Eugene Volokh's Blog, page 180

[Jonathan H. Adler] Debating Birthright Citizenship (Again)

During the first Trump Administration, some of the President's supporters urged him to embrace the view that the Fourteenth Amendment does not require recognition of birthright citizenship to those born in the United States to parents who were not legal residents.

As I noted at the time, some of the most thorough and comprehensive arguments to the contrary could be found in the work of Judge James Ho, who wrote several op-eds and a short law review article on the question before becoming a judge on the U.S. Court of Appeals for the Fifth Circuit.

The Fourteenth Amendment provides, in relevant part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . ." This provision unquestionably provides that those born on U.S. soil to American citizens and lawful permanent residents are American citizens at birth. The relevant legal question with regard to the Trump Administration Executive Order is what it means for someone to not be "subject to the jurisdiction" of the United States at birth. The conventional account is that it excludes the children of foreign diplomats and invading armies. The revisionist account maintains that it also excludes the children of those unlawfully present in the country, and perhaps the children of non-citizen parents lacking lawful permanent residence as well.

There may well be a range of non-originalist arguments for the revisionist position, but as a matter of original public meaning, these arguments do not work.   Judge Ho explained why in a 2007 op-ed:

When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.

The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.

Members of the 39th Congress debated the wisdom of guaranteeing birthright citizenship — but no one disputed the amendment's meaning. Opponents conceded — indeed, warned — that it would grant citizenship to the children of those who "owe [the U.S.] no allegiance." Amendment supporters agreed that only members of Indian tribes, ambassadors, foreign ministers and others not "subject to our laws" would fall outside the amendment's reach.

The strongest counter-argument I have come across is that made by Peter Schuck and Rogers Smith (based on their 1985 book), but their argument does not vindicate the Trump Administration's position. Rather, their position is that Congress has "the power to regulate access to birthright citizenship for groups to whose presence or membership it did not consent" by defining what constitutes being "subject to the jurisdiction of the United States." And if one takes an expensive view of Congress's Section 5 power to implement and enforce the terms of the Fourteenth Amendment, this argument may have some force. But even if one accepts this argument (and I am unpersuaded), this would at most allow for Congress to enact legislation excluding some groups, such as those unlawfully present in the country, from conveying birthright citizenship. It would not provide adequate justification for unilateral action by the executive branch.

The above assumes that the question of birthright citizenship should be resolved by reference to the original public meaning of the Fourteenth Amendment. If one rejects this view, and believes either that courts should be particularly deferential to the political  branches or should embrace evolving constitutional meanings in response to political and other developments (such as an election in which a prevailing candidate advocated a contrasting constitutional interpretation), one might well reach a different conclusion.

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[Ilya Somin] Federal Court Issues Temporary Restraining Order Blocking "Blatantly Unconstitutional" Trump Birthright Citizenship Order

(NA)

Earlier today, a US federal district judge issued a temporary restraining order blocking implementation of Donald Trump's executive order denying birthright citizenship to children of undocumented immigrants and immigrants in the US on temporary visas:

A federal judge on Thursday temporarily blocked President Donald Trump's executive order redefining birthright citizenship, calling it "blatantly unconstitutional" during the first hearing in a multi-state effort challenging the order.

U.S. District Judge John Coughenour repeatedly interrupted a Justice Department lawyer to ask how he could consider the order constitutional…..

Coughenour, a Ronald Reagan appointee, grilled the DOJ attorneys, saying the order "boggles the mind."

"This is a blatantly unconstitutional order," Coughenour told Shumate. The judge said he's been on the bench for more than four decades, and he couldn't remember seeing another case where the action challenged so clearly violated the constitution.

This is just the start of what is likely to be a lengthy legal battle, in just one of several cases challenging the order. It also isn't a final ruling on the merits, even in this one case.

Nonetheless, Judge Coughenour's negative reaction to the administration's position is  sign the order is likely to face great skepticism in the judiciary, and is likely to ultimately be struck down. It is also significant that this judge is a Reagan appointee. That's an early indication that this issue may not split judges along left-right lines.

I previously outlined why the Trump position on birthright citizenship is badly wrong here and here.

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[Josh Blackman] Has Any Reporter Asked Justice Jackson To Comment On Her Talisman Worn To The Inauguration?

The inauguration was Monday. Today is Thursday. I have seen zero coverage in the mainstream media about Justice Jackson's attire. Has any reporter asked Justice Jackson if she realized she wore a symbol that has been widely recognized as a talisman to ward off evil?

ABA Journal provides links to some of the coverage:

As a fashion statement, there was some disagreement. Josh Blackman, a professor at the South Texas College of Law in Houston, initially called the cowrie shells a "fashion faux pas," while fashion historian Shelby Ivey Christie said the piece had undeniable visual impact.

The shell collar "brilliantly reinterprets the traditional judicial jabot through an African American cultural lens," Christie told HuffPost. The shell pattern suggests "ceremony and significance" along with "importance and intentionality," she said.

But there may have been a deeper meaning, according to HuffPost, Vogue, Ebony, the Root, Parade, Above the Law and a Volokh Conspiracy post by Blackman.

But silence from the large newspapers and media outlets.

This silence would be unremarkable, but for the persistent scrutiny attacks on Justices Thomas and Alito. ProPublica spent a year scrubbing through social media accounts to trace where in the world is Clarence Thomas. But no one has asked KBJ what she was wearing to the Capitol. Reporters have accosted the Alitos in their driveway, and interviewed their neighbors about flags. But has anyone sent a note to the Public Information Office?

I will continue to wait.

Update: An article on Huffington Post about Justice Jackson's talisman originally included this line:

After all, Jackson is the first Black Supreme Court justice to sit on the court. "Even folks unfamiliar with its cultural significance can recognize it as a meaningful choice."

I know that liberals do not believe that Clarence Thomas is actually black. For once, they wrote it! And what about Justice Thurgood Marshall?

The page was later fixed to say:

After all, Jackson is the first Black female justice to sit on the court. "Even folks unfamiliar with its cultural significance can recognize it as a meaningful choice."

I'm not sure what the addition of the word "female" does here. Clarence Thomas is also descended from African slaves.

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[Stephen E. Sachs] The Twelfth Amendment and the ERA

As promised, my new paper on the Equal Rights Amendment, "The Twelfth Amendment and the ERA," is now available on SSRN. The paper lays out new historical evidence on prior Article V amendments, to show that Congress can and has placed legally operative language in its proposing resolutions, and not just in the proposed article text. The implication is that the ERA's seven-year time limit is valid—and that the article the ERA proposed to add is not.

Here's the abstract:

Whether the Equal Rights Amendment is—right now—part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, several of them only after the seven-year deadline in its proposing resolution. After President Biden's statement disregarding the deadline and describing the ERA as the Twenty-Eighth Amendment, its doubtful validity may provoke a minor constitutional crisis.

But there may be a legal answer. Not only in the resolution proposing the Bill of Rights, but also in those proposing the Twelfth and Seventeenth Amendments, Congress included operative language that modified the legal force of the newly proposed text. This language was deliberately chosen, was repeated by state ratifications, and seems to have been accepted as legally effective. This historical practice suggests that under Article V, the resolution is the amendment—the constitutional change proposed by the resolution as a whole, not just by the particular language it proposes to append.

This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA's deadline rendered it incapable, even with thirty-eight states' assent, of making any valid change to the Constitution's text. The recent lobbying efforts on its behalf, including President Biden's statements, are therefore seriously misguided. In a divided society, losing consensus on the Constitution's text carries an especially high cost. The National Archives is the wrong place to play with fire.

And from the introduction:

If there's one thing that Americans are entitled to expect from their law professors, to paraphrase Justice Robert Jackson, it's rules of law that let them tell whether the Constitution has been amended, and if so, how. Unfortunately, whether the Equal Rights Amendment is, right now, part of the Constitution is a matter of serious dispute. Thirty-eight states have sought to ratify the ERA, the required number under Article V's three-fourths ratification requirement. Were these ratifications successful, the ERA would have come into effect on January 27, 2022. But three states acted only after the lapse of the ERA's seven-year deadline, which Congress put in its resolution proposing the Amendment fifty years earlier. (Four more states had purported to rescind their ratifications before the deadline expired, and a fifth did so on its expiration. ) Nonetheless, in the waning hours of his term, President Biden endorsed the ERA's validity, announcing his view that it was "the 28th Amendment" and "the law of the land." Similar claims had been made by the majority of Democratic members of Congress, joined by influential scholars and groups such as the American Bar Association. To date the ERA hasn't yet been published as valid by the Archivist of the United States, whose statutory duty it would be; nor is the second Trump Administration likely to recognize it as valid. But in the meantime, or under a future Congress or Administration, the ERA's doubtful validity could provoke a minor constitutional crisis.

This makes the ERA's validity an urgent question for constitutional scholars. If its proposed text really were valid, and the seven-year deadline really were void, then officials, lawyers, and academics alike would all be obliged to proclaim them so. By contrast, if the deadline really were valid, and the proposed text really were void, then declaring the ERA as adopted might be seen as a shocking act of constitutional vandalism, one that threatens to destroy one of the last remaining areas of consensus in American law: our agreement on the Constitution's text.

But the legal answer may be clearer than many recognize. Underappreciated historical evidence suggests that Congress was right to think it could place legally operative language in a proposing resolution, without repeating that language in a proposed article's text. Not only in proposing the Bill of Rights, but also in proposing the Twelfth and Seventeenth Amendments, Congress included operative language in the proposing resolutions that specified which changes were to be made in the Constitution, altering the legal force of the newly added text or repealing contrary language in the then-existing Constitution. Congress's language was deliberately chosen; it was repeated by states in their instruments of ratification; and it seems to have been accepted as legally effective at the time.

In other words, our earliest and longest-held understandings of Article V, on which Congress relied in the eighteenth, nineteenth, and twentieth centuries, treat proposing resolutions as legally operative. Yet despite its importance, this historical practice has gone almost entirely unnoticed by legal scholars.

This practice also suggests a different understanding of the amendment process, one that might seem novel today but that's more consistent with the actual text of Article V. The "Seventeenth Amendment" isn't just the 134 words that follow that heading in a standard copy of the Constitution : it's a particular change worked in the text of the Constitution, a change proposed by Congress in a joint resolution in 1912 and then agreed to by the states in 1913. As a legal matter, the resolution is the amendment. When acting under Article V, Congress isn't limited to proposing pieces of extra language to be tacked on at the end. It can make detailed edits, can delete provisions of the existing Constitution, and can include conditions for its various proposals—say, that they'll add specified language to the Constitution only "when ratified . . . within seven years." Each of these options carries the same legal force as the text of any proposed article, and each is equally immune from future legislative alteration.

This understanding of Congress's Article V powers entails that, while the text of our familiar printed Constitutions is correct, some familiar editorial notes to that text might be in error: some provisions of the Constitution of 1788 have been repealed, and not just "affected" or "superseded," by subsequent amendments. This understanding also entails rather straightforwardly that the ERA has failed to alter the Constitution's text. Whether or not states can rescind ratifications, the original deadline in Congress's resolution means that the article it proposed was never added to the Constitution, and that the only way of adding it is for another amendment to the same effect to be proposed and ratified. In other words, despite having attracted ratifications from thirty-eight different states, the ERA makes and can make no valid change to the Constitution's text, no matter how many states ratified it after the deadline or might choose to ratify in future.

Finally, this view suggests that the declarations by President Biden and members of Congress in favor of the ERA, as well as the recent lobbying efforts on its behalf, have been seriously misguided. In a deeply divided society, in which legal experts already disagree on key questions of constitutional law, losing consensus even as to the content of the Constitution's text could be quite dangerous. While the best legal account of that text may be one thing and popular belief another, any competing account needs to be supported by adequate evidence—and on the arguments presented here, this evidentiary bar is one the ERA simply can't clear. Advocates of the ERA should take note of this evidence and should identify a different path for pursuing their constitutional goals.

As they say, read the whole thing!

(Prior posts on this topic here and here)

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[Eugene Volokh] Can People Suing Sean Combs / P. Diddy for Sexual Assault Proceed as John / Jane Does? Depends on Which Manhattan Federal Judge They Draw

From Doe v. Combs, decided yesterday by Judge Lewis Kaplan (S.D.N.Y.):

Plaintiff "John Doe" claims that Sean Combs, a well-known rapper and record producer, sexually assaulted him, and that several businesses owned or controlled by Combs enabled him to do so. The question before the Court is whether the plaintiff should be permitted to litigate this case without revealing his identity. For the following reasons, the plaintiff's motion to proceed anonymously is denied….

"Federal court proceedings and records presumptively are public absent a showing of exceptional circumstances." Accordingly, "[t]he title of [a] complaint must name all the parties." This rule "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." … An exception is appropriate "only where the litigant seeking to proceed anonymously has a substantial privacy interest that outweighs any prejudice to the opposing party and 'the customary and constitutionally-embedded presumption of openness in judicial proceedings.'"

The plaintiff alleges that Combs violently raped him in the presence of multiple strangers. Undoubtedly, this is a highly sensitive and personal claim, and the plaintiff's privacy interest is compelling. The first factor thus favors the plaintiff's use of a pseudonym. However, "allegations of sexual assault, by themselves, are not sufficient to entitle a plaintiff to proceed under a pseudonym." …

[Another] factor is "whether identification poses a risk of retaliatory physical or mental harm to the party seeking to proceed anonymously or even more critically, to innocent non-parties." Plaintiff states that he has developed anxiety disorders as a result of the alleged sexual assault, and that public disclosure would cause him further trauma.

The Court appreciates that sexual assault often has long-term, devastating consequences for victims. Given that the defendant is a public figure, this case may attract exceptional media attention and public scrutiny, which understandably might cause the plaintiff embarrassment and distress. "But the threat of significant media attention—however exacerbated by the modern era—alone does not entitle a plaintiff to the exceptional remedy of anonymity."

Overcoming the presumption of openness requires particularized evidence that disclosure will cause injury. "[G]eneralized harm, absent more direct evidence linking disclosure of [the plaintiff's] name to a specific physical or mental injury, is insufficient." The plaintiff has not provided support from a medical professional, or any other evidence, to corroborate his claim that disclosure would cause him psychological injury. Instead, the plaintiff offers only a vague, generic, and speculative claim that "having [his traumatic experience] played out in a public forum could spark more trauma." This conclusory assertion of the possibility of generalized harm—applicable to all victims of sexual assault—is insufficient to carry his burden.

Plaintiff argues also that disclosure would pose a significant risk of physical harm. The only support for this claim is his counsel's declaration that "[n]early all of the victims represented by [his firm] experienced similar threats of violence against either themselves or their loved ones." There is no basis for assuming that plaintiff's counsel has reliable information to that effect. Moreover, the plaintiff has not stated whether he—rather than unspecified others—experienced any such threats. Because the "people have a right to know who is using their courts," a plaintiff must articulate more than "speculative risks of harm" to proceed anonymously. The plaintiff has not done so in the materials offered to the Court….

[The court must also consider] whether the defendant would be "prejudiced by allowing the plaintiff to press his claims anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court." To assess this factor, courts have examined "the reputational damage to defendants, difficulties in conducting discovery, and fundamental fairness of proceeding anonymously." …

Confidentially disclosing the plaintiff's name to the defendants' counsel, as plaintiff's counsel suggests, would not eliminate the potential prejudice. Even if the plaintiff's identity were known to the defendants, they would face a sizable disadvantage because persons with valuable information about the plaintiff or his allegations would not be alerted to the case.

Particularly in a high profile case in which unknown witnesses may surface, use of a pseudonym may prevent information favorable to the defendants from coming to light. Additionally, the plaintiff's anonymity may undermine the defendants' efforts to mitigate the alleged reputational damage stemming from these serious allegations. Moreover, "fundamental fairness suggests that defendants are prejudiced when required to defend themselves publicly […] while plaintiff makes accusations from behind a cloak of anonymity."

The plaintiff is correct that the prejudice potentially suffered by the defendants would be less severe at this early stage in the lawsuit, and that the court may reserve the right to order disclosure at a later stage. Even considering this, [this] factor does not favor the plaintiff's use of a pseudonym….

[And the court must consider] "whether the public's interest in the litigation is furthered by requiring the plaintiff to disclose his identity." "Lawsuits are public events and the public has a legitimate interest in knowing the facts involved in them," including "the identity of the parties." Here, the public's interest is "magnified because [the plaintiff] has made his allegations against a public figure."

This interest is weighed against the public's competing "interest in protecting the identities of sexual assault victims so that other victims will not be deterred from reporting such crimes." The Court takes this potential chilling effect seriously. However, furthering this interest does not require "maintaining the anonymity of every person who alleges sexual assault or other misconduct of a highly personal nature."

So that's the latest decision, and it goes also with Judge Mary Kay Vyskocil's similar decision from last year (and, in large measure, Judge Jessica Clarke's decision from last year). On the other hand, several judges in the same district (the federal district that covers Manhattan), also in cases against Combs, have allowed pseudonymity at least in early stages of the case. So did Judge Analisa Torres less than a month ago.

Same federal district, same defendant, essentially the same allegations (there are of course differences in some factual details, but generally not ones that should change the analysis). And the courts are saying they're applying the same many-factor balancing test that the Second Circuit has set forth. But the test is so vague that different plaintiffs' results vary sharply, as best I can tell just based on particular judges' views about the relative importance of privacy and openness in these sorts of cases.

The post Can People Suing Sean Combs / P. Diddy for Sexual Assault Proceed as John / Jane Does? Depends on Which Manhattan Federal Judge They Draw appeared first on Reason.com.

[Josh Blackman] Why United Does Not Allow You To Use In-Flight Screen As Extended Display

For more than a decade, I have traveled with an extra monitor. It is a life-saver for productivity on the go. Plus, if you keep an HDMI cable, you can use the in-hotel TV as a third display (assuming the inputs are easily accessible). When I am upgraded to business class on an international flight, I have enough room to use both my laptop and external monitor.

Then again, on a flight to Japan, a divine wind caused severe turbulence, and my monitor fell off the top of the seat, and cracked. I didn't do that again.Yet, I've always wanted more screens. I called United many years ago and asked if I could connect my computer to the inflight entertainment screen. There are inputs, and with the right adapters, I could make it work. After some hold, I was told the answer was no, without much explanation. And I thought it would be a bad idea to connect without permission, so I haven't done so.

In recent years, United has installed 4K screens with bluetooth functionality. It should not be difficult to set up wireless screencasting from a device directly to the screen. But that is still not an option. Why?

Finally, I've found out the reason, via The Points Guy:

As more travelers bring their own tablets and laptops on board, I've always wondered why airlines don't offer a screencasting feature on the entertainment screens. After all, it's a lot easier to get work done with some additional screen real estate.

Turns out, United can already technically enable screencasting today, Green said, but a major issue will likely mean that flyers will never see this functionality.

"We've had a lot of pushback from our corporate partners that say they don't necessarily want their staff using publicly available screens," Green said.

It's not that United would have access to any data; it's that they don't want nosy passengers snooping in on their neighbors.

Fascinating. Companies are worried that employees on travel will inadvertently disclose their confidential information on a display, which others can see.

This concern is valid. In the past, I have routinely seen people work on confidential information. I've seen judges write opinions. I've also seen lawyers review documents marked "confidential." And so on. Now, my vision is not as good as it was, so it is difficult for me to read text from more than a row away. But when a person is sitting next to me, I can easily see their screen. Some people have screen protectors on their laptops, but if they were to screencast, that benefit would vanish.

Do I worry about people seeing my screen? Not really. Almost everything I write is intended for public consumption. Maybe my neighbor might see a draft line that I intend to remove, but that risk is low. As for my emails and messages, I generally assume everything I write will one day be blasted on the front page of the New York Times, so I choose my words carefully. (There is not much difference between the messages I write and the blog posts I publish.)

I hope United does reconsider this option at some point. Having one more screen in economy would make my productive increase even more.

Update: A reader writes in with an obvious comment that did not occur to me:

The obvious reason not to let people put things on the screens you own in public is that invariably people will put porn on them, and then you'll have other people complaining that the united screen system is showing porn.

They don't say this because no corporate PR hack is going to talk about porn when it's not necessary. But it's definitely the real reason, and it's one they will not and should not budge on.

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[Eugene Volokh] Federal Public Defender Submits Brief with Nonexistent Citation, Apparently Refuses to Admit This to the Judge at a Hearing

A short excerpt from the nearly 10,000-word opinion in U.S. v. Hayes, decided last week by Magistrate Judge Chi Soo Kim (E.D. Cal.):

The Court finds that Mr. Francisco submitted a fictitious or non-existent case and quotation in his written motion to unseal filed on November 21, 2024; knowingly made inaccurate and misleading statements in his written reply filed on December 5, 2024 to the government's opposition that expressly raised the fictitious case and quotation; and knowingly made inaccurate and misleading statements at the December 9, 2024 hearing.

The Court further finds that Mr. Francisco's inaccurate and misleading statements were not inadvertent as claimed, but knowing and made in bad faith. Despite being provided multiple opportunities to candidly acknowledge and correct his errors as required under his duty of candor to the court, Mr. Francisco unfortunately failed to do so….

In his motion to unseal, Mr. Francisco cited eight cases, six of which were cited in near string citation form. The primary case upon which Mr. Francisco relied—analyzing, quoting, describing the district court's analysis, and addressing in two different places in the motion—was "United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991)."

Unfortunately, "United States v. Harris, 761 F. Supp. 409, 414 (D.D.C. 1991)" is not a real case. The citation has all the markings of a hallucinated case created by generative artificial intelligence (AI) tools such as ChatGPT and Google Bard that have been widely discussed by courts grappling with fictitious legal citations and reported by national news outlets. Similar to other fictitious case citations created by generative AI tools, the fictitious "United States v. Harris" case looks like a real case with a case name; a citation to the Federal Supplement, which is the reporter that publishes opinions from federal district courts; identification of a district court; and the year for the decision….

Unlike other cases where counsel and litigants have admitted, sometimes reluctantly, that the fictitious citations and quotations were created by generative AI, Mr. Francisco states that he "did not use and ha[s] never used AI (artificial intelligence) to draft any of my motions." Instead, Mr. Francisco states that he "hastily" drafted the portion of his motion discussing the legislative history of 18 U.S.C. § 3509(d), which includes the fictitious case and quotation. Regarding his citation to the fictitious United States v. Harris case, he states: "I am baffled to say where it came from, first in a case name which does not exist, second from a district and year which does not match the citation volume and page, and third, which never even addresses the Motion's issues. It was an inadvertent drafting error I cannot begin to explain."

The Court finds this response inadequate and not credible. Though Mr. Francisco admits that he drafted his filing with the fictitious case and quotation, he fails to explain where or how he found or created the fictitious case and quotation. Regardless of the source of the fictitious case and quotation, an attorney with almost six years of experience such that case citations are "second nature" to him, knows how to conduct legal research, retrieve cases, and accurately cite those cases. The Court need not make any finding as to whether Mr. Francisco actually used generative AI to draft any portion of his motion and reply, including the fictitious case and quotation. See Grant v. City of Long Beach (9th Cir. 2024) (without determining source of two non-existent case citations and misrepresentation of thirteen cases, striking opening brief and dismissing appeal where opening brief "represents a material failure to comply with our rules")….

The Court ultimately finds that Mr. Francisco made knowing and willful misrepresentations with the intent to mislead the Court, which violated the standards of professional conduct, including the duty of candor to the court, and demonstrates bad faith. Mr. Francisco's first opportunity to candidly acknowledge and correct the fictitious case and quotation was in his written reply filed in response to the government's opposition that directly raised the fictitious case and quotation. But instead of candidly acknowledging and correcting his errors, Mr. Francisco filed with the Court the following two-sentence response in a footnote in his written reply: "Defense counsel acknowledges the government's observation that United States v. Harris does not discuss the legislative history of 18 U.S.C. § 3509(d) and clarifies that United States v. Broussard, 767 F. Supp. 1536, 1542 (D. Or. 1991), is the district court case from which this material is quoted. This inadvertent citation error does not affect the substance of the defense's position that the legislative history supports a far narrower interpretation of § 3509(d) than the government asserts."

This response was not accurate and was misleading. It failed to acknowledge that the United States v. Harris case is fictitious, failed to acknowledge that the actual case is the Harris v. Murray case [the case that appears at the cited volume and page number -EV], and failed to acknowledge that the quotation is not from any case. Instead, Mr. Francisco stated in his reply that an "inadvertent citation error" was made and the quotation is from a different case, United States v. Broussard, 767 F. Supp. 1536, 1542 (D. Or. 1991). This, too, was misleading, as the language Mr. Francisco quoted does not appear anywhere in Broussard.

Though Mr. Francisco reviewed Broussard multiple times before filing his motion to unseal, including on October 26, November 13, and November 14, 2024, he did not refer to or cite Broussard in his motion to unseal. That was likely with good reason. Broussard does not support Mr. Francisco's motion to unseal a total of eight (8) words in his motion to compel that described Child Victim 1's relationship to Defendant Hayes and Child Victim 1's gender, which had been properly redacted by Judge Claire. [Details of Broussard omitted. -EV] In Mr. Francisco's response to the Order to Show Cause, he acknowledges that Broussard did not support his motion to unseal arguments. This undermines his other post-hoc statements that he actually intended to cite and rely on United States v. Broussard, not the fictitious United States v. Harris case. Therefore, these statements are not credited.

The court also concluded that a later-filed Errata was inadequate, and Francisco's later statements about what he knew and when he knew it weren't candid. The discussion is long and quite detailed, but here's an excerpt that should offer its flavor:

At the December 9, 2024 hearing, Mr. Francisco had a second opportunity to candidly acknowledge and correct his errors. Unfortunately, Mr. Francisco persisted in his misrepresentations and made matters worse. In response to the Court's questions, Mr. Francisco continued to assert that the quotation was from Broussard. After the Court provided Mr. Francisco with a hard copy of Broussard and Mr. Francisco was not able to locate the quotation, he suggested that the quotation was from a second Broussard case. Unfortunately for Mr. Francisco, the Court had also reviewed this second Broussard case before the hearing, United States v. Broussard, 767 F. Supp. 1545 (D. Or. 1991) ("Broussard II"), and informed Mr. Francisco that Broussard II did not contain the quotation….

At the hearing, the Court then directly asked Mr. Francisco how his statements regarding "United States v. Harris" could be an "inadvertent citation error" …. Instead of candidly acknowledging that United States v. Harris was a non-existent case, Mr. Francisco continued to suggest that United States v. Harris was a real case and argued (inaccurately) that the legislative history "absolutely supports the Defense position." …

Not only did Mr. Francisco fail to acknowledge and correct his errors at the hearing, he made matters worse by repeatedly refusing to admit that United States v. Harris was non-existent despite knowing that it was non-existent. The Court gave Mr. Francisco several chances to tell the truth at the hearing, providing five distinct opportunities to respond to the Court's direct questions, and each time he knowingly persisted in his misrepresentations to the Court.

In his OSC response, Mr. Francisco admits that he reviewed the real Harris v. Murray case on December 3 after reviewing the government's opposition raising the non-existent United States v. Harris case and quotation, and that at the time of the December 9 hearing, he "was aware at that time that [United States v.] Harris was an incorrect citation and did not support my argument."

The Court can only conclude that Mr. Francisco's statements at the December 9, 2024 hearing were made knowingly with the intent to mislead the Court, and they constitute evidence of bad faith….

The court ordered Francisco to pay $1,500, and also ordered the Clerk to serve a copy of the order on the California and D.C. Bars, and "on all the district judges and magistrate judges in this district."

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[Josh Blackman] New Essay at Civitas: "Trump Must Pick Judges Who Have Publicly Demonstrated Their Courage"

Today, the Civitas Institute published my new essay, titled "Trump Must Pick Judges Who Have Publicly Demonstrated Their Courage."

Here is the introduction:

One of the defining legacies of President Trump's first term is the judiciary. He appointed three Supreme Court justices, fifty-four judges to the courts of appeals, and 174 judges to the federal district courts. It is unlikely that Trump will top those numbers in his second term. There are fewer pending vacancies, and fewer judges will be eligible to step down. For these reasons and more, Trump must make every lifetime appointment count. Trump's first batch of picks checked all conventional boxes: they were smart, well-credentialed, and impactful. Trump's three appointees to the Supreme Court have already joined landmark decisions concerning abortion, the Second Amendment, and religious liberty. Moreover, a recent study demonstrates that the Trump lower court nominees have dwarfed the influence of Obama judges, and I suspect there will be an even more significant disparity for Biden judges.

Yet, not all Trump judges are made from the same stuff. While they may share similar judicial philosophy–it is easy enough to profess fidelity to originalism at a confirmation hearing–they do not all put it to the same use. In generations past, scholars and critics charged that some judges were "judicial activists" while others engaged in "judicial restraint." These terms are largely meaningless and fail to account for how judges rule in many cases. Instead, a different metric is a far greater predictor of behavior on the bench: judicial courage. Will a judge's decisions be affected, in any way, by how legal elites will respond? Stated differently, does the judge have a fear of being booed? Any judicial nominee would deny having such a fragile disposition. But there is only one way to prove it: a record of publicly demonstrating courage in the face of criticism by legal elites. If they haven't done it before becoming a judge, they will not do it after becoming a judge. Courage is like a muscle: it must be exercised. Every future Trump nominee should be able to show such steadfastness by word and deed.

And this paragraph will be relevant for FedSoc members:

Third, we should judge a judge by the company he keeps, or in Latin, noscitur a sociis. A recent book demonstrates that judges are likely "to follow the lead of the elite social networks that they are a part of" and "take cues primarily from the people who are closest to them and whose approval they care most about." The people a candidate seeks praise from before the appointment will be those the judge seeks praise from after the appointment. Social circles usually freeze upon confirmation. It is not enough to simply list an affiliation with the Federalist Society on a resume. (Then again, John Roberts denied being a member, while Professor Barrett let her membership lapse for much of her career and never attended the national convention.) The better question is what the candidate has accomplished with that platform. Ask not what FedSoc has done for you; ask what you have done for Fedsoc. Moreover, there should be serious doubts about any candidate who volunteers his time to groups like the American Bar Association, which has been overtly hostile to conservatives.

 

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[Eugene Volokh] Trump Executive Order on "Ending Federal Censorship": Free Speech, Private Power, and Government Power Following Murthy v. Missouri

Monday, President Trump issued an Executive Order, "Restoring Freedom of Speech and Ending Federal Censorship"; it reads, in relevant part:

Section 1. Purpose. The First Amendment to the United States Constitution, an amendment essential to the success of our Republic, enshrines the right of the American people to speak freely in the public square without Government interference. Over the last 4 years, the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve. Under the guise of combatting "misinformation," "disinformation," and "malinformation," the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government's preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.

Sec. 2. Policy. It is the policy of the United States to: (a) secure the right of the American people to engage in constitutionally protected speech;

(b) ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen;

(c) ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and

(d) identify and take appropriate action to correct past misconduct by the Federal Government related to censorship of protected speech.

Sec. 3. Ending Censorship of Protected Speech. (a) No Federal department, agency, entity, officer, employee, or agent may act or use any Federal resources in a manner contrary to section 2 of this order.

(b) The Attorney General, in consultation with the heads of executive departments and agencies, shall investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order and prepare a report to be submitted to the President, through the Deputy Chief of Staff for Policy, with recommendations for appropriate remedial actions to be taken based on the findings of the report.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

The difficulty, of course, is in figuring out what government action constitutes "unconstitutionally abridg[ing] the free speech of any American citizen." When the government exerts "substantial coercive pressure" on a platform to restrict speech, that would indeed generally be unconstitutional (see NRA v. Vullo). But the order doesn't seem limited to that; recall that it says that

the previous administration trampled free speech rights by censoring Americans' speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve [emphasis added].

That suggests that such censorship might consist of things other than substantial coercive pressure, such as noncoercive requests that platforms censor things. And indeed the noted Murthy v. Missouri litigation (originally Missouri v. Biden) objected not just to coercion but also to attempts to persuade or hector platforms into restricting speech. Presumably the Attorney General's Report mandated by sec. 3(b) will deal with that very question.

As it happens, Part II of my short Harvard Law Review Forum essay titled "Free Speech and Private Power", which I've been serializing over the last week or so, deals with this very question, so I thought I'd pass it along:

[* * *]

The law also sometimes constrains governments' use of private power, especially when such government action is aimed at accomplishing goals that are forbidden to the government itself. Even when there's nothing unconstitutional about a private entity doing something on its own, the government may be constrained in its ability to partner up with the entity to accomplish the government's goals.

Thus, for instance, say that you rent out a house to a tenant. The lease might allow you to access the property, with sufficient notice, and state law may recognize that right. If you observe evidence of a crime when you are lawfully accessing the property—or even when illegally exceeding your rights to access the property—and report it to the police, the police can use that information without violating the Fourth Amendment: The information came from your private search, not a government search.

But say the police call you up and say, "We know you have the right to inspect your tenant's apartment; might you exercise that right, please, and in the process see if you can spot any evidence of crime? No pressure: If you say no, we won't retaliate against you. But we hope you'll be a good citizen and help us out." And say you do inspect the apartment, find evidence of crime, and turn it over to the police. That evidence will be treated as the fruit of a Fourth Amendment violation, because the government prompted the private search (even if it didn't coerce the private search).

The same is likely so if the government urges a private person to interrogate someone, or to discriminate based on race. The government has immense power, but is limited by constitutional constraints. Landlords, roommates, employers, and others also have immense power in the aggregate—in part precisely because they aren't limited by those constitutional constraints—but are limited by the fact that, as private entities, they can't do some of the things the government can do. Courts have resisted allowing the government to combine those two sets of powers.

The question in Murthy was whether this principle also applies to government requests that private entities limit users' speech. The answer, after Murthy, is that we don't know.

Murthy said even less about the First Amendment than Moody did, because the Court decided that the challengers in Murthy lacked standing to bring their claims: They didn't sufficiently show that the government's requests to platforms—whether viewed as coercion or just persuasion—affected how the platforms treated these particular plaintiffs, and (more importantly for injunction purposes) how the platforms would treat them in the future. Former U.S Secretary of Labor Robert Reich wrote that:

[In Murthy], the US supreme court said federal agencies may pressure social media platforms to take down misinformation—a technical win for the public good (technical because the court based its ruling on the plaintiff's lack of standing to sue).

But the Court in Murthy of course did not say that it's permissible for federal agencies to pressure social media platforms this way.

And, returning to standing, presumably someone was likely affected by the government's requests: Presumably government officials put in the time and effort to make the requests in order to have some effect. To be sure, it's theoretically possible that every time the government asked platforms to remove certain material, the platforms would have done so in any event on their own, even without such a request. But it just doesn't seem likely. Mark Zuckerberg's letter to Representative Jim Jordan acknowledging the "pressure[]" from the government accepted that Meta was ultimately responsible for its removal decisions ("Ultimately, it was our decision whether or not to take content down, and we own our decisions"). Yet the letter suggests that the pressure did indeed affect Meta's "choices," including ones that Zuckerberg wishes he hadn't made.

Some people might thus be able to show actual injury from federal pressure on platforms, and perhaps even the likelihood of future injury, especially if the federal government decides to make such pressure part of its normal arsenal. And if state governments do something similar, they could be sued under 42 U.S.C. § 1983 for actual damages, which wouldn't require a showing of likely future injury.

If such action is coercive, then courts could indeed find a First Amendment violation. Indeed, that's what the Court did in this past Term's National Rifle Ass'n of America v. Vullo decision: The state government official defendants there allegedly coerced banks and insurance companies to stop doing business with the NRA, rather than allegedly coercing internet platforms, but the First Amendment coercion analysis should be much the same in either situation.

Yet if the action merely involves persuasion rather than coercion—or perhaps the government systematically working together with social media platforms—then the Court would have to confront the question that it temporarily avoided in Murthy: Is the government free to encourage platforms to restrict user speech, so long as it does so noncoercively? Or, as with the Fourth Amendment, are there limits on the government trying to accomplish, using private power, things that it isn't allowed to accomplish by itself?

Missouri v. Biden, the Fifth Circuit decision reversed on standing grounds in Murthy, concluded that the government indeed went too far in encouraging private entities to restrict speech (even in the absence of coercion). For one thing, the court concluded, the interactions between the government and the platforms were systemic and not just occasional: "consistent and consequential," "repeated[]," "persistent[]," and "relentless." And, likely more importantly, the interactions involved "press[ure] for outright change to the platforms' moderation policies," which caused "a lasting influence on the platforms' moderation decisions without the need for any further input."

The result was that the government "was entangled in the platforms' decision-making processes," with the government "becoming intimately involved in the various platforms' day-to-day moderation decisions" in a way that produced "an extensive relationship with the platforms." Because of this, "the resulting content moderation, 'while not compelled by the state, was so significantly encouraged, both overtly and covertly' by CDC officials that those decisions 'must in law be deemed to be that of the state."'

This may have been the Fifth Circuit's attempt to distinguish the government's actions from the routine individual interactions between government officials and the media that Justices Kagan and Kavanaugh discussed during oral argument, referring to their own experiences in the White House. Perhaps those kinds of interactions wouldn't be as ""consistent," "repeated[]," "persistent[]," and "relentless," at least by the same government office (even if they happen often when one views the government as a whole). And, likely more importantly, such interactions wouldn't involve changes to media policies or government "entangle[ ment]" or "intimate [] involve[ment]" in the media's decisionmaking.

To be sure, this may be an odd line to draw. When it comes to coercion, after all, even one-time coercive demands to intermediaries (for example, "cut off financial services to Backpage.com, or we'll prosecute you") are unconstitutional. Likewise, even a one-time request by the police asking a private property owner to engage in a search would be state action subject to Fourth Amendment constraints. Yet some line might be necessary, to constrain the union of government power with private sector power. The Fifth Circuit's opinion is of course no longer binding precedent, since it was reversed on standing grounds; but it remains to be seen whether its analysis will remain persuasive to future judges.

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[Eric Claeys] Choice of Law in Takings Cases After Tyler v. Hennepin County (IV)

Yesterday, I finished covering the law and doctrine from my forthcoming article about the Supreme Court case Tyler v. Hennepin County, Minnesota. As I showed on Monday, the U.S. Supreme Court held that surplus equity constitutes "private property" sufficient to support claims under the Takings Clause. As I showed on Tuesday, in the course of reaching that holding, Chief Justice Roberts made a little clearer and more orderly the principles the Court relies on when it makes choice of law decisions in takings litigation. Roberts announced that the Court was following a strategy for takings similar to the strategy it applies for other federal constitutional rights. That general strategy is associated with Indiana ex rel. Anderson v. Brand-start by measuring the right under state law, but measure it with independent sources if the most relevant state laws seem likely to convert the Takings Clause into a dead letter. As I showed yesterday, however, Tyler and earlier takings choice of law cases depart slightly from the Brand strategy. In Tyler, not only did the Court take a second look at the law of Minnesota (consistent with Brand), it also consulted early English and American general law on the question whether surplus equity has been treated as a property right.

To this point, I've tried to explain how Tyler follows and how it departs from different lines of doctrine. And also to this point, I've reserved judgment on whether the Tyler strategy is convincing normatively. I think the Tyler strategy makes a considerable amount of sense, at least when applied in the contexts in which the Court has applied it. Today, I'll explain why-and, why I don't find any of the other strategies likely to be better in the same contexts.

I'm going to make two separate arguments on behalf of the Tyler strategy. One argument relies on originalism. Assume that there are convincing arguments to interpret the Constitution in light of its original meaning. (I know, I know, arguments for originalism are bound to be controversial and contestable. But every justification for any constitutional-interpretation theory is fraught, and I'm persuaded by some of the cases for originalism.)

It is not easy to work out what "private property" meant originally at the Founding. (The problems get even worse if one thinks, as Justice Thomas and I do, that what I've been calling "Takings Clause law" in this series is actually grounded in the Privileges or Immunities Clause of the Fourteenth Amendment.) The sources that early American lawyers knew best and followed most took for granted that property exists, without spelling out exactly what it is. At the same time, competent lawyers do pretty well at sorting different legal entitlements into rights of "property," "contract" and so on without precise working definitions. So the Tyler strategy seems promising. Ordinarily, federal courts can and will just follow state property law. But when state law seems unreliable-or, threatening to some legal entitlement that might constitute constitutional "private property"-courts can cross-check it against early general law.

My other argument for Tyler is not originalist. When federal courts decide whether particular legal entitlements constitute "private property," they are deciding whether they should make a little broader or keep a little narrower the sphere of entitlements protected from political interference by state political processes. To figure out what "private property" means and covers, federal courts might rely on their own judgment, and they might rely instead on state law. Each approach comes with problems. On one hand, if federal courts relied entirely on state law, they would turn blind eyes to gamesmanship by state legislatures. On the other hand, if federal courts relied entirely on their own judgment, they might make serious mistakes. They might classify as constitutional property legal entitlements that are beyond the scope of property properly understood. Or, on some topic broad definitions of property might not be determinate enough to say whether a particular legal entitlement is property, and on that topic reasonable minds might differ. In such cases, federal courts might impose a one-size-fits-all answer on a question where there might be several reasonable legal answers.

Given those uncertainties, Tyler's strategy makes a lot of sense. That strategy is modest, and it lets federal courts put off making federal declarations of what property is and isn't. States rely on property being a coherent and determinate concept. State tax, bankruptcy, and eminent domain statutes all act on property rights without defining those rights. If those fields of state law can all take for granted that a state has a coherent concept of property, federal takings law usually can, too. Some cases are different. In some cases, federal courts will be absolutely sure that an interest in dispute is a property right-in particular, when a piece of legislation authorizes the seizure or occupation of land and triggers the per se regulatory takings doctrine for "regulatory touchings." In those cases, federal courts be sure that a federal right is in play no matter what state law says.

In another set of cases, though, the legal entitlement in dispute isn't clearly at the core of private property, but there are serious arguments that the entitlement is and has consistently been classified as private property. In cases like those, it seems a reasonable compromise-between broad federal court discretion and broad deference to state law-to ask whether the entitlement was regarded as property in the English and American sources that made up the general law when the Takings Clause was ratified.

There are three main alternatives, and I don't find any of them more satisfying. The main alternative, supported in property scholarship and in the state and local government wing of the eminent domain bar, argues that federal courts should follow state law exclusively and not look past it. To that view I have one basic reaction. Pick any other right in the Bill of Rights-free speech, religious free exercise, or freedom from unreasonable search or seizure. Would it seem right to say that a claimant's constitutional rights (if any) were entirely creatures of the law of the state in which the claimant is bringing a constitutional lawsuit? In the 1994 case Dolan v. Tigard, the Supreme Court warned against making the Takings Clause into a "poor relation" in contrast to other Bill of Rights guarantees. Without exceptions like the ones I just described, the view that property rights are creatures of state law does exactly that.

Thomas Merrill has defended another alternative, which he calls a "federal patterning" approach. In that patterning approach, the question whether some entitlement is property is a federal question. Federal law lays out a few broad criteria that entitlements must satisfy to count as property, while in practice state law settles whether particular entitlements count as property. When federal courts study state law, they are asking whether interests that are called property rights in state law possess the criteria they must possess to count as property for the federal pattern. That approach seems well and good when states legislate on entitlements that seem central property-like the right of exclusive control associated with property. It doesn't work so well when it isn't clear that the entitlement in dispute satisfies federal criteria for property. Like the surplus equity at issue in Tyler. Or, like bank interest, when a government forces people to deposit money and keeps the interest for its own uses. (That practice was tried in Webb's Fabulous Pharmacies v. Beckwith (in a court-managed interpleader fund) and in Phillips v. Washington Legal Foundation (in a program diverting interest from client funds held in trust to fund state legal service programs).)

The last alternative is to disregard general property law and follow Brand more closely-as ReaderY put it in a comment this week, to follow state law in all cases except "only in the specific case where a state gives itself an advantage that its law does not allow to other" actors in the state. I have two reactions. First, in my opinion, I would strongly oppose that strategy in cases in which a state abolished, for itself and for all citizens, some entitlement clearly central to property-like the concept of title, or the right to exclude. Second, I question a couple of assumptions I think ReaderY is making: that the general law approach broadens the scope of constitutional property, and also the discretion exercised by federal courts. If courts looked past state law whenever state law seemed to give state governments "advantages" private parties weren't getting, I suspect they would be busier than they would be studying whether particular entitlements were recognized as "private property" by a broad and representative cross-section of sources around the time the Fifth Amendment was ratified.

And with that, I've gone through the main arguments in my forthcoming article. But Tyler also raises interesting jurisprudential issues. As my discussion this week has suggested, Tyler is raising in the context of takings litigation issues similar to the issues in dispute between Swift v. Tyson and Erie Railroad v. Tompkins. And the scholarship bears as much out; in his article, Merrill contrasts his "patterning" approach with what he calls "natural" and "positivist" alternatives. Tomorrow, I want to talk about some of the questions Tyler raises in jurisprudence. And, I'll use tomorrow's post as a "reader mailbag" covering any other questions TVC readers pose.

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