Eugene Volokh's Blog, page 153

[Josh Blackman] Harlan Virtual Supreme Court Round of Ten

[Ten teams of high school students presented oral arguments on Free Speech Coalition v. Paxton.]

The topic for the 13th Annual Harlan InstituteVirtual Supreme Court competition is Free Speech Coalition v. Paxton. Last week, the top ten teams presented oral arguments. The Round of 4 will be held later this month.

Round of 10 Match #1

Team 20133 v. Team 20129

Round of 10 Match #2

Team 20149 v. Team 20241

Round of 10 Match #3

Team 20135 v. Team 20094

Round of 10 Match #4

Team 20133 v. Team 20608

Round of 10 Match #5

Team 20601 v. 20134

 

The post Harlan Virtual Supreme Court Round of Ten appeared first on Reason.com.

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[David Kopel] The Social Cost of Nullifying the Right to Arms: The Case of Mexico

[If the Mexican executive branch obeyed the Mexican Constitution, the Mexican people would be safer]

Tomorrow, March 4, the Supreme Court will hear oral arguments in . The case involves a lawsuit by the Mexican President claiming that American firearms manufacturers should pay the Mexican government billions of dollars for gun crimes perpetrated against Mexican citizens in Mexico by drug cartels. According to the lawsuit, law-abiding American firearms manufacturers are to blame. A previous VC post described an amicus brief I coauthored, a Crowell & Moring amicus brief in support of the Mexican government criticizing my brief, and my critique of the critique. Into the fray has stepped the South Texas Law Review, with a special symposium issue about the case. The issue is currently at the printer, and should be available very soon. In this post, I will describe my symposium article, The Social Cost of Nullifying the Right to Arms: The Case of Mexico.

The article is coauthored with Joseph Greenlee and Bhav Ninder Singh. In the four part article, two of the parts elaborate on topics addressed in the amicus brief: the false claim that U.S. firearms retailers are the leading source of cartel firearms (Part IV), and the Mexican lawsuit's evasion of the Mexican government's own responsibility for crime in Mexico, which is caused, inter alia, by a culture of impunity fostered by the Mexican government (Part I).

Part II concerns a topic rarely addressed in American legal scholarship: the Mexican Constitution's right to arms. As we detail, the right has been narrowed since it first appeared in Mexico's 1857 Constitution. Today, the right does not include the right to carry arms in public places, and the constitutional text expressly authorizes reserving some types or calibers solely for government use. Accordingly, Mexico's main gun control statute, enacted in 1968, imposes a rigorous licensing system.

However, in contravention of the statute and the Mexican Constitution, the Mexican executive has imposed extra-legal gun control. Only one gun store, operated by the military, is allowed to operate. Contrary to the statute, gun permits are almost never issued, and even then only for .22 caliber handguns. Accordingly, most Mexican are left without the means of defending themselves and their families.

Part III of the article examines collective defense. An important difference between the arms right in the Mexican Constitution and the U.S. Second Amendment (and arms rights in 45 U.S. state constitutions) is that the former is purely for individual defense, whereas the latter also encompasses collective defense, as in a militia. While the Second Amendment belongs to individuals and includes the right of personal self-defense (such as against a lone burglar or rapist), the American right protects the ability of individuals to come together to defend their communities.

Part III.B describes how the Mexican people have practiced community self-defense, such as by coming together to form community militias for protection from cartels and from corrupt governments allied with the cartels. On the whole, the community militias were successful; although they are not as prevalent as they were 15 years ago, the world's largest avocado-exporting region is still safeguarded by a community militia.

Part III.A of the article examines the legality of communal defense in Mexico. Plainly, the right would not be vindicated in a Mexican court today. However, we argue that Mexicans still have the right of collective self-defense, at least in a moral sense. And ultimately as a natural law right that no government can legitimately prohibit. In the Mexican context, the natural right of self-defense was explicated by Catholic scholars--particularly Francisco Suárez (1548–1617) and Francisco de Victoria (1486–1546)--who helped create the legal culture that became the foundation of Mexican law. Victoria, in fact, was deeply involved in then-current controversies over the Spanish conquest of Mexico, and he argued, without persuasive rebuttal, that the pagan Indians of Mexico had a natural law right of collective self-defense against the atrocities of the Spanish invaders.

Tomorrow, the U.S. Supreme Court will not be asked to decide what Mexican law should be, but rather what American law is. Namely, that a 2005 federal statute, the Protection of Lawful Commerce in Arms Act, jurisdictionally forbids American courts from entertaining lawsuits such as Mexico's. However, the broader context of the case is that presidents of Mexico--like the politicians described the Mendoza, Montaner & Llosa book Guide to the Perfect Latin American Idiot--are part of a long tradition of incompetent and/or repressive Latin American governments attempting to deflect popular wrath about the government's malfeasance by blaming the Yanquis. At least in some parts of Mexico, the Mexican federal government is a failed state, and the state failure will not be remedied by Mexico's enlistment of American gun prevention lawyers whose nearly identical lawsuits against law-abiding American manufacturers in previous decades were rejected and prohibited by courts, state legislatures, and the United States Congress.

The post The Social Cost of Nullifying the Right to Arms: The Case of Mexico appeared first on Reason.com.

[Jonathan H. Adler] Webinar on the Future of Humphrey's Executor and Agency Independence

[A discussion of whether and when the Supreme Court might overturn Humphrey's Executor v. United States.]

Humphrey's Executor may be in the crosshairs. President Trump's decision to remove a range of agency officials, including the Chair of the National Labor Relations Board and the Special Counsel of the Office of Special Counsel, and the Department of Justice's announcement that it will no longer defend Humphrey's Executor as a correct constitutional decision certainly makes it seem like the Supreme Court will soon be faced with a decision whether to uphold this precedent or overturn it.

Tomorrow, I will be participating in a Federalist Society webinar, "You're Fired! Trump, Tenure Protection, and the Future of Humphrey's Executor," to discuss the future of this precedent and so-called independent agencies. Joining me on the program will be Prof. Victoria Nourse (Georgetown), Prof. Dan Epstein (St. Thomas), WIll Yeatman (PLF), and Elizabeth Slattery (PLF) as the moderator. Registration info is here.

The post Webinar on the Future of Humphrey's Executor and Agency Independence appeared first on Reason.com.

[Jonathan H. Adler] Supreme Court Refuses to Consider Whether University "Bias-Response Teams" Chill Speech

[Justice Thomas dissents from the Court's refusal to resolve a clear circuit split.]

The Supreme Court does not hear many cases these days. It is very stingy in granting certiorari, even in cases that present clear circuit splits. This morning's Order List provides a good example, as the Court denied certiorari in Speech First v. Whitten, which presented the question whether university "bias-response teams" objectively chill students' speech under the First Amendment (and, as a consequence, whether there is Article III standing to challenge them).

Only two justices (Alito and Thomas) indicated their desire to hear this case. One, Justice Thomas, wrote a dissent from the cert denial. It begins:

More than 450 of our Nation's colleges and universities have "bias response teams." These teams "encourag[e] students to report one another for expressions of 'bias,'" and then review and act upon reports. Speech First, Inc. v. Sands, 601 U. S. ___, ___–___ (2024) (THOMAS, J., dissenting) (slip op., at 1–2). In reviewing First Amendment challenges to bias response teams, the Courts of Appeals have split as to whether they "objectively chill" student speech for purposes of Article III standing. I would grant certiorari to resolve that important split.

Why didn't Justice Alito join Justice Thomas' dissent? We don't know, but one possibility is that Justice Thomas tipped his hand as how he is inclined to see the merits:

This case presents an opportunity to resolve an important Circuit split. Three Circuits, when evaluating similar facts, have rejected the Seventh Circuit's view and found that bias response policies "objectively chill" student speech. . . . If this case had proceeded in those Circuits, then Speech First likely would have been able to establish Article III standing. For example, the Sixth Circuit has recognized that a bias response team's "ability to make referrals . . . is a real consequence that objectively chills speech," and that this "lurk[ing]" referral power causes even optional meeting invitations to "carry an implicit threat of consequence should a student decline the invitation." . . . It makes no difference, on the Sixth Circuit's view, if the bias response team itself "lacks any formal disciplinary power."

Previously, the Fourth Circuit joined in the Seventh Circuit's contrary position. Speech First, Inc. v. Sands, 69 F. 4th 184, 193–197 (2023). But, based on a mid-litigation change in university policy, this Court granted the Sands petition, vacated the judgment below, and remanded with instructions for the Fourth Circuit to dismiss the suit as moot. See 601 U. S., at ___ (slip op., at 1) (citing United States v. Munsingwear, Inc., 340 U. S. 36 (1950)). The Seventh Circuit therefore stands alone.

I would grant Speech First's petition and resolve the split. As this Court implicitly recognized when it chose to intervene in Sands, the split poses an important First
Amendment question. I continue to believe that we should clarify the scope of a student's right to challenge university policies that "potentially pressur[e him] to avoid controversial speech." Sands, 601 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 6).

The Seventh Circuit's approach is also very likely wrong. It is well settled that plaintiffs may establish standing based on "the deterrent, or 'chilling,' effect of governmental regulations that fall short of a direct prohibition against the exercise of First Amendment rights." Laird v. Tatum, 408 U. S. 1, 11 (1972). And, in assessing whether an "objective chill" exists in a particular case, . . . courts must "look through forms to the substance" of the government's "informal sanctions," . . . . The Seventh Circuit's emphasis on the formal limits of a bias response team's power seems hard to square with this Court's framework.

Common features of bias response policies suggest that they may cause "'students [to] self-censor, fearing the consequences of a report to [the bias response team] and  thinking that speech is no longer worth the trouble.'" Sands, 601 U. S., at ___ (THOMAS, J., dissenting) (slip op., at 6) . . . At IU as elsewhere, the bias response program combines a definition of bias that "appears limitless in scope" with a "threshold for reporting [that] is intentionally low." . . . . Compounding the problem, the option of anonymous reporting makes filing a report socially costless. . . .And, the threat that the bias response team may refer a report to other university officers for further action is a "weighty consequenc[e]" that "'lurks in the background.'" . . . .

His dissent concludes:

Given the number of schools with bias response teams, this Court eventually will need to resolve the split over a student's right to challenge such programs. The Court's  refusal to intervene now leaves students subject to a "patchwork of First Amendment rights," with a student's ability to challenge his university's bias response policies varying depending on accidents of geography. . . . Because one of our "primary functions is to resolve 'important matter[s]' on which the courts of appeals are 'in conflict,'" we should not let this confusion persist. . . . I respectfully dissent.

I am inclined to agree with Thomas -- and also think the Court should hear more cases, particularly where (as here) there is a circuit split. Alas, at least six justices appear to disagree.

The post Supreme Court Refuses to Consider Whether University "Bias-Response Teams" Chill Speech appeared first on Reason.com.

[Eugene Volokh] Briefing Ordered Unsealed in N.J. Case Involving Gag Order on Jewish Woman Who Claimed Her Husband Denied Her Jewish Divorce

Back in 2023, I blogged about S.B.B. v. L.B.B., a New Jersey intermediate appellate court case:

[T]he plaintiff husband and defendant wife were getting divorced, and the wife claimed that the husband wasn't giving her a Jewish religious divorce. (The husband "denied withholding the get, claimed he had given the get to the Chief Rabbi of Elizabeth in June 2020.") To quote the court,

In the Orthodox Jewish tradition, a married woman cannot obtain a religious divorce until her husband provides her with a contract called a "get" (pluralized as "gittin"), which must, in turn, be signed by an "eid," or witness. A woman who attempts to leave her husband without obtaining a get becomes an "agunah" (pluralized as "agunot"), which subjects her to severe social ostracism within the Orthodox Jewish community. Agunot may seek relief in a "beth din," a rabbinical court presided over by a panel of three rabbis. The beth din may then issue "psak kefiah," or contempt orders authorizing sanctions, which include, but are not limited to, the use of force against a husband to secure a get.

The wife made a video, which ended up getting broadly distributed online, and in which she apparently said:

Hi. My name is [L.B.B.]. I'm a mother of four children and I live in the United States without any family for the last seventeen years. In August 2019, my husband left the house and we're trying to get an agreement. We still did not get any of that. I tried to reach … the community Rabbi[ ] for help, and he said he will, and he got the get from my husband, but he is holding it for over a year now. The only way [the Chief Rabbi] can give it to me is by my husband permission. I'm seeking for help. I'm asking whoever can, please help me. To press [the Chief Rabbi] to let go of my get or to press my husband to give [the Chief Rabbi] the proof to give me the get. To release the get. Please, I really need this help. I want this get. I want this nightmare to be behind me. Whoever gonna help me, bracha [blessing] on his head.

This led to dozens of phone calls from strangers to the husband, and the husband said he feared it might lead to violence (which had sometimes happened to Jewish husbands who refused to give gets). The husband therefore sought and obtained a restraining order that

barred defendant from having "any oral, written, personal, electronic, or other form of contact or communication with [p]laintiff," and specifically ordered defendant to "remove any and all posts from all social media platforms requesting the 'get'" and "cease and desist … creating and posting on all social media platforms." …

The trial judge's rationale was that the wife's actions violated defendant's right to privacy, and risked provoking some people to commit violence against the husband. The order was premised on a New Jersey statutory provision that labeled it illegal harassment to

with purpose to harass another, … [m]ake[], or cause[] to be made, one or more communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm.

But the appellate court held that this [final restraining order (FRO)] was unconstitutional, and I think this was correct, given NAACP v. Claiborne Hardware and Organization for a Better Austin v. Keefe, cited by the court….

It turns out, though, that there's more of a First Amendment issue to the case, because the entire case—including the appellate briefing both from the parties and from the amici—had been sealed. Here's what the N.J. intermediate appellate court said about that in a follow-up decision Thursday, written by Judge Greta Gooden Brown and joined by Judge Arnold Natali:

Given the subject matter, pursuant to a protective order, the record was sealed in the trial court as well as on appeal, and litigants were forbidden from disseminating any information about the case to the public. See N.J.S.A. 2C:25-33(a) ("All records maintained pursuant to [the PDVA] shall be confidential and shall not be made available to any individual or institution except as otherwise provided by law."); R. 1:38-3(d)(9) and (10) (excluding from public access domestic violence records maintained pursuant to N.J.S.A. 2C:25-33 and the names and addresses of domestic violence victims, respectively).

During the appeal of the underlying domestic violence matter, a host of amici joined the case in support of defendant's position: the American Civil Liberties Union of New Jersey (ACLU-NJ), the American Civil Liberties Union, the Jewish Orthodox Feminist Alliance, Sanctuary for Families, and Unchained at Last (collectively, ACLU amici), as well as the Organization for the Resolution of Agunot (ORA) and the Shalom Task Force (collectively, ORA amici). Each was automatically subject to the sealing restrictions and precluded from any public dissemination of information about the case…. [Eventually, the N.J.] Supreme Court … remanded the matter to the trial court for consideration of less-restrictive alternatives to the complete seal.

On remand, the trial court entered … [an] order, leaving the seal in place and concluding that no less restrictive alternatives would be sufficient to overcome the need to protect the victim. Amici now appeal from the … order, specifically seeking the right to disseminate and discuss their briefs subject to certain redactions to protect the parties' anonymity…. [W]e now reverse the … order, unseal the briefs, and allow the litigants to discuss their contents publicly. We also provisionally grant defendant's motion to unseal the broader record, but order a limited remand to allow the litigants to identify any discrete pieces of information that should remain confidential….

Initially, only the parties and their attorneys were given access to the record of the underlying domestic violence matter, with the directive that they be used solely for purposes of trial and appellate litigation and that confidentiality be maintained. On December 3, 2021, while the appeal of the FRO was pending, the trial court entered an amended protective order on defendant's motion permitting "potential amicus curiae" to have access to the record, provided they agreed to be bound by the confidentiality provisions and not disclose any information about the case to the public…. [T]he [trial] judge declared:

The factors the [c]ourt must consider are as follows. First, will the release of the court documents be detrimental or potentially harmful to the victim? Second, will adverse publicity be a factor? Third, will access to the court records or in this case the brief on a case[-]by[-]case basis discourag[e] the victim from coming forward? And fourth, will this [c]ourt's decision deter others similarly situated from filing actions under the domestic violence act for fear of possible disclosure?

Regarding the first factor, the judge remarked that plaintiff's "name[ and] picture and defendant's self-proclaimed status as an [a]gunot ha[ve] already infiltrated the community" and that "[a]ny additional release of information … has the potential for being detrimental to [plaintiff]." As to the second factor, the judge explained that because amici's briefs "improperly characterize[d] … defendant as the victim," if the briefs were unsealed, the "adverse publicity" would "confuse the public" and prevent "potential victims" from "seeking court assistance when social media is used to harass another."

Addressing factor three, the judge believed it was "foreseeable" that unsealing amici's briefs while the "parties [were] still in the midst of their divorce" would discourage plaintiff "from seeking help from the [c]ourt." With regard to factor four, the judge found that "amici's brief[s] would clearly discourage others from seeking assistance … for fear of being publicly humiliated or continually harassed by the court system." …

The appellate court concluded that such sealing violated the First Amendment right to public access to court records, especially in light of the intervening substantive decision setting aside the FRO:

[E]ach of the four factors [applied by the trial judge, based on earlier cases,] are oriented toward the potential risks implicated by unsealing; none of the factors addresses the countervailing interests served by unsealing. Yet, they are some of our most cherished rights. We maintain open courts to "promote[ ] fairness and enhance[ ] public confidence in judicial procedures." We safeguard the rights of the press "not for the benefit of the press so much as for the benefit of all of us," to "assure[ ] the maintenance of our political system and an open society."

Perhaps most crucially, "[o]ne of the core purposes of the First Amendment is to protect speech on matters of public interest, including speech that the government finds offensive." It is out of respect for all these rights that there is a strong presumption of access to court records and that overcoming that presumption requires a careful balancing of the factors favoring secrecy against those favoring access. This case-by-case balancing test is constitutionally required, notwithstanding any law that would otherwise compel exclusion….

Here, although the judge acknowledged amici's "strong interest in publicly discussing their briefs," she never recognized that the constitutionally derived rights to speech and court access were valid interests that she was required to consider. Instead, the judge considered what she identified as "the general expectations of privacy afforded to victims of domestic violence" and found that no proposed redactions could "overcome" that interest. In doing so, the judge gave controlling weight to plaintiff's interest and no weight to the constitutionally-derived interests of amici and defendant or to the rights of the public, contrary to settled authority….

Additionally, the judge's factual finding that publication of what she referred to as the false "Agunot scenario" into "the community" would put plaintiff "again … in harm's away" was a recapitulation of her findings in the FRO litigation that plaintiff was the victim of unlawful harassment by defendant and the Jewish community was likely to perpetrate violence on plaintiff as an accused get refuser. However, those findings were completely vitiated by our holding in S.B.B., where we determined that such findings of fact were "not supported by the record."

To be clear, we do not fault the judge on this score because the judge issued her opinion maintaining the seal in January 2023, eight months before S.B.B. was decided. Nonetheless, our holding that a given fact is "lacking support in the record … is binding." …

{The judge also referred to the prospect of plaintiff being "publicly humiliated" and the "general expectation of privacy" he was afforded to support her finding of the requisite harm. However, we have held that a "personal interest in privacy and freedom from annoyance and harassment, while important to the litigant, will not outweigh the presumption of open judicial proceedings." Moreover, the prospect of "embarrassment" does not generally justify sealing records…. "If embarrassment were the yardstick, sealing court records would be the rule, not the exception." … Thus, these references to potential harm are unavailing both because they are general and speculative in nature and because they are of the sort that we have specifically found insufficient to justify sealing.} …

Critically, given our opinion in S.B.B., the information contained in the briefs is duplicative of information already available to the public and thus less likely to pose any realistic risk of harm. The public interest in protecting the privacy of domestic violence victims, while no doubt valid, holds little weight in this case where we have determined that plaintiff was not the victim of domestic violence but the subject of lawful speech.

As for the valid concern identified by the judge that unsealing might discourage future victims of domestic violence from seeking help, such a blanket concern cannot carry the day. If it could, the mandate to analyze sealing requests on a case-by-case basis would vanish and be replaced by an automatic process long recognized as unconstitutional.

Beyond the general public interest in open court records, and the "[p]ublic confidence in the judiciary" that it promotes, defendant and amici identify a number of specific interests in disseminating and discussing their briefs. ACLU amici explain their desire to discuss "the ramifications of a trial court's order on the ability of people allegedly experiencing abuse to use social media to ask for help to end their plights." They emphasize that the underlying case concerns "the constitutional free speech rights of a woman … to use social media to speak about her inability to obtain a religious divorce and ask her religious community for help ending an allegedly untenable situation," the court's finding that this "peaceful online speech constituted harassment," and the ensuing imposition of sweeping restrictions on her speech….

ORA amici's concerns are similarly socially inflected; their brief in the underlying domestic violence case discusses get-withholding as a unique manifestation of abuse and explains the crucial role that speech and community have in resisting that abuse. Emphasizing the magnitude of the issue, ORA amici report that although the problem of get-refusal is hard to quantify, "[s]ome estimate that there are 150,000 agunot in New York alone." Defendant identifies similar concerns as amici, although understandably is more focused on her own experience than a global context, and adds a discussion of the untenable dynamic created where plaintiff was free to speak but she was not.

The discussion in which the litigants wish to engage implicates issues of gender, religion, speech, media, culture, community, and the power of the state. These are precisely the kinds of topics in which the public has the greatest interest and, in turn, whose suppression our Constitution will most stoutly resist. In sum, plaintiff has identified little if any legally cognizable interest in secrecy, whereas the remaining litigants have identified a particularly strong interest in openness….

The court thus ordered the briefs and the record largely unsealed, though with some modest redactions (basically limited to "the parties' full names and identifying information").

The post Briefing Ordered Unsealed in N.J. Case Involving Gag Order on Jewish Woman Who Claimed Her Husband Denied Her Jewish Divorce appeared first on Reason.com.

[Eugene Volokh] "The Product of Impulsive, Irresponsible, Exceedingly Immature Behavior, Rather Than a Serious, Contemplated Threat to Harm Police Officers"

An excerpt from Friday's order by Judge Kathleen Williams (S.D. Fla.) in U.S. v. Martinez:

On February 29, 2024, Martinez was indicted on the sole count of transmitting a threat in interstate commerce … after uploading to his private Instagram account a thirty-eight-second recording of him inside his vehicle, pointing a sight-equipped firearm in the direction of a police vehicle driving ahead of him. In the Video, dated November 20, 2023, then twenty-one-year-old Martinez is heard saying "I'm on yo ass like white rice my boy," saying, "red dot, red dot," and laughing. {In fact, the driver of the police vehicle was female School Board Office Yovney Perez.}

Unbeknownst to Martinez, Miami-Dade Police Department Detective Danilo Fuentes … had created a profile impersonating a young woman, in order to gain access to Martinez's private account as a follower. Though the "Instagram story" automatically became unavailable after twenty-four hours, Fuentes saw the Video.

Fuentes had been monitoring Martinez's account for some time and knew Martinez's identity, the type of car he drove, and his address. Fuentes called to check on Perez, who he ascertained was driving the police vehicle in the Video. Perez was unaware of Martinez until alerted by Fuentes. Although Fuentes testified to engaging in periodic surveillance of Martinez's home, no notes were taken during these surveillance activities, no department-wide alerts regarding Martinez were issued, and Martinez was not arrested until two months after posting the Video. Martinez's posting of the Video was charged as a true threat to police officers, generally.

At trial, the jury was shown the Video as well as a few dozen of Martinez's Instagram posts from the months immediately prior to the Video. The posts included photos and videos showing Martinez holding firearms or pointing firearms at the camera, off a high-rise apartment balcony or towards a dog. Many were captioned with generalized violent language like "let's go to war," "eye for an eye," and "Who left 'em dead inside the neighborhood? It was I."

ATF Special Agent Martin Amaran … opined that the firearm in the Video was real and that the posts support the idea that the violence of the rhetoric was escalating. Miami-Dade Police Department Detective Angel Delgado … testified that certain red clothing and hand signs exhibited by Martinez in prior posts are gang affiliated. The jury also heard from Perez, who testified to feeling fearful upon being shown the Video after the fact. However, none of the posts identified Perez or mentioned the police in any way.

The defense called an investigator, Luis Fernandez, who testified that many of the captions included in Martinez's posts were song lyrics of popular rap artists. Additionally, Martin Flores … testified as an expert to the diffusion of gang culture into rap and popular culture, especially among young men of all demographics across the country.

Martinez was convicted, but the court granted defendant's motion for a judgment of acquittal. The court concluded that there was (just barely) enough proof to find beyond a reasonable doubt that the statement was a true threat:

The Government is correct that the display of a real firearm increased the seriousness and threatening nature of Martinez's communication. A reasonable jury was also entitled to view Martinez's other photos posing with firearms and including violent captions as contributing to a perception of intimidation.

However, several other aspects of the charged conduct and surrounding context cast the Video as the product of impulsive, irresponsible, exceedingly immature behavior, rather than a serious, contemplated threat to harm police officers. Notably, Martinez never articulated a threat or plan to harm officers in any of his previous posts. In the Video, Martinez pointed his firearm's laser sight towards the police vehicle, said, "red dot, red dot," and laughed. Consequently, the posting of the Video several hours later, without any caption, was, at most, an implicit threat against law enforcement. This is in stark contrast to the explicit threats more commonly charged as true threats.

Next, Martinez did not knowingly send the Video to anyone who would understand themselves to be a target. In fact, Martinez's Post automatically disappeared on his private account after twenty-four hours. While a true threat can be made to one other than the target, it is axiomatic that a threat made directly to the target or in a way likely to reach them demonstrates clear intent to intimidate. Here, the evidence showed Martinez posted the Video only on his private Instagram account for a small group of followers; there was no reason he would have been aware that any police officers were among that group.

{Martinez's Instagram account moniker is 187shotta, which Delgado testified is a reference to a murder statute. Like Martinez's other prior posts, this generic violent reference may have added to the Video's menacing character. But, like those posts, the account name does not evince any intent to harm police.}

Moreover, the lack of evidence of alarmed or fearful reactions to Martinez's Video by his followers, or any indication that his viewers were incited to violent action, undermines the notion that Martinez's Post was a true threat. See United States v. Wheeler (10th Cir. 2015) (describing "recipients' responses" to a communication as relevant to a true threat determination); United States v. Baker (N.D. Fla. 2021) ("In assessing whether a communication entails a true threat, courts also take into consideration the reaction of recipients of the alleged threat."). The Government presented no evidence that anyone commented on the Video or any of Martinez's prior posts to establish that the posts were engendering either fear or urgency to do violence. Nor did anyone alert Martinez or law enforcement directly.

Likewise, despite police knowing Martinez's identity and whereabouts, officers did not document any surveillance of Martinez after the Post, did not disseminate a general alert to the law enforcement community, and did not arrest Martinez until two months after he posted the Video. This inactivity suggests police officers did not interpret Martinez's Video as communicating an imminent and true intent to harm officers.

Ultimately, however, despite the Court's reservations, the Court cannot say that no reasonable jury could have viewed Martinez's seeming fascination with firearms and his use of violent captions, together with the Video, as objectively threatening.

But the court concluded that the prosecution hadn't introduced enough evidence "to also prove beyond a reasonable doubt that Martinez subjectively knew the Video would be taken as a true threat or intended to convey a true threat to police officers" (the mental state required for the federal threats statute under Elonis v. U.S. (2015)):

A review of cases under § 875(c) and other statutes requiring a similar subjective intent reveals two broad categories of proof supporting knowledge or intent. In some circumstances, a defendant's communication is so "violent, explicit, and resolute" that the communication, or series of communications, is strong evidence of one's intent or knowledge. In other words, some threats are so unmistakable that the issuer must have either intended to threaten or known a reasonable person would interpret their words as a serious threat.

Other evidence, such as an admission, may also prove a defendant's mental state when communicating a threat. Knowledge may also be proven through evidence of notice, such as when a defendant makes threatening statements after being served a restraining order or being warned that similar previous statements have been taken seriously or may be grounds for prosecution.

The Government contends that Martinez's case falls into the first category—they claim that the Video, in the context of his prior posts, was such an obvious true threat that the communication alone proves Martinez's subjective intent. [A]s explained [in the previous section,] this evidence was only just sufficient to allow a reasonable jury to conclude the Video was objectively threatening. And given the multiple factors that would indicate otherwise—the lack of an explicit threat, the use of a private Instagram account, and the absence of any external feedback that his posts were either problematic or inciteful—Martinez's posts alone were not unmistakably threatening such that they proved his subjective intent.

{The Government also points to postings by Martinez, in which he wore red clothing, referenced "bloods," or displayed signs that Delgado testified are gang affiliated. However, the Government presented no evidence that the Video itself was a requirement of gang membership or was in furtherance of any particular gang activity. In the absence of this evidence, the conclusion that Martinez intended his posts as a gang-related reprisal to police is simply too speculative to credit.}

The Government did not introduce any evidence within the second category from which a reasonable jury could conclude Martinez had the requisite knowledge or intent. The Government introduced no direct evidence of Martinez's mental state, such as an admission of knowledge or intent, psychological expert testimony, or testimony of a friend or relative with knowledge of Martinez's thinking.

Likewise, the Government admitted no other circumstantial evidence probative of knowledge or intent. At no time, for instance, had Martinez been warned by police, his followers, an attorney, or anyone else to tone down or remove his posts. He had not been previously convicted, arrested, or served a restraining order based on any threatening activity. And there was no evidence that Martinez had any prior relationship with or animus towards any specific police officer or police department from which an intent to threaten could be inferred. If anything, evidence that Martinez's posts' captions included song lyrics from well-known rap songs and Flores's expert testimony discussing the popularization among youth culture of gang symbols would suggest that Martinez may have viewed his own posts as creative expressions rather than serious threats.

Consequently, the jury was left to "stack inference upon inference" to guess at Martinez's mental state. This degree of guesswork and unsupported speculation cannot sustain proof of guilt beyond a reasonable doubt.

Jenny Wilson (Klugh Wilson), one of my star former students, represents Martinez.

The post "The Product of Impulsive, Irresponsible, Exceedingly Immature Behavior, Rather Than a Serious, Contemplated Threat to Harm Police Officers" appeared first on Reason.com.

[Eugene Volokh] Libel and Allegations of "TERF"ness, DMCA Abuse, and Perjury

[1.] An excerpt from the long decision in Braun v. Day, decided by Judge Mary Rowland (N.D. Ill.) Friday:

[Plaintiff] Propson is a resident of the state of Wisconsin and a licensed mortician. Propson operates at least one social media account under the handle "Lauren the Mortician," where she posts about matters related to her profession. [Defendant] Carter is likewise a social media personality and a self-described "life coach villain" who operates under the handle "@CaffinatedKitti." Carter is a citizen of Georgia.

On or around October 24, 2023, Carter published a video on TikTok where she accused Propson of being transphobic and a "TERF." Specifically, Carter said "Lauren the Mortician is a TERF, I have receipts, I have deets, and you should just go ahead and take a seat." "TERF" is an acronym meaning "trans- exclusionary radical feminist" that at least one dictionary defines as "an advocate of radical feminism who does not believe that transgender people's gender identities are legitimate, and who is hostile to the inclusion of trans-women in the feminist movement." "Receipts" and "deets" are slang words used to mean proof or evidence. Carter further explained that the "receipts" and/or "deets" referenced were evidence of Propson liking "incredibly transphobic and hateful rhetoric and content." Carter later explained that she made the post because people were confusing her for Propson.

Plaintiffs allege that because of Propson's online following, the allegations of her transphobia "spread quickly throughout the internet and became the source of multiple posts, comments, and blog articles." The allegations lowered her standing in the community, dissuaded people "in the content creation community" from associating with her, caused her to lose followers, and caused her to lose a contract with a travel documentary channel, various sponsorships, and a possible contract for a podcast deal….

The court concluded that these allegations were constitutionally protected opinion:

Carter allegedly stated that Propson is a "TERF," or trans-exclusionary radical feminist, and that she is transphobic. Propson alleges that "[b]eing called transphobic is akin to being called a bigot or a racist." The problem for Propson is that courts universally recognize that allegations of racism or bigotry are not actionable in a defamation claim because they express subjective opinions that cannot be proven true or false. See, e.g., Stevens v. Tillman (7th Cir. 1988) ("In daily life 'racist' is hurled about so indiscriminately that it is no more than a verbal slap in the face … [i]t is not actionable unless it implies the existence of undisclosed, defamatory facts."); Tannous v. Cabrini Univ. (E.D. Pa. 2023) ("A statement characterizing someone as racist, like a non-actionable opinion, is a subjective assertion, not sufficiently susceptible to being proved true or false to constitute defamation."); Garrard v. Charleston Cnty. School District (S.C. Ct. App. 2019), aff'd in part & vacated in part (2023) (claims in a newspaper editorial that a high school football coach and his players were "racist douchebags" were not actionable because they were expressions of opinion); Ward v. Zelikovsky (N.J. 1994) (defendant's claim that plaintiffs "hate jews" was nonactionable name-calling). Carter's claims that Propson is transphobic cannot on their own state a claim for defamation.

But Propson urges that, because Carter claimed she had "deets" and "receipts" of Propson's transphobia, her statement was one of "mixed opinion" rather than "pure opinion" and thus actionable. Indeed, Wisconsin law provides that this kind of statement may be actionable "if it implies the assertion of undisclosed defamatory facts as the basis of the opinion." But this argument also fails because the "facts" that Carter implied the existence of were neither undisclosed nor defamatory….

Propson alleges Carter called her transphobic because Propson "liked posts by a conservative social media personality." Carter then allegedly "compiled a list of posts" that Propson liked which contained "transphobic and hateful rhetoric," and she allegedly showed that list of liked posts in her public video. In other words, Carter explicitly disclosed the facts that formed the basis of her opinion. As to whether the facts were defamatory—the facts that allegedly formed the basis of Carter's opinion are not defamatory for the same reason the underlying statement is not defamatory. They are more non-actionable opinions. Propson does not dispute that she "liked" the allegedly transphobic social media posts; she only disputes whether the posts themselves were transphobic. And whether those posts were indeed transphobic is, like Carter's claim that Propson is transphobic, a matter of opinion that cannot form the basis of a defamation claim. Propson's claim for defamation fails because it is based on nonactionable opinion; she cannot save that claim by buttressing it with other opinions that are also not actionable….

Propson further argues that a claim of bigotry can be actionable if it is made with enough specificity to be verifiable, citing to Overhill Farms. The defendants there accused Overhill of being racist, of engaging in specific "racist firing" practices, and of discriminating against various groups of Latino immigrant workers. Overhill Farms, Inc. v. Lopez (Cal. Ct. App. 2010). The court held that the statements at issue were "not merely a hyperbolic characterization of Overhill's black corporate heart—[they] represented an accusation of concrete, willful conduct." Here, there are no relevant accusations of concrete or willful conduct that can be proven or disproven. There is only Carter's belief that Propson is transphobic, buoyed by Propson expressing her opinion by liking posts that Carter also believed to be transphobic. This cannot support a claim for defamation. As a result, Count I of the amended complaint is dismissed with prejudice.

[2.] The court also rejected Braun's defamation claim based on the allegation "that Braun filed a "bad faith" or "false" copyright claim against her":

Plaintiffs assert that, in the defamatory TikTok video where Carter accused Propson of being transphobic, Carter used a copyrighted photograph belonging to Propson and a screenshot of copyrighted text that Propson authored. Propson hired Plaintiff Braun, an attorney and resident of Illinois, to file a Digital Millenium Copyright Act ("DMCA") complaint with the social media platforms hosting the video. Meta, the owner of one of those social media platforms, removed Carter's post and temporarily locked her account because of the DMCA complaint…

Carter then posted at least two videos on different social media platforms in which she accused Braun of filing "false copyright claims" and "bad faith copyright infringement strikes." Carter also began a GoFundMe page related to the DMCA complaint. On that page, Carter published a letter she had sent to Braun which contained the subject line "False Copyright Claim" ….

[Then] a new influencer entered the fray. Plaintiffs allege that Defendant Day is a self-stylized "unbiased content creator" and "independent investigative reporter" who has no journalistic training. Day allegedly creates content and monetizes videos that disparage social media creators and celebrities, and she has allegedly been accused of posting false and untrue statements about public figures….

Day posted a "deep dive" video about the dispute and posted that she had possession of "proof of another VERY large & well-liked content creator that is utilizing the same attorney that Lauren the Mortician has used ([Braun]) to harass a small creator on this app & misuse the copyright strike system to have her account taken down." In a separate video the next month, Day discussed another client of Braun's named "Demps" and accused Braun of filing "false copyright strikes" on Demps's behalf. Day is alleged to have learned about Braun's representation of Demps "by communicating with a stalker and anti-fan of Demps." …

With respect to Carter's assertions that any copyright strikes were in bad faith or "false," it is clear from the allegations of the complaint that Carter was only expressing her opinion that the copyright strike was baseless. Carter wrote that she "would love further details on your client and how the video had grounds for a copyright strike, as it clearly falls under fair use." Carter stated she did not agree that the at-issue video violated any copyright law and explained why—because she believed the fair use defense is available. And even if she was not expressing an opinion, the terms "bad faith" and "false" in this context are too vague and unverifiable to be actionable in a defamation claim.

Braun argues that Carter's claims are in fact verifiable because Meta removed the at-issue posts after Braun filed the DMCA complaint. This argument does not persuade. Meta is not an arbitrator of copyright disputes whose findings establish as a verifiable fact what is or is not copyright infringement. Carter is allowed to believe that Braun and Meta were wrong to find that she had committed copyright infringement and cannot be punished in a defamation action for voicing that belief.

[3.] On the other hand, the court allowed Braun's defamation claim (and some related claims) to go forward against another defendant, Marston, based on Marston's allegation that Braun had committed perjury:

Defendants Vazquez and Marston, hosts and owners of a weekly podcast, began covering the controversy. Vazquez and Marston played Day's video regarding Braun's representation of Demps on their podcast. In one episode, Vazquez says that Braun used "scare tactic[s] to represent her clients," issued "false copyright strikes," and was "unethical" and "unhinged;" Vazquez further states that she learned this from "a couple DMs" and "even an email from someone as well that is not a creator." Separately, in a tweet, Marston said:

I gotta say… one of our biggest questions in all of this, is do we think demps knows that her embarassing [sic] excuse for a lawyer is using her name while actively committing perjury? Someone might wanna tell her.

Publicly accusing a lawyer—or anyone—of committing a felony is no small thing. In Illinois, words imputing that a person has committed a crime are per se defamatory…. Marston's tweet—which came after an 84-minute podcast episode wherein Vazquez and Marston said that Braun was "unethical," "unhinged," and engaged in "scare tactics" in connection with her legal practice—specifically refers to Braun's representation of a former client and specifically accuses her of committing perjury, a crime, during that representation. During the podcast, Vazquez also said that she and Marston has received messages and at least one email describing Braun's practice, giving rise to the inference that one of the messages contained evidence of Braun's claimed perjury.

[4.] Finally, the court rejected plaintiffs' intentional infliction of emotional distress claim:

Both Plaintiffs' allegations fall short of what is required to state a claim for intentional infliction of emotional distress. The Court cannot reasonably infer from Propson's claims that Carter has subjected her to conduct so severe that no reasonable person could be expected to endure it. And Braun has not alleged that any Defendants have subjected her to conduct that goes beyond all possible bounds of decency.

To be clear, the Court is extremely troubled by the allegations that an "online mob" has followed both Plaintiffs around the internet, harassed them with threatening messages, and even gone as far as creating AI-generated pornography of Braun. This is appalling behavior. But the complaint does not allege that Defendants themselves engaged in this conduct, nor does it allege that Defendants directed "the mob" to do so. Plaintiffs have not identified any authority indicating that a defendant can be liable for intentional infliction of emotional distress based on the actions of non-parties—even if they were inspired by the defendant's otherwise non-actionable conduct.

The post Libel and Allegations of "TERF"ness, DMCA Abuse, and Perjury appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: March 3, 2019

3/3/2019: Schenck v. United States decided.

The post Today in Supreme Court History: March 3, 2019 appeared first on Reason.com.

[Ilya Somin] Perils of Unitary Executive Theory

[The originalist case for a unitary executive falls apart in an era when many of the powers wielded by the executive branch were not originally supposed to be federal powers in the first place.]

(NA)

Much of the litigation surrounding the new Trump administration turns in part on "unitary executive" theory - the idea that the president should have near-total control over the executive branch of government.

As I explained in a 2018 post on this topic, unitary executive theory is one of the few issues on which I have changed my mind during the Trump era. Most of my opposition to the Trump-era GOP is based on that party's turning strongly against positions I had held previously, on issues like immigration, free trade, federalism, free speech, and the role of the United States in the world. Unitary executive theory is an exception. This post builds adapts and expands material from my 2018 piece and explains why unitary executive theory cannot be accepted in a world where the federal government wields vastly greater power than it is supposed to have under the original meaning.

Before going into detail, it's worth emphasizing what unitary executive theory (UET) is - and what it is not. UET is a theory of the distribution of executive power, not a theory of its scope. Even if all or nearly all executive authority is concentrated in the hands of the president, it's scope could potentially still be quite narrow, if the total amount of executive power is very limited. For example, even if UET is correct, the Trump administration's multifaceted effort to usurp the spending power is still unconstitutional, because the power of the purse is not an executive power at all. It belongs to Congress.

Still, the modern scope of executive power is very broad, in large part because the federal government has intruded into so many areas beyond what it was supposed to control under the original meaning of the Constitution. And that undermines the case for UET.

In some ways, the originalist case for a unitary executive is as compelling as ever. Article II of the Constitution states that "The executive Power shall be vested in a President of the United States of America." It does not say that executive power can be divided between the branches of government or given to bureaucratic agencies independent of presidential control. This strongly implies that he is supposed to have all the power given to the executive branch, except such as is specifically allocated elsewhere in other parts of the Constitution.

If the executive branch still wielded only the relatively narrow range of powers it had at the time of the Founding, the case for the unitary executive would be pretty strong (at least on originalist grounds). Unfortunately, however, the current scope of executive authority goes far beyond that. To take just one noteworthy example, the president now presides over a vast federal law-enforcement apparatus, much of it devoted to waging the War on Drugs (which accounts for the lion's share of federal prosecutions and prisoners). Under the original meaning of the Constitution - and the dominant understanding of the first 150 years of American history - the federal government did not have the power to ban in-state possession and distribution of goods. That's why it took a constitutional amendment to establish federal alcohol Prohibition in 1919. Giving the president control over the waging of the federal War on Drugs is giving him a power the federal government was never supposed to have in the first place. Immigration is another field where the executive now wields vast power, despite the fact that, as James Madison and others pointed out, the original meaning of the Constitution actually did not give the federal government any general power to restrict migration into the United States.

The same holds true for a great many other powers currently wielded by the executive branch. The original Constitution does not authorize the federal government to regulate nearly every aspect of our lives, to the point where we have so many federal laws that a  majority of adult Americans have violated federal criminal law at some time in their lives (to say nothing of civil law).

There is nothing originalist about giving the president such unconstitutional powers. If "executive" power is the power to "execute" federal laws authorized by the original meaning of the Constitution, it does not apply to powers that have no such authorization. The only way to truly enforce the original meaning in such cases is to remove such authority from federal hands altogether. But if we cannot or will not do that, there is no reason to think that giving the power to president is any better - from an originalist point of view - than lodging it somewhere else. Either way, someone in the federal government will be wielding power that they are not supposed to have under the original meaning of the Constitution.

In many cases, it might be more in the spirit of the Founding Fathers to divide this overgrown authority than to give it all to the President. Likewise, Congress can also create independent officials tasked with investigating the executive branch's use of its nonoroginalist powers to make sure it stays within various legal and ethical constraints. That suggests the courts should uphold the constitutionality of laws preventing Trump from firing special counsels and inspectors general without cause. After all, the Founders repeatedly warned against excessive concentration of power in the hands of any one person. They would be especially appalled to see it in the hands of of an office whose occupant is now selected by a far more populist selection process than the Founders intended, and therefore more likely to be a dangerous demagogue.

Obviously, not everyone is an originalist. Many nonoriginalists are comfortable with the current scope of federal power, and oppose efforts to bring it closer to its original scope. But if you are a nonoroginalist about the scope of federal power, you also have good reason to be a nonoriginalist about its distribution. Given the enormous authority of the modern executive branch, it is dangerous to concentrate all of that power in the hands of any one man - especially in an era when James Madison's warning that "Enlightened statesmen will not always be at the helm" seems more prescient than ever.

Defenders of UET  - even when it comes to powers beyond the scope of the original meaning of the Constitution - often claim it is desirable because it enhances political accountability. Even if true, this is a claim about what is pragmatically desirable, not about the text and original meaning of the Constitution. But the claim is dubious even on its own terms. The greater the scope of executive power, the harder it is for rationally ignorant voters to keep track of more than a small fraction of it. Realistically, most voters know very little, if anything, about the functions of most federal government agencies.  Moreover, the greater the scope of presidential power,  the harder it is to figure out how to weigh the president's performance in one area against what he does in others (assuming there is variation in quality, as will often be the case). It is therefore unlikely that concentrating a vast range of power in the hands of one person does much to enhance accountability. I discuss the tradeoff between accountability and scope of government power in more detail in my book Democracy and Political Ignorance: Why Smaller Government is Smarter.

Even if you think voters are more knowledgeable about executive agencies than I do, it doesn't follow that accountability is furthered by UET.  Well-informed voters can instead impose it through Congress. If they don't like the performance of an independent agency, they can vote for senators and representatives who will abolish it, curtail its powers, or make it subject to greater presidential control.

In sum, at least when it comes to the distribution of power that was never supposed to be in the hands of the federal government in the first place, there is no good reason - originalist or otherwise - to give it all to the president. That does not answer the question of exactly which nonoriginalist powers should be insulated from presidential control and which should not. But it does suggest the question cannot and should not be answered by reference to originalist unitary executive theory. It also suggest that originalists should prioritize reducing the scope of executive power over restoring unitariness. Indeed, the former is the only safe (and originalist) way to enable the former.

The post Perils of Unitary Executive Theory appeared first on Reason.com.