Eugene Volokh's Blog, page 148

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] Supreme Court Rejects Red State Attempt to Sue Blue States Over Climate Suits

[Justice Thomas dissents from the Court's continued unwillingness to hear bills of complaint filed under the Court's original jurisdiction.]

This morning the Supreme Court denied a motion filed by several states to file a bill of complaint against other states for filing state-law-based lawsuits against fossil fuel energy companies. As has become tradition, Justice Thomas (joined by Justice Alito) dissented from the Court's refusal to grant the motion and consider the complaint on the merits.

In , a red state coalition led by Alabama was seeking Supreme Court intervention to quash lawsuits filed by some blue state attorneys general against fossil fuel companies alleging their actions were actionable under state law. For reasons I've explained before (and address at the tail end of this draft symposium essay), the red state complaints are without merit, particularly in this posture. The idea that one state can sue another for merely filing a lawsuit in state court is quite outlandish. But it is nonetheless problematic that the Supreme Court is so dismissive of state filings seeking to invoke the Court's original jurisdiction. The better course would have been for the Court to grant the petition and then reject the claim on the merits.

Here is Justice Thomas's dissent.

The Court once again denies leave to file a complaint in a suit between States. Alabama and 18 other States moved for leave to file a complaint against California, Connecticut, Minnesota, New Jersey, and Rhode Island. The plaintiff States allege that the defendant States are attempting to "dictate interstate energy policy" through the aggressive use of state-law tort suits. Bill of Complaint 1–3. On the plaintiff States' account, these suits seek to "impos[e] ruinous liability and coercive remedies on energy companies . . . based on out-of-state conduct with out-of-state effects," for the purpose of placing a "global carbon tax on the traditional energy industry." Id., at 1–2. The plaintiff States contend that this practice violates the horizontal separation of powers, the Federal Government's exclusive authority over interstate emissions, and the Commerce Clause. I would grant the plaintiff States leave to proceed.

As I have previously explained, the Court's assumption that it has "discretion to decline review" in suits between States is "suspect" at best. Arizona v. California, 589 U. S. ___, ___ (2020) (opinion dissenting from denial of motion for leave to file complaint) (slip op., at 1); accord, Nebraska v. Colorado, 577 U. S. 1211, 1211–1213 (2016) (same). "The Constitution establishes our original jurisdiction in mandatory terms." Arizona, 589 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 1). Article III states that, "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original jurisdiction." §2, cl. 2 (emphasis added). And, Congress has made our original jurisdiction "exclusive" in "all controversies between two or more States." 28 U. S. C. §1251(a). Given our "virtually unflagging obligation . . . to exercise the jurisdiction given" to us, our jurisdiction in thi context would seem to be compulsory. Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

Yet, the Court routinely "decline[s] to exercise its exclusive original jurisdiction in state-versus-state cases." Texas v. California, 593 U. S. ___, ___ (ALITO, J., dissenting from denial of motion for leave to file complaint) (slip op., at 6) (collecting cases). It has done so as part of a broader policy of making only "sparing use" of our original jurisdiction, wherein we restrict our review to "appropriate" cases. Illinois v. Milwaukee, 406 U. S. 91, 93–94 (1972).

This discretionary approach is a modern invention that the Court has never persuasively justified. See Texas, 593 U. S., at ___–___ (opinion of ALITO, J.) (slip op., at 3–6) (chronicling history). For example, in Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493 (1971), the Court admitted that "it may initially have been contemplated that this Court would always exercise its original jurisdiction when properly called upon to do so." Id., at 497. But, the Court declared, "changes in the American legal system" and the "development of American society" had rendered the mandatory exercise of original jurisdiction "untenable, as a practical matter." Ibid. Wyandotte was a case falling under our nonexclusive original jurisdiction, but the Court has made the same judgment with respect to our exclusive original jurisdiction, including in cases between States: Limiting our exercise of original jurisdiction is necessary, the Court has claimed, "'so that our increasing duties with the appellate docket will not suffer.'" Arizona v. New Mexico, 425 U. S. 794, 797 (1976) (per curiam) (quoting Illinois, 406 U. S., at 93–94).

In my view, such prudential decisions are not ours to make. The Constitution and Congress have set the bounds of our original jurisdiction. Those parameters should be conclusive: "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (Marshall, C. J., for the Court).

The Court's reluctance to accept jurisdiction in cases between the States is also troubling because this Court is the only court that can hear such cases. "If this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief." Nebraska, 577 U. S., at 1212 (opinion of THOMAS, J.). Accordingly, the Court today leaves the 19 plaintiff States without any legal means of vindicating their claims against the 5 defendant States.

We should revisit this discretionary approach. Our exclusive original jurisdiction over suits between States reflects a determination by the Framers and by Congress about the need "to open and keep open the highest court of the nation" for such suits, in recognition of the "rank and dignity" of the States. Ames v. Kansas ex rel. Johnston, 111 U. S. 449, 464 (1884); see Texas, 593 U. S., at ___ (opinion of ALITO, J.) (slip op., at 7). Yet, this Court has—essentially for policy reasons—assumed a power to summarily turn away suits between States. The Court today exercises that power to reject a suit involving nearly half the States in the Nation, which alleges serious constitutional violations. Because I would at least allow the plaintiff States to file their complaint, I respectfully dissent from the Court's denial of leave to file.

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[Jonathan H. Adler] SCOTUS to Consider Whether State Bans on "Conversion Therapy" Violate the First Amendment

[A highly significant grant of certiorari for next term.]

This morning, the Supreme Court granted certiorari in Chiles v. Salazar, a First Amendment challenge to a Colorado law that prohibits so-called "conversion therapy" for minors. At issue is whether this is a permissible regulation of professional conduct or a viewpoint-based restriction on speech (with potential religious liberty implications as well). This will almost certainly be one of the most watched (and potentially most controversial) cases of next term.

Here is the question presented from the petition for certiorari:

Kaley Chiles is a licensed counselor who helps people by talking with them. A practicing Christian, Chiles believes that people flourish when they live consistently with God's design, including their biological sex. Many of her clients seek her counsel precisely because they believe that their faith and their relationship with God establishes the foundation upon which to understand their identity and desires. But  Colorado bans these consensual conversations based on the viewpoints they express. Its content- and viewpoint-based Counseling Restriction prohibits counseling conversations with minors that might encourage them to change their "sexual orientation or gender identity, including efforts to change behaviors or gender expressions," while allowing conversations that provide "[a]cceptance, support, and understanding for…identity exploration and development, including…[a]ssistance to a person undergoing gender transition." Colo. Rev. Stat. § 12-245-202(3.5).

The Tenth Circuit upheld this ban as a regulation of Chiles's conduct, not speech. In doing so, the court deepened a circuit split between the Eleventh and Third Circuits, which do not treat counseling conversations as conduct, and the Ninth Circuit, which does.

The question presented is:

Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech  Clause.

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[Eugene Volokh] Journal of Free Speech Law: "The Press Clause: Important, Remembered, and Equally Shared," by Eugene Volokh

This article, which responds to Floyd Abrams, Sandra Baron, Lee Levine, Jacob M. Schriner-Briggs & Isaac Barnes May's The Press Clause: The Forgotten First Amendment (and, in part, to Matthew Schafer's "The Press Clause": A Response to Professor Volokh), is here. The Introduction:

The Press Clause: The Forgotten First Amendment, a Report from the Floyd Abrams Institute for Freedom of Expression, is a powerful argument for a broader understanding of the Free Press Clause. Much of its analysis will, I expect, prove important and useful to judges, lawyers, legal academics, and citizens. But one of its core premises—that the Free Press Clause should be read as conferring extra rights on the institutional press, beyond those possessed by others who speak to the public—strikes me as mistaken.

The Court's current precedents take the view that the First Amendment secures an equal right of everyone to use mass communications technology. These precedents generally do not offer special First Amendment rights to "the press" in the sense of a particular set of businesses or institutions. Rather, they protect the freedom of all to use "the press" in the sense of the printing press and its modern technological descendants. And this is also the approach taken by the great bulk of authorities from before the Framing through the 1800s and 1900s to today.

Under this model, the Press Clause is far from "forgotten" or stripped of "independent meaning or impact": It secures the critically important right of all people to use the means of mass communications. By itself, the Speech Clause could easily have been understood as just protecting "speech" in the longstanding historical sense of face-to-face oral expression. Indeed, in the 1600s and 1700s many governments deliberately tried to constrain printing presses on the theory that mass communication via the printing press was more dangerous than face-to-face oral communication and thus needed to be specially suppressed.

The Press Clause made clear that the use of mass communication technology (originally just the printing press) should be as protected as the use of one's voice. This understanding has ensured that all mass communicators—institutional media as well as others—are constitutionally protected. To the extent that today courts often use "speech" as shorthand for speech and press (and petition), that is a product of the vigor of the Press Clause, not a sign that the Clause has been forgotten.

And, I argue below, the sources cited in the Report's originalist, traditionalist, precedential, and structural arguments do not support special First Amendment treatment for the institutional media. Instead, many of the sources the Report cites actually support the thesis that the right belongs to all who sought to communicate to the public.

You can also see my earlier Freedom for the Press as an Industry, or for the Press as a Technology?—From the Framing to Today, 160 U. Pa. L. Rev. 459 (2012); the Abrams et al. Report in some measure responds to that, and Prof. Schafer's article, true to its name, does as well.

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[Eugene Volokh] NAH (No Abbreviations Here): Use Your Words

From Judge Daniel D. Domenico in Darren Patterson Christian Academy v. Roy (D. Colo. Feb. 24, 2025):

Last academic year Colorado implemented its new Universal Pre-school Program (the parties tend to refer to this as the "UPK" Program, but I try to use my words and will call it the "Program" or "Universal Preschool") ….

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[Eugene Volokh] Quite the Child Custody Dispute

An excerpt from the >9000-word In the Interest of O.S. & U.S., decided Thursday by Texas Court of Appeals Justice Wade Birdwell, joined by Justices Elizabeth Kerr & Dabney Bassel:

Appellant A.H. (Mother) and Appellee I.S. (Father) divorced in 2014, and they were appointed as joint managing conservators of their two sons—O.S. (Owen) and U.S. (Uriah)—with Mother having the exclusive right to determine the children's primary residence. In the years that followed, Mother remarried, then after separating from her new spouse, she and the children began living with L.W.B. (Partner). {Although Partner self-identified as a female, multiple witnesses—including both Partner and Mother—testified that "legally, [Partner's] a male." We therefore use male pronouns for Partner to avoid confusion.}

Both Mother and Father petitioned to modify the custody order based on the changed circumstances, and the trial court—after hearing evidence of each parent's alleged misdeeds, of Owen's medical issues, of Uriah's educational arrangements, and of Partner's background and social-media posts—found that the children's best interest would be served by giving Father the exclusive right to decide their primary residence, their education, and their invasive medical procedures.

Mother challenges this modification …. Her primary complaint is that there was insufficient evidence to support the modification because no reasonable factfinder could have believed Father or taken Partner's social-media posts seriously. Therefore, Mother reasons, the modification must be attributable to the trial court's unconstitutional "punishment" of her based on Partner's transgender identification and exercise of his right of free speech. But such allegations merely seize on a tangential hot-button issue in an attempt to avoid the trial court's credibility determinations. The trial court heard conflicting evidence of two imperfect parents, and it acted within its discretion based on its assessment of the witnesses' credibility….

The evidence showed that

in 2015, Mother began a relationship with Partner, and he began living with her and the children; in 2016, during a "break" in Mother's relationship with Partner, Mother married Husband [not Father -EV], and she and the children moved in with Husband; in 2017, Mother and Husband separated, and she moved out with the children; and later in 2017, Partner moved in with Mother and the children….

[T]he parties vehemently disputed (1) Mother's failures to surrender possession of the children; (2) the children's medical incidents and education; and (3) Partner's influence on the children. [For more on issues 1 and 2, see the full opinion; I will focus here on aspects of issue 3. -EV] Specifically, Father pointed to Partner's background, his treatment of the children, his alleged instability, and his social-media posts.

[a.] Background

Partner was a biological male who identified as a female. He openly admitted that he had been involved in the sex industry in the past, stating that, before his relationship with Mother, he had spent approximately "[a] year and a half or two years" working as a prostitute through Craigslist advertisements. Around that same time, Partner had performed live online "stripping" shows from his home. But Partner noted that he had stopped such work before he began his relationship with Mother and that Mother had indicated they could not live together if Partner resumed prostitution.

Mother, for her part, questioned the sincerity of Father's concern about Partner's work in the sex industry. She elicited testimony that she and Father had met at a BDSM event and that Father had worked with a filmmaker who had produced BDSM videos. In fact, Mother noted, a least one of Father's other children had been involved in a political film made by the filmmaker, and although the film had not been sexual, it had been advertised on the filmmaker's website alongside the filmmaker's sexual content.

Mother also questioned the propriety of Father's relationship with his wife. Mother's counsel repeatedly referred to Father's wife as his "niece," which label Father disputed, though he conceded that "[his] mother and [his wife's] grandfather [we]re a couple." Father clarified, though, that his wife was not his mother's child and that there was "[n]o genetic[ ] no[r] biological connection" between them. {Mother's cross-examination of Father hinted that Father's wife was young enough to be his daughter, even implying that Father had considered adopting his wife prior to their marriage. But Mother did not present evidence of Father's wife's age, and Father denied ever having contemplated such an alleged adoption.}

As for Partner, his work in the sex industry was not the only area of his background that Father highlighted:

Partner admitted that, in approximately 2011, the Federal Bureau of Investigation (FBI) had raided his home and seized his hard drives because he "had some contact with [a] hacker group" that, according to Partner, he had been writing an article about. Partner confirmed that more than one person had accused him of rape. {These rape allegations were also referenced in the trial exhibits of Partner's social-media posts. In response to one of Partner's Twitter threads, an account named "Speaking Out" had tweeted, "[Partner] sexually abused me. I was 14, and [Partner] knew it."} However, Partner denied ever having committed rape, and he testified that one of his accusers—a woman who had posted a blog about the alleged rape—had lodged the accusation because Partner "banned her from a Minecraft server."

[b.] Treatment of the Children [see the full opinion -EV] …

[c.] Instability

On top of Partner's background, Father presented evidence of Partner's instability. Partner confirmed that he had post-traumatic stress disorder and borderline personality disorder and that, although he had been medicated for his conditions in the past, he had gone off of his medications at certain points in time and was not taking such medications at the time of trial. As it related to his borderline personality disorder, Partner explained that his medication was no longer necessary because he had completed treatment and had been "cured."

{Partner's social-media posts referenced his mental-health issues as well. In a series of tweets, he stated that he "ha[d] ptsd/bpd," "c[ould]n[']t be employed," and suffered from "black and white thinking" such that "[p]eople [he] s[aw] as evil ma[d]e [him] so angry to the point of being irrational." He linked these issues to his status as a "former sex worker," stating that he "had to do full service sex work to survive."}

Father also noted that, although Partner had been living with Mother for seven years, the two were not married; Mother remained married to Husband. Mother explained that she had not divorced Husband because doing so would divert "money and resources" away from the custody case. She confirmed that, if and when she divorced Husband, she intended to marry Partner. Partner, meanwhile, testified that he was not sure how many husbands Mother had been married to and "ha[d]n't really paid that much attention" because he "just d[id]n't care enough to really worry about it."

[d.] Social-Media Posts

Partner's social-media posts were another source of Father's concern. Father presented evidence that Partner was very active on social media—particularly on Twitter:

One of Partner's tweets had stated, "[I]f you take every rich person on the planet and puree them into a liquid and let that liquid ferment for a few months, it makes lovely fertilizer for plants." Another of Partner's Twitter threads had discussed "TERFs," which Partner testified referred to "[t]rans-exclusionary radical feminist[s]." Partner had tweeted that "the trans community has been too nice to terfs for too long"; that "every time a TERF opens their mouths [if] they got a fist in it[,] they wouldn[']t open their f***ing mouths"; and that "[w]hat you do is get you a baseball bat and write 'transmisogyny corrector' on it and you whap the next terf who says sh**." Another series of tweets had identified Father by name, labeling him "anti antifa," calling him a "stalker a**hole," and stating that Partner was "not gonna hide from his fascist a**." Another of Partner's tweets had advocated "f***ing up the personal and professional lives of fascists." A Twitter poll that Partner had created asked individuals to vote whether, "if you see ten people beating up an ICE agent, … you either make it 11 or make popcorn." Another had asserted that "[y]ou could literally cover ICE agents with fire ants and still have the moral high ground." A similar tweet had applied the fire ants to "[f]ascists." Another had stated, "[I]f you are a fellow white woman wanting to know how to get other white women to stop voting for [a certain political candidate], what you have to realize is dead Nazis can't vote." The tweet had gone on to state that "it's not hard to slip something into her Mimosa at brunch." Another tweet claimed to have "stop[ped] my neighbor from voting for [a certain political candidate] by threatening to throw him through a window."

… Partner characterized the posts as non-violent, stating that he had "a very dark sense of humor" and that the posts had been intended as tongue-in-cheek jokes.

One social-media post that Partner did not describe as a joke, though, was on Facebook. There, in a Facebook group that Partner moderated, he had identified Father by name, shared links to Father's personal and professional Facebook pages, and labeled Father as "a fascist, … a white supremacist, a racist, a rapist[,] and an all[-]around vile human being" who "hates trans women … [and] antifa." The Facebook post had ended with Partner asking others to "do [him] a favor and make this racist [referring to Father] afraid again." When asked at trial if the Facebook post had been serious, Partner smiled and confirmed that it had been serious "because the statements were true." {At another point, Partner testified that he had never spoken with Father and that he had no opinion on his skills as a parent.}

Father claimed that the Facebook post had extensive ramifications. He testified that, after the post, he "had more than a hundred phone calls come into [his] job until [he] was fired," and he "was kicked out of [his] church, lost [his] Scout troop, lost [his] website, lost [his] business, [and] lost many friends." {Husband, too, testified that he believed there had been "a coordinated effort" by Partner to ban Father from Facebook.} But Partner denied that he had intended for the Facebook post to "encourag[e] people to go to [Father's] Facebook [page] and screw with him."

As for Mother, she stated that she had not followed Partner's social-media posts and that, when she learned of the Facebook post in particular, she had asked Partner to delete it. Mother insisted that Father had been the one making ill-advised statements, emphasizing that Father had disparaged her to medical personnel and in the children's presence. Indeed, Father admitted as much, and some of his statements were documented in Owen's medical records. Mother explained that she sought modification of Father's involvement in medical decisions because Father "ke[pt] using the contact that he ha[d] with doctors to try to frame [her] for things." …

Modification Order

Based on the trial evidence and interviews, the trial court granted Father the exclusive right to designate the children's primary residence, to make decisions about the children's education, and to consent to their invasive medical procedures. The court later entered findings of fact and conclusions of law, which included

a finding that Mother had cohabitated with Partner while married to Husband and while the children were in her care; the conclusion that "[t]he circumstances … ha[d] materially and substantially changed" in light of the parties' relocations, Mother's remarriage, Mother's relationship with Partner, Mother's failure to meet the children's medical and educational needs, and Partner's "pos[ing] a risk to the welfare of the children"; and multiple findings that Partner "behaves and speaks in a minacious[,] … bilious[,] … hyperbolic[,] … [and] corybantic manner in the presence of the children[,] or in a manner that can affect the children's emotional or psychological development"; and the conclusion that modifying the custody order was in the children's best interest….

The appellate court held that the trial court didn't "act[] arbitrarily or unreasonably" in rendering the decision that it did (that's the standard of review in most states for child custody orders); among other things, the appellate court reasoned,

Mother and Father presented differing descriptions of one another's misdeeds and of the children's medical and educational needs [see the full opinion for more on that -EV], with no overwhelming evidence to mandate a finding in either parent's direction. The trial court—having "observe[d] the demeanor and personalities of the witnesses"—was free to believe Father's testimony….

The same is true of Mother's contention that "[n]o reasonable person would take [Partner's social-media] statement[s] seriously." True, Partner claimed that most of his social-media posts were intended as jokes, but even he conceded that some of the posts were serious. And Father's testimony demonstrated that Partner's social-media statements had real-world consequences, including Father's losing his job. After hearing this evidence, observing Partner's demeanor as he testified, and reading the social-media posts, the trial court expressly stated that it "didn't find [Partner] … credible on [whether his comments] … w[ere] humorous." Once again, this credibility assessment was the trial court's to make. {Even Mother acknowledges that some people could find Partner's social-media posts offensive, i.e., that not everyone views them as jokes.}

{To the extent that Mother asserts that Partner's constitutional protections prohibited the trial court from considering the social-media posts as evidence at all, Mother made no such objection at trial. In fact, the trial court was the one to note its concern that several of Partner's Twitter posts appeared to be "permissible political statement[s]" or "remote in time," and it did so to explain why it was excluding them from evidence. The court stated that it was not admitting Partner's social-media posts as exhibits unless the parties could "tie [them] into the father or where the act is so extreme that it appears to be calling for … the immediate killing of people."

Regardless, Mother has not cited any case law to support her contention that a trial court violates a non-party's constitutional rights by taking his pattern of public statements into account when determining the best interest of children that share his home.}

Plus, even without Father's disputed testimony or Partner's social-media posts, there was other, undisputed evidence that supported the trial court's best-interest finding:

Mother admitted that she had failed to surrender possession of the children for Father's scheduled visitations on multiple occasions; Mother had relocated or dramatically altered the children's home environment multiple times, first allowing Partner to live with them, then marrying and moving in with Husband, then moving out of Husband's home, and then allowing Partner to live with them again; and Mother had allowed Partner to live with her and the children despite Partner's previous work as a prostitute, despite a previous FBI raid on his home, and despite the allegations of rape lodged against him.

Taking this together with the disputed evidence that the trial court reasonably credited in favor of the modification, there was sufficient probative evidence to support the trial court's conclusion that modification was in the children's best-interest.

I think that denying a parent custody because of the parent's ideological advocacy—or the parent's partner's advocacy—may indeed violate the First Amendment, though with some exceptions (see Parent-Child Speech and Child Custody Speech Restrictions). It might, for instance, be against a child's best interests to be taught various ideas by one parent, for instances ideas that are racist, pro-revolutionary, sharply anti-police, deeply hostile to Israelis or Palestinians, etc., but I don't think the legal system should be empowered to use that as a basis to change the child's custody to the other parent. I think that's even more clear as to one parent's (or, again, the partner's) speech to the public. (Query whether the same would apply as to speech that is aimed at getting the other custodial parent fired.)

Still, the parties are required to raise those objections in order for them to be considered on appeal. And it sounds like there was a lot more going on here than just that. In any event, it seemed like an interesting enough controversy to pass along.

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[Josh Blackman] Today in Supreme Court History: March 10, 1919

3/10/1919: Debs v. United States decided.

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[Stephen Halbrook] Second Amendment Roundup: Court Seems Disposed to Rule for S&W and Against Mexico

[The Court should settle the proximate-cause issue, not just aiding and abetting.]

The March 4 oral argument in Smith & Wesson Brands v. Estados Unidos Mexicanos appeared to go very well for S&W and not well for Mexico.  Mexico's lawsuit seeks to hold America's federally-licensed firearm industry responsible for the cartel violence that plagues Mexico and to prohibit the industry from doing ordinary business in compliance with the federal Gun Control Act.

Congress enacted the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 to prohibit lawsuits against the gun industry for crimes committed by third parties.  Unable to persuade legislatures to enact prohibitionist measures, the anti-gun movement began bringing such litigation in the 1980s to try and destroy the industry via time and resource-consuming lawsuits and discovery.  PLCAA sought to end such abuse of the legal system.

PLCAA requires courts to dismiss any "qualified civil liability action," which means an action brought against a licensed manufacturer or seller of a "qualified product" – a firearm or ammunition – "resulting from the criminal or unlawful misuse of a qualified product by the person or a third party."  15 U.S.C. § 7903(5)(A)(iii).  That excludes an action in which a manufacturer or seller "knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought."

Mexico claims that S&W and other manufacturers violated Federal criminal statutes by aiding and abetting the unlawful sale of guns and ammo by dealers to straw purchasers, who unlawfully transferred the firearms to others, who then (also unlawfully) exported them without a license from the Department of Commerce to Mexico, who transferred them to the cartels, which used them to harm others, which proximately causes harm to Mexico.

From the oral argument, it appears likely that the Supreme Court will rule narrowly in the defendants' favor on aiding and abetting liability. There seemed to be at least six or seven votes for holding that Mexico's complaint does not allege sufficient facts to trigger aiding and abetting liability for the defendant firearms manufacturers whose products are allegedly diverted to Mexican cartels by rogue gun dealers.

During the argument, Justice Barrett had the following exchange with Noel Francisco, counsel for the manufacturers:

JUSTICE BARRETT:  Is there any reason for us to reach the proximate cause question if we conclude for aiding and abetting that you win?

MR. FRANCISCO: If you rule for us on aiding and abetting, that will completely dispose of the case. The reason to also address proximate cause is because it's an extraordinarily important issue that I think applies in many different contexts, which is why there's such a broad range of amici in this case that go well beyond the firearms industry. So, while you could completely resolve it on aiding and abetting, I would … urge you to address proximate cause as well.

The firearms industry is facing a wave of lawsuits in which anti-gun activists are asking courts to hold the industry responsible for the criminal misuse of its products by third parties. E.g., Lowy v. Daniel Defense, et al., No. 24-1822 (4th Cir.) (lawsuit seeking to hold fifteen members of the firearms industry liable for school shooting in Washington, D.C.); Estados Unidos Mexicanos v. Diamondback Incorporate, No. 22-472 (D. Arizona) (lawsuit filed by Mexican government against firearms dealers); City of Rochester v. Smith & Wesson Brands, Inc., No. 23-6061 (W.D.N.Y.) (lawsuit filed by City of Rochester seeking to hold more than two dozen members of firearms industry liable for city's gun violence); Cluney v. Brownells, Inc., No. 24-207 (D. Maine) (lawsuit seeking to hold members of the firearms industry liable for domestic violence incident);  Mitchell v. River City Firearms, Inc., No. 24-CI-000518 (Jefferson Circuit Court, Kentucky) (lawsuit seeking to hold members of firearms industry liable for mass shooting in Louisville).

Relatively few of these cases involve questions of aiding and abetting liability under federal law. Instead, typically the plaintiffs in these cases rely on a state consumer protection law or some other state statute rather than the federal aiding and abetting statute as the basis for alleging unlawful conduct by the industry. And many of these state laws are recently-enacted statutes by the usual suspect anti-gun states seeking to circumvent PLCAA's protections.  The common denominator that unites these cases is not the alleged statutory violation but the theory of causation, under which the plaintiffs claim that criminal conduct by third parties is attributable to the sellers of firearms.

The First Circuit ruled in favor of Mexico on the proximate cause issue with the following bizarre analogy:

Imagine that a U.S. company sent a mercenary unit of combat troops to attack people in Mexico City. Such an attack would directly cause Mexico itself the expense of paying soldiers to defend the city. Proximate cause would be quite clear. So, too, here, where the defendants are alleged to have armed the attackers for their continuing assaults.

This departs sharply from decisions of most other courts that have confronted this issue and black letter principles of tort law. An opinion joined by then-Judge Alito, City of Philadelphia v. Beretta USA (3d Cir. 2002) held that the causal chain "from the manufacturer to Philadelphia streets" was too "long and tortuous."  With limited exceptions, a third party's criminal conduct ordinarily breaks the causal chain for purposes of proximate cause.

If not corrected, the First Circuit's reasoning will be embraced by anti-gun activists in lawsuits going forward. This decision has already created disarray on the issue of proximate cause in the lower courts, and it is certain to metastasize and spread until the Supreme Court intervenes.

As Congress recognized when it passed the PLCAA, burdening the firearms industry with lawsuits of this sort inhibits the exercise of Second Amendment rights. It also did so to ensure a robust domestic firearms industry, which is important for America's military and police officers. This is an important issue that the Court ought to decide sooner rather than later.

The Court should take this opportunity to clarify that the standard for proximate cause under PLCAA is consistent with the standard for proximate cause that the Court has used for other federal statutes, including RICO. As Chief Justice Roberts wrote in Hemi Group, LLC v. City of New York (2010), if multiple steps stand in between the conduct and the harm, then the connection becomes too "remote," "contingent," and "indirect" to satisfy basic proximate cause.  This standard requires a direct connection between the defendant's conduct and the plaintiff's injury.  A causal chain with multiple steps – especially intervening steps that involve criminal conduct by third parties – will not suffice.

Questioning during the oral argument exhibited the utter implausibility of Mexico's case.  Justice Thomas asked Mexico counsel Catherine Stetson whether ATF prosecuted or revoked the licenses of any dealers for the alleged straw sales with which the manufacturers connived.  Ms. Stetson replied that ATF doesn't have the resources to monitor every dealer.  Yet based on a newspaper article, Mexico had argued that Lone Wolf Trading Co. was the epitome of the "rogue" dealer.  If true, ATF would have taken action.  Yet Lone Wolf remains in business today.

Mexico argues that manufacturers are on notice of dealers who conduct straw sales and that they continue to supply such dealers, which is the proximate cause of harm to Mexico.  As Ms. Stetson claimed, "Trace requests from ATF and other agencies alert defendants that guns they sell to specific distributors and dealers are being recovered at crime scenes."  That expressed utter ignorance of how trace requests work.  A trace request begins with the manufacturer, whose name and serial number are engraved on a firearm.  A manufacturer like S&W would inform ATF of the distributer to which it transferred the firearm.  S&W would have no knowledge of which dealers the distributer transferred the firearm to, not to mention the reason for the trace request.

As Justices Jackson, Kagan, and Barrett all pointed out, Mexico didn't sue or even identify any specific dealers who conducted straw sales and were in the chain of proximate cause of harm to Mexico.

Not to mention that a trace request does not mean that a firearm was "recovered at a crime scene."  Given Mexico's stringent firearm prohibitions, firearms are regularly seized from ordinary citizens whose "papers are not in order."  Moreover, Congress has declared by law that "Law enforcement agencies may request firearms traces for any reason, and those reasons are not necessarily reported to the Federal Government. Not all firearms used in crime are traced and not all firearms traced are used in crime."

Perhaps the most ridiculous claim to show proximate cause was that the manufacturers design firearms to appeal to the cartels.  As Chief Justice Roberts characterized the claim, "it [the firearm] looks like a military weapon and it has an American flag" or it "has Zapata's quote about better to die on your feet than live on your knees."  Such things "are not illegal in any way" and appeal to "people who want the experience of shooting a particular type of gun because they find it more enjoyable than using a BB gun."

Ms. Stetson pushed back, claiming that the Colt "Emiliano Zapata 1911" pistol "target[ed] the Mexican market, including the cartels."  In fact, Zapata was a Mexican hero who fought against successive dictatorships, and Colt's pistol with intricate engravings is something even a Gringo would be proud to own.  And that's Mexico's case for Colt's marketing being the proximate cause of cartel violence?

Several Justices commented on how Mexico's version of proximate cause could destroy any number of industries.  If Budweiser is on notice that extraordinary sales of beer take place in a college town, that is the proximate cause of underage drinking and the damage it causes.  Makers of baseball bats and knives are aware that some of their products will be used in assaults and murders for which they are thus responsible.  Those are more reasons why the Court should resolve the proximate-cause issue in this case.

Justice Jackson in particular elaborated at length that in enacting PLCAA, "Congress [was] protecting its own prerogative to be the one to regulate this industry, … and the statute itself says that … we're worried that tort suits are an attempt to use the judicial branch to circumvent the legislative branch of government."  She referred to PLCAA's term "qualified civil liability action" as meaning "you can't bring in court … a civil action resulting from the criminal or unlawful misuse of a qualified product by the person of a third party."

At bottom, even if the Supreme Court could resolve this case by finding that Mexico has not stated a claim for aiding-and-abetting liability, it should also go further and find that its allegations do not suffice to establish proximate cause.  That will facilitate the resolution of numerous other cases under PLCAA, which the Court will otherwise have to resolve in the future.  It will also discourage frivolous suits against American industry in general based on an overly-expansive version of proximate cause.

For more on the case, see my post from 10/22/24.  For background, see my 2004 Chapman Law Review article from when PLCAA was pending in Congress.

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[Eugene Volokh] "500M Europeans Are Begging 300M Americans for Protection from 140M Russians Who Have Been Unable to Overcome 50M Ukrainians for Three Years"

A nice line from Polish Prime Minister Donald Tusk (Politico.Eu). I have no well-informed view on the proper role of the U.S. in the defense of Europe (though my intuitions are in favor of strong U.S. support for NATO, I can't speak with confidence about the subject). But I thought this was a well-put call for action, from a country that is estimated to have spent 4.12% of its GDP on defense in 2024, compared to a 2.02% average for European NATO members and Canada, and 3.38% for the U.S. "The Polish military is now about 200,000, which makes it the third-largest in NATO after the U.S. and Turkey and the largest among the alliance's EU members."

Tusk added,

By the end of the year, we want to have a model ready so that every adult male in Poland is trained for war, and so that this reserve is adequate for possible threats…. Every healthy man should want to train to be able to defend the homeland in case of need. We will prepare it in such a way that it will not be a burden on people.

By the way, the only other NATO member that spent a higher fraction of its GDP than the U.S. is Estonia, at 3.43%. Latvia and Lithuania are also high, at 3.15% and 2.85%, well above everyone else except Greece at 3.08%. The one behind Lithuania (though closer to the middle of the pack) is Finland, at 2.41%. See a pattern?

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[Josh Blackman] Today in Supreme Court History: March 9, 1937

3/9/1937: President Roosevelt delivers a fireside chat on his Court-packing plan.

 

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