Eugene Volokh's Blog, page 168

[Josh Blackman] Judge Bibas: "Wisdom does not always find me, so I try to embrace it when it does—even if it comes late, as it did here"

There is a long-running dispute between Thompson-Reuters and Ross. TR alleges that Ross used the Westlaw headnotes to train a competing AI product. In 2023, Judge Bibas largely ruled against TR. But on the eve of trial, the case was stayed. Today, Judge Bibas issued a revised opinion. In short, he changed his mind.

The opinion begins:

A smart man knows when he is right; a wise man knows when he is wrong. Wisdom does not always find me, so I try to embrace it when it does––even if it comes late, as it did here. I thus revise my 2023 summary judgment opinion and order in this case.

Felix Frankfurter  wrote in a dissent, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late." However, Frankfurter almost certainly did not make this quote up. Sir Arthur Conan Doyle wrote in a Holmes short story, "but it is better to learn wisdom late than never to learn it at all." And I'm certain others said it before him. Judge Bibas channels that higher power.

Bibas explains his new thinking on headnotes:

A headnote is a short, key point of law chiseled out of a lengthy judicial opinion. The text of judicial opinions is not copyrightable. Banks v. Manchester, 128 U.S. 244, 253–54 (1888). And even if it were, Thomson Reuters would not get that copyright because it did not write the opinions. But a headnote can introduce creativity by distilling, synthesizing, or explaining part of an opinion, and thus be copyrightable. That is why I have changed my mind.

Kudos to Judge Bibas. People should always be open to revising their thinking. And even better, they should explain why they changed their minds. This opinion demonstrates that virtue.

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[Josh Blackman] DACA, ACA, FCPA

In June 2012, the Obama Administration announced the policy that became known as DACA. Several days later, Justice Scalia lambasted that policy while announcing his Arizona v. United States dissent. He charged that it "has come to pass and is with us today . . . a federal government that does not want to enforce the immigration laws as written." Over the next several years, President Obama routinely suspended enforcement of various mandates under the Affordable Care Act.

I often sounded a lonely note that these actions were unlawful, and set a dangerous precedent. Yet, the constant refrain was that the President had discretion, and these actions were within the law. I replied that this power of non-enforcement was far more dangerous in the hands of a conservative president. After all, progressives tend to like more law, while conservatives favor less law.

And so it has come to pass. President Trump signed an executive order pausing enforcement of prosecutions under the Foreign Corrupt Practices Act (FCPA):

For a period of 180 days following the date of this order, the Attorney General shall review guidelines and policies governing investigations and enforcement actions under the FCPA. During the review period, the Attorney General shall:
(i) cease initiation of any new FCPA investigations or enforcement actions, unless the Attorney General determines that an individual exception should be made;

To be clear, this is not a total suspension of the law. The Attorney General retains the discretion to make exceptions to the Presidents order. Though as a practical matter, I would be surprised if any new FCPA actions are initiated over the next six months.

What is the justification to halt enforcement of this law? Trump alludes to his Article II power over foreign affairs.

Purpose and Policy. Since its enactment in 1977, the Foreign Corrupt Practices Act (15 U.S.C. 78dd-1 et seq.) (FCPA) has been systematically, and to a steadily increasing degree, stretched beyond proper bounds and abused in a manner that harms the interests of the United States. Current FCPA enforcement impedes the United States' foreign policy objectives and therefore implicates the President's Article II authority over foreign affairs.

The President's foreign policy authority is inextricably linked with the global economic competitiveness of American companies. American national security depends in substantial part on the United States and its companies gaining strategic business advantages whether in critical minerals, deep-water ports, or other key infrastructure or assets.

But overexpansive and unpredictable FCPA enforcement against American citizens and businesses — by our own Government — for routine business practices in other nations not only wastes limited prosecutorial resources that could be dedicated to preserving American freedoms, but actively harms American economic competitiveness and, therefore, national security.
It is therefore the policy of my Administration to preserve the Presidential authority to conduct foreign affairs and advance American economic and national security by eliminating excessive barriers to American commerce abroad.

During all of the debates over DACA and ACA, President Obama never invoked any sort of Article II power. To the extent he was relying on discretion, it had to be granted by statute. Here, Trump connects his opposition to FCPA prosecutions with his approach to foreign affairs.

DACA, ACA, FCPA. Prosecutorial discretion comes full circle.

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[Ilya Somin] The Danger of Trump Disobeying Court Orders [Updated]

Supreme Court (Michael Brochstein/Sipa USA/Newscom)

 

The new Trump administration may be heading in the direction of disobeying court orders that go against it. If they do so and get away with it, there are likely to be dire consequences for our constitutional system. An administration not bound by court orders is ultimately not bound by the Constitution and the laws, either.

Evidence indicates that the Trump administration is in violation of court orders in as many as three separate cases. A federal court in Rhode Island has ruled that they violated its previous order barring Trump's funding freeze on federal grants. There are also indications that the administration has violated court orders against policies freezing federal grants from the National Institute of Health and FEMA.

At the same time, top administration officials including VP J.D. Vance have implied that the administration has the power to violate court orders.Vance says that "[j]udges aren't allowed to control the executive's legitimate power." Top Trump adviser Stephen Miller  asserts there is no "line in the Constitution where it says a lone unelected district judge can assume decision-making control over the entire executive branch." This despite the fact that Miller himself – along with other conservatives – supported similar lawsuits and judicial injunctions issued by "lone" district judges against Biden Administration policies, such as student loan forgiveness.

As yet, it is not completely clear that the administration plans to systematically defy court orders that go against it. Violations that have occurred so far might be a result of incompetence or disorganization. And it is possible to parse Vance's statement in a way that avoids endorsing defiance of judicial rulings. But the combination of multiple violations and statements by high officials apparently condoning such behavior is ominous, to say the least. If Vance and other administration officials don't really mean to endorse defiance of judicial rulings, they could easily say so.

Federal court decisions blocking implementation of illegal administration policies are a fundamental element of our system of judicial review. Article III of the Constitution states that "The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." That obviously includes cases challenging the legality of policies adopted by the executive branch. And, just as obviously, courts cannot exercise that authority effectively if the executive (or anyone else) is free to disregard rulings they don't like.

Some defenders of Trump's actions cite Biden's policies on student loan forgiveness as a kind of precedent. Biden did boast that the Supreme Court's (correct) ruling in Biden v. Missouri "didn't stop me" from forgiving student loans. Nonetheless, when the Court ruled that he didn't have the authority to engage in massive loan forgiveness under the 2003 HEROES Act, Biden obeyed the ruling. He did then try to engage in large-scale loan forgiveness under another statute, the Higher Education Act. But when courts predictably ruled Biden couldn't do a massive loan forgiveness plan under the HEA, either, Biden obeyed those rulings, as well.

Biden's actions in the student loan saga were reprehensible and illegal, and I said so at the time. But he did not disobey any court orders, as Trump may now do.

If the president is able to defy or ignore court orders against him, then the executive branch would be effectively free of legal constraints on its actions - including those of the Constitution. It could violate constitutional rights, usurp the authority of Congress (as Trump is trying to do with his wide-ranging assault on the spending power), and more. In that scenario, we would no longer have a  constitutionally constrained federal government, except perhaps in name only.

We aren't there yet. But to prevent it, courts, key political actors - preferably in both parties, and the public must make clear that executive defiance of judicial rulings is unacceptable and intolerable. Trump can be forced to back down from this extremely dangerous precipice. Whether enough of us have the will to make him do so remains to be seen.

UPDATE: Trump has now said he will obey court orders. It's good he said that. But, given the pattern of events described above, and Trump's extensive history of lying, we should not just take him at his word. Rather, it's important to deter defiance by continuing to bring as much political pressure to bear as possible.

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[Josh Blackman] Trump: "I always abide by the courts, but then I'll have to appeal it."

President Trump gave a press conference today from the Oval Office. A reporter asked "If a judge does block one of your policies, will you abide by that ruling?"

Trump replied, without hesitation, "I always abide by the court, but then I'll have to appeal it." You can see it at the video around the 17:30 mark.

"I always abide by the courts," Trump says. pic.twitter.com/QVha7a6fl7

— Jennifer Jacobs (@JenniferJJacobs) February 11, 2025

Everyone needs to take a deep, deep breath. There is no constitutional crisis.

And to be clear, none of the temporary restraining orders run against the President. The injunctions run against appointed officers in the executive branch. It is impossible for Trump to ignore any of these pending orders because they do not actually bind him. Have we learned anything from Seth Barrett Tillman's work on Ex Parte Merryman? See Ed Whelan's post today.

So what are people actually afraid of? They're afraid that Trump will order his subordinates to disobey a court order. I've seen no evidence of that. At most, it is difficult for the government to comply with the torrent of nationwide TROs. If the court finds there are willful efforts to not comply that may be different. Instead, I think they will find the government struggling to keep up with the litigation front.

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[Eugene Volokh] Court Throws Out Lawsuit Over Journalist's Publication of Information About Sealed Arrest

From the tentative ruling in Doe v. Substack, Inc. released last week; I'm told it was largely adopted in the hearing at Feb. 4, with a minor modification noted below (for more on the current state of a challenge to Cal. Penal Code § 851.92(c), brought by the Foundation for Individual Rights and Expression on behalf of the First Amendment Coalition and me, see here):

Plaintiff Maury Blackman … was arrested in December 2021 for domestic violence at a time when he was the CEO of Premise Data, a private company. As is customary, police officers prepared a report ("Incident Report") describing the incident and their encounters with Blackman and another person present. No charges were ultimately pursued against Blackman arising from the incident and the Superior Court entered an order sealing the arrest and related records under Penal Code sections 851.91 and 851.92 on February 15, 2022.

In September 2023, after the sealing order, [Jack] Poulson published a blog post reporting the arrest and relating what was described in the Incident Report. Poulson later reported on his blog that Blackman was terminated in part because of the incident. Poulson had previously published other blog posts about Premise Data, including concerning (according to those posts) its contracts with U.S. Special Operations Forces for intelligence collection, its contracts with the United States Department of Defense, and Blackman's security clearance.

Poulson's post about the arrest appeared on his newsletter, published by Substack. He also posted a redacted version of the Incident Report on an eponymous website owned by Tech Inquiry. The Tech Inquiry website is a source of articles and data about surveillance, weapons companies, and public contracts. Poulson is the founder and executive director of Tech Inquiry….

Blackman unsuccessfully attempted to have Poulson's posts removed based on the sealing order. Blackman has submitted a declaration describing financial and nonfinancial injuries from Poulson's blog posts. All of the claims asserted in the complaint relate to the blog posts and the effect of their publication on Blackman. The San Francisco Chronicle has covered Blackman's lawsuit.

Blackman sued, and the defendants moved to have the complaint dismissed under the state "anti-SLAPP" statute. Under that statute, a defendant must show that its speech was "in connection with a public issue" (to oversimplify), and the court concluded the defendants' speech qualified:

Poulson was reporting on a blog post about Blackman, the CEO of a company with that Poulson had previously covered as part of his Substack newsletter, a public newsletter with at least 3,000 subscribers, concerning companies making surveillance technologies. This was a writing in a public forum. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897 ["the Web, as a whole, can be analogized to a public bulletin board"].) And it concerned the character and conduct of the CEO of a company with government contracts in the security and intelligence arena. The character and trustworthiness of members of the business community have been held to be of public significance where business leaders hold themselves out as trustworthy and advertise their businesses to members of the public; the court cannot see how the character and trustworthiness of the leader of a business with contracts with the U.S. government and a security clearance can be of any less public significance….

Blackman contends that Poulson's speech is outside the anti-SLAPP statute because it was illegal, regardless of its public significance … citing Flatley v. Mauro (Cal. 2006) …. The speech at issue in Flatley was extortion, a threat to publicly accuse the plaintiff of rape unless the plaintiff paid money to the defendant….

To assess the argument that Poulson's speech was illegal, it is useful to review the law about sealing with some precision, because courts in California (and elsewhere) have recognized that there is a "continuum" of illegal acts by newsgatherers, and only wrongful conduct at the "extreme end" will overcome the First Amendment protection for reporting…. "'At one extreme, routine … reporting techniques, such as asking questions of people with information (including those with confidential or restricted information) could rarely, if ever, be deemed an actionable intrusion. At the other extreme, violation of well-established legal areas of physical or sensory privacy—trespass into a home or tapping a personal telephone line, for example—could rarely, if ever, be justified by a reporter's need to get the story. Such acts would be deemed highly offensive even if the information sought was of weighty public concern; they would also be outside any protection the Constitution provides to newsgathering.'" ….

The record of Blackman's arrest was sealed pursuant to Penal Code section 851.91. That section permits "[a] person who has suffered an arrest that did not result in a conviction" to petition the court to have "arrest and related records sealed." When the court grants relief, as the Superior Court did here, provisions of Penal Code section 851.92 then apply.

Specifically, "[a]rrest records" and the incident reports that document the arrest that are sealed "shall not be disclosed to any person or entity except the person whose arrest was sealed or a criminal justice agency." Once an arrest is sealed, it becomes unlawful for someone to "disseminate[] information relating to a sealed arrest." That provision is subject to a "civil penalty" enforceable by a public prosecutor, but not by the arrested person and not through criminal sanctions. The arresting agency is supposed to stamp its digital or paper master copies of the incident report with stamped "'ARREST SEALED: DO NOT RELEASE OUTSIDE THE CRIMINAL JUSTICE SECTOR.'"

In this case, either the arresting agency did not do so, or the copy of the Incident Report that Poulson received duplicated the master copy before the court issued its sealing order. It is undisputed that the copy of the Incident Report that Poulson received did not include any language indicating the arrest was sealed, and the police did not inform Poulson of this when he called to verify the authenticity of the report.

Blackman alleges that Poulson committed a misdemeanor by knowingly possessing the Incident Report, but he is incorrect even as to the period after Blackman made him aware that the arrest had been sealed. Penal Code 11143 makes it a misdemeanor for a member of the public to knowingly possess a "record." Record is defined in that statute as "state summary criminal history," a summary of all criminal history related to a particular person maintained by the state, which is distinct from the Incident Report alleged to have been unlawfully disseminated here. In any event, this provision exempts journalists, as does Labor Code 432.7(g), another provision Blackman relies on.

Nor is Blackman correct that Poulson committed a violation of Penal Code 166 by disseminating the Incident Report related to a sealed arrest; as relevant, that statute prohibits "[w]illful disobedience of the terms, as written, of a … court order." The sealing order here does not include written terms that, by themselves, create an obligation by Poulson or anyone else not to disseminate the Incident Report; those obligations are a legal consequence of granting relief pursuant to 851.91 and 851.92 but do not independently arise from the written terms of the Superior Court's February 15, 2022 order.

Thus, to summarize, Poulson did not violate any law in obtaining the Incident Report. There is no evidence that Poulson and the other defendants had reason to believe the Incident Report was sealed when Poulson first published his September 2023 post reporting the incident.

In disseminating the sealed Incident Report, the defendants' conduct violated Penal Code 851.92(c), but no criminal liability attached to that conduct. Instead, civil penalties sought by the Attorney General or other public prosecutors were available, but there is no evidence that any public prosecutor ever sought penalties, although the San Francisco City Attorney did contact at least some of the defendants to request that they remove information about the Incident Report….

Poulson's conduct was not at the "extreme end" of bad newsgatherer behavior. Indeed, it was farther from the extreme end than the conduct at issue in Bartnicki v. Vopper (2001). That case involved a federal law prohibiting disclosure of intercepted communications for which civil or criminal penalties were available. The Supreme Court nonetheless concluded that to apply it to a truthful publication of an intercepted conversation concerning a matter of public significance would violate the First Amendment. In any event, "the Supreme Court's use of the phrase 'illegal' [in Flatley] was intended to mean criminal, and not merely violative of a statute."

Thus, to the extent Blackman claims that the speech was illegal and therefore [was not eligible for anti-SLAPP protection], his claims are unpersuasive.

Once a defendant bringing an anti-SLAPP motion shows that the speech was on a public issue, the plaintiff must show that he "has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law."

This court is persuaded that the First Amendment's protections for the publication of truthful speech concerning matters of public interest vitiate Blackman's merits showing. In Jenni Rivera Enterprises v. Latin World Entertainment Holdings (Cal. App. 2019), the court found no minimal merit in a lawsuit against Univision for broadcasting a program based on confidential information about a celebrity that was obtained through a breached non-disclosure agreement ("NDA"). The plaintiff in that case showed sufficient merit at step two to proceed with its claims against the former manager who breached the NDA, and the producers of the program who knowingly induced the breach. But as to Univision, the court stated:

"It is uncontroverted Univision had no knowledge of the nondisclosure agreement at the time it entered into the license agreement with [the producers]. The evidence of Univision's actions, after it learned of the nondisclosure agreement, that arguably contributed to [the former manager's] continued breaches of the agreement consisted of continuing to pay license fees to [the producers] and promoting [the former manager's] involvement with the Series. Even if those actions were sufficient to serve as the basis of liability for tortious interference, they are not sufficiently 'wrongful' or 'unlawful' to overcome the First Amendment newsgathering and broadcast privileges. Therefore, the First Amendment protected Univision's use and broadcast of the Series."

Similarly, in this case there is no evidence that Poulson and the other defendants knew the arrest was sealed before Poulson reported on it, and all defendants' actions in not taking down the arrest information after Blackman informed them of the sealing order was not so wrongful or unlawful that they are not protected.

Blackman further contends that Poulson's speech that he was arrested is false, and therefore not protected by the First Amendment, because an arrest is "deemed not to have occurred" when it is sealed. This contention is unpersuasive; the arrest occurred but Blackman has been exempted from some of the consequences of an arrest (although not all; law enforcement officers, for instance, will still see the arrest if they run Blackman's name through the state criminal history database). "Deemed not to have occurred" is language that effectuates this exemption from some of the consequences of the arrest, but it cannot alter how past events unfolded. [The tentative ruling had an extra "not" after "cannot," but a lawyer present at the hearing reports that the judge deleted it in her final decision. -EV]

Blackman also argues that Poulson's speech is false because it misleadingly implied that Poulson was present and viewed the events instead of reporting observations by police officers, and further implied that Blackman was guilty of or convicted of a crime. This is not how falsity is assessed for purposes of First Amendment analysis; a journalist does not become subject to suit because he does not include every detail the subject of the piece would like him to include. Adopting Blackman's frame of analysis would greatly expand the potential liability of the press and chill protected speech.

In sum, Poulson's activity in writing about the Incident Report is directly protected by the First Amendment….

The court concluded that it didn't need to decide whether "Penal Code 851.92(c)'s prohibition on dissemination of information relating to sealed arrest records is an unconstitutional content-based restriction on speech, which fails the strict scrutiny test applicable to content-based restrictions." That is the issue being litigated in FAC's and my lawsuit challenging the statute.

The court also held that the First Amendment protection extended to defendants Amazon Web Services, Substack, and Tech Inquiry, and that they were also protected by § 230, since plaintiff was trying to hold them liable for Poulson's speech.

For more on the case, see this longish article in the Gazetteer (S.F.) (Joel Rosenblatt) (registration required, but payment not required).

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[Eugene Volokh] "Bloggers, Xers, Facebookers, YouTubers, Instagrammers, and Others" Have Right of Access to Court Proceedings,

A short excerpt from Ohio Supreme Court Chief Justice Sharon Kennedy's long opinion in In re Disqualification of Wollscheid, decided Oct. 31, 2024, but just posted on Westlaw last week:

Cody Henderson, the defendant in the underlying criminal case, has filed an affidavit of disqualification pursuant to [Ohio state law] seeking to disqualify Judge Susan R. Wollscheid of the Washington Court House Municipal Court from presiding over the case….

On June 17, 2024, Henderson was arrested for menacing, a violation of R.C. 2903.22(A)(1)(a). The alleged victim of the offense was a sheriff's deputy, Lieutenant John M. Warnecke….

Judge Wollscheid's actions interfering with Henderson's rights to self-representation and to a speedy trial [details in the opinion -EV], while appearing to be improper, do not by themselves provide a basis to disqualify her from the underlying case. But although it is well established that adverse rulings do not on their own require the disqualification of a judge, "it has also been recognized that 'a judge could be disqualified if his or her adverse rulings were accompanied by words or conduct that call into question the manner in which the proceedings are being conducted.'" And this case is not just about Judge Wollscheid's treatment of Henderson's constitutional rights. An additional issue is the judge's denial of media access to the underlying proceeding.

After Henderson's arraignment, Caden Reed and Ethan Womack, both representing Omniversal Media L.L.C., submitted media-access requests {for "[a]udio/video recording outside," to "[a]udio/video record," and to "[p]hotograph the courtroom"} pursuant to Sup.R. 12. Henderson claims that Judge Wollscheid's denial of those requests without first holding a hearing is proof of the judge's bias and prejudice against him and creates the appearance of impropriety requiring the judge's disqualification from the underlying criminal case.

The Sixth Amendment guarantees the right to a public trial. A public trial ensures a fair trial. Similarly, the First Amendment grants the public and the press a qualified right of access to a criminal trial. "Underlying the First Amendment right of access to criminal trials is the common understanding that 'a major purpose of that Amendment was to protect the free discussion of governmental affairs.'"

That protection "serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government." "[P]ublic access to the criminal trial," while not absolute, "fosters an appearance of fairness, thereby heightening public respect for the judicial process." The justification for denying the press access to a criminal trial, therefore, "must be a weighty one." And any denial of access to the press and the public must be "necessitated by a compelling governmental interest, and … narrowly tailored to serve that interest."

Article I, Section 16 of the Ohio Constitution also guarantees the right to open courts: "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay." As we recently explained, "our Constitution protects public access to court proceedings that extends further than the United States Supreme Court's interpretation of the free speech and press guarantees of the federal Constitution." … This court has recognized that the free-speech provision of the Ohio Constitution affords greater protection than the free-speech provision of the First Amendment to the United States Constitution.

In keeping with the constitutional rights to open courts and free speech, Sup.R. 12(A) mandates that "[t]he judge assigned to the trial or hearing shall permit the broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law." It is only after the judge consults with the media that the judge may place limitations on where in the courtroom "operators and equipment are to be positioned." Therefore, "a trial court may not exclude cameras from 'court proceedings that are open to the public.'"

In her response to the affidavit of disqualification, Judge Wollscheid states that she declined Womack's media-access request without a hearing because she "did not believe [it] to be a legitimate request." The judge based that decision on her unfamiliarity with the media outlet, on the media outlet's not being local, and on the company's being just a "Youtuber." And she says that she denied Reed's media-access request to avoid giving Henderson an audience for what she characterizes as disruptive behavior.

"The press" protected by the United States and Ohio Constitutions is more than just newspapers, books, magazines, and cable-television networks. "'The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" "[P]eople during the Framing Era and at the time of the ratification of the Fourteenth Amendment understood that the freedom of the press meant the right of every person to use technology (such as the printing press) to engage in mass communication." …

And "the Supreme Court of the United States has consistently rejected the proposition that the 'institutional press' is afforded more protection by the First Amendment than other speakers." … [T]he press … includes citizen journalists who use technology for mass communication. Citizen journalists—which Henderson has proclaimed himself to be—include bloggers, Xers, Facebookers, YouTubers, Instagrammers, and others who use media that allow citizens to speak and express their views and opinions. All of these can be considered members of the press who enjoy the right to gather the news and the right to publish it—after all, "[t]he protected right to publish the news would be of little value in the absence of sources from which to obtain it."

Sup.R. 12 upholds these principles, and it does not authorize judges to decide for themselves who has a legitimate voice and who does not have a legitimate voice. Nor does it allow a judge to deny media access to broadcast criminal proceedings solely to avoid giving the accused an audience—drawing an audience is the whole point of the press….

Therefore, to allay any concerns about the fairness and integrity of the proceedings and to ensure to the parties and the public the unquestioned neutrality of the court, Judge Wollscheid is disqualified from presiding over Henderson's case.

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[Josh Blackman] William E. Humphrey's Death Certificate

William E. Humphrey

Why is the case called Humphrey's Executor v. United States? Because William E. Humphrey died while the case was being litigated. His estate continued the case, seeking Humphrey's backpay. Chief Justice Sutherland's majority opinion states:

"William E. Humphrey, the decedent, on December 10, 1931, was nominated by President Hoover to succeed himself as a member of the Federal Trade Commission, and was confirmed by the United States Senate."

While teaching this case in 2017, I joked that President Roosevelt removed William Humphrey from the FTC, and from the land of the living. That's one way to make sure the courts do not reinstate him!

A person watching the lecture on YouTube heard the joke, and checked up on it. Humphrey's obituary did not state a cause of death. But my viewer requested a copy of the death certificate from the D.C. Department of Health. In fact, Humphrey's executioner was cerebral hemorrhaging and arteriosclerosis. He died in his home. Humphrey was not assassinated.

There is one legal curiosity here: the certificate lists his occupation as "Retired." That's one way to put getting fired.

I've had this document in my archives for nearly eight years. With Humphrey's Executor on the chopping block, now seems like the right time to publish it.

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[Eugene Volokh] "Kafkaesque" Gun Background Check Delays May Violate Second Amendment

From Judge Trevor McFadden's opinion last week in Sedita v. U.S. (D.D.C.):

"Where was the Judge whom he had never seen? Where was the High Court, to which he had never penetrated?" Franz Kafka, The Trial. Like Kafka's Joseph K., Plaintiff Giuseppe Sedita alleges he has been adjudged by a muddled and garbled governmental process that flouts his rights and offers no effectual remedy when he complains. Three times, he has been given the run-around when trying to buy a firearm. Each time, the Government has refused to greenlight his gun purchase. And each time, Sedita has walked away empty-handed. Although Sedita has repeatedly tried to set the record straight through the Government's administrative process, remedy has eluded him; the Government has rebuffed Sedita's attempts to clear himself through silence and nonresponsive form letters….

Sedita sued, claiming this violated his Second Amendment rights, and the court allowed the claim to go forward. The court began by holding that buying a gun "is covered by the clear prescription of the Second Amendment" (since keeping and bearing requires a pathway to buying), and goes on to reason thus:

[T]he Federal Officers [then] bear the burden of "demonstrat[ing] that the regulation is consistent with this Nation's historical tradition of firearm regulation." Bruen footnote nine acknowledges that "definite" and "objective" background checks fall comfortably within that tradition. But when a particular licensing regime diverges from that tradition—perhaps by becoming "abusive"—it infringes on the Second Amendment.

"Following Bruen, the Supreme Court has not explained what constitutes 'abusive ends' in the context of firearm regulations, aside from its discussion of 'shall issue' licensing regimes." … In the context of Sedita's challenge, the Court finds a seemingly permissible background check regime could become abusive if riddled with inaccuracies but bereft of an effective method to correct those inaccuracies, leading to perpetual and inevitable delays on firearm purchases. At the very least, the Federal Officers present no evidence of this nation's historical tradition suggesting otherwise.

More record development is necessary before the Court can conclude whether Sedita experienced an abusive background check system at the Federal Officers' hands. Sedita has shown that there is a genuine issue of material fact as to whether CJIS continued to harbor erroneous information about him, despite his corroborated protestations to the contrary. And he has established that there is a legitimate question about whether his attempts to utilize the Voluntary Appeals File were fruitless because of inherent procedural flaws with the system. This suggests delays will persist in the future, through no fault of his own and with no ability for him to correct it. More, it has raised the specter of a system that promises appeals and vindication, but in practice is intended to frustrate or dissuade individuals from exercising their Second Amendment rights. Kafkaesque indeed….

[T]here is a genuine dispute of material fact on Sedita's Second Amendment claim. So the Motion for Summary Judgment by the Federal Officers is DENIED….

Here's the court's description of Sedita's factual allegations

Now to Sedita. He alleges that he tried to buy two firearms in 2021, but both purchases were "erroneously denied by NICS [National Instant Criminal Background Check System]." Through his attorney, he contacted NICS to obtain the grounds for denial of his firearm purchases. NICS conveyed that the transaction numbers were "too old" and that the agency no longer had any information about the attempted purchases. So Sedita was stalled on these first two firearm purchases. With neither answers nor a gun, Sedita again tried to exercise his Second Amendment right and buy a different firearm. But he alleges that once more, "his transaction was wrongfully denied by NICS," and he could not obtain a gun.

Again, he wrote NICS to inquire why. CJIS informed Sedita that his purchase was not "denied" but merely "delayed." See also First NICS Packet, ECF No. 11-3, at 10 (indicating the transaction number could not "be matched to a transaction maintained in the NICS" and that "the FBI is required to destroy all proceeded transactions" and "delayed transactions" and thus it was "possible that [Sedita's] transaction fits one of these two categories."). Sedita decided to complete a Voluntary Appeal File packet to hopefully obtain a Unique Personal Information Number and prevent future delays or denials by NICS.

But this, too, was in vain. The CJIS rejected Sedita's Voluntary Appeal File request after determining he was ineligible to be entered into the system. It noted that Sedita had a state conviction that fell under a "potentially prohibitive category." Specifically, CJIS thought Sedita was disqualified from owning a firearm under either 18 U.S.C. § 922(g)(8), which applies to those subject to a restraining order by an intimate partner or child, or 18 U.S.C. § 922(g)(9), which applies to someone who has been convicted of a domestic violence misdemeanor. A copy of the allegedly disqualifying criminal record was attached to the denial. The FBI informed Sedita that if he wished to challenge the accuracy of the record on which the Voluntary Appeal File rejection was based, he could apply directly to the state court from which the record originated.

But Sedita thought this denial was inappropriate. True, he had been convicted in state court of a misdemeanor charge of attempted assault and was formerly subject to a protective order as a result. But he insists that the assault did not qualify as domestic violence, as no covered relationship was implicated. Instead, the conviction involved a male complainant with whom Sedita claims he was not in a "qualifying relationship." 28 U.S.C. § 922(g)(9). Thus according to Sedita, the misdemeanor conviction should not have disqualified him from obtaining a firearm.

So he applied again to be entered into the Voluntary Appeal File. And he demanded that his most recent attempt to buy a firearm be greenlighted. He attached the charging documents from the state court to demonstrate that his convictions did not implicate domestic violence. And he insisted that he "has no disqualifiers to the transfer, receipt, possession or ownership of firearms." Then he waited. And waited. But he heard nothing back.

Six months later, Sedita sent another packet to the CJIS reiterating that he had wrongly been denied a firearm and entry into the Voluntary Appeal File. He again insisted that "[h]ad an investigation by NICS into the underlying facts been conducted, it would have revealed that … the convictions were not 'domestic violence' related." And he provided the documentation as proof.

The next week, the CJIS purported to "respond[ ] to [Sedita's] inquiry concerning [his] attempt to possess or receive a firearm." It again showed that the transaction number for his most recent attempt to buy a firearm could not be located, making it "possible" that the transaction was either "proceeded" or "delayed." And, in a fit of amnesia, it advised Sedita to apply for a Unique Personal Information Number through the Voluntary Appeals File program to prevent future extended delays or erroneous denials. It even attached a blank Voluntary Appeals File application.

Amy L. Bellantoni represents plaintiff.

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[Brandon Garrett] Public Opinion and Due Process

Sir William Blackstone famously said that it is "better that ten guilty persons escape, than that one innocent suffer." The maxim expressed by that English jurist was perhaps no more popular in 1765 than it is today.

In a jibe clearly directed at Blackstone and others of a similar mind, English jurist and philosopher Jeremy Bentham made light of writers call it better to save "several guilty men, than to condemn a single innocent man," and others who, "to make the maxim more striking, fixed on the number ten." Others "made this ten a hundred," and still others "made it a thousand." Such "candidates for the prize of humanity" go so far as to say that "nobody ought to be punished, lest an innocent man be punished."

If you were sitting as a juror in a criminal trial in the United States, a judge would instruct you, not on Blackstone's maxim, but on a due process-informed standard that embodies the same view: that the "defendant is presumed innocent of the charges" and that this presumption "is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty as charged." That standard of proof reflects Blackstone's view of due process. In 1970, Justice John Marshall Harlan II in the Court's In re Winship ruling that set such a high standard of proof in U.S. criminal trials, explained: "I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free."

Do people agree with Blackstone's maxim? In a series of studies, Gregory Mitchell and I have sought to explore whether people are more on the side of Blackstone or Bentham, due process or crime control, concerning themselves more with the punished innocent or the unpunished guilty. We describe that body of research in a law review article. We posed, among others, the following simple question:

Which of the following errors at trial do you believe causes more harm to society?

erroneously convicting an innocent person failing to convict a guilty person

Or, do you believe these errors to be equally bad?

In studies of over 12,000 people, and counting since the work is ongoing, we have found something both troubling and important: most people care about due process, but they are not only concerned with avoiding wrongful convictions. They also care about the outcome for public safety. Most people answered "equally bad," and were equally concerned with not setting guilty people free. So, most people do not fully embrace the bedrock assumption of our legal system that it is vital for the government to prioritize due process over public safety. The errors that they seek to avoid, or their error aversions, were equally balanced.

This is not just an abstract preference that people share, either. These error aversions translated into how people voted to convict defendants in mock trial experiments. These error aversions also corresponded with how they weighed the evidence in those experiments. In one of our recent studies, the conviction rate among people who prioritize avoiding false acquittals was 58 percent, compared to a conviction rate of 25 percent among those who prioritize avoiding false convictions, even though the two groups reviewed the same evidence.

And there is common ground, for better or for worse, around these error aversions and due process values. With so many Americans sharing the same view, there were not large differences across partisan or demographic lines. Large majorities across all groups shared the same views. In times in which politics may be polarized, these findings suggest a shared perspective. And these findings present those of us who are committed to traditional due process values with a challenge: most people do not agree with Blackstone.

These findings also help to explain persistent divides. People do not agree on how to approach questions of criminal justice and crime control. And that is not just because they disagree on what is most effective public policy. They also share divided error aversions. This may explain divided approaches on questions like bail and sentencing reform. Our findings suggest that the framing matters. Framing a solution as only helping public safety, but as not treating the accused fairly, will trouble most people. Framing a solution as only helping to safeguard due process, but not ensuring outcomes that protect community safety, will also trouble most people.

Fortunately, there is deep common ground, where people care about both due process and public safety. I agree in my book that due process questions are not normally zero sum. A fair trial can prevent errors that are costly to both public safety and due process. If an innocent person is convicted, the guilty person is also free: in that situation, both bad outcomes happen at once, which is why Blackstone's ratio is important.

And we need constant reminders that due process serves us all, and not just fairness goals. Conversely, the more people lose faith and denigrate fairness as mere window dressing, the more they will distrust the system. In an authoritarian society without the rule of law, no one trusts the ­process—­everyone correctly assumes it is  rigged—and it seems naive to bother with procedural niceties. In some online settings, we see the same thing: when digital platforms perform poorly, people see the system as broken, and they flee the space. It is not so easy when it is the government. No-one benefits if we all suffer from a due process death spiral. That is why we all need to reconsider potentially false dichotomies between due process and outcomes.

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[Josh Blackman] Today in Supreme Court History: February 11, 1803

2/11/1803: Marbury v. Madison is argued.

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