Eugene Volokh's Blog, page 17

[Josh Blackman] Today in Supreme Court History: October 11, 1972

10/11/1972: Roe v. Wade argued.

The Burger Court (1972-1975)

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[John Ross] Short Circuit: An Inexhaustive Weekly Compendium of Rulings from the Federal Courts of Appeal

[SWAT raids, cats' paws, and Christian vegetarianism.]

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

New case! In 2021, Maine voters approved a first-in-the-nation constitutional amendment that protects a robust, individual "right to food." And yet! Officials in Calais, Maine (pop. ~3,000) recently made it illegal for most residents to have backyard chicken coops, which is a real kick in the teeth for IJ clients Kamiwan and Paul Oliver, who rely on their meticulously maintained coop to feed their family of five. So last month, IJ and the Olivers filed suit to protect the state's new right-to-food protections. Click here to learn more.

New podcast! Short Circuit Live at UNC Law: An arbitrary and capricious Supreme Court preview with Sheldon Gilbert.

Robbers steal guns, drugs, and money from an NYC stash house; the getaway driver doesn't get any of the loot before being arrested. Driver is later convicted of Hobbs Act robbery and ordered to forfeit $10k based on a pro rata share of what was stolen. He challenges the forfeiture order, arguing the Supreme Court's 2017 decision in Honeycutt limits forfeiture to property he actually acquired. Second Circuit: Sure does (deepening a circuit split)—and he acquired nothin'. Forfeiture order vacated.Were prison officials deliberately indifferent to a Connecticut inmate's severe gender dysphoria? Second Circuit: There was legitimate medical disagreement about the appropriate course of treatment, so they have qualified immunity. Dissent: Not for the 13 months they did nothing, during which the inmate attempted self-castration.If you were worried that the Telephone Consumer Protection Act's ban on robocalls was going to prevent gov't officials from contacting you regarding public health resources, employment opportunities, and upcoming events, fear not! The Third Circuit says gov't officials can send you an unlimited number.While home sick, employee gets an urgent message from work (a debt-collection firm menacingly called the NRA Group) that the firm needs to renew a license that day or face awful consequences. She shares password and access info with a friend at work, enabling the renewal but also breaching workplace data-security policies. In unrelated matters, she later quits and threatens to sue for sexual harassment. The friend is fired for the breach of policies. NRA sues both for violating the Computer Fraud and Abuse Act. They both counterclaim for sexual harassment and retaliation. District court: Some counterclaims can go forward, CFAA claims cannot. Third Circuit: Affirmed. Calling a friend at work and giving her your password so she can accomplish work objectives is not a federal crime.Allegations: Pennsylvania inmate collapses and is paralyzed from the chest down. Prison officials force him to drag himself around and leave him immobile so he has to urinate on himself. (There's other bad stuff, too.) Does he have a claim under the 8th Amendment, the Americans with Disabilities Act, or the Rehabilitation Act? Third Circuit: Very possibly. The district court should not have dismissed his claims.Defendant: No, no, you don't understand. This wasn't racially motivated violence. This was regular violence against minorities by a man who, yes, happened to use some racial slurs and has a historical interest in Nazis and the KKK. Fourth Circuit: Conviction affirmed.Company says it'll pay for bonds (which average $7.5k) for immigration detainees. Monthly payments ostensibly pay down the bond—but they don't, actually, as the company contracts with an actual bond company to get the bond and then just rakes in money from immigrants and their families. The CFPB and three states sue for the misdeeds; the company, displeased, declines to respond to discovery requests and court discovery orders. District court: Sanctions mean default judgment, and final judgment means injunctive relief + nine figures' worth of cash. Fourth Circuit: Cool.You may remember from law school that the rational-basis test is a toothless nullity under which the gov't must always win. You may remember from IJ victories (like the one we told you about in last week's Short Circuit) that the rational-basis test is a real standard under which heroic litigators can win genuine victories for freedom. Anyway, those in the market for more evidence of the "real standard" view of the test may enjoy this Fifth Circuit opinion striking down certain of New Orleans' restrictions on short-term rentals.The "cat's paw doctrine" of liability—coined by Judge Posner and then adopted by SCOTUS—allows recovery against employers who, though appearing neutral, actually adopt an employee's discriminatory animus when making an adverse employment decision (against another employee). Fifth Circuit: All fine and good, but you can't sue a city on this theory. Which is but one reason this $5 mil award to the former city manager of Hutto, Tex. can't stand.Man distributing leaflets on sidewalk about Christian vegetarianism is threatened with arrest, sent away by Bossier City, La. cops and private security guards. A second person, who's distributing commercial fliers, is not. Fifth Circuit (three opinions): QI for the cops/guards but case undismissed against the city, whose officers "received literally zero training" on the First Amendment.Short Circuit readers who are super-into third-party objections to class-action certification should read this Sixth Circuit opinion. Everyone other than those three (hi, guys) should read Judge Kethledge's concurring paean to justice, the protection of property rights, and a legal system that too often falls short of both.SWAT officers smashbang through South Bend, Ind. family home, shooting tear-gas grenades, ripping holes in walls, breaking windows, destroying internal security cameras, and more. Yikes! It's an innocent family; the suspect officers were seeking had never been to the house. Seventh Circuit: We're bound by circuit precedent to say that this was not a taking requiring just compensation. [Ed.: This is an IJ case. And we're bound by oath to refer you to this lovingly crafted podcast episode on our nation's long history and tradition of making owners whole when their property is destroyed for some public purpose.]Owner of digital marketing firm sues the owner of a San Diego take-n-bake pizza business following a "series of odd exchanges" involving alleged racial slurs and poor behavior towards a handicapped dog. The pizzaiolo files a countercomplaint alleging that the marketing firm orchestrated over 100 fake, defamatory reviews of the pizza shop. The marketing firm moves to strike the countercomplaint under California's anti-SLAPP law, but the district court denies the motion. Ninth Circuit (en banc): Orders denying anti-SLAPP motions are not immediately appealable; we overrule an older case that said otherwise. Interlocutory appeal dismissed for lack of jurisdiction and case remanded.ICE agent escorting passenger from Dallas to Miami takes upskirt pictures and videos of flight attendant. He's convicted of interfering with her flight-crew duties, sentenced to two years' probation. Agent: I didn't know that she was aware of my "clandestine video voyeurism," and that's an element of the crime. Eleventh Circuit (unpublished): It is not.And in en banc news, the Fifth Circuit will reconsider its decision granting a preliminary injunction against a Louisiana law that requires the Ten Commandments to be displayed in every classroom. But is the court more interested in the argument that the plaintiffs lack standing or that such displays are constitutional? Only time will tell.And in more en banc news, the Sixth Circuit will not reconsider its decision that the First Amendment has nothing to say about Michigan's prohibition on hunting by drone, though Judge Bush's separate statement about the case suggests it would be super-neat if the Supreme Court told us how it thought some of this stuff should work.And in bombshell en banc news, the Eleventh Circuit will reconsider what your humble summarists presciently described as its "conspicuously wrong" line of decisions doing violence to Federal Rule of Appellate Procedure 4. The case of "Herr Doktor Rev. Professor Blind Burt Ph.4KUltaHD, Department of loser Studies, Pharmakonology, and Cosmic Criticism" hangs on by a thread!

Victory! In 2019, Harris County, Tex. drug interdiction officers seized Ameal Woods and Jordan Davis' life savings at a traffic stop—over $41k cash that the Mississippi couple had intended to spend on used trucking equipment. And though a jury later rejected the state's claim that the money was the proceeds of crime, it accepted the state's invitation to imagine that the money would have been used to buy drugs (and, not only that, but one of five specific drugs named in the statute). But the state produced no evidence whatsoever tying Ameal, Jordan, or the money to any drugs, and we are thrilled to announce that this week a Texas appeals court reversed and rendered. In the humble opinion of the editorial staff, the decision is a landmark, reviving a half-century-old line of SCOTX rulings that set a real and high burden on the gov't to forfeit property. Click here to learn more.

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[Jonathan H. Adler] A Discussion of "Campus Free Speech After October 7" at NYU

[The discussion of campus free speech that almost did not happen at NYU.]

On Tuesday, the Federalist Society sponsored a panel on "Campus Free Speech After October 7," at New York University. The panel featured Judges Lisa Branch (Eleventh Circuit) and Roy Altman (S.D. Florida), former ACLU President Nadine Strossen, and the Manhattan Institute's Ilya Shapiro.

As detailed in the Washington Free Beacon, this event  (or, rather, a smaller event just featuring Ilya Shapiro) almost did not happen. NYU initially blocked the event, citing scheduling and security concerns, but ultimately relented once its actions were subject to public scrutiny.

The event did happen at NYU on October 7, and was live-streamed. The video is below.

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[Eugene Volokh] Are We Dating the Same Vexatious Litigator Whose Filings Cite Nonexistent Cases?

In Souders v. Lazor, decided Wednesday by the Ohio Court of Appeals (Judge Marilyn Zayas, joined by Judges Terrance Nestor and Richard Moore), Souders sued based on "certain posts made in a Facebook group entitled, 'Are We Dating the Same Guy Cincinnati/Dayton'":

[T]wo of the named defendants … filed a motion to dismiss Souders' claims against them. The motion to dismiss asserted that the allegations against them arose from representation of their clients …. Additionally, appellees subsequently answered the complaint and filed a joint counterclaim to declare Souders a vexatious litigator under R.C. 2323.52….

The motion claimed that Souders' Hamilton County complaints "stemmed from his 'spurned attempts' to date defendant" Lazor:

After Lazor and Souders matched on a dating app and began talking, Lazor posted Souders' photo "to a community of local women" to gather background information on Souders, where she learned of several negative encounters with him. Lazor then attempted to stop communicating with Souders, but he continued to contact her—despite being blocked—on other social-media accounts, either as himself or while using a fake profile. Simultaneously, Souders sent a cease-and-desist letter to Lazor's home address, demanding that she remove the post about him.

Concerned about her personal safety and how Souders knew her address, Lazor filed for a civil stalking protection order ("CSPO") in Warren County where she resides. Shortly thereafter, Souders initiated the first Hamilton County action in the case …. Ultimately, the Hamilton County case was dismissed, and Lazor was granted a CSPO in the Warren County case. [For more on the Warren County case, see this 2024 post. -EV] Thereafter, Souder initiated the instant action.

The substance of the summary-judgment motion argued that Souders engaged in conduct intended to harass or maliciously injure the defendants in the Hamilton County actions, including obligating the defendants to "expend significant time, money, and effort to combat his frivolous litigation," and asserting disparaging allegations against the defendants that were wholly irrelevant to his claims. The motion further argued that Souders' claims were unwarranted and had no good-faith basis in the law, and claimed that Souders persistently requested the same relief, regardless of prior rulings.

The motion also pointed to other cases, outside of the instant matter, to show that Souders "has a long history of needlessly and meritlessly complicating other cases." …

The trial court ultimately granted summary judgment in favor of appellees and declared Souders to be a vexatious litigator. … The court [concluded] that Souders "filed multiple motions and briefs that include statements wholly irrelevant to this lawsuit and repeatedly reargues issues this Court has already decided." The court noted that over 13 pages of his response in opposition to summary judgment was focused on challenging the court's dismissal of his claims, rather than addressing the summary-judgment motion.

Additionally, the court found that Souders used "incomplete, incorrect, irrelevant," or nonexisting legal citations in his motion for reconsideration of the court's dismissal of his complaint and moved for findings of fact and conclusions of law when it was not warranted under the law or made on a good-faith basis under existing law.

Even further, the court found that Souders' conduct "serves to harass or maliciously injure Defendants," where he asserted irrelevant statements against the defendants such as stating that certain defendants expressed a desire to be sexually intimate with him, attempted to solicit him to purchase a membership to her OnlyFans account, or suffered from a mental illness….

Souders argued on appeal that the trial court improperly labeled him "a vexatious litigator," which "violates his First Amendment right to 'seek redress of his grievances'":

In support of this argument, he cites to "White v. Gainer, No. 06-C-367, 2007 U.S. Dist. LEXIS 27813, at * 19 (N.D. Ill. Apr. 9, 2007)." However, this case does not exist.

Nonetheless, in Deters v. Briggs, 1998 Ohio App. LEXIS 6419 (1st Dist. Dec. 31, 1998), this court addressed a First Amendment challenge to R.C. 2323.52 [the vexatious litigator statute]. Recognizing the burden that frivolous filings place on the court system and the inherent authority of courts to provide relief against frivolous filings and abuses, this court held that "the restriction on First Amendment activity imposed by R.C. 2323.52 is constitutionally permissible" because "it furthers an important governmental interest in a reasonable manner." … R.C. 2323.52 ["]is not designed, nor does it operate, to preclude vexatious litigators from proceeding forward on their legitimate claims. Instead, it establishes a screening mechanism under which the vexatious litigator can petition the declaring court, on a case-by-case basis, for a determination of whether any proposed action is abusive or groundless.["] …

Beyond that, Souders makes only a conclusory assertion that "the litigation pursued by him was neither frivolous in nature nor intended to cause harm or injury to any party." In doing so, he does not cite the record or advance an argument specifically addressing the trial court's findings under R.C. 2323.52, appellees' motion for summary judgment, or any of his claims….

Souders fails to make any argument as to why any of the claims in his complaint were warranted under the law or why he had reasonable grounds for any of his actions. Instead, Souders simply asserts that he sufficiently pled "lawless" or "wrongful" conduct. In doing so, a majority of the cases he cites in support of his argument either do not exist or do not stand for what he claims they do. Further, he fails to specifically reference even a single claim—out of eleven—in his complaint when making his arguments. Beyond that, Souders does not present any argument as to the adequacy of appellees' summary-judgment motion or make any specific challenge to any of the trial court's findings under R.C. 2323.52.…

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[Eugene Volokh] Turning Point USA Chapter at Univ. of Tennessee (Chattanooga) Approved, Despite Student Government Opposition

From Chattanooga Times Free Press (Mason Edwards):

"While the Student Government Association may voice opinions, recognition of student organizations is determined by the UTC dean of students and chancellor," UTC spokesperson JAy Blackman said in an emailed statement. "Turning Point USA has been authorized in accordance with university policy and the law."

The Student Government Association denied the organization's approval in a vote Tuesday. The vote served as a recommendation to the Dean of Students Office.

Public universities may not deny student groups recognition or other generally available benefits based on the groups' viewpoint: "The State may not … discriminate against speech on the basis of … viewpoint." And that's true even if the group would be free to operate outside the benefits program: "If restrictions on access to a limited public forum are viewpoint discriminatory, the ability of a group to exist outside the forum would not cure the constitutional shortcoming."

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[Eugene Volokh] School Allowed to Fire Teacher Whose Criticisms of School Policy Led to "Disruptive" Criticism and Insults from Public

From Tempel v. School Dist. of Waukesha, decided Sept. 29 by Magistrate Judge Nancy Joseph (E.D. Wis.):

Tempel was employed by the District as a dual-language first grade teacher at Heyer from fall 2018 until her termination on July 12, 2023…. In 2021, several new members were elected to the District's Board of Education, causing what many members of the Waukesha community perceived as a more conservative perspective shift.

In July 2021, the District suspended diversity, equity, and inclusion training for staff and suspended the work of the District's Equity Leadership Team…. In August 2021, pursuant to the Controversial Issues Polices, the Board enacted a policy to ban "controversial" signs in the classroom … [including] signage related to Black Lives Matter, Blue Lives Matter, Thin Blue Line, Anti-racist classroom, and other materials. The Policy also banned all flags, including Pride flags. The District's decision regarding signage garnered attention from the community, parents, students, teachers, staff, and news outlets. [Further details omitted. -EV] …

Every year, Heyer first grade students participate in a spring concert…. [One of the initially planned songs,] "Rainbowland" by Miley Cyrus and Dolly Parton … [was allegedly rejected by Principal] Schneider … [in favor of] "Rainbow Connection" by Kermit the Frog …. On March 21, 2023, at 6:39 p.m., Tempel posted the following tweet on her public Twitter account:

After this initial tweet, Tempel tweeted multiple times and conducted interviews with the news media about "Rainbowland" …. Subsequent to Tempel's tweets, the District asserts that it received numerous voicemails and emails containing "vulgar and threatening remarks" … [including]:

1."Hey, I heard your school district doesn't like gay people. Fuck you, you fucking retards! Kill yourselves!"

2."Religious based cultural ignorance-how stupid this is. You are small mindless assholes. Consider changing this or face the consequences,"

"You are a fucking cunt for working for that pig. Rot in hell!"

[More details omitted. -EV]

The court concluded that Tempel could permissibly be fired under the so-called Pickering balancing test, which allows public employers to fire their employees when the employees' speech sufficiently undermines workplace efficiency:

Under Pickering, the employer bears the burden of showing that its interest in workplace efficiency outweighs the employee's right to speak….

As to potential security risks and disruption, the record indicates that soon after Tempel tweeted, both Heyer's office and the District's main office received upwards to twenty calls per day regarding the "Rainbowland" decision, many of which consisted of the caller subjecting the recipient to yelling and insults. During spring break, Schneider received multiple emails from staff and parents expressing concern about school safety. Thus, on the weekend prior to Heyer's return from spring break, Schneider emailed all Heyer staff to reassure them that safety and security is their main priority and informing them that police would be outside the building during arrival and dismissal and as needed throughout the day. And indeed, following spring break, police officers were stationed at both Heyer and the District's office for several days.

Chaparro testified that Heyer typically receives approximately 40 calls per day. However, in the wake of Tempel's tweets, she received an additional 15 to 20 calls. And these additional calls were not easy calls to take—people were calling to "voice their opinions" at her and did so in an abusive manner. Ettinger testified similarly, stating she was called "every name in the book" such as a "homophobe" during her daily 25 to 30 "Rainbowland" related calls. Further, even if the police officers were stationed outside of the school "out of an abundance of caution," that does not make their presence any less disconcerting to the staff and students.

As to disharmony amongst Heyer staff, Schneider testified that upon return to school after spring break, he observed an increased level of discord between his staff members that was "significantly different" from anything the school had experienced before. He testified to receiving one to two staff complaints per day regarding a colleague's behavior, prompting him to organize a "student services meeting" to address the "significant amount of concern among staff." Schneider further testified observing distractions and "strong feelings" amongst staff that impacted their preparation time for class.

Tempel argues that her speech did not cause disharmony amongst Heyer's staff and to the extent there was disharmony, it pre-dated her tweets. While Schneider acknowledged that his staff has not always gotten along perfectly in the past, he testified that Heyer had never before experienced the level of staff discord he observed in the wake of Tempel's tweets. Again, the discord was so significant that Schneider testified he organized a "student services meeting" that, for the first time, was held to allow staff to voice their concerns and feelings as staff members as opposed to what the meetings were usually held for—to address student needs.

The record contains multiple emails from staff members sent to Schneider and Sebert during spring break expressing concern for school safety and the negative attention Tempel's tweets could bring to the school. Thus, even if any single staff member did not express concerns, the record supports the existence of discord and distraction amongst staff members in the wake of Tempel's tweets.

Thus, while Tempel contests the severity of the disruption, the Seventh Circuit has found that school officers can act "to nip reasonable predictions of looming disruption in the bud," so long as those predictions are reasonable. And in this case, given the evidence of staff discord, it was not unreasonable for the District to act before the disruption potentially worsened.

Additionally, Tempel's method of speech further weighs in favor of the District. While speech made outside of the workplace may be less disruptive to the efficient functioning of the employer, as the Seventh Circuit noted, speech made on social media can carry a "clear risk of amplification" and therefore disruption.

While Tempel tweeted from a personal account outside of school hours and off school grounds, she identified herself as a first grade teacher and named her school and her District in the course of her tweets…. [W]hen a member of the public asked, "are you a teacher in Waukesha" and "what school was supposed to sing [Rainbowland]?," Temple responded by stating "Heyer Elementary." When asked how many students were in her class, Tempel responded "24," but that the school had about 65 first graders in total.

This predictably attracted widespread attention and criticism of the school. And her identification as a teacher at that school only increased the statements' attention. It is undisputed that Tempel's tweet garnered national media coverage, with Tempel participating in interviews with both local and national media discussing the "Rainbowland" decision. The court has "repeatedly recognized that public school teachers occupy a unique position of trust"; thus, employers have "more leeway in restricting the speech of a public-facing employee like a classroom teacher who must maintain public trust and respect to be effective." …

The undisputed facts show that Tempel's tweets resulted in substantial disruption to the school and District. Thus, weighing the factors relevant to Pickering balancing, I find that the District's interest in workplace efficiency outweighs Tempel's First Amendment interest in expression.

Another reminder, I think, of how the government as employer has, rightly or wrongly, a great deal of power to punish employees for their speech. Generally speaking, the government can't prosecute or civilly fine a citizen because their speech causes public upset—either upset directed at the speaker, or upset directed at the people the speaker is criticizing. But cases such as this (applying the Supreme Court's Pickering precedent) show that, if enough people are upset by a government employee's speech to the point that they complain enough to the employer to be "disruptive," the employee can indeed be fired.

Christina A. Katt, Hunter Michael Cone, and Joel S. Aziere (Buelow Vetter Buikema Olson & Vliet LLC) represent defendant.

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[Josh Blackman] Today in Supreme Court History: October 10, 2012

10/10/2012: Fisher v. University of Texas at Austin I argued.

The Roberts Court (2010-2016)

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[Eugene Volokh] Friday Open Thread

[What's on your mind?]

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[Stephen Halbrook] Second Amendment Roundup: Rug Pulled Out from under Antonyuk

[Without a Founding-era analogue, late 19th century restrictions don’t count.]

My last post discussed how the Second Circuit in Antonyuk v. James (2024) relied on a fake North Carolina citation to a non-existent law as the supposed Founding-era analogue to uphold New York's "sensitive place" restrictions where firearms may not be possessed.  (It also cited a 1786 Virginia law as an analogue, but admitted that it had a "terror" element.)  On September 10, in Koons v. Attorney General New Jersey, the Third Circuit followed the Second Circuit off the cliff by making the same error.  The fake "law" cited was the "N.C. Statute of Northampton (1792)," which was actually nothing but a privately published Collection of English statutes that one François-Xavier Martin thought applied in North Carolina.

In contrast, the Ninth Circuit, in Wolford v. Lopez (2024), wasn't willing to buck the Supreme Court's rulings that openly.  The court found:

Defendant also points to colonial laws in Virginia and North Carolina that were successors to the Statute of Northampton. But the Supreme Court has explained that those laws prohibited the carry of firearms only to the "terror" of the people or for a "wicked purpose"; lawful carry was permitted. Bruen, 597 U.S. at 49–51, 142 S. Ct. 2111; see also Rahimi, 144 S. Ct. at 1901 (describing these laws).

And now, a different panel of the Second Circuit says that they were just kidding in Antonyuk.  In Frey v. City of New York (2025), rendered on September 19, the court included a footnote that began: "We are not so certain that the Northampton statute, or the Virginia and North Carolina laws that replicated it, prohibited carriage altogether."  In fact, "Bruen undermines that interpretation." Bruen read the Northampton statute to apply to arms carrying only if done so to terrify others.  Frey continued that, as Bruen noted, the North Carolina Supreme Court in State v. Huntly (1843) held that "the carrying of a gun" for a lawful purpose "per se constitutes no offence," and "[o]nly carrying for a 'wicked purpose' with a 'mischievous result … constitute[d a] crime.'"

But no matter.  Both Wolford and Frey dispensed with any actual Founding-era analogues and upheld the broad "sensitive place" restrictions anyway – those of California and Hawaii for the former, and New York City for the latter.  Frey tried to have it both ways, "remain[ing] confident in Antonyuk's conclusion that we have a well-established tradition of banning firearms in quintessentially crowded places. The Founding-era Virginia and North Carolina laws evince that lawmakers were sensitive to the potential mayhem gun-wielding may cause in crowded locations…."  Not accurate.  Whether in a crowded or a lonely place, both states required going armed to be "in terror" of others, otherwise it was not a crime.

From there, Wolford and Frey revert to Antonyuk's reliance on selected laws from Reconstruction through the end of the 19th century.  Recall that Antonyuk found that the non-existent "North Carolina model" somehow "evolved" into late 19th century restrictions, which were further analogues to justify today's New York ban.  But those restrictions were too few and too late to establish a historical tradition.

Specifically, Antonyuk referred to gun bans at certain confined places, including a "fair, race course, or other public assembly of people" (Tennessee 1869); assemblies for "educational, literary or scientific purposes, or into a ball room, social party or other social gathering" (Texas 1870); and "where people are assembled for educational, literary or social purposes" (Missouri 1883).

Antonyuk claimed that the state courts upheld these provisions as constitutional, but that conclusion was unwarranted with one partial exception.  These specific locations were not even issues in the cited cases.  The Tennessee case of Andrews v. State (1871) upheld a ban on carrying a small belt pistol or certain other weapons, but held the law unconstitutional as applied to an army-type revolver.  The Texas case of English v. State (1871) upheld convictions for wearing a pistol while intoxicated and for carrying a butcher knife in a religious assembly; as to the latter, the court held such knife not to be a constitutionally-protected "arm."  The Missouri case of State v. Shelby (1886) addressed carrying concealed and carrying while intoxicated.

In short, other than the Texas case involving a butcher knife in church, none of these decisions considered and upheld the constitutionality of any of the prohibitions on possession of arms at specific places, such as those listed by Antonyuk.

Antonyuk further relied on laws of the territories of Arizona (1889) and Oklahoma (1890) as showing the tradition of banning firearms in "quintessentially crowded places."  But Bruen cited another 1889 Arizona law, and another section of the same 1890 Oklahoma law, in explaining that "late-19th-century evidence cannot provide much insight into the meaning of the Second Amendment when it contradicts earlier evidence."  The Court pointed to the facts that the territorial populations were "miniscule," "territorial laws were rarely subject to judicial scrutiny," and the territorial governments were "short lived."

Antonyuk also pointed to mostly-late 19th century restrictions in some cities, such as regulations banning firearms in so-called urban public parks.  However, recognizing the need for some foundation in the Founding era, it claimed that such restrictions were "enshrined in the law books" of Virginia and North Carolina, which simply is not accurate.  As with the state laws, no Founding-era cities enacted any such restrictions.

Without any Founding-era analogue, Bruen does not countenance restrictions when the Fourteenth Amendment was adopted in 1868 or later as historical analogues to justify today's gun prohibitions.  Bruen flatly states that "individual rights enumerated in the Bill of Rights and made applicable against the States through the Fourteenth Amendment have the same scope as against the Federal Government," and that the Court "has generally assumed that the scope of the protection applicable to the Federal Government and States is pegged to the public understanding of the right when the Bill of Rights was adopted in 1791."

Bruen noted "an ongoing scholarly debate" on whether the understanding in 1868 defines the scope of the right, but stated that it "need not address this issue" because the public understanding of the right to carry in public was the same in 1791 and 1868.  Antonyuk misread this to say that Bruen "expressly declined to decide" whether courts should rely on the understanding in 1868.

As Justice Amy Coney Barrett stated in her Bruen concurrence: "But if 1791 is the benchmark, then New York's appeals to Reconstruction-era history would fail for the independent reason that this evidence is simply too late (in addition to too little)."  As the Court had recently held in Espinoza v. Montana Dept. of Revenue, a practice that "arose in the second half of the 19th century … cannot by itself establish an early American tradition" to inform the meaning of the First Amendment.  Bruen thus does not "endorse freewheeling reliance on historical practice from the mid-to-late 19th century to establish the original meaning of the Bill of Rights."

Notwithstanding the above, Antonyuk sought to stretch the time period for determining the understanding of the scope of the Second Amendment to 1868 and beyond, stating: "It would be incongruous to deem the right to keep and bear arms fully applicable to the States by Reconstruction standards but then define its scope and limitations exclusively by 1791 standards."  There is nothing incongruous about that at all, given that the Supreme Court has relied on Founding-era understandings to interpret the scope of other incorporated provisions of the Bill of Rights, including the First, Fourth, Fifth, Sixth, and Eighth Amendments.  See Mark W. Smith, "Attention Originalists: The Second Amendment Was Adopted in 1791, Not 1868."

But the Antonyuk court does not suggest that the understanding of the Second Amendment may be based solely on 1868 and thereafter, and instead sought to trace that understanding to the Founding-era Virginia and North Carolina laws, but then dropping the Virginia law with its "terror" element as "the outlier among the national tradition."  But as shown in my last post, North Carolina also recognized the "terror" element in the common-law offense of going armed offensively.

That brings us back full circle.  Bruen had rejected New York's claim that the Statute of Northampton originated the tradition of banning arms in public places.  What Antonyuk did was to refine the argument to support banning arms not everywhere in public, but in expansive "sensitive places." The Statute mentioned "fairs and markets," North Carolina supposedly enacted the Statute in 1792, and that's the analogue for today's gun bans in "quintessentially crowded places notwithstanding behavior."

Regardless, Antonyuk made a grave error when it attempted to find Founding-era analogues in a Virginia law and a North Carolina "law," dropped the Virginia law because of its "terror" element, based the North Carolina "law" on a private publication never approved by the legislature, ignored actual North Carolina statutes, disregarded North Carolina judicial precedents, and then voilà – found the North Carolina "law" to be the basis for a handful of late nineteenth century laws.  Each flawed step of this supposed logical train suggests a judicial agenda of reaching a preconceived result devoid of historical reality.  To say that these historical contortions demonstrate that New York's prohibition on possession of firearms at many public places "is consistent with the Nation's historical tradition of firearm regulation" per Bruen is seriously mistaken.

This matter is not about a single, erroneous citation with no consequence.  Antonyuk is built on a house of cards to uphold onerous restrictions on the Second Amendment, it has influenced two other circuits covering three states to do the same, and more are sure to follow.  These decisions seriously undermine and criminalize rights protected by the Second Amendment.  If the circuits will not correct themselves, once again the Supreme Court should step in.

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[Eugene Volokh] N.Y. Federal Court Upholds "Algorithmic Pricing Disclosure Act"

From Nat'l Retail Fed'n v. James, decided yesterday by Judge Jed Rakoff (S.D.N.Y.):

[T]he Algorithmic Pricing Disclosure Act … provides that any entity domiciled or doing business in New York that

sets the price of a specific good or service using personalized algorithmic pricing, and that directly or indirectly, advertises, promotes, labels or publishes a statement, display, image, offer or announcement of personalized algorithmic pricing to a consumer in New York, using personal data specific to such consumer, shall include with such statement, display, image, offer or announcement, a clear and conspicuous disclosure that states: "THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA."

The Act defines "personalized algorithmic pricing" as "dynamic pricing set by an algorithm that uses personal data," which the Act further defines as "any data that identifies or could reasonably be linked, directly or indirectly, with a specific consumer or device." The Act excludes from this definition location data used by a "for-hire" or "transportation network company" vehicle to calculate a passenger's fare based on mileage and travel time. The Act also excludes from its coverage entities that are regulated under state insurance law and certain regulated financial institutions, as well as discounted prices offered to consumers under "existing subscription-based agreement[s]." …

Just as the First Amendment limits the government's power to restrict expression, it also curtails its power to compel speech. To determine whether a particular law runs afoul of these limits, courts employ different levels of judicial scrutiny, depending on the type of expression and the nature of the restriction at issue.

On the whole, laws regulating commercial speech are subject to a less-exacting standard of review than are laws regulating other forms of speech. Under this umbrella, restrictions on speech are also treated differently from compelled disclosures.

A law that prohibits or restricts commercial speech must survive so-called "intermediate" scrutiny in order to pass constitutional muster. This means that the regulation must "directly advance[ ] a substantial governmental interest" and must not be "overly restrictive." By contrast, a law that requires the disclosure of "'purely factual and uncontroversial information' about the goods or services the speaker may offer" is governed by the more permissive Zauderer standard of review. Under Zauderer, a commercial disclosure law does not offend the Constitution so long as it is "'reasonably related to the state's interest in preventing deception of consumers,' and [is] not 'unjustified or unduly burdensome.'"

Under Zauderer, the fact that First Amendment scrutiny applicable to commercial disclosure requirements is relatively "relaxed" follows from the fact that the First Amendment protection afforded commercial speech "is justified principally by the value to consumers of the information such speech provides." Accordingly, a seller's First Amendment "interest in not providing any particular factual information in his advertising is minimal." Moreover, unlike a "flat prohibition[ ] on [commercial] speech," disclosure requirements "trench much more narrowly" on sellers' First Amendment interests because they do not prevent sellers from conveying any message of their own but merely require them "to provide somewhat more information than they might otherwise be inclined to present." …

"[I]nformational disclosure law[s] … [are] subject to review under Zauderer" so long as the required disclosure is of "'purely factual and uncontroversial information' about the goods or services the speaker may offer." Plaintiff has not plausibly alleged that the disclosure mandated by the Act fails to satisfy these requirements.

First, the statement requirement by the Act—"THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA"—is plainly factual. Plaintiff concedes as much, acknowledging that pricing algorithms "analyze data and publish prices" based on "consumer inputs," and that its members use algorithmic pricing to set prices and offer promotions. The Act "by its terms applies only [when a price was set using personalized algorithmic pricing]" and therefore "the disclosure[ ] [is] necessarily accurate." In other words, only when a merchant has literally satisfied the disclosure must the merchant "identify" as much. Accordingly, the required disclosure "accurate[ly]" describes plaintiff's members' practices.

To avoid this conclusion, plaintiff points to caselaw from the Ninth Circuit, arguing that the required disclosure is not "purely factual" even if "literally true" because it is "misleading and, in that sense, untrue." Even accepting, in the absence of any similar Second Circuit precedent, the proposition that certain "literally true" statements are excluded from Zauderer's reach, plaintiff has not plausibly alleged that the disclosure required here is "misleading." In Wheat Growers, the Ninth Circuit explained that the statement that a certain chemical is "known … to cause cancer" was not a "purely factual" statement because "the use of the word 'known' [was] misleading" in context. That was so because "an ordinary consumer would not understand the nuance between 'known' as defined in the statute and 'known' as commonly interpreted without the knowledge of the scientific debate on that subject."

Plaintiff does not identify any similarly misleading aspect of the disclosure here. Instead, it merely speculates that the overall statement "gives the misleading, imaginary and 'unsubstantiated' impression that price-setting algorithms are 'dangerous,'" that they involve "non-consensual invasive surveillance," and that they set prices in ways that are harmful to the consumer. The Court notes that plaintiff's assertions about how consumers will react to the disclosure are entirely speculative.

In any event, Wheat Growers provides no support for plaintiff's argument, which focuses on the disclosure's "overall message," and not on any specific aspect of the disclosure that plaintiff contends is misleading. By contrast, in Wheat Growers, the Ninth Circuit's conclusion was based on the presence of specific language in the challenged warning that it reasoned was susceptible to misinterpretation and that, if so interpreted, would make the statement demonstrably false. See Wheat Growers (reasoning that "a 'known' carcinogen carries a complex legal meaning that consumers would not glean" and which is distinct from the lay meaning of the term). To the extent that the court in Wheat Growers referenced the "totality of the warning," it did so only to explain why other parts of the statement could not adequately correct the misimpression communicated by the use of the word "known," and not to invite an assessment of a consumer's overall reaction to the message.

Plaintiff does point to the terms "personal data" and "algorithm" in this disclosure, speculating that because they are "undefined" they will "falsely imply that the price to which that disclosure is attached is exploitative and based on sensitive personal information, even when it is not." But, unlike in Wheat Growers, plaintiff stops short of alleging that the meaning of those individual terms, as used in the disclosure, is demonstrably odds with their ordinary meaning and, in that sense, misleading. Plaintiff's argument thus "amounts to little more than a preference" for other terms, not an argument that the terms adopted are inherently misleading.

Likewise, plaintiff's attempt to analogize to R.J. Reynolds Tobacco Co. v. FDA (D.D.C. 2012), is unpersuasive. There, the court considered an FDA rule requiring certain textual warnings and "graphic images" to be printed on cigarette packages. Assessing only the "graphic-image requirements," the court concluded that the images were not being used to convey "factual information." The court relied on the government's acknowledgment that the primary purpose of the images was to "elicit negative emotional reactions" and that the images did not depict "common consequence[s]" of smoking but were merely meant to "symbolize[ ]" its harms. Thus, the images in that case were not even "literally true." By contrast, plaintiff has not pointed to any part of the disclosure here that communicates anything but "literally true" information about its members' practices.

Second, plaintiff also fails to plausibly allege that the required disclosure is "controversial." The Second Circuit has been clear that a compelled commercial disclosure is not rendered "controversial" merely because the regulated entity does not wish to make that disclosure or because they would prefer to make a different statement on that same topic.

In NYSRA, for example, the Second Circuit applied Zauderer to a law requiring calorie counts to be printed on certain restaurant menus, notwithstanding plaintiff's assertion that "its member restaurants do not want to communicate to their customers that calorie amount should be prioritized among other nutrient amounts." The court reasoned that, so long as the government's focus on the required disclosure is "rational," the First Amendment does not bar the government from mandating "'under-inclusive' factual disclosures." Accordingly, the fact that plaintiff's members would, in the absence of the Act, choose to make a different statement (or none at all) regarding their use of algorithmic pricing does not remove the law from Zauderer's reach.

Nor, as plaintiff contends, is the disclosure here rendered "controversial" because it requires the speaker to "take sides in a public debate." Although the Second Circuit has not spoken directly to this consideration, the Supreme Court in NIFLA suggested that certain disclosures that bear on controversial "topic[s]," such as abortion, may not qualify for Zauderer review. Plaintiff, however, makes no more than a conclusory assertion that the topics of "machine learning, algorithms, and artificial intelligence" in general, or algorithmic pricing in particular, are "controversial" in any meaningful way. And those topics are hardly more controversial than abortion, which was directly at issue in a disclosure law that the Second Circuit recently upheld under Zauderer.

Furthermore, even if we were to assume, arguendo, that the regulation of these technologies is the subject of "robust public debate" and is therefore "controversial," that does not mean that "the fact that [plaintiff's pricing mechanisms] are what they are" is itself controversial.

Plaintiff's members are free to utilize algorithmic pricing or not and are free to communicate their own views about the use of such technologies. Plaintiff's members are not required by the disclosure to "t[ake] sides" in any controversy, no less a "heated political" one. The disclosure "does not require any statement regarding the merits [of algorithmic pricing]" and plaintiff's members "remain free to share with their [customers]" their own views on that matter, including their professed view that algorithmic pricing is "socially beneficial." The law does not require any statement "at war" with that belief….

Finally, plaintiff argues that the challenged disclosure requirement falls outside of Zauderer's reach because it does not meet the threshold requirement that the statement "seek to correct misleading or deceptive commercial speech." However, Zauderer is not limited, as plaintiff would have it, to disclosures narrowly designed to "correct" specific instances of "deceptive commercial speech." Zauderer is "broad enough to encompass nonmisleading disclosure requirements," and has consistently been applied to evaluate commercial disclosure laws aimed at "the non-disclosure of information material to the consumer." …

Indeed, the disclosure required here serves to ameliorate "consumer confusion or deception" by ensuring that consumers are better informed about how a merchant has set the displayed price, including the fact that the price may be different for different consumers. This, then, is not a case where "the disclosure requirement is supported by no interest other than the gratification of 'consumer curiosity.'" …

Yuval Rubinstein of the New York AG's office represents the state.

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