Eugene Volokh's Blog, page 184

[Josh Blackman] Today in Supreme Court History: January 18, 1873

1/18/1873: Bradwell v. Illinois argued.

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[Eugene Volokh] "Another Email Account Impersonating a Banker Working for [Plaintiff] Invited … Recipients … to Join a Fictitious Neo-Nazi Banking Club"

In today's decision in Raymond James & Assocs. v. Saba by Judge Matthew W. McFarland (S.D. Ohio), Saba had been an intern at Raymond James & Associates, a financial firm, but didn't get a full-time offer. He then allegedly did the following (according to plaintiff's Complaint):

On November 4, 2024, using several fictitious email accounts, Defendant began a cyber-harassment campaign ("the Campaign") that spread false and malicious information about Plaintiffs. The emails, sent to fellow Raymond James employees, as well as individuals outside the company, accused Plaintiffs of illegal insider trading and rape; one email targeted Redvanly's girlfriend at her place of employment and accused her of illegal insider trading.

In addition to the false accusations of criminal activity, some emails attempted to implicate Plaintiffs Redvanly [Defendant's former mentor at the firm] and VanBenthuysen [another firm employee] in inappropriate romantic relationships. In fact, on December 8, 2024, an email sent to both Raymond James employees and outside email addresses intended to impersonate VanBenthuysen and another employee; the email implied that the two were engaged in an extramarital affair and included sexually explicit images. A separate false account further distributed this email to numerous members of the investment banking community, including firms that compete with Raymond James.

Defendant sent a similarly explicit email on December 15, 2024, implicating VanBenthuysen and a different Raymond James employee by purporting to report explicit communications between the two; this email was similarly sent to both Raymond James employees and external recipients. On December 21, 2024, yet another fictitious email account sent an email to both Raymond James employees and external recipients, this time impersonating VanBenthuysen's wife and including another sexually explicit image taken from the internet. Plaintiffs allege that this conduct continued throughout the month of December 2024.

Then, on December 30, 2024, another email account impersonating a banker working for Raymond James invited numerous recipients external to Raymond James to join a fictitious neo-Nazi banking club. The email directed responses to VanBenthuysen's Raymond James email address and included a PDF attachment that advertised the fictitious neo-Nazi club. Raymond James' Cyber Threat Center, which had been working to uncover the perpetrator of these emails, examined the metadata on the attached PDF. The metadata revealed that Defendant was the author of the PDF.

On January 3, 2025, an additional false account sent a similar neo-Nazi banking club email with an attached PDF, and Defendant was again listed as the author of that PDF. The Cyber Threat Center also discovered that the visible digits of the recovery phone number for one of the fictitious email addresses impersonating VanBenthuysen matched Defendant's phone number. Further investigation revealed that the recovery email for the fake VanBenthuysen account was another email address used in the Campaign. The Cyber Threat Center's findings led to the discovery of more connections between the multiple email accounts used in the Campaign. These email accounts all shared Defendant's phone number.

Finally, on January 6, 2025, another email impersonating VanBenthuysen was sent to over 200 third-party recipients and included a similar neo-Nazi club invitation. As with the prior PDFs, Defendant was listed as the author on this invitation. The same day, Raymond James' in-house counsel issued a cease-and- desist letter to Defendant by email, demanding that Defendant stop the Campaign. Defendant confirmed by phone that evening that he had received the letter. This was the first time Plaintiffs had informed Defendant that they had discovered he was the perpetrator of the Campaign. Plaintiffs are not aware of any further email attacks since the issuance of the letter.

Due to the barrage of emails and resulting security threats, Raymond James closed its Atlanta offices on January 7 and 8, 2025. Plaintiffs have expended significant financial resources to repair the damage to their personal and professional reputations and to discover the source of the emails….

Plaintiffs sued for, among other things, defamation, and immediately sought a temporary restraining order and permanent injunction. The court concluded that plaintiffs had reasonably tried to serve defendant, and failed through no fault of their own, so a decision could properly be made without defendant's participation. The court also concluded that a preliminary injunction in this case would be an unconstitutional prior restraint:

A portion of Plaintiffs' requested relief directly implicates the First Amendment by seeking to enjoin Defendant from "[s]ending … any emails or other communications" about the Plaintiffs, employees of Raymond James, or the significant others of VanBenthuysen and Redvanley, and from "[p]ublishing defamatory material" about them. This amounts to a "classic example" of a prior restraint—"just a fancy term for censorship."

In considering a temporary restraining order that involves a "prior restraint on pure speech, the hurdle is substantially higher: publication must threaten an interest more fundamental than the First Amendment itself." The proponent of a prior restraint must overcome the "heavy presumption against its constitutional validity." This caution makes sense. After all, "[t]he special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment."

Traditionally, "equity does not enjoin a libel or slander and [] the only remedy for defamation is an action on damages." Courts following the colloquially named "modern rule" have developed a carveout for "a narrow and limited injunction" in specific circumstances. But, even then, there is an important qualification: "It is clear that where this 'modern rule' has been followed, there has been an adjudication of the merits before a permanent injunction has issued, and the judge or jury has made a final determination that the statements to be enjoined are false and libelous." See also Goodson v. Republican State Leadership Comm. - Jud. Fairness Initiative (E.D. Ark. 2018) ("It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case."); Banks v. Jackson (D. Colo. 2020) ("[A] preliminary prior restraint, which is at issue here, is, in fact, something the court cannot do.").

Relevant to our inquiry herein is Lothschuetz v. Carpenter (6th Cir. 1990), which announced the Sixth Circuit's holding on the question of issuing an injunction against defamatory statements. Though the court would enjoin the defendant from making defamatory statements, it would "limit the application of such injunction to the statements which have been found in this and prior proceedings to be false and libelous." Because the defendant in Louthschetz had defaulted on the question of liability, this amounted to an adjudication on the merits.

The Court also finds Saidak v. Schmidt, 501 F. Supp.3d 577 (E.D. Tenn. 2020), persuasive given its similarity to the posture and alleged facts here. In Saidak, the plaintiff sued the defendant for defamation and sought to prevent further defamatory statements in furtherance of the defendant's "calculated campaign to defame, slander, and libel Plaintiff." Specifically, the plaintiff sought to preliminarily enjoin the defendant from making any public comments about the plaintiff, his business, the lawsuit, or members of plaintiff's family.

However, the court denied this request because it amounted to a prior restraint before a final adjudication on the merits had concluded that the statements were, in fact, defamatory. Preliminarily enjoining the alleged defamatory speech would have required the court to evaluate the speech and "at a minimum, pass judgment on the truth or falsity of that speech and its potential for harm."

Thus is the case here. The Court cannot grant Plaintiffs' broad request to enjoin Defendant's speech at this time because it would amount to a prior constraint before a final adjudication. This is not to diminish the gravity of the allegations in this case, or the effects felt by Plaintiffs. But, as explained, the First Amendment and the corpus of case law on this point is unmistakable: the Court cannot preliminarily enjoin Defendant's speech—let alone in an overbroad or imprecise manner—before a final adjudication on the merits. See, e.g., Renoir-Large v. Lane (S.D. Ohio 2011), report and recommendation adopted (S.D. Ohio 2011) (denying preliminary injunction because there had been no final determination and also noting the requested relief extended well beyond the allegedly defamatory statements previously made by the defendant); Oakley, Inc. v. McWilliams (C.D. Cal. 2012) (denying preliminary injunction on "prior restraint" grounds for defendant who had allegedly sent harassing emails to other employees, associates, and industry personnel with accusations of criminal activity, infidelity, and attachments of pornographic images).

This general prohibition on pretrial injunctions against alleged defamation (as opposed to permissible injunctions that follow a full trial on the merits) strikes me as correct, see Anti-Libel Injunctions.

Yet despite that prior restraint analysis, the court did restrict defendant at least from using certain email accounts in continuing his speech about defendants:

After thorough consideration and review, rather than enjoin Defendant from speaking to or about Plaintiffs, the Court restricts Defendant from accessing the email accounts previously used in the Campaign, as well from creating new email accounts in furtherance of the Campaign. In this way, the Court enjoins Defendant from continuing his course of conduct without issuing a prior restraint on his speech.

I take it that the court is thus allowing defendant to speak to or about plaintiffs using his other email accounts, which presumably are in his own name (since the "Campaign" had used "several fictitious email accounts"). Query whether this restriction, which would extend even to expressly anonymous speech (and not just speech impersonating someone else), should also be viewed as a prior restraint; but the court thought it was permissible.

To issue even this limited order, the court had to find (among other things) that plaintiffs had shown a likelihood on success of the merits of the defamation claim, and the court so concluded. It held that there was enough evidence the statements were false:

Defendant sent two emails to individuals employed by Raymond James, as well as to others outside of the company, stating that Plaintiffs Vanbenthuysen and Redvanly had been convicted of rape. Defendant's specific statements are verifiably false, and inappropriate in the context of professional email communications….

And it held that there was also enough evidence that defendant was at fault, and indeed spread falsehoods intentionally and not just negligently:

Defendant created a network of fictious email addresses to spread numerous false statements about Plaintiffs. The repeated nature of Defendant's conduct does not suggest an accident or negligence. Rather, Defendant's scheme displays a specific intent to publish the defamatory statements.

Finally, the court also ordered defendant (1) not to come "within 100 yards of: (a) Plaintiffs VanBenthuysen and Redvanley; (b) the personal residences of Plaintiffs VanBenthuysen and Redvanley; and (c) any Raymond James office," and (2) not to "delete or otherwise access "any electronic files concerning Plaintiffs" or "any email account used to transmit emails concerning Plaintiffs or any of their significant others."

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[Eugene Volokh] From Daphne Keller (Stanford) on the Tiktok Case

I've long much appreciated Keller's analyses, so I thought I'd pass along this one about today's TikTok decision; I disagree with parts of it, but I think it's quite interesting and insightful:

Given that I considered TikTok's loss a foregone conclusion, this feels like maybe the best possible outcome.

To be clear, I would have liked the TikTok law to be struck down. That's because, assuming (against much evidence) that the goal was to prevent Chinese data collection that threatens national security, Congress chose a *really stupid* way to do that. It could have done so many more effective things. But I didn't expect that logic to prevail. As copyright lawyers learned years ago with Eldred and Golan, the Supreme Court will ignore illogical, captured, biased, or pretextual Congressional reasoning when it feels like it.

The Court rules solely based on the national security threat posed by Chinese data collection (not the algorithmic control issue). Plaintiffs conceded the government's interest in preventing that data collection. That leaves the much more 1st-Amendment-fraught questions about algorithm design unaddressed.

Gorsuch's concurrence addresses a key lurking issue about the government's interest in preventing Chinese manipulation of the algorithm. Can US speakers or companies (like TikTok) choose, as a 1st Am matter, to espouse China's message? Gorsuch says yes. (Screenshots of key passages for this and some other points below are in the Bluesky version of this thread, https://lnkd.in/gq3f2xJE)

That's the same thing the district court said in Zhang v. Baidu, a must-carry case from long before Moody. It said the China-based search engine could exercise its 1st Am rights to exclude the speech of US-based dissidents at the behest of the Chinese government.

What's remarkable is that just last summer Gorsuch seemed to think that algorithmic ranking of user content wasn't speech. Contrast his lines today about TikTok's "editorial discretion" with this, from [Justice Alito's dissent in Moody v. Netchoice, which Gorsuch joined -EV]: "[The majority] unreflectively assumes… that social-media platforms —which use secret algorithms to review and moderate an almost unimaginable quantity of data today—are just as expressive as the newspaper editors who marked up typescripts in blue pencil 50 years ago."

Gorsuch goes on to say a remarkable number of things that I agree with. I'll add those in the comments.

Overall, the per curiam opinion and concurrences barely mention user rights at all. Which is exactly how I want it. I was afraid they would say something that really messes up future user rights cases.

This could have been so very much worse.

OK, here is what my main man Neil had to say! (Neil Gorsuch, who reportedly scanned the Dobbs opinion overturning Roe for 10 mins and then signed. I'm actually not that into him.)

(1) "One man's 'covert content manipulation' is another's 'editorial discretion'" and Americans can choose to "make decisions about what they say in concert with a foreign adversary" if they want. This came up in oral arguments re American Communists and the USSR.

(2) He lauds the Ct's declining to rely on classified evidence, noting that "Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns" and urging Congressional or Rules Committee action to affirm this.

(3) He has real concerns about whether these rules are truly content-neutral (OK, should he concur then though?). And then, in the part I like, he notes that tiers of scrutiny are kind of bullshit anyway. They "do more to obscure than to clarify the ultimate constitutional questions."

(4) He says preventing foreign adversary data collection is a compelling interest. That seems fine to me, even if I think this law is a stupid, political, badly tailored way of serving that interest.

So I disagree with (5) where he says the tailoring is fine here.

A couple more things about the per curiam (i.e. unsigned, whole Court) ruling.

The Ct thankfully declines to rule on the topic they got so distracted by in oral arguments: Whether there is even a cognizable burden on speech when Congress regulates upstream preconditions that make speech possible (in the form of corporate platform ownership). There

is some sleight of hand on page 19 about whether the data security justification can support the parts of the law that affect TikTok's ability to use the ranking algorithm. I'm not sure how severable that would have been anyway.

Sotomayor weighs in separately to say "You guys, we literally *just said* in Moody that platforms' algorithmic ranking is speech, so there is definitely a speech interest here." (That's not a real quote.) Also she says there is an association right.

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[Josh Blackman] A 2017 Profile Of Tom Goldstein In The Carolina Alumni Review

David Lat linked to a November 2017 profile of Tom Goldstein in the University of North Carolina alumni magazine. He was interviewed in April 2017. In that period, he had two back-to-back oral arguments in California Public Employees' Retirement System v. ANZ Securities, Inc. (4/17/2017) and Bristol-Myers Squibb Co. v. Superior Court of California (4/25/2017). In my post yesterday, I listed some of the allegations made in the indictment from that time frame, which involved high stakes poker games, suffering losses of nearly $10 million, and moving funds around from the firm to pay those debts.

Here is how the alumni magazine described his experiences during that time:

On a Sunday in April, Goldstein secluded himself in a 10th-floor suite at the Park Hyatt Washington hotel. For two days before every Supreme Court appearance, he leaves home to focus. . . .

In stories from his younger years, Goldstein came across as larger than life, dabbling in high-stakes poker and once shipping a Ferrari to Las Vegas for a drag race. In person, he's soft-spoken and selfeffacing. He gave up poker. He traded the Ferrari for a Tesla P100D (still fast, but with room for the kids). He quit posting YouTube spoofs about his work. These days, most of what he talks about are legal briefs and oral arguments. "I think most people," he said, "would find what I do boring."

That evening, Howe planned to bring their daughters down for dinner from their home in Chevy Chase — eating together is a family commitment they rarely forfeit, not even for the Supreme Court. But other than a rare break for an interview, at the Hyatt there were few distractions. "When I left home last night, the dog started throwing up and my daughter was sick so it was just good fortune that I had separated myself, and then I'll be back home on Monday," Goldstein said. "Now it's just a question of putting it all together, refining the answers, filling in all the little holes of what I don't know. That sort of thing. … I'll learn things until the last possible minute." . . .

"We're a good team," Howe said. Said Goldstein: "I wouldn't have time to do what I do without all she does with the family and the blog. And my law practice makes her job possible. So each of us contributes equally to the success of the other. … The only time we've had a problem is when there's been a hierarchy. We figured that out so we're never in an environment where one reports to another." . . .

Howe, who blogged about Neil Gorsuch's first day on the court that morning, took a seat in the spectator section to watch her husband's argument. She doesn't write about his cases; Columbia Law School professor Ronald Mann covered the hearing for SCOTUSblog. Goldstein was up against Paul Clement, a former solicitor general who is considered a leading contender for justice if there's another opening under President Donald Trump. "One of the things I love about what I do is that the people on the other side that you're dealing with are super talented," Goldstein said. "They push you. You cannot sleep on any case. The other side is going to make all the best arguments that can be made, in the best way they can be made. It really causes you to up your game. I find other places where you can just wing it very boring."

I was also struck by this quote from Nina Totenberg, Goldstein's former employer and mentor:

"The thing about Tom, you've got to understand, is he's a quintessentially decent person as a human being," Totenberg said. "When somebody is as smart as he is, there's always the chance he will lose that sense of personal decency and become completely obsessed with himself and all that. And that didn't happen to him. I give him a lot of credit for that. I give her [Amy Howe] even more."

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[Ilya Somin] Biden Didn't Cause the Border Crisis by Being too Lax on Enforcement

A group of asylum seekers walk along the U.S.-Mexico border near San Diego, California. (Qian Weizhong/VCG/Newscom)

 

Particularly since the election, a conventional wisdom has emerged that President Biden caused a border crisis by being lax on enforcement. My Cato Institute colleague David Bier, a leading immigration and border policy expert, has an excellent piece explaining why that conventional wisdom is largely wrong. Here is his summary of his main points:

The main takeaways are:

Illegal immigration had already increased to a 21-year high by December 2020 before Biden came into office. Biden immediately started increasing expulsions from his first day in office. Biden tripled interior detention and increased border detention 12-fold. Biden increased air removal flights by 55 percent over 2020 levels. Biden negotiated broader expulsion deals with foreign countries than Trump. Biden got many foreign countries to carry out crackdowns on illegal and legal migration. Biden removed or expelled 3.3 million border crossers—3 times as many as Trump. Biden even managed to remove a similar percentage of crossers as Trump's 4 years.

Despite Biden's historic crackdown:

Expulsions did not deter migrants, even among demographics universally expelled. Evasions of Border Patrol increased as rapidly as Border Patrol arrests, implying that releases did not cause the crisis and that many people did not want Border Patrol to catch them but were undeterred by the threat. Releases occurred not because Biden cut removals but because migration grew faster than the administration could increase them. As a result, releases only occurred among specific demographic groups and in specific areas where removals were logistically complicated. Biden could not easily remove groups to Mexico, like families, children, and immigrants from distant countries who were arrested in record numbers.

The actual causes of the increases in illegal immigration were:

Unprecedented labor demand, which incentivized and funded migration from around the world: From February 2021 to August 2024, there were more open jobs each month than in any month before Biden's term began. During this time, economies worldwide were recovering far less quickly than the United States. As labor demand subsided in 2024, immigration fell. Unprecedented access to information about migration through the Internet and social media: Internet access rose rapidly from 2018 to 2021, nearly doubling in Central America and reaching unprecedented highs in South America. Social media platforms gave people step-by-step instructions on migrating and connected them directly with smugglers. This opened migration from around the world—which contributed to the number of releases. Novel and perverse enforcement policies: The Title 42 expulsion policy incentivized repeat crossings by returning people to Mexico, where they could immediately attempt to re-enter the United States. Title 42 also cut off access to asylum, incentivizing more Border Patrol evasions. Novel and perverse legal migration policies: Title 42 and related pandemic restrictions not only banned asylum for people who crossed illegally but also prohibited legal entries by asylum seekers, including demographic groups that had traditionally always entered legally, like Haitians, Cubans, and Mexican families. Biden eventually increased legal entries by these groups and others, limiting the crisis's extent and ultimately contributing to its end.

The rest of the article substantiates these points in detail. I agree with almost everything David says. As he and I explained in a November 2023 USA Today article, the best way to address border issues is to make legal migration easier. Unfortunately, as we described in the same piece, the Biden administration undermined its own otherwise laudable efforts to do just that, because of bureaucratic constraints and arbitrary numerical limits on parole programs that expand legal migration.

I would add two points to David's analysis. First, in addition to the "pull" factor of the hot US labor market (emphasized by Bier), there was also the "push" provided by intensifying poverty, violence, and repression in countries such as Cuba, Venezuela, and Haiti. Both played a role in increasing illegal migration over the last several years.

Second, it is notable that Biden's many restrictionist measures - documented by Bier - did little to increase his popularity. At the very least, this weakens the claim that such policies are obvious political winners for Democrats. I would not go to the opposite extreme of saying that the policy I prefer - near-total open borders - would be popular, either. But, as Bier and I have long argued, making legal migration easier can reduce chaos at the border, and thereby reduce the political backlash such chaos creates.

For those who care, Bier and I were both highly critical of Biden's use of Title 42 restrictions (which extended a policy first adopted by Trump) and "Trump-lite" asylum policies at the time. These policies were legally dubious, caused great harm, and largely failed even to achieve Biden's political goals. Sometimes, harmful, counterproductive, and unjust policies can boost politicians' popularity. In this instance, they failed even to do that.

In a previous post on this issue, I commented on a related piece by Alex Nowrasteh, who also works on immigration policy at Cato.

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[Jonathan H. Adler] Can a School Require Students to Learn about Sexuality and "Cisnormativity" Over Parents' Religious Objection?

Today the Supreme Court granted five petitions for certiorari. These cases will either be heard at the end of the term in April, or at the beginning of next term in October. (Hearing them this term would require curtailing the normal briefing schedule.)

Perhaps the highest profile case among today's cert grants is Mahmoud v. Taylor, a case that implicates the religious rights of parents to control (or at least know about) what their children learn in school.

Here is the question presented from the petition for certiorari:

Respondent Montgomery County Board of Education requires elementary school teachers to read their students storybooks celebrating gender transitions, Pride parades, and same-sex playground romance. The storybooks were chosen to disrupt "cisnormativity" and "either/or thinking" among students. The Board's own principals objected that the curriculum was "not appropriate for the intended age group," presented gender ideology as "fact," "sham[ed]" students with contrary opinions, and was "dismissive of religious beliefs." The Board initially allowed parents to opt their kids out—but then reversed course, saying that no opt-outs would be permitted and that parents would not even be notified when the storybooks were read.

Petitioners filed suit, not challenging the curriculum, but arguing that compelling their elementary-age children to participate in instruction contrary to their parents' religious convictions violated the Free Exercise Clause. Construing Wisconsin v. Yoder, the  Fourth Circuit found no free-exercise burden because no one was forced "to change their religious beliefs or conduct."

The question presented is:

Do public schools burden parents' religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents' religious convictions and without notice or opportunity to opt out?

This case implicates parental rights, but in the context of religious exercise. It also concerns the education and upbringing of one's children, a right which rests more firmly on existing precedent than does a right to medical care of which the state disapproves. The Court's willingness to hear this case is nonetheless extra-interesting because the Court did not grant certiorari for the issue of parental rights in the Skrmetti case, which concerns whether a state may prohibit children from receiving certain medical treatments. Among other things, the ACLU argued that preventing children from receiving medical care that their parents support violates their parents due process rights.

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

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

Friends, 2025 marks ten years of Short Circuit. That's right, our first newsletter went out February 13, 2015, and our first podcast two weeks later. To celebrate, we're putting on a show—and hosting a party. The best part is that you're invited. It's Thursday, April 3, 2024, at 7pm at the Studio Theatre in Washington, D.C. You'll hear about how it all began, see a Short Circuit Live podcast recording, and learn about the future of the federal courts of appeals. Plus, free food and drinks. And in addition to several of us at IJ, you'll hear from retired judges Diane Wood (CA7) and Kent Jordan (CA3), Adam Liptak of The New York Times, Prof. Eugene Volokh, Dean of #AppellateTwitter Raffi Melkonian, and our old friend Clark Neily, now at Cato. Register here today!

Allegation: New York inmate complains of urinary symptoms that, unknown to him, are telltale signs of prostate cancer. Prison doctors don't investigate and instead treat him for benign enlarged prostate. He's paroled in 2019 and in 2021 discovers that he has late-stage prostate cancer. He sues, alleging that the cancer should have been caught and treated earlier while he was incarcerated. Second Circuit: And his claims should not have been dismissed as untimely. Dissent: He knew he had a serious medical problem when he was incarcerated, even if he didn't know it was cancer. His claims should be barred. Cryptocurrency trading platform asks the SEC to promulgate rules clarifying how and when federal securities law apply to digital assets like $HAWK coin or pictures of monkeys. The SEC demurs, deciding that it would rather explain the law through the process of suing companies it thinks have violated it. Third Circuit: We won't order rulemaking, but the SEC needs to provide a better explanation for this enforcement-based approach. Concurrence (Judge Bibas): The old regulations are a poor fit for digital assets, and the SEC's enforcement strategy raises constitutional notice concerns. A Kenyan national residing in Lancaster, Penn. faces a deportation order based on 2014 and 2019 felony convictions for vehicular fleeing a police officer. On appeal, the man argues that his convictions are not crimes involving moral turpitude (CIMT) that trigger deportation. Following oral argument before a panel, the Third Circuit votes for en banc rehearing and requests supplemental briefing. Eh … never mind, un-banc'd and remanded to the panel, which grants the man's petition after holding that neither offense qualifies as a CIMT. Third Circuit (Jan. 2024): It's unconstitutional to prevent 18–20-year-olds from carrying firearms outside their homes for lawful purposes. Supreme Court last summer: Hey, here's this new Rahimi opinion, see what you think about them apples. Third Circuit (Jan. 2025): Yeah, still the same thing. Louisiana man sentenced to a mandatory minimum of 20 years in prison for conspiracy to distribute crack and cocaine seeks compassionate release under the First Step Act, even though that law was enacted years after his sentence and is explicitly not retroactive. Fifth Circuit: So obviously he's going to lose. And a 2024 decision suggesting otherwise is wrong under the rule of orderliness, because it conflicts with an earlier circuit decision. Zillow wants public records from counties in Kentucky on property values and taxes. State law allows them to charge Zillow more because it has a commercial purpose, while exempting certain favored commercial uses like newspapers. A First Amendment problem? Sixth Circuit: Nope, this is OK because the gov't isn't targeting any particular content with more expensive fees. Dissent: Ummm, seems pretty content-based to me to charge fees based on what the requestor intends to do with the information. Every once in a while, the law of electricity regulation escapes its natural habitat in the D.C. Circuit and invades a new ecosystem where neither it nor its attendant acronyms have any natural predators. In that spirit, aspiring David Attenboroughs may wish to narrate this divided panel of the Sixth Circuit, which holds that Michigan violates the dormant Commerce Clause by requiring at least some of the energy distributed in its lower peninsula to also be generated in that lower peninsula. Wags sometimes like to chortle that "it's not the crime; it's the cover-up." But here, both were pretty bad. In 2018, guards at an Illinois state prison beat an inmate so badly he later dies. Yikes. One of the guards (the precise nature of whose involvement remains disputed) then prepared an incident report containing falsehoods and lied in the police interviews that ensued. In the federal prosecution that ensues, he is convicted of, among other crimes, witness tampering and falsifying records in a federal investigation. Guard: But I just lied to state folks, not the feds! Seventh Circuit: When you made the false statements, there was "a reasonable likelihood they would reach federal officials." City police seize firearms owned by an innocent homeowner in the course of arresting his apparently not-so-innocent houseguest—and, four years later, haven't given them back. Unconstitutional? Ninth Circuit (unpublished): No, it's totally reasonable to keep the guns until this guy pays a fee and provides sufficient proof of identity. (Dissent: They know who he is. He's the guy who filed this lawsuit. They should just give him his stuff back.) On December 14, 2017 (yes, 2017), a gentleman parks his car in downtown Portland, Ore. and pays for 1 hour and 19 minutes of parking. Then he bounces. After five days' worth of tickets, officers place a notice on the vehicle warning that it would soon be towed. Two days later, it is. Man: This abject failure of notice violated my due-process rights. After all, you knew from the untouched, accumulating mountain of tickets on my windshield that I wasn't checking the windshield for notices. District court (2018): Due process is a-okay with this. Ninth Circuit (2020): You applied the wrong due-process standard (Mathews instead of Mullane, for the due-process mavens in the audience). District court (2023): Due-process is still a-okay with this. Ninth Circuit (2025): By Jove, so it is. The California Supreme Court politely declined the Ninth Circuit's recent invitation to weigh in on Uber's liability, under state law, for the sexual assault of a rideshare customer. Leaving the Ninth Circuit to "predict as best we can what the California Supreme Court would do in these circumstances." Ninth Circuit: We predict that Uber owed the customer a duty of care under California law. Affirmed in part, reversed in part, and remanded. Dissent: And I predict that the state high court disagrees. Tacoma, Wash. ICE detention center (a federal contractor) pays its civil detainees $1 per day for a voluntary work program, far below the state's minimum wage. Jury awards $17 mil in back pay. Ninth Circuit: Just so. The state's minimum wage does not violate intergovernmental immunity or the contractor's derivative sovereign immunity, and it is not preempted. Pay your workers. Dissent: State facilities don't have to follow the state's minimum wage requirements, so it violates all kinds of doctrines to hold federal facilities to a higher standard. After Florida Governor Ron DeSantis suspended state attorney Andrew Warren and replaced him with a political ally, Warren sued, alleging First Amendment retaliation. The district court held that DeSantis would have canned Warren regardless, but in January of last year the Eleventh Circuit ordered the court to take a second look. DeSantis moved for rehearing en banc, and the Eleventh Circuit took no action on that motion for a year, during which Warren's term of office expired. Eleventh Circuit (2025): So now his case is moot. And in en banc news, the Ninth Circuit (and the Ninth Circuit) will not reconsider its decisions that it's constitutional for California and Hawaii to ban the carrying of firearms in many spaces that are open to the public. Eight judges would have granted review. And in amicus brief news, this week the U.S. Supreme Court heard oral argument in , a First Amendment challenge to Texas's law requiring age-verification on adult websites. The case drew a truly bonkers number of amicus briefs (more than 40!), so we were particularly flattered that counsel for the Free Speech Coalition made of point of noting that petitioners "agree with the Institute for Justice in its amicus brief." What did we say there? Read it and find out!

Friends, IJ is hiring. Come litigate the kinds of cases that made you want to go to law school. Positions are open at our offices in Phoenix, Austin, Seattle, and Arlington, Va. Click here to learn more and apply.

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[Ilya Somin] Biden's Dubious Declaration that the Equal Rights Amendment has Been Duly Ratified

March supporting the Equal Rights Amendment. (Zelle/Getty)

 

Today President Biden declared that the Equal Rights Amendment, which states that "Equality of Rights under the law shall not be denied or abridged by the United States or any state on account of sex," has been duly ratified and is now part of the Constitution. Like Biden, I support the ERA and want it to be part of the Constitution. But his statement that it has been properly ratified is at odds with relevant court decisions, and is almost certainly wrong. Here is Biden's statement in full:

I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women's full equality once and for all.

On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.

It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.

For reasons laid out in a 2007 article on the subject, I too support the ERA. Some of the points I made in 2007 are now moot. For example, the ERA is no longer needed to ensure a right to same-sex marriage, because the Supreme Court ruled in favor of such a right on other grounds in Obergefell v. Hodges (2015). Similarly, the Pentagon has already opened up nearly all combat positions in the military to women, making that issue moot, as well (though enactment of the ERA could protect against backsliding). But the ERA would still lead to invalidation of all or most remaining forms of state-sponsored sex discrimination, such as male-only draft registration, and affirmative action preferences for women in some education programs and government contracting. It's possible that it would also ban state discrimination against transgender people (whether the latter qualifies as sex discrimination is disputed, though I think it does). I would be happy to see those effects happen, though the affirmative action one may not be welcomed by some of the ERA's more left-wing supporters.

Thus, I wish I could support Biden's conclusion that the ERA has been duly ratified. Sadly, I cannot. Scott Bomboy of the National Constitution Center has a helpful article laying out the controversy over the ERA's ratification. As he notes, Congress passed the ERA in 1972, but included a seven year deadline for the requisite ratification by three-fourths of the states. Congress eventually extended that deadline by another three years, till 1982. But, as of the extended deadline, only 35 states had ratified, three short of the required supermajority.

More recently, three more states claimed to ratify the amendment, the most recent being Virginia in 2020. Biden and other supporters of the idea that the ERA is now law want to count these post-deadline ratifications along with the others. Their position rests on the claim Congress's ratification deadline is unconstitutional.

Unfortunately for Biden, the Supreme Court ruled in Dillon v. Gloss (1921) that Congress does have the power to impose ratification deadlines, as it had done with the Eighteenth Amendment (which imposed alcohol prohibition). As the unanimous Court put it, "[w]e do not find anything in the article which suggests that an amendment, once proposed, is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary…. Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt."

More recently, the US Court of Appeals for the DC Circuit reached a similar conclusion regarding the ERA itself, in Illinois v. Ferriero (2023), a case in which two state governments sought to compel the Archivist of the United States to certify that the ERA has been duly ratified and is now the law. For what it's worth, the DC Circuit ruling was authored by Judge Robert Wilkins, a liberal Obama appointee, and joined by fellow liberal J. Michelle Childs (a Biden appointee), as well as conservative Neomi Rao (appointed by Trump).

I think the reasoning of these decisions is compelling. But even if Biden disagrees, he and other government officials have a duty to adhere to the courts' resolution of these constitutional issues. Defiance of such judicial decisions is wrong when promoted by Trump and J.D. Vance, and it is wrong for Biden, as well.

In fairness, Biden's declaration does not, by itself, violate any judicial ruling. That would only happen if the administration takes meaningful steps to enforce the ERA. Since Biden only has about three days left in office, he may be unwilling or unable to do anything along these lines. The incoming Trump Administration is likely to reject Biden's position.

It is somewhat strange that Biden only took this step on his way out the door. After all, Virginia's supposed ratification took place in 2020, and Biden could have adopted the position that the ERA has been ratified at any time during his term. Had he done so in, say, 2021 or 2022, it would have had a much bigger effect, likely triggering a prolonged legal battle.

For the moment, therefore, Biden's declaration is just a dubious symbolic step that probably won't have much effect.  But I worry that it will lead a future Democratic administration to take the same position, thereby setting the stage for an unnecessary constitutional conflict.

Co-blogger and Harvard law Prof. Steve Sachs offers additional criticisms of Biden's position here.

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[Stephen E. Sachs] President Biden, the ERA, and Constitutional Vandalism

Three days from the end of his term, President Biden just announced that he has "long believed" the Equal Rights Amendment to be valid law:

I have supported the Equal Rights Amendment for more than 50 years, and I have long been clear that no one should be discriminated against based on their sex. We, as a nation, must affirm and protect women's full equality once and for all.

On January 27, 2020, the Commonwealth of Virginia became the 38th state to ratify the Equal Rights Amendment. The American Bar Association (ABA) has recognized that the Equal Rights Amendment has cleared all necessary hurdles to be formally added to the Constitution as the 28th Amendment. I agree with the ABA and with leading legal constitutional scholars that the Equal Rights Amendment has become part of our Constitution.

It is long past time to recognize the will of the American people. In keeping with my oath and duty to Constitution and country, I affirm what I believe and what three-fourths of the states have ratified: the 28th Amendment is the law of the land, guaranteeing all Americans equal rights and protections under the law regardless of their sex.

Although nothing has changed legally for the ERA since 2020, Biden has never taken this position before. He isn't ordering the Archivist of the United States to publish the amendment (which she has said she cannot lawfully do), and under his Administration the Department of Justice declined to assert the ERA's validity and defended the decision not to publish it.

One way to explain this hesitancy to endorse the ERA as lawful is that, well, it isn't. As I've discussed here before, Congress can and has placed legally operative language in amending resolutions, not just in proposed article text. The implication is that the ERA's seven-year time limit is valid—and that the ERA is not. Or, as I argue in forthcoming draft work:

The Twelfth Amendment and the ERA

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. Should Congress or the Executive ignore the deadline, the ERA's doubtful validity could provoke a minor constitutional crisis.

But there may be a clear 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 add.

This understanding means that certain parts of the 1788 Constitution have been repealed, not just superseded. It also means that the ERA, were it ratified, would be incapable of making any valid change to the Constitution's text. The current lobbying efforts 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.

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 enable them to 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 minimum number under Article V's three-fourths ratification requirement. If these ratifications were valid, the ERA would have come into effect on January 27, 2022. But three of the states acted only after the lapse of the ERA's seven-year deadline, a deadline that Congress included in its resolution proposing the Amendment fifty years earlier. Four other states had purported to rescind their ratifications even before the deadline expired, and a fifth did so upon its expiration. Nonetheless many members of Congress (indeed, the majority of the Democratic caucus in both Houses), joined by influential groups such as the American Bar Association, have proclaimed the Amendment valid—and they've called on the Archivist of the United States to accept it as valid also. If Congress or the Executive were take the ERA as indeed part of the Constitution, its 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 urging the ERA's recognition 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 there may be a clear legal answer. Underappreciated historical evidence suggests that Congress was right to think it could place legally operative language in a proposing resolution—and that this language would be legally effective even without being repeated in a proposed article's text. Not only in the Bill of Rights, but also in the Twelfth and Seventeenth Amendments, Congress included operative language in 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 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. Yet despite its importance, this historical practice—spread across the eighteenth, nineteenth, and twentieth centuries—appears to have gone almost entirely unnoticed by legal scholars.

This practice also suggests a different understanding of the amendment process, one that might seem counterintuitive today but that's more consistent with the actual provisions 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 add conditions for its various proposals' validity. Each of these options would carry the same legal force as a proposed article's text, and each would be equally immune from future alteration by ordinary legislation passed by simple majority vote.

This understanding of Congress's powers under Article V entails that, while the text of our familiar printed Constitutions is correct, some familiar editorial notes might be in error: some provisions of the 1788 Constitution have been repealed, and not just superseded or "affected," 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 renders the article it proposes permanently invalid; that article forms no part of the Constitution, and the only way of adding it is for another amendment to the same effect to be proposed and ratified. In other words, despite succeeding in attracting 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 might choose to ratify it in the future.

Finally, this view suggests that the current lobbying for the ERA is seriously misguided. In a deeply divided society, in which legal experts already disagree on key questions of constitutional law, losing consensus even on the content of the Constitution's text could be quite dangerous. While the best legal account of that text is 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. The National Archives is the wrong place to play with fire.

See my prior post for more -- and will be updating this post with the new draft when it's available.

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[Eugene Volokh] Classified Evidence in the Tiktok Case

The majority stated only that its decision was "based on the public record, without reference to the classified evidence the Government filed below," but Justice Gorsuch's concurrence in the judgment added:

I am pleased that the Court declines to consider the classified evidence the government has submitted to us but shielded from petitioners and their counsel. Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns. Usually, "the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."

Maybe there is a way to handle classified evidence that would afford a similar opportunity in cases like these. Maybe, too, Congress or even the Standing Committee on Rules of Practice and Procedure would profit from considering the question. Cf. United States v. Zubaydah (2022) (Gorsuch, J., dissenting). But as the Court recognizes, we have no business considering the government's secret evidence here.

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