's decision to join this majority opinion was a fundamental mistake. It would have been far better for the Court to simply vacate the temporary stay and deny the application, with a single justice concurring about what should happen on remand. In a 5-4 decision, lower court judges can take the hint from the deciding vote. That would have been procedurally proper. But no one wanted to stick their neck out on this one. Instead, the five members of the majority shirked their responsibility, hoping the lower court would clean things up.

My criticism of Justice Barrett has nothing to do with loyalty to Trump or anything like that. My writings long predate the 2024 election. Instead, my opinion focuses on the judicial role. Chief Justice Roberts long ago transitioned from deciding constitutional questions based on law to arranging these faux compromises that result in rewriting statutes and ignoring settled rules of procedure. He does this so much it has become second-nature.  If any other Justice adheres to the John Roberts school of judging, I will offer them the same career advice.

I will have much more on this issue in due course.

Update: I made a significant error in this post, which I have corrected. The Court did deny the order; in my earlier post I wrote that it remained pending. The bottom line conclusion about the advisory opinion, though, I think still stands. I try to fix my errors as soon as they are pointed out, and I am grateful for those helpful emails.

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[Eugene Volokh] Libel Lawsuit Brought by R. Kelly's Personal Assistant Thrown Out on "Actual Malice" Grounds

From Copeland v. Netflix, Inc. (D. Del.), decided today by Third Circuit Judge Stephanos Bibas, sitting by designation:

Fame has many costs. One comes from the First Amendment: It shields publishers from lawsuits when they report inaccurately about public figures involved in public controversies (as long as they do so without "actual malice"). This case begins and ends with that First Amendment shield.

While R. Kelly was being tried for sex crimes and child abuse, his personal assistant Diana Copeland went on national TV to discuss what she had seen. Then a documentary about Kelly discussed Copeland's supposed role in his crimes.

Because of this negative coverage, Copeland sued the show's producers and distributors for defaming her, appropriating her name and likeness, and committing related torts. But she had thrust herself into this public controversy and became a public figure in it by appearing on national TV. So she must plausibly plead that defendants had so-called "actual malice"—that they knew (or recklessly disregarded) that the statements featured in the show were false. But she does not. So I now dismiss her defamation claim and other tort claims that recycle it. Plus, she has failed to plausibly plead that defendants used her name and likeness for its unique value (as opposed to its newsworthiness). So I also dismiss her claim of appropriation….

The opinion follows existing First Amendment law, but also illustrates one interesting feature of that law: It essentially imposes a tax on constitutionally protected activity ("thrust[ing one]self into [a] public controversy"), by concluding that people who engage in such activity surrender part of their common-law protections against libel. Had Diana Copeland not chosen to go on a national TV program to discuss the R. Kelly controversy, she may well have had the broader libel law protections offered to private figures (under which she could recover proven compensatory damages on a showing of mere negligence by the defendants, not "actual malice").

But once she entered into the public debate, she lost those broader protections. And though in principle she could prevail by showing the defendants knew the statements were false (or were likely false), in practice that's very hard to do, because she can't even get discovery unless she can offer "enough facts to state a claim to relief that is plausible on its face." Here's how this played out:

Copeland went on Good Morning America "for a brief interview regarding her experience with Mr. Kelly." In that interview, Copeland admitted that she had made travel arrangements for Kelly's many girlfriends and often went along on their outings. She revealed that his girlfriends would not speak to other men in public because "you can pretty much surmise that" Kelly had told them not to. One time, a woman would not use the bathroom on a public outing because she "did not have permission from Kelly." But Copeland stressed that she had never made travel arrangements for any underage girls and had never seen Kelly lock up women, as the charges alleged. When asked if any of this "raised an alarm" for her, she replied that Kelly's "personal life is [his] personal life, so my job stops at the threshold of his bedroom door." She concluded: "Looking back, I think that I would have done things the same way I did. I don't think that anything that I did was wrong."

More than a year later, Lifetime aired an episode of Surviving R. Kelly discussing Copeland's role. She alleges that the episode published multiple "explicit[ly] false statements" about her, including that:

she had "acted as a liaison between Mr. Kelly and all of his girlfriends—including underage girls"; "[e]very victim knew" her; she "took a victim to obtain an abortion and received another victim's STD results on Mr. Kelly's behalf"; she "was directly involved in helping underage women cross state lines"; she "was willing to do whatever it was that Mr. Kelly wanted because she was close to him and instrumental in his day-to-day life"; she "made travel arrangements for Mr. Kelly's underage victims"; she "knew about Mr. Kelly's criminal conduct and turned a blind eye"; and she "was part of Mr. Kelly's criminal enterprise."

… Copeland claims that the episode defamed her by portraying her as Kelly's coconspirator. She says that this false narrative cast her in a "sinister and defamatory light," leaving people "believing she is immoral, a predator, dangerous, or untrustworthy." …

This case is about a public controversy—"a real dispute, the outcome of which affects the general public or some segment of it." The challenged statements assert that Copeland not only turned a blind eye to Kelly's crimes, but also helped him by (among other things) coordinating with the girlfriends and helping young girls cross state lines. When Lifetime aired the challenged episode, Kelly had been charged with preying on girls for years, and ultimately he went to prison for doing that. The public would naturally be concerned with whether Copeland had helped him commit those crimes.

Plus, by going on national TV to discuss Kelly, Copeland "voluntarily inject[ed]" herself into the public discourse. She "invited public attention, comment, and criticism" by admitting that she had accompanied Kelly's girlfriends on outings, made travel arrangements for them, known that they were afraid to speak to other men, and yet declared that "her job stops at the threshold of [Kelly's] bedroom door" and that she would not have done anything differently.

Because Copeland became a limited-purpose public figure, defendants are not liable for defamation unless they made false statements about her with "actual malice." This is a term of art that does not require malice in the ordinary sense. Rather, "actual malice" requires a publisher to either know that the statements are false or "reckless[ly] disregard" whether they are true. Reckless disregard means that the publisher "in fact entertained serious doubts as to the truth of his publication." …

[Copeland] must plead "more than labels and conclusions"; she needs "enough facts to state a claim to relief that is plausible on its face." She has not borne that burden.

Though Copeland alleges that defendants were "reckless, … deliberate and malicious," that phrase just regurgitates the legal standard. It is conclusory, not a plausible fact. So are her allegations that "Defendants had access to the truth yet chose to ignore it" and that the "producers knew there was no evidence whatsoever to support the false narrative."

Even when Copeland offers more than legal conclusions, she does it to meet the wrong legal standard. She claims that defendants published these allegedly false statements to get back at her. She alleges that the producers had it out for her because she chose to go on Good Morning America rather than appearing on their show and because the contents of the Good Morning America interview "undermined the Film's theme and message."

In support of this claim, she pleads two pieces of circumstantial evidence. For one, she complains that the producers asked two former Kelly employees, who allegedly both had personal vendettas against Copeland, to appear on the show. For another, she also complains that a former employee who was interviewed on the show told her that the producers had encouraged the employee to say negative things about her.

At most, those two pieces of evidence suggest a bad motive. Yet motive does not matter. Actual malice has "nothing to do with bad motive or ill will." Even if defendants indeed had a "vendetta" against Copeland and wanted to "punish [her] for her public statements that contradict the Film's 'mob' theme," that would not state a plausible claim of actual malice. That is because "actual malice focuses on [Lifetime's] attitude towards the truth, not towards [her]."

Even if defendants did pursue this vendetta, there is no reason to infer that they seriously doubted that their statements were true. For instance, nothing in the complaint suggests that they had "obvious reasons to doubt the veracity of the [sources] or the accuracy of" their accounts. Copeland does not even allege that defendants knew about the former employees' supposed vendettas or had any other reason to think that they "were prone to exaggeration or lying or would deliberately engage in such conduct." And she does not distinguish among defendants, failing to plead this mental state as to each one.

Copeland also says defendants falsely implied that she knowingly took part in a criminal enterprise. But she pleads nothing to suggest, as she must, that Lifetime intended to imply that or that it knew about that implication and recklessly disregarded its truth.

Finally, Copeland claims that Lifetime defamed her to "prioritize financial gain over the accuracy and integrity of [its] content." But Lifetime's alleged desire "to increase its profits" is also not enough to prove actual malice….

The First Amendment demands "adequate breathing space" for the free flow of ideas, especially about public figures on matters of public controversy. The actual-malice standard shields publishers from liability for mistakes, while still preserving defamation remedies where the publisher knew that he was publishing falsehoods or deliberately ignored the truth. Copeland fails to clear that high bar. The complaint offers only conclusions and speculation of ill will, not allegations of actual malice….

Daniel Marc Kirshenbaum and Robert M. Vrana (Young, Conaway, Stargatt & Taylor LLP) and Cydney S. Freeman, Jonathan Segal, and Jesse Feitel (Davis Wright Tremaine LLP).

 

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[Jonathan H. Adler] Judicial Conference Recommends 71 New Judgeships, Including Two on the Ninth Circuit

[The Judicial Conference again asks Congress to create more judicial seats to address judicial backlogs.]

The Judicial Conference of the United States has again asked Congress to create additional judgeships to address burgeoning caseloads in many courts. Specifically, the Judicial Conference has recommended the creation of two additional seats on the U.S. Court of Appeals for the Ninth Circuit and 69 additional district court seats.

From the release:

District court filings have grown by 30 percent since 1990, when the last comprehensive judgeship bill was enacted. Since 1991, the overall number of authorized district court judgeships increased by only four percent.

Burgeoning caseloads can lead to significant case delays. Delays result in increased costs for litigants and raise access to justice concerns, especially in civil cases that may take years to get to trial. Over the past 20 years, the number of civil cases pending more than three years rose 346 percent, from 18,280 on March 31, 2004, to 81,617 on March 31, 2024.

In developing judgeship recommendations, the Conference and its Committee on Judicial Resources use a formal survey process to study and evaluate Article III judgeship needs. Before a judgeship recommendation is transmitted to Congress, it undergoes several levels of careful consideration and review. The surveys are conducted every two years and the resulting recommendations are based on established criteria, including current workload factors and empirical standards.

In fiscal year 2024, weighted filings, which account for the different amounts of time district judges require to resolve various types of civil and criminal actions, were above 500 per judgeship in 20 of the 25 district courts where the Conference is recommending additional judgeships.

In 12 of these courts, weighted filings exceeded 600 per judgeship and in five courts filings were greater than 700 per judgeship. The Conference generally requires district courts to have over 430 weighted filings per judgeship to recommend additional judgeships. Weighted filings data for each district court are published in Federal Court Management Statistics.

The specific recommendations are here.

Last year, Congress passed the JUDGES Act with bipartisan support to create additional judgeships recommended by the Judicial Conference. The Federal Judges Association and Federal Bar Association both endorsed the bill, but President Biden vetoed the legislation because it created seats in districts in which Senators had blocked confirmations and would have created too many seats for his successor to fill.

Ideally, Congress would approve this recommendation quickly, with legislation that staggers the creation of the new seats over the next eight years. In this way, Congress could meet the need of the judiciary while minimizing any partisan advantage from the creation of new seats. That is what Congress tried to do last year. We will see if they try again.

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[Jonathan H. Adler] First Circuit Denies Trump Administration Motion for Stay of Universal Injunction Against Birthright Citizenship Executive Order

[Interestingly enough, the government focused its argument on standing, and did not defend the Executive Order on the merits.]

Today the U.S. Court of Appeals for the First Circuit rejected the Trump Administration's motion for a stay pending appeal of a district court's universal preliminary injunction against enforcement of President Trump's Executive Order curtailing birthright citizenship. Other circuit courts have similarly ruled.

Interestingly enough, the Department of Justice did not try to argue that it was likely to prevail defending the merits of the Executive Order. Rather, the government's briefs maintained that it was likely to prevail challenging the standing of the state plaintiffs. The court did not accept this argument however.

Chief Judge David Barron wrote for the panel. From his opinion:

The Government expressly declines to make any developed argument that it is likely to succeed on appeal in showing that the Executive Order is either constitutional or compliant with 8 U.S.C. § 1401. Nor does the Government contest that, for more than a century, persons in the two categories that the Executive Order seeks to prevent from being recognized as United States citizens have been so recognized. Instead, the Government contends that it can make the requisite showing for a stay of the preliminary injunction even without developing an argument to us that the Executive Order is lawful and even though the enforcement of the Executive Order would dramatically break with the Executive Branch's longstanding legal position and thereby disrupt longstanding governmental practices. See, e.g., Legis. Denying Citizenship at Birth to Certain Child. Born in the U.S., 19 Op. O.L.C. 340, 340-47 (1995). The Government's chief contention in so arguing is that, as to the first Nken factor, it has made a "strong showing" that the Plaintiff-States likely lack standing both under Article III of the U.S. Constitution, see U.S. Const. art. III, § 2, cl. 1 (providing that the "judicial Power shall extend" to all "Cases" and "Controversies"), and under third-party standing principles. As we will explain, we conclude that, at least given its arguments in its stay motion, the Government has not made a "strong showing" to undermine the Plaintiff-States' standing in either respect. . . .

The Government relies principally in its stay motion on the analysis in a footnote in United States v. Texas, 599 U.S. 670, 680 n.3 (2023), concerning the attenuated nature of the injury there, to contend that the Plaintiff-States likely cannot show a pocketbook injury for purposes of Article III standing. The plaintiff-states in Texas -- unlike the plaintiffs in Department of Commerce and Biden who successfully established their standing -- did not allege that the challenged federal government action would result in their being denied federal funds to which they otherwise would be entitled. Id. at 674. In asserting a pocketbook injury, the plaintiff-states in Texas instead pointed to the additional state funds that they alleged that they would expend in response to the federal government's assertedly unlawful under-regulation of third parties, which the plaintiff-states contended would cause more undocumented noncitizens to be within their states than otherwise would be the case. Id. at 674-75. Thus, given how different Texas is not only from this case but also from Biden and Department of Commerce, the portion of the standing analysis in Texas on which the Government relies provides no basis for us to conclude that it has made the required "strong showing" to undermine the Plaintiff-States' Article III standing.

The Government does also invoke in its stay motion an out-of-circuit precedent, Washington v. FDA, 108 F.4th 1163 (9th Cir. 2024), for the general proposition that an "indirect" fiscal injury does not constitute an Article III injury. One of the state plaintiffs in Washington claimed economic injury in the form of increased costs to the state's Medicaid system, and the court there determined that the claimed injury "depend[ed] on an attenuated chain of healthcare decisions by independent actors." Id. at 1174; see also id. at 1170-71 (explaining Idaho's contention that the FDA's elimination of an in-person dispensing requirement for a particular medication would lead to increased use of that medication, which in turn would lead "more women [to] experience complications that require follow-up care, some of which [will be] borne by Idaho through Medicaid expenditures" (second alteration in original) (internal quotation marks omitted)). In other words, as in Texas, the asserted injury took the form of the additional state funds that the plaintiff-state claimed that it would spend as a result of the federal government's lack of regulation of a third party -- namely, the U.S. Food and Drug Administration's elimination of an in-person dispensing requirement for a medication. See id. at 1174. This precedent thus no more assists the Government's position with respect to the loss-of-federal-funds-based injury at issue here than Texas does.

The Government separately contends in its stay motion, without reference to either Department of Commerce or Biden, that if the Plaintiff-States' alleged injury from the loss of fees from the Social Security Administration's EAB program sufficed for Article III standing, then states would "equally have standing to challenge any federal action that conceivably lowers the birthrate within their borders." (Emphasis added). But, although "qualifying for less federal funding" is "primarily [a] future injur[y]," it can still be an Article III injury when "the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Dep't of Com., 588 U.S. at 767 (emphasis added) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). Yet, the Government does not explain why the loss of the EAB servicing fees differs from the loss of the loan servicing fees in Biden, which loss was held to be an Article III injury. 143 S. Ct. at 2365-66.

The Government more broadly contends in its stay motion that because the Plaintiff-States have "voluntarily chosen to provide certain benefits without regard to the recipient's citizenship," "the costs they incur to do so are self-inflicted costs" that "are not traceable to the Executive Order" and thus "do not confer standing to sue in federal court." In doing so, the Government appears to contend that the Plaintiff-States have no claimed injuries that are immune from this "self-inflicted costs" objection. But, insofar as this contention is a reprise of the argument based on Texas and Washington, it fails for the same reasons as that argument fails. And, in any event, the Government has not explained why -- and so has not made a "strong showing" that -- it is likely to succeed in establishing that the Plaintiff-States' claimed fiscal injury is the result of their "voluntary" choice to spend their own funds insofar as that injury is the loss of federal funds to which they otherwise would be entitled for administering the federal programs at issue. After all, Biden did not deem the plaintiff-state's loss of the fees for servicing federal student loans to be the result of such a choice by the plaintiff and thus not a basis for its Article III standing. See 143 S. Ct. at 2365-66. Nor did Department of Commerce so deem the loss of federal funds there. 588 U.S. at 766-67.

We thus conclude that the Government has failed to make a "strong showing" that the Plaintiff-States likely lack Article III standing.

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[Eugene Volokh] Nevada Math Prof Alleges Discipline for "Voic[ing] Concerns About … the Math Department … Lower[ing] Its Curriculum Standards"

[The Ninth Circuit allows his First Amendment claim against his community college to go forward.]

A short excerpt from the >10,000-word Jensen v. Brown, decided yesterday by Ninth Circuit Judge Marsha Berzon, joined by Judges Richard Paez and John Owens:

Plaintiff Lars Jensen, a math professor at [Truckee Meadows (Nevada) Community College], voiced concerns about a policy change that he argues caused the math department to lower its curriculum standards. He alleges that soon after, Jensen was reprimanded, pressured to resign from another faculty member's tenure committee, given two consecutive negative performance reviews, and required to undergo an investigation and termination hearing…. We conclude that the district court erroneously dismissed Jensen's First Amendment retaliation claims….

In June of 2019, the Board of Regents for the [Nevada System of Higher Education] adopted a new "co-requisite policy." Under the co-requisite policy, students would be placed in college level math classes even if they needed remedial math instruction. Students who needed remedial math instruction would be required to take remedial classes as "co-requisites" alongside college level classes, instead of as "pre-requisites" before taking college level math courses.

To maintain course completion rates under this policy, TMCC's math department decided to lower the academic level of certain math classes…. Jensen sent an email to the math department faculty in which he expressed concerns about the department's new standards for coursework….

Julie Ellsworth, the Dean of Sciences at TMCC, facilitated a "Math Summit" to discuss the co-requisite policy's implementation "with the community." During a question-and-answer session following a presentation from Ellsworth, Jensen attempted to comment on the co-requisite policy. Ellsworth cut him off and announced that the question-and-answer session had ended. After Jensen again attempted to speak, Ellsworth directed him to the "parking lot," a whiteboard that was provided for Math Summit participants to post comments.

Jensen then went to his office and created a handout, titled "On the Math Pathways – Looking Under the Hood," which discussed his concerns with the new co-requisite policy. The one-page document criticized the fact that the math department, in response to the policy, decided to "lower the academic level of Math 120 so students will be able to complete the course at current rates." Jensen argued that this curriculum change would impact "31% of [TMCC's] degree[ ] and certificate programs by lowering the math[ ] and technical skills of graduates in these programs." He concluded by discussing the impact on the community, noting that local employers subsidize TMCC through tax revenue and expect in return to be able to hire qualified graduates.

Jensen returned to the Math Summit with copies of the handout. During a break in the Summit's programming, he went room to room distributing his handout to the participants. When he began passing out his handout in Ellsworth's room, she picked up the copies he had distributed and motioned for the participants in the room to pass their handout copies to her.

Jensen reminded Ellsworth that it was break time and that he was not being disruptive or disturbing anyone, but Ellsworth again instructed Jensen not to distribute the handout. Jensen then distributed his handout to two other rooms of Summit participants. When he returned to Ellsworth's room and attempted to disseminate his handout again, she directed him to stop. The pair went into the hallway to talk, and Ellsworth again told Jensen that he could not circulate his handout. During this conversation, she accused him of "disobeying her" and being a "bully," stated that his conduct was "disruptive," and warned him that he had "made an error by defying her." …

Jensen was reprimanded and subject to other discipline, and then sued, claiming this was retaliation forbidden by the First Amendment; and the Ninth Circuit held that his claim could go forward:

"The First Amendment shields public employees from employment retaliation for their protected speech activities." Where a public employer retaliates against an employee for workplace-related speech, the First Amendment requires "balanc[ing] … the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Educ. (1968). We have distilled Pickering and its progeny into a five-part inquiry:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.

Only the first four prongs are at issue here….

[1.] Jensen's criticism of the changes in TMCC's mathematics curriculum addressed a matter of public concern. "[T]he preferable manner of operating [a] school system … clearly concerns an issue of general public interest." …

"If an employee expresses a grievance to a limited audience, such circulation can suggest a lack of public concern." "But limited circulation is not, in itself, determinative." "The form of the speech—complaints to staff and superiors rather than to the general public—does not remove it from the realm of public concern." … Although the audience to whom a public employee's speech is addressed may be instructive "[i]n a close case, when the subject matter of a statement is only marginally related to issues of public concern," the nature of Jensen's speech does not present a close question….

[2.] Next we must ask "whether the plaintiff spoke as a private citizen or public employee." The premise of this requirement, derived from Garcetti v. Ceballos (2006), is that generally, "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." But Garcetti noted that it was not "decid[ing] whether the analysis [the Court] conduct[ed] … would apply in the same manner to a case involving speech related to scholarship or teaching." …

[We have] held that "Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed 'pursuant to the official duties' of a teacher and professor." Rather, speech "related to scholarship or teaching" is covered by the Pickering doctrine even if it was made pursuant to a public employee's official duties.

Not all speech made by a higher education employee relates to scholarship or teaching. For example, proposals "to allocate one additional teaching credit for teaching a large class instead of a seminar, to adopt a dress code that would require male teachers to wear neckties, or to provide a wider range of choices in the student cafeteria" are likely too attenuated from academic topics to be classified as relating to scholarship or teaching. Conversely, the scholarship or teaching exception does not require that the speech be published in an academic journal or uttered while instructing a class….

[S]peech about a school's curriculum is "related to scholarship or teaching" and so falls outside Garcetti's purview, even if that speech is not made while teaching a class or producing scholarship…. Jensen's speech concerned "what was taught at the school." It denounced the co-requisite policy and the resulting effect on standards for students' completion of math courses. Further, … Jensen rooted his criticism of the curriculum change in concerns over the quality of education students would receive. Because Jensen's speech was focused on the contents of TMCC's math curriculum, it relates to scholarship or teaching and does not come within Garcetti's bar on First Amendment protection for speech made pursuant to a public employee's official duties….

[3.] Jensen has also alleged facts that plausibly support the inference that his speech at the Math Summit was a substantial or motivating factor for the adverse employment actions….

[4.] A public employee's right to speak is not absolute and may be outweighed by the state's interest "as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering….

[T]he pleadings in this case do not reveal any state interest that clearly outweighs Jensen's. The Administrators' only clearly asserted state interest grounded in the pleadings is their assertion that Jensen distributed his handout in violation of Ellsworth's "express or implied directions." They maintain that, in doing so, Jensen engaged in "insubordination," which the state has a legitimate interest in preventing….

But the state's interest in punishing a disobedient employee for speaking in violation of their supervisor's orders cannot automatically trump the employee's interest in speaking. To be sure, one factor in assessing the extent of the state's interest in preventing disruption is whether the employee's speech "impairs discipline by superiors." But … the focus of this inquiry is whether there has been a disruption in the office's ability to operate: "[T]he very nature of the balancing test[ ] make[s] apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise," not on whether the employee has been directed to cease speaking….

In assessing the state interest, there is good reason for focusing on the disruptive impact of the employee's speech, rather than simply disobedience to an order to stop speaking. If we were instead to allow an employer to prevail solely on the basis that the employee disobeyed the employer's order not to speak, employers would have carte blanche to "stifl[e] legitimate speech or penalize[e] public employees for expressing unpopular views." … This type of suppression is to the detriment of both the speaker and the listener, as it undermines "[t]he public interest in having free and unhindered debate on matters of public importance," which is a "core value of the Free Speech Clause." …

Nor do the pleadings suggest any other state interest that might justify the Administrators' actions, much less outweigh Jensen's interest in free expression on matters of public concern. Nothing in the complaint suggests that Jensen served in a "confidential, policymaking, or public contact role" where the "government's interest in avoiding disruption is magnified." Nor is it evident that Jensen's position was one where "personal loyalty and confidence are necessary." Jensen also was not employed in a police department or military agency where "[d]iscipline and esprit de corps are vital to its functioning." {We do not hold that Jensen could not have plausibly alleged a First Amendment retaliation claim if he were in such a role. We only note that the absence of such circumstances supports our conclusion that there is no apparent state interest clearly outweighing Jensen's interests.}

To the contrary, there is no indication in Jensen's pleadings that his speech impaired TMCC's functioning. Jensen alleges that he distributed the handouts in a non-disruptive manner, waiting until there was a break in the Math Summit's programming to pass them out. And several witnesses testified during Jensen's disciplinary hearing that he behaved professionally while distributing the handouts….

Consequently, we conclude that Jensen has pleaded a constitutional violation.

Of course, the court just held that Jensen had adequately alleged the violation; the time for finally determining the facts is still well in the future.

The court also concluded that the precedents were clear enough that defendants weren't entitled to qualified immunity. The court concluded, however, that plaintiff hadn't sufficiently alleged a violation of the Due Process Clause or the Equal Protection Clause, though it allowed him to amend his Complaint as to those claims.

Daniel Ortner (now at the Foundation for Individual Rights and Expression) argued the case for plaintiff.

The post Nevada Math Prof Alleges Discipline for "Voic[ing] Concerns About … the Math Department … Lower[ing] Its Curriculum Standards" appeared first on Reason.com.

[Jonathan H. Adler] Sixth Circuit Rejects Qualified Immunity for Kim Davis for a Third Time

[The message that public officials are required to follow the law, even if they disagree with it, does not seem to have gotten through.]

Not everyone agreed with the Supreme Court's decision in Obergefell v. Hodges that the Constitution requires equal state recognition of same-sex marriages. Then-serving Rowan County, Kentucky county clerk Kim Davis was among those who thought the decision was wrong, morally and constitutionally. Davis is entitled to her opinion. But she was not entitled to perform her official duties in accord with her personal beliefs and violate the law.

Despite the Supreme Court's Obergefell decision, and a directive from Kentucky Governor Steve Beshear directing county clerks to "license and recognize the marriages of same-sex couples," Davis refused. Indeed, Davis refused to allow her office to issue any marriage licenses at all, even after a district court issued a preliminary injunction against her. Davis was ultimately jailed for contempt and sued by a same-sex couple under Section 1983. (You can find my prior posts on Kim Davis here.)

Since being sued, Davis has sought to claim that she is protected by qualified immunity because, even after Obergefell, she claims not to have violated any "clearly established" right of the plaintiffs. The U.S. Court of Appeals for the Sixth Circuit rejected that claim in 2019, and again in 2022. This month, in Ermold v. Davis, the Sixth Circuit rejected it for a third time. Might this time be the charm?

Judge White wrote for the panel, joined by Judge Mathis. Judge Readler concurred in part and concurred in the judgment. His separate concurring opinion makes some points I thought worth highlighting.

Obergefell v. Hodges presented the Supreme Court with an issue that had deeply divided the nation: the right to same-sex marriage. That was certainly true as a question of public policy. Obergefell v. Hodges, 576 U.S. 644, 714 (2015) (Scalia, J., dissenting) (noting "the electorates of 11 States . . . chose to expand the traditional definition of marriage" but that "[m]any more decided not to"). It was arguably even more true as a question of constitutional law. In the end, the Obergefell majority recognized a fundamental right to same-sex marriage. Id. at 656, 670, 681 (majority opinion) (invoking "the transcendent importance of marriage," its promise of "nobility and dignity," and its ability to allow same-sex couples to "seek fulfillment in its highest meaning" to hold that "same-sex couples may exercise the fundamental right to marry in all States"). But that view was far from unanimous. See, e.g., id. at 687 (Roberts, C.J., dissenting) ("The majority's decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court's precedent."). In perhaps the opinion's sharpest rebuke, Justice Scalia described Obergefell as having "discovered in the Fourteenth Amendment a 'fundamental right' overlooked by every person alive at the time of ratification, and almost everyone else in the time since." Id. at 718 (Scalia, J., dissenting).

But right or wrong, the fact remains that we all must follow Obergefell, the law of the land. That includes Kim Davis, in her role as Rowan County Clerk. Accordingly, I agree that we should affirm the judgment against Davis. I write separately to emphasize two points with respect to Davis's claimed defenses under the First Amendment and Kentucky's Religious Freedom Restoration Act.

A. The First Amendment. Davis contends that, in her role as a county employee, the First Amendment's free exercise protections provide her an affirmative defense against a § 1983 claim. As it relates to the public workplace, First Amendment jurisprudence can be difficult to distill. The case law backdrop is not entirely settled. And the varying contexts in which these cases arise can make analogizing a difficult endeavor.

Begin with what we know. Public employees retain some First Amendment rights. In the traditional free speech setting, it is well established that when acting "pursuant to their official duties . . . employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). When speaking on matters of public concern, on the other hand, the First Amendment is more directly implicated. Id. at 417. In such cases, courts engage in a delicate balancing, asking whether an employee's speech interests are outweighed by "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Bd. of Ed., 391 U.S. 563, 568 (1968).

Today's case, however, involves free exercise aspects of the First Amendment. See, e.g., Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421–23 (2022) (applying the First Amendment's Free Exercise Clause to a public employee in a suit against a school district). And the exact bounds of that right in the public workplace are even less defined, making it difficult to speak in absolutes. See id. at 2433 (Thomas, J., concurring) (observing that the Court has not decided "whether or how public employees' rights under the Free Exercise Clause may or may not be different from those enjoyed by the general public"). But it seems fair to say that, at least under current law, those protections are likely diminished in the setting here—a religiously neutral job requirement to issue marriage licenses imposed upon a public employee's core job functions. Cf. Emp. Div. v. Smith, 494 U.S. 872, 879 (1990) ("[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." (citations omitted)). Contra Kennedy, 142 S. Ct. at 2421–22 (holding that a school district's policy toward employee prayer violated the Free Exercise Clause because it was neither neutral nor generally applicable).

To the extent that the First Amendment offered Davis some shield from liability, her conduct here exceeded the scope of any personal right. As Judge Bush recognized in a prior iteration of this case, Davis "t[ook] the law into her own hands." Ermold v. Davis, 936 F.3d 429, 442 (6th Cir. 2019) (Bush, J., concurring in part and in the judgment). And she did so in the most extreme way. Rather than attempting to invoke a religious exemption for herself, Davis instead exercised the full authority of the Rowan County Clerk's office to enact an official policy of denying marriage licenses to same-sex couples, one every office employee had to follow. Under this unique set of facts, I agree that the First Amendment does not shield Davis from liability.

I would rest our analysis there. As the majority opinion notes, whether the First Amendment can provide an affirmative defense to a § 1983 claim "appears to be an issue of first impression." Maj. Op. at 11. Writing on this blank slate, we are wise to tread lightly. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 596 (1952) (Frankfurter, J., concurring) ("It is no less incumbent upon this Court to avoid putting fetters upon the future by needless pronouncements today."). To that end, the fact-specific nature of our holding again bears emphasis: a government employee, acting in the scope of that employment, does not have a unilateral free exercise right to use an arm of the state to infringe on a clearly established equal protection right of the public. Change the factual setting, and a free exercise defense to a civil rights lawsuit may have more traction. It is always the case that "[a] later court assessing a past decision must . . . appreciate the possibility that different facts and different legal arguments may dictate a different outcome." Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2281 (2024) (Gorsuch, J., concurring); see also Advisory Opinions, Did Hunter Biden Get a Sweetheart Deal . . . ?, The Dispatch, at 1:26 (June 20, 2023), https://thedispatch.com /podcast/advisoryopinions/did-hunter-biden-get-a-sweetheart-deal ("Other cases presenting different allegations and different records may lead to different conclusions." (quoting Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1231 (2023) (Jackson, J., concurring))). Especially so, it bears emphasizing, in the evolving field of religious liberties. See, e.g., Carson v. Makin, 142 S. Ct. 1987 (2022); Tandon v. Newsom, 141 S. Ct. 1294 (2021) (per curiam); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Obergefell, 576 U.S. at 711 (Roberts, C.J., dissenting) (observing that the majority opinion raises "serious questions about religious liberty"). Today's holding should thus be read in this same light.

B. The Kentucky Religious Freedom Restoration Act. Turn next to Davis's claim that Kentucky's Religious Freedom Restoration Act also shields her from liability under § 1983. The majority opinion concludes that Kentucky's RFRA does not apply here because the state is not a party in this litigation. That conclusion seemingly presupposes that a state law, under the right circumstances, may provide a defense in § 1983 litigation. While I agree that Kentucky's RFRA does not afford Davis any protection, I take a different route to that conclusion.

Kentucky's RFRA, codified at Kentucky Revised Statutes § 446.350, is a state law. State law cannot immunize officials from a § 1983 claim, which serves to vindicate federal rights. 42 U.S.C. § 1983; Williams v. Reed, No. 23-191, 604 U.S. ––––, 2025 WL 567335, at *4 (Feb. 21, 2025) ("States possess no authority to override Congress's decision to subject state officials to liability for violations of federal rights." (quotation marks and citation omitted)); Brown v. Taylor, 677 F. App'x 924, 930 n.4 (5th Cir. 2017) (rejecting an official's claim of immunity under the Texas Health and Safety Code); Walker v. Norris, 917 F.2d 1449, 1458 n.14 (6th Cir. 1990) (noting a state law cannot provide immunity with respect to a § 1983 claim). Simply put, "[c]onduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 . . . cannot be immunized by state law." Martinez v. California, 444 U.S. 277, 284 n.8 (1980) (citation omitted). Construing a "federal statute [to] permit[] a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced." Id. Davis may not thwart this clear principle of law. On that basis, I concur in the majority opinion's conclusion that Davis's Kentucky RFRA defense fails.

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[Jonathan H. Adler] D.C. Circuit Issues Opinion Explaining Stay that Allowed for Special Counsel Dellinger's Removal

[The panel did not believe the Office of Special Counsel could be distinguished from the Consumer Financial Protection Bureau of Federal Housing Finance Authority.]

Former Special Counsel Hampton Dellinger may have dropped his lawsuit challenging his removal by President Trump, but that did not stop the U.S. Court of Appeals for the D.C. Circuit from issuing a belated opinion explaining why it granted the Trump Administration's emergency motion for a stay pending appeal in Dellinger v. Bessent.

The per curiam opinion on behalf of Judges Henderson, Millett, and Walker explains that the panel concluded that the Trump Administration was likely to prevail on the merits. This is because, as a single-headed agency, it is hard to distinguish the Office of Special Counsel from the Consumer Financial Protection Bureau and the Federal Housing Finance Administration, and thus hard to see how Dellinger could prevail under Seila Law v. CFPB and Collins v. Yellen. 

From the opinion:

"[T]he Constitution prohibits even 'modest restrictions' on the President's power to remove the head of an agency with a single top officer." Collins v. Yellen, 594 U.S. 220, 256 (2021) (quoting Seila Law LLC v. CFPB, 591 U.S.197, 228 (2020)); see also Trump v. United States, 603 U.S. 593, 621 (2024) ("[T]he President's power to remove 'executive officers of the United States whom he has appointed' may not be regulated by Congress or reviewed by the courts.") (quoting Myers v. United States, 272 U.S. 52,106, 176 (1926)). Granted, Seila Law noted the more "limited jurisdiction" of OSC as compared to the agency at issue there, Seila Law, 591 U.S. at 221, and Collins did "not comment on the constitutionality of any removal restriction that applies to [the Special Counsel]," 594 U.S. at 256n.21. However, the government has shown that the logic of those cases is substantially likely to extend to the Special Counsel.

That is so because the Court in Collins clarified that "[c]ourts are not well-suited to weigh the relative importance of the regulatory and enforcement authority of disparate agencies" and so it did "not think that the constitutionality of removal restrictions hinges on such an inquiry." Id. at253. This case illustrates the point. Compare Dellinger II, 2025 WL 559669, at *11 (Katsas, J.,dissenting) ("The Special Counsel has broad investigative and enforcement powers.") and Mot. 14 (describing OSC's powers as "significant") with Dellinger I, 2025 WL 665041, at *20 ("OSC [is]not . . . vested with significant executive power.") and Opp'n 9 (describing OSC's powers as "extremely limited"). Nevertheless, such parsing of authorities is precisely the inquiry that the district court engaged in below and that Dellinger asks us to undertake now. Dellinger I, 2025 WL665041, at *16–28; Opp'n 6–13. Accordingly, the government is likely to succeed in showing that arguments about the scope and functions of the Special Counsel as a sole agency head do not affect the President's removal power.

Both the district court and Dellinger highlight that Seila Law was particularly concerned about the "significant executive power" that the director there wielded. Dellinger I, 2025 WL 665041,at *19, 20 (quoting Seila Law, 591 U.S. at 220); Opp'n 8 (same). The district court reformulated the removal test as whether an agency can "fairly be likened to a typical administrative agency charged with implementing [congressional] directives in accordance with Presidential policy and priorities." Dellinger I, 2025 WL 665041, at *26. And Dellinger also seeks to distinguish Seila Law and Collins as instances of "principal officers leading single-headed agencies that exercise binding regulatory and enforcement authority affecting private actors." Opp'n 7.

But Collins emphasized that "the nature and breadth of an agency's authority is not dispositive in determining whether Congress may limit the President's power to remove its head." 594 U.S.at 251–52. It is for that very reason that three Justices only concurred in part in the holding, observing that "[a]ny 'agency led by a single Director,' no matter how much executive power it wields, now becomes subject to the requirement of at-will removal." Id. at 273 (Kagan, J.,concurring in part and concurring in the judgment). Whatever the merits of that expansion from Seila Law, it is binding on our court and applies no matter the "nature" or "breadth" of its executive authority.

In any event, the government has sufficiently demonstrated that Dellinger exercises at least enough authority to contradict the President's directives. As Dellinger acknowledges, OSC recently requested "a stay of personnel actions with the MSPB concerning a recent termination of probationary employees at the U.S. Department of Agriculture." Opp'n 13 n.1. In fact, that request involves thousands of employees, Appellant Rule 28(j) Letter 1, and follows Dellinger's earlier successful request for a stay involving six other employees, Mot. 9, 18. Moreover, the Special Counsel's earlier request claimed that the MSPB "must" grant a stay unless the request is "inherently unreasonable." Mot. 18. To be able to obtain the reinstatement of thousands of employees in a single agency, even if only temporarily, with such a vague standard of review seems to suggest the Special Counsel's powers are not as limited as he claims.

In a footnote in his opposition to the stay, Dellinger also argues that he is an inferior rather than principal officer, Appellee Br. 13 n.2, but not even the court below was convinced by that argument, Dellinger I, 2025 WL 665041, at *19 n.18. In evaluating whether an officer is principal or inferior, the Supreme Court has most recently "focused on whether the officer's work is 'directed and supervised' by a principal officer." Seila Law, 591 U.S. at 217 n.3. As the district court observed, only "the President has the authority to remove the Special Counsel" and "he is a Presidential appointee who must be confirmed by the Senate." Dellinger I, 2025 WL 665041, at *19 n.18. Thus, the government has shown that Dellinger is all but certain to be designated a principal officer.

In sum, the government has demonstrated a strong likelihood of success on the merits of its appeal and thus the first factor weighs in its favor.

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[Ilya Somin] The Case Against Deporting Immigrants for "Pro-Terrorist" Speech

[It's both unjust and unconstitutional.]

(NA)

The Trump Administration has promised to deport immigrants and foreign students who engage in pro-"terrorist" speech related to the Israeli-Palestinian conflict. Yesterday, ICE arrested Palestinian activist and former Columbia student Mahmoud Khalil, and plan to deport him. To put it mildly, I have little sympathy for recent anti-Israel campus protests. Nonetheless, deporting people for engaging in anti-Israel, pro-terrorist, or pro-Hamas speech is both unconstitutional and unjust. It also risks creating a dangerous slippery slope.

The First Amendment's protection for freedom of speech, like most constitutional rights, is not limited to US citizens. The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."

A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.

Nonetheless, as Eugene Volokh notes, there is some ambiguity under current precedent about the issue of whether non-citizens can be deported for speech. That ambiguity should be resolved against deportation.

There is also, tragically, a long history of speech-based restrictions on immigration and entry into the US. The Trump Administration cites 8 U.S.C. § 1182(a)(3), which bars "Any alien who … endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization."

Such laws, too, should be ruled unconstitutional. There is no immigration-restriction exception to the First Amendment.

In addition to legal issues, there are also good moral and policy reasons to oppose deportation for speech. If freedom of speech - including speech that promotes awful viewpoints - is a fundamental human right, there is no good reason to exempt migrants or foreign students from that principle.

I would argue that freedom of movement - including across international boundaries - is also a  human right, one that should not be restricted based on arbitrary circumstances of parentage and place of birth. At the very least, migrants and students should not be deported for engaging in speech that is perfectly legal for native-born citizens. As a practical matter, native-born citizens with awful views pose a much greater threat to the future of US democracy than foreign students and recent immigrants, as the former have vastly greater political influence than the latter.

Finally, speech-based immigration restrictions create dangers similar to those of other forms of government suppression of speech. Conservatives who (rightly) don't trust government to define and suppress "misinformation" on social media should also distrust its efforts to police speech by immigrants. In both cases, there is a strong incentive to target speech that goes counter to the views of those in power, or those of current political majorities. There is no reason to trust government censors more when it comes to immigrant speech than elsewhere.

The concept of speech "espousing terrorist activity" or speech promoting "support" a "terrorist organization" is easily susceptible to abuse. In the context of the Israel-Hamas War, it is not clear whether this means 1) only speech directly defending Hamas's terrorist attacks, or also includes 2) speech supporting the establishment of a Palestinian state (which is one of Hamas's objectives in the current conflict), and 3) speech attacking Israel's conduct of the war, including claims that Israeli forces are committing war crimes. Speech in categories 2 and 3 can be seen as "supporting" Hamas by helping it achieve its objectives, even if it doesn't directly endorse the group's terrorist actions.

Speech restrictions like this are also readily susceptible to discriminatory enforcement. For example, the Trump administration is targeting "Hamas sympathizers,"   but not supporters of Russia's invasion of Ukraine, which has resulted in atrocities comparable to those of Hamas, but on a larger scale.  Those who support or justify Russian atrocities are far more aligned with the Trump Administration than those who support Hamas, and the administration acts accordingly.

There are many conflicts around the world that involve terrorism and atrocities against civilians. The government should not be allowed to selectively target immigrants and foreign students who express awful opinions about these conflicts, depending on whether their views align with those of the administration in power.

Finally, it may be worth noting that Mahmoud Khalil, the apparent first target of the administration's new policy, is not an entirely sympathetic figure. His activities may not have been limited to peaceful protest and speech. Apparently, he acted as spokesman and negotiator for protestors who illegally occupied buildings and other university property at Columbia. Such behavior is reprehensible. Nonetheless, he has not been convicted of any crime or even charged with one. And, as a green card holder, he has strong procedural rights against deportation that the administration must respect. If Khalil has committed a crime, then by all means prosecute him. But don't deport him for mere speech and protest, and don't punish or detain him without due process.

In my view, immigrants who commit crimes should be subject to the same punishment as native-born citizens who violate the same laws. They should not be subject to the severe additional punishment of deportation, merely because of morally arbitrary circumstances of parentage and place of birth. I explained the logic of that position and addressed various objections here. Most readers may not agree. But, at the very least, migrants and foreign students should not be punished for engaging in activities that are perfectly legal for natives, and indeed constitutionally protected rights.

Regardless, the administration has made clear that they intend to deport "Hamas sympathizers" generally, not just those who have engaged in criminal activity. That's pretty obviously targeting constitutionally protected speech.

The post The Case Against Deporting Immigrants for "Pro-Terrorist" Speech appeared first on Reason.com.