Eugene Volokh's Blog, page 188

[Josh Blackman] Today in Supreme Court History: January 14, 1780

1/14/1780: Justice Henry Baldwin's birthday.

Justice Henry Baldwin

 

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[Stephen Halbrook] Second Amendment Roundup: Circuit Conflict in Felon Gun Ban Cases

On December 23, the Third Circuit en banc handed Bryan Range an early Christmas present by ruling that despite his decades-old conviction for a false statement to obtain food stamps in violation of Pennsylvania law, he "remains among 'the people' protected by the Second Amendment."  Further, "the Government did not carry its burden of showing that the principles underlying our Nation's history and tradition of firearm regulation support disarming Range…."

The case is Range v. Attorney General.  After the Supreme Court in Bruen reinforced the text-history approach to deciding Second Amendment cases, in 2023 the Third Circuit had reached that same result.  However, after deciding Rahimi, the Supreme Court granted Merrick Garland's cert petition, vacated the judgment, and remanded the case for further consideration in light of Rahimi.

In a decision by Judge Thomas Hardiman, the majority again ruled in favor of Range.  It reasoned, first, that the criminal histories of the parties were not at issue in the Supreme Court's previous civil cases – Heller, McDonald, and Bruen – with their dicta about "law-abiding" persons having the right to bear arms.  Second, "the people" also appears in the First and Fourth Amendments, and felons are included.  Third, certain groups may be stripped of Second Amendment rights, but limits exist.  And fourth, persons may not be deprived of Second Amendment rights because they are not "responsible."

The Range court continued that "today, felonies include a wide swath of crimes, some of which seem minor," and that legislatures should not have "unreviewable power to manipulate the Second Amendment by choosing a label." The first federal ban on firearm receipt by felons and the father to today's felon gun ban, 18 U.S.C. § 922(g)(1), was passed in 1961, far short of the requirement that historical precedents be "longstanding."  In a passage sure to encourage challenges to other parts of § 922(g), the court stated: "Nor are we convinced by the 1920s and 1930s state statutes banning firearm possession by felons, or the 1960s laws disarming drug addicts and drug users, 1980s laws disarming persons unlawfully present in the United States and persons dishonorably discharged from the armed forces, or 1990s laws disarming domestic violence misdemeanants."

While "Rahimi did bless disarming (at least temporarily) physically dangerous people," the court concluded that there was "no evidence that he [Range] poses a physical danger to others or that food-stamp fraud is closely associated with physical danger."  Range was thus eligible under the Second Amendment to receive and possess firearms.

There were four concurring opinions in Range, all of which deserve careful study.  Judge Paul Matey focused on the classical sources, beginning with Cicero, that recognized the fundamental right to bear arms for self-defense.   He concluded with support "for greater executive review of petitions to restore firearm rights, regardless of whether Congress provides funding for 18 U.S.C. § 925(c)…."  That provision empowers ATF to consider petitions for relief from legal disabilities, but since 1992 Congress has prohibited use of funds to do so.

Judge Peter Phipps pointed out that before enactment of the federal felon gun ban, Attorney General Katzenbach incorrectly represented to Congress that "the Supreme Court of the United States long ago made it clear that the amendment did not guarantee to any individuals the right to bear arms."  No Supreme Court case made any such claim, and following Heller, "That advice has not aged well."

Judge Cheryl Ann Krause wrote that courts should not "blindly defer to a categorical presumption that a given individual permanently presents a special risk of danger without the opportunity for him to rebut it."  Absent other avenues of relief, federal courts should be open to consider those seeking restoration of gun rights.  Courts routinely make decisions about gun possession as a condition of bail and in sentencing, and so would be equipped to decide whether rights should be restored.

The final concurrence was by Judge Jane Richards Roth, who opined that "when disarmament is purely based on felon status (not an individualized assessment of danger to others), an indicator of the power to regulate is the maximum penalty for the offense of conviction."  Once the maximum penalty for which a convicted person might have been incarcerated passes, the person should be permitted to petition for restoration of rights.

The main difference between Judge Krause's and Judge Roth's concurrences is that the former opined that individuals should be eligible to seek reinstatement of their rights once their sentences are completed, while the latter would require them to wait until the time for the maximum possible penalty ran. Judge Krause's approach is plainly superior, as it reflects the actual punishment meted out for the crime. Notably, both Judges Krause and Roth had dissented from the en banc court's prior decision in favor of Range, but the Supreme Court's emphasis on temporary disarmament in Rahimi apparently persuaded them to reconsider their position.

Dissenting, Judge Patty Shwartz wrote that the majority disregarded the Supreme Court's statements that the felon ban was "longstanding" and "presumptively lawful," that the Second Amendment protects "law-abiding" persons, and that the historical test is not a "regulatory straightjacket."  She thought that status-based bans on Native Americans, Blacks, and Catholics were, however repugnant today, proper analogues for the felon ban, as they all were based on being "disloyal to the sovereign."

The Eighth Circuit reached the opposite result as the Third.  On August 8, in United States v. Jackson, it upheld the felon ban categorically.  Post-Bruen, it had already upheld the ban, but the Supreme Court granted the felon's cert petition, vacated, and remanded for reconsideration consistent with Rahimi.  Its subsequent decision replicated its earlier decision.

In the panel decision by Judge Steven Colloton, Jackson held that "there is no need for felony-by-felony litigation regarding the constitutionality of § 922(g)(1)."  The court opined that Rahimi does not require a showing of special danger by specific persons who are disarmed by laws applicable to categories of persons.  Jackson had been twice convicted of sale of controlled substances, although the court did not specify the type.

The clincher for categorical bans, Jackson reasoned, was based on historical practice: "Not all persons disarmed under historical precedents—not all Protestants or Catholics in England, not all Native Americans, not all Catholics in Maryland, not all early Americans who declined to swear an oath of loyalty—were violent or dangerous persons."  Voilà, no as-applied challenges are allowed even if the specific persons are not violent or dangerous.

Dissenting from denial of a petition for rehearing, Judge David Stras noted that the law Rahimi upheld required a finding of "a credible threat to the physical safety" of others. By leaping from "presumptively constitutional to always constitutional," the court "insulat[ed] felon-dispossession laws from Second Amendment scrutiny of any kind."  The decision deferred "to Congress's blanket determination that a group numbering in the tens of millions and ranging from murderers to ketchup-bottle tamperers categorically 'present[s] an unacceptable risk of danger if armed.'"

The Fourth Circuit recently agreed with the Eighth, in United States v. Hunt, holding that § 922(g)(1) is not subject to as-applied challenges. Notably, the panel (with Judge Toby Heytens writing) did not rely exclusively on history but also concluded that felons are not even part of the people under the plain text of the constitution. Query what this means for the First Amendment petition and assembly rights and Fourth Amendment rights of felons in the Fourth Circuit, as those rights also are guaranteed to "the people."

One more decision is worthy of note, that of the Sixth Circuit rendered on October 8. United States v. Williams, written by Judge Amul R. Thapar, was decided in the first instance after Rahimi and thus did not go through the GVR procedure.  The court allowed that "when the legislature disarms on a class-wide basis, individuals must have a reasonable opportunity to prove that they don't fit the class-wide generalization."

However, the Williams court opined, a person is "dangerous" and may be disarmed "if he has committed (1) a crime 'against the body of another human being,' including (but not limited to) murder, rape, assault, and robbery, or (2) a crime that inherently poses a significant threat of danger, including (but not limited to) drug trafficking and burglary." Crimes that entail "no threat of physical danger, like mail fraud, tax fraud, or making false statements" would be a harder case, but they were not involved here – Williams had been convicted of aggravated robbery.  (He has since filed a cert petition.)

Based on the above four cases, the cert conflict could not be more dramatic.  Range and Williams allow as-applied challenges to the felon ban.  Jackson and Hunt categorically allow no challenge to the ban.  Since felons are the overwhelming majority of persons prosecuted under § 922(g), resolution by the Supreme Court is direly needed.

Given the circuit split, the Supreme Court likely would grant cert if the government seeks review in Range. Whether the government will do so is an interesting question. The Biden administration surely would have – indeed, it did the last time the Third Circuit ruled in favor of Range. But the Trump administration my take a different position on the rights of non-violent felons than the Biden administration did.

Indeed, now that President-Elect Trump's conviction is final he himself is barred by § 922(g)(1) from possessing a firearm, even though his alleged crime had nothing at all to do with violence. Perhaps, the Trump administration will seek review to resolve the circuit split but argue that the Third Circuit was right to rule in favor of Range. It would not be the first time the federal government sought review while urging the Court to affirm a lower court ruling against the government—the Obama administration did just that in litigation challenging the Defense of Marriage Act.

Meanwhile, federal circuits that recognize as-applied challenges will impose on district courts the burden of case-by-case adjudication.  Their authority to do so would be necessitated by the duty to protect constitutional rights.

In doing so, such courts would not be substituting themselves for the Attorney General, who is empowered to remove disabilities under 18 U.S.C. § 925(c) based on a finding that the circumstances of the disability and the applicant's reputation are such that he/she "will not be likely to act in a manner dangerous to public safety."  The Supreme Court ruled in U.S. v. Bean that district courts have no authority to remove disabilities under the statute if the Attorney General fails to act.  Courts may only entertain appeals from administrative action, not from non-action.  But courts removing disabilities under the Second Amendment would not be doing so under § 925(c).

Congress could do our district judges a big favor and appropriate funding for ATF to administer § 925(c) again.  That may render the circuit conflict moot, as it did in BATF v. Galioto (1986), in which the Supreme Court ruled that an equal protection challenge to § 925(c) became moot when the Firearm Owners' Protection Act of 1986 extended the statute to include all § 922(g) disabilities, including mental commitments.

Despite Congress not funding removal of disabilities for over three decades, ATF's regulation (27 C.F.R. § 478.144) remains on the books with the procedure for filing and processing a petition to remove disabilities. (The regulation states that relief will not be granted if the applicant is prohibited from gun possession by the state law where he resides, but that is invalid because § 925(c) imposes no such condition for relief from the federal disability.) If the petition is denied, § 925(c) entitles the applicant to file a petition for judicial review in which new evidence may be admitted.  That provides a check on abusive agency action.

The ball is in Congress's court to restore funding. Otherwise, given the circuit split, it is likely that the Supreme Court will step in to resolve this issue soon.

 

 

 

 

 

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[Eugene Volokh] Monday Open Thread

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[Eugene Volokh] "Regulation of Algorithms" Panel at Federalist Society Faculty Conference,

I much enjoyed participating, and I hope some of you will enjoy watching. Here's the panel description:

Opaque algorithms shape what news stories you see on social media, dictate how artificial intelligence answers prompts, and can even decide whether applicants get a mortgage or a job interview. Amidst claims of algorithmic race, gender, and viewpoint discrimination, more and more individuals of all political affiliations are calling for greater government regulation of algorithms, while regulatory skeptics worry that government intervention will impede important technological innovation. This panel will explore the wisdom of efforts to regulate algorithms and how best to frame concerns about algorithmic errors and bias.

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[Eugene Volokh] "How Not to Decide TikTok: U.S. Press Freedom Hangs in the Balance"

An interesting analysis by Prof. David Cole (Georgetown), the former National Legal Director of the ACLU, at Just Security; an excerpt:

After more than two hours of argument Friday morning in TikTok v. Garland, the Supreme Court appears likely to allow the U.S. government to force divestiture or shuttering of the platform on January 19…. In my view, that's the wrong result…. [But] how the Court reaches its result may now be more important than the bottom line.

In particular, the Court should reject the government's principal argument, namely, that the TikTok law is "content-neutral" because it is concerned only with who controls the platform, not the content the platform features. Accepting that rationale would not only harm TikTok, but would weaken First Amendment law across the board….

The Protecting Americans from Foreign Adversary Controlled Applications Act singles out a particular communication platform out of concern about its content, and exempts other platforms based on their e-commerce content, even though they pose similar data security concerns. The government justifies the law as a response to the risk of "covert content manipulation" by China…. That justification is inescapably related to the content on the platform, and under longstanding First Amendment law, should trigger strict scrutiny….

The fact that the government targets an owner rather than any specific message does not make the law any less content-based, where, as the government concedes here, its concern relates to the content that owner might promote. Controlling ownership is at least as potent a censorship tool as prohibiting particular messages, and maybe even more effective. The fact that the owner in this case is a foreign company, ByteDance, ought not change whether the law is content-based….

The Court should also reaffirm, as it stated as recently as last year's decision in Moody v.NetChoice, that efforts to control the "mix of content" on social media platforms is at its core, "related to the suppression of free expression." The Solicitor General sought to distinguish the TikTok law on the ground that the government's concern is not merely with potential content manipulation, but potential "covert" content manipulation. But that makes no sense. Essentially all editorial decisions are covert (including the ones Just Security made in editing this essay), in the sense that the reader of a finished article or watching a newscast is not privy to the countless decisions made about what to cover, what not to cover, and what views to include, promote, or exclude in any expressive product….

If the Court rules that strict scrutiny applies, but this law satisfies it, that will be a huge loss for TikTok and its 170 million American users. But if the Court accepts the government's contention that laws targeting owners of media companies are somehow content-neutral because they don't literally specify particular messages to prohibit, the First Amendment and press freedoms more broadly would be the losers.

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[Eugene Volokh] Boston Police Officer's Tweets from "Stop the Steal" Rally Protected by First Amendment Against Government Employer Retaliation

An excerpt from the >16,000-word opinion written by Commissioner Paul Stein in Abasciano v. Boston Police Dep't, decided last month by the Commonwealth of Massachusetts Civil Service Commission, though just posted on Westlaw:

The substantive issue presented in this appeal is whether certain tweets sent by the Appellant on January 6, 2021, while attending the so-called "Stop the Steal" rally in Washington, D.C., constituted substantial misconduct that warranted his termination as a Police Officer in the Boston Police Department (BPD). It was undisputed that, when the tweets were sent, the Appellant was off duty, they were sent from a private Twitter account and they did not identify the Appellant or his employment with the BPD. It was also undisputed that the Appellant did not participate in any way in the violent insurrection that day at the Capitol following the rally.

The BPD conducted two thorough internal investigations—one by the Anti-Corruption Division (ACD) completed in May 2021 and another by the Internal Affairs Division (IAD) completed in November 2021. The ACD investigation confirmed that the Appellant had not personally participated in the violent insurrection or committed any criminal acts. As to the Appellant's tweets, the IAD investigation concluded that they were not intended to incite or condone violence and they did not impact the Appellant's ability to do his job. Overall, these investigations concluded that the Appellant had not engaged in any misconduct that violated the BPD's Rules and Procedures.

More than a year later, in December 2022, newly appointed BPD leadership reopened the Appellant's IAD file and, this time, reached a starkly different conclusion that charged the Appellant with "conduct unbecoming" for sending the January 6, 2021 tweets and recommended that the Appellant be terminated, which recommendation the new Police Commissioner adopted.

The Commission held in Abasciano's favor:

After a five-day de novo hearing, the [Civil Service] Commission concluded that the two 2021 investigations were more objective, timely and thorough; were supported by a preponderance of the evidence; and deserve more weight than the less thorough December 2022 "paper review" which relied on erroneous facts and conclusions that were not substantiated by credible evidence. In short, the Commission allowed the Appellant's appeal because the preponderance of the evidence confirmed the BPD's 2021 initial findings and conclusions that the Appellant did not engage in misconduct on January 6, 2021, that there was not just cause to justify any discipline against him solely for the handful of tweets he sent from an anonymous account that day, and that the BPD had not shown, beyond speculation, that his tweets negatively impacted the BPD's operations or public mission.

This decision does not overlook the fact that most citizens, including members of this Commission, rightly reject the Appellant's misinformed opinions contained in his tweets about the 2020 election and its aftermath. The limited issues before the Commission, however, were: (1) whether the Appellant's disability retirement application filed by the BPD in June 2022 and approved retroactively to his termination date divested the Commission of jurisdiction to adjudicate the just cause for the BPD's termination decision, which the Commission decided it did not; and (2) whether, on the facts and the law, the Appellant's tweets were constitutionally protected speech, as he claimed, or whether, when made, or after they became public, the tweets rose to the level of sanctionable misconduct that justified his termination as the BPD claimed.

The Commission's decision finds the Appellant's tweets to be protected speech and are not just cause for his termination. The decision is not to be construed as endorsing the substance of those misinformed opinions nor as condoning the underlying, unconscionable criminal acts committed by those who stormed the Capitol that day….

The Tweets were apparently these:

[17.] At 5:27 p.m. on January 5, 2023 [presumably means 2021 -EV], the Appellant sent a reply tweet to @realDonaldTrump @senatmajlder @johnCornyn @senJohn Thune, concerning the size of the rally: "Thousands? With Respect Mr. President I am here and it is going to be Millions by tomorrow."

[18.] In the early morning of January 6, 2021, the Appellant received a tweet from an unknown source stating, among other things, that Gabriel Sterling, the ""Georgia 'Republican' Secretary of State" had "[c]aved to Stacy Abrams and eliminated meaningful signature match" and "[t]aped and leaked a phone call with [President Trump]". The Appellant thought such reports showed that Sterling broke the law and violated his oath of office.

[19.] At 5:53 a.m. on January 6, 2021, the Appellant replied to a tweet from @GabrielSterling, in which Secretary Sterling offered an explanation for his actions, writing: "I can't wait to see you dragged away in handcuffs." The Appellant said this tweet used the "hyperbole of the day" to deplore Mr. Sterling's attempt to defend his actions.

[20.] At 6:44 a.m., the Appellant tweeted:

MAGA Millions Patriots here in DC. Today is a day for choosing. Today there will be only two parties in America. Traitors and Patriots!" The Appellant added the hashtags #January6, #MAGA and #MarchForTrump"

The Appellant attached an image showing a crowd of people with the Washington Monument in the background….

[22.] At 8:14 a.m., the Appellant tweeted:

Hey @senmajlder look out your window. Millions of Patriots are at your doorstep and we are watching. It is time for choosing. Are you a traitor or are you a Patriot #MarchforTrump, #StopTheSteal and #PatriotParty.

[23.] At 9:49 a.m., the Appellant tweeted to Vice President Pence's Twitter account:

@VP I have friends and family who do not believe you have the courage to fulfill your oath and send the illegitimate electors back to the states. Mr. VP I have faith in God you will do your duty! Stand up for America!

[24.] At 10:03 a.m., the Appellant tweeted:

"Send it back @VP".

[25.] At 12:40 p.m., while still at the rally, the Appellant tweeted:

Everything that happens going forward @VP is now on your conscience" with the hashtags #1776Again, #MarchForTrump and #WeThePeople.

[26.] The Appellant and the fellow officer stayed at the rally listening to the speeches. When President Trump finished speaking, at approximately 1:15 p.m., they left the rally and began slowly walking to the Capitol. Since they had been close to the stage, it took them over an hour to reach a grassy area near some rotaries on the west side of the Capitol, arriving there about 3:00 pm or 3:30 p.m.

[27.] By the time of their arrival, a mob had broken into the Capitol through the east side of the building and had made its way to the doors on the west side. The House and Senate had gone into recess and the building was in lockdown.

[28.] At 3:54 p.m., the Appellant tweeted:

I hope you never sleep well again @VP your Treasonous Act lead [sic] to the murder of an innocent girl and the death of America. You are not a Godly man. I guess @LLinWood was right about you all along….

[31.] At 5:22 p.m., while on the road home, the Appellant tweeted:

What I saw in [sic] today frankly made me weep for our once great nation. The Political Elitist Class has successfully turned Americans against each other. Patriots and Law Enforcement trying to do their jobs in a no win [sic] position. I fear this Treasonous election has killed the republic….

And here's part of the Commission's First Amendment analysis:

BPD Rules 102, Section 30 expressly acknowledges the right of all BPD members to participate in public affairs, including, specifically to "[e]xpress opinions as private individuals on political issues" and "attend political conventions, rallies and similar political gatherings as private individuals." In addition, as a matter of law, "basic merit principles" of civil service law include a requirement to assure "fair treatment of all applicants and employees in all aspects of personnel administration without regard to political affiliation … and with proper regard for privacy, basic rights outlined in this chapter and constitutional rights as citizens."

Thus, in almost all circumstances, political speech and conduct that is protected by the U.S. Constitution and the Massachusetts Declaration of Rights cannot be used as the basis for discipline of a tenured employee. Put another way, the BPD may not discipline a tenured police officer under any other BPD Rule for engaging in political speech or conduct to the extent that the speech or conduct falls squarely within the employee's interest in freedom of speech recognized by BPD Rule 102 Section 30, and his constitutional rights and statutory protection provided under basic merit principles of civil service law.

However, a public employee's rights are not absolute, and they must accept certain limitations on freedom of speech. To determine where those limitations exist, Massachusetts law generally follows the federal law in matters of protected public speech and, accordingly, employs a three-prong framework. Pereira v. Comm'r of Soc. Servs. (Mass. 2000), citing Pickering v. Bd. of Ed. (1968).

First, it must be determined whether the employee was speaking "as a citizen upon matters of public concern" when making the statements at issue. If so, the second prong, known as the Pickering balancing test, requires "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." In performing that balance, the question becomes "whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." The third prong requires the employee to provide "sufficient evidence" that the protected speech was "a substantial or motivating factor" in the adverse employment decision. If the employee satisfies that initial burden, the burden of persuasion shifts to the employer to prove that "it would have taken the same action regardless of the protected speech." …

The issue before the Commission on the merits of this appeal is whether tweets sent by the Appellant on January 6, 2021 are protected speech or constituted misconduct that justified his termination. The uncontroverted evidence established that the Appellant's tweets satisfy the first and third prongs of the Pereira framework, i.e.: (a) the Appellant's tweets were sent as a private citizen, while off duty on FMLA leave, using an anonymous handle from a Twitter account that did not identify the Appellant as a police officer; and (b) the BPD's decision to terminate the Appellant is grounded explicitly on the tweets he sent. Thus, the only disputed issue here arises under the second prong of the Pickering balancing test, i.e., whether, on balance, the Appellant's tweets are constitutionally protected private free speech or may be restricted by the BPD as qualified speech because they have been adequately shown to adversely affect the BPD's operations or mission.

After careful consideration of the entire record, I am persuaded by the preponderance of evidence that, applying the Pickering balancing test: (1) the Appellant's tweets are private political speech on matters of public concern that fit within the scope of BPD Rule 102, Section 30 and (2) the BPD has not established an adequate justification to restrict that speech in the interest of protecting the BPD's mission or operations. Therefore, the tweets cannot be sanctioned as "conduct unbecoming" under BPD Rule 102, Section 3 or as a violation of the BPD's Canon of Ethics under Rule 113, Canon 8.

This decision should not be construed to condone or turn a blind eye to the unconscionable criminal acts committed by those who stormed the Capitol on January 6, 2021. To be sure, January 6, 2021 was a dark day in American history. Most Americans watched in disbelief as some so-called "protestors" turned violent and assaulted Capitol police officers who fought valiantly to protect the Vice President, members of Congress, their staffs and family members. In my view, no amount of revisionism can change those facts.

Thus, I do not doubt that the BPD was understandably concerned to learn that two BPD Police Officers had attended the rally and that the Appellant had tweeted about it. The BPD's ACD (criminal) investigation and an IAD internal affairs (rules and regulations) investigation into the Appellant's actions that day were entirely appropriate, including a forensic reconstruction of where he went and review of all 2500 tweets received by and sent from the Appellant's anonymous Twitter account. However, at the conclusion of those investigations, which spanned several months, the highest members of the BPD's management and command staff cleared the Appellant of any wrongdoing based on the findings of these two investigations. [Further arguments based on the different results of the two investigations omitted. -EV] …

[A]s one part of the Pickering balancing test, the intensity of inflammatory and insulting speech can be factored into account in considering the weight to be given to the Appellant's interest to speak freely…. The other factor in the Pickering balancing test is whether the offensive speech bears a nexus, based on evidence, to some negative effect on the operations of the BPD. While evaluating the government's interest, the law considers "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise."

Here, no credible evidence was presented to establish that the Appellant's tweets caused any internal disruption in the BPD's operations. Thus, this case lacks any similarity to other cases that have come before the Commission in which the problematic speech makes unambiguously false, racist, scurrilous, or otherwise reprehensible claims against the public employer or its employees.

Rather, the BPD argues that the Appellant's tweets threatened the BPD's functions because his (misinformed) political view that the 2020 election was stolen could have jeopardized public trust in the Department by the great majority of Bostonians who disagreed with that allegation. Government employers, especially public safety employers, must have "wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." The Court must give "substantial weight to government employers' reasonable predictions of disruption" and gives "greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large."

Still, the BPD's judgment must be based on some evidence and cannot rely on speculation alone to justify its actions…. Here, most of the Appellant's tweets about the January 6, 2021 rally (see Finding nos. 17, 19, 20, 22, 23, 24 & 25) were sent before he left the rally to walk to the Capitol grounds, and before he had any notice whatsoever that the rally had turned violent. These tweets focused entirely on the Appellant's political objective of promoting the rally and exhorting elected officials (the Congress and the Vice President) to honor there oath of office and "choose" what the Appellant was calling the patriotic path—sending disputed electoral votes back to the states. These particular tweets (albeit controversial, and, in the view of many, patently wrongheaded) are not directed at the BPD or its employees and do not involve any racial or otherwise vulgar, profane or obscene subject matter. They are classic examples of protected political speech.

One of these tweets (Finding Nos. 19) and two others sent by the Appellant after arriving at the Capitol (Findings 28 & 30) are closer calls and could be construed to deserve heightened scrutiny under the Pickering balancing test. To be sure, some of the language in these tweets is particularly harsh—i.e., accusing Vice President Pence of and the "Political Elitest Class" of treason that led to the "murder of an innocent girl" and has "killed the republic". However, these tweets also expressed a theme similar to his earlier tweets: what the Appellant considered betrayal by elected officials whom the Appellant (erroneously) was misled into believing had violated their oaths of office. They do not express animosity toward any members of the BPD or any individual, group or class of Boston citizens or officials.

Finding No. 19—The 5:53 a.m. tweet on January 6, 2021 responding to the Georgia Secretary of State: "I can't wait to see you dragged away in handcuffs." Finding No. 28—The 3:54 p.m. tweet to Vice President Pence: "I hope you never sleep well again @VP your Treasonous Act lead [sic] to the murder of an innocent girl and the death of America. You are not a Godly man. I guess @LLinWood was right about you all along" Finding No. 31—The 5:22 p.m. tweet, while on the road home: "What I saw in [sic] today frankly made me weep for our once great nation. The Political Elitist Class has successfully turned Americans against each other. Patriots and Law Enforcement trying to do their jobs in a no win [ [sic] position. I fear this Treasonous election has killed the republic.

This scenario is inapposite to those cases in which a public employer established the requisite actual or reasonable expectation of a loss of the public trust required to override an employee's right freedom of expression. Those cases of "external" disruption that have met the Pickering balancing test have involved government employees who publicly express racist bias or sexually deviant behavior, not pure political speech. Despite extensive research, I found no comparable example in which just cause was found to discipline a police officer or other public employee for expressing unpopular political opinions of the kind or tone involved here.

In sum, the BPD failed to meet their burden of producing evidence to prove that any BPD personnel, Boston employees, or members of the public (save for the Appellant's one nemesis) protested any of the Appellant's tweets, including the three more severely critical ones singled out above, or voiced any complaints about him. The BPD's own command staff took different views about the risk of disruption that these tweets had on the BPD's ability to fulfil its public mission. Those who knew the Appellant professionally provided credible evidence of his ability to keep his politics from having any influence on his ability and duty to do his job as a BPD police officer. Neither Deputy Superintendent Crispin nor Captain Martin saw the Appellant's tweets as conduct unbecoming. Hearty disagreement by those in positions of authority can generally form no basis for employment discipline. It becomes a slippery slope when personal political differences, consciously or unconsciously, begin to influence decisions about employees' professional careers and capabilities in the workplace….

The remedy in this appeal must be designed to reflect the unique circumstances involved. In particular, the Appellant has not performed the duties of a police officer since July 2020. He is currently totally disabled from performing those duties. Prior to March 13, 2023, he had been on injured leave and receiving 111F benefits, which equal payment of base salary substantially tax-free, and, as he is now retired, he would not be eligible to receive such benefits after March 13, 2023.

Moreover, the Appellant has been receiving accidental disability retirement benefits pursuant to G.L. c. 32, § 7, effective March 13, 2024, which are 72% of his base salary, also substantially tax free, and are at least equivalent to or better than the base salary he would earn as a full-duty BPD police officer…..

Mark P. Gagliardi represents Abasciano.

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[Jonathan H. Adler] Supreme Court Denies Certiorari in Climate Tort Suits

Today the Supreme Court denied certiorari in  and Shell PLC v. Honolulu, two petitions from oil companies seeking High Court intervention in a state-law-based climate case in Hawaii. Unlike with prior cert denials in climate tort cases, no justice indicated that he or she supported certiorari.

On the one hand, this cert denial should not be surprising because, as I have explained, the legal arguments for federal court intervention in these cases is exceedingly weak. The oil company defendants advance a preemption-by-penumbra argument that cuts against existing precedent and the broader direction of relevant doctrines. The Supreme Court has expressly held that the Clean Air Act does not preempt state-law-based tort claims for air pollution, and the federal common law of interstate nuisance (for good or ill) has been completely displaced. Thus, these suits are not preempted. There may be limits on the specific conduct that can be sanctioned and the scope of relief, but that's not something the Supreme Court has any reason to address on the front end.

The Court had asked for the views of the Solicitor General, and the SG also recommended against cert. The Trump Administration would almost certainly have disagreed, having supported certiorari in related cases before. Today's cert denial means that the Trump Administration will have no opportunity to express a contrasting view.

The one real argument for certiorari is that there is something of a split on the preemption question as one court -- the U.S. Court of Appeals for the Second Circuit in a decision I discuss here -- has accepted the preemption arguments, albeit in a different posture. I suspect this argument was not enough because the justices recognized that it would nonetheless be premature to review the Hawaii suit, and that there will be ample opportunity for judicial review should Hawaii courts (and other state courts hearing similar claims) impose judgements that exceed their proper authority or otherwise raise constitutional questions.

The Court did not take action on a in which several states are seeking to invoke the Supreme Court's original jurisdiction to prevent state-law-based climate suits filed by other state attorneys general. I think this petition is utterly meritless, but it did attract amici that would like the Court to address whether it is proper to deny a state's bill of complaint seeking to invoke the Court's original jurisdiction without addressing the merits. As I noted here, multiple justices oppose this common practice (and they have a point).

For more  on these questions, here are a teleforum and a panel in which I debated others on these questions.

Here are my prior posts on climate-related tort litigation:

Why State Common Law Nuisance Claims Against Fossil Fuel Companies Are Not Preempted, Oct. 27, 2021; Third Circuit Rejects Oil Company Efforts to Remove Climate Claims to Federal Court, Aug. 17, 2022; Oil Companies Fail to Convince the Eighth Circuit Climate Cases Should Be Removed to Federal Court (Updated), Mar. 25, 2023; Is Climate Change Going Back to the Supreme Court? (Minnesota Edition) [UPDATED], Dec. 11, 2023; D.C. Circuit Rejects Oil Company Attempt to Remove District's Climate Suit to Federal Court, Dec. 19, 2023; William Barr Responds on American Petroleum Institute v. Minnesota, Dec. 26, 2023; Supreme Court Takes a Pass on Minnesota Climate Change Case, Jan. 8, 2024; Are State Law Climate Change Tort Suits Preempted by Federal Law?, May 3, 2024;

And here is my longer paper on the subject.

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[Jonathan H. Adler] Supreme Court Denies Certiorari for Braidwood Nondelegation Claim

As I noted on Friday, the Supreme Court accepted certiorari to hear an appointments clause challenge to the U.S. Preventive Services Task Force in Becerra v. Braidwood Management. This task force is the entity that determines which preventative treatments must be covered by health insurance without requiring any co-payment by the insured under the Affordable Care Act. The U.S. Court of Appeals for the Fifth Circuit had concluded that its structure is unconstitutional. The Court did not take any action on Braidwood Management's cross-petition, however, which raised other constitutional challenges.

As I anticipated it might, today the Supreme Court denied the without comment. The justices apparently have no interest in considering the nondelegation argument against the task force.

Braidwood Management remains a very significant case, both for administrative law as well as for health law. It is just not the nondelegation case some were hoping for.

While we should not read too much into the Court's action, it is yet another sign that the justices are not prepared to fully engage with nondelegation doctrine arguments, let alone to revive the doctrine.

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[Eugene Volokh] Prosecutor Disbarred for Forged Texts Apparently Aimed at Framing Co-Worker for Sexual Harassment

The Denver Post (Shelly Bradbury) was apparently the first to report on the story:

Yujin Choi falsely accused Dan Hines, a criminal investigator in the district attorney's office, of sexually harassing her, according to the Tuesday ruling from the Office of Presiding Disciplinary Judge, which handles professional discipline for Colorado attorneys.

Choi created fake text messages, altered her cellphone records and ultimately destroyed her laptop and phone to try to sell her deceit, the 26-page ruling found.

You can read more in the article, or in the decision, People v. Choi (thanks to ArsTechnica for posting it). The most serious of the purported texts (which alluded to a complaint Choi made about Hines a year before), read:

Yujin, please stop talking about what I didn't do to our colleagues. You are using your looks against innocent people. If you want to act like a sex doll to get a sugar daddy … fine, but that will not be me.

Eventually the facts emerged, through forensic investigation by the DA's office (forensic investigation that Choi apparently tried to stymie by causing water damage to her phone and laptop). The decision of the Colorado Supreme Court Office of the Presiding Disciplinary Judge stated, among other things,

Respondent's fabrication of false messages reflects adversely on her fitness to practice because it undermines the pursuit of truth—the very foundation on which our system of justice rests. As the Colorado Supreme Court noted in In re Pautler, "[l]awyers serve our system of justice, and if lawyers are dishonest, then there is a perception that the system, too, must be dishonest." Deception within the ranks of prosecutors in whatever form poses an even greater danger of eroding public confidence in the legal system and its practitioners. For that reason, the Pautler court "applied the prohibition against deception a fortiori to prosecutors." Robinson's testimony breathed life into this postulate: Robinson noted that the DA's Office was concerned that members of the public or the bar might think that Respondent had potentially altered evidence in criminal cases she prosecuted. We thus do not hesitate to find that Respondent's purposeful campaign to smear Hines's character, which sullied his reputation at the DA's Office and jeopardized his job and his livelihood, constitutes direct, intentional, and wrongful infliction of harm that reflects adversely on her fitness to practice law….

Respondent caused Hines reputational and emotional injury. This damage was all the greater because Respondent was a prosecutor, Hines asserted. Respondent also betrayed close coworkers and trusted confidants, including Robinson and Cohen, who advocated for her during the investigation. For those employees who continue to believe her, she contributed to what seems to us a rift of distrust with the Front Office.

More broadly, she poisoned the morale of the DA's Office, contributing to an environment in which victims feared they might be disbelieved and others feared they might be wrongly accused. Further, her actions called into question whether the evidence in the criminal cases she prosecuted was genuine [though apparently an investigation found no evidence of fabrication in those cases -EV]. Finally, her deception not only tarnishes the reputation of prosecutors, the profession, and by extension the legal system, but also threatens to undermine the credibility of sexual harassment victims who seek to hold accountable those who harmed them….

Unremitting honesty must at all times be the backbone of the legal profession. When a lawyer repeatedly employs deceit and dishonesty to harm another person, that lawyer  corrodes the integrity of the profession and threatens to compromise public confidence in the legal system. Such behavior seriously adversely reflects on the lawyer's fitness to practice law and should be met with disbarment.

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[Eugene Volokh] Sage Steele Loses Claim That Her Agents Didn't Properly Protect Her Free Speech Rights

From the California Department of Industrial Relations Labor Commissioner in Creative Artists Agency v. Steele, handed down in August but just posted on Westlaw (for more on Steele's lawsuit against ESPN, see this post and this later article about the case being settled):

Creative Artists Agency, LLC ("CAA") filed a Petition on September 14, 2022. CAA alleges that … Sage Steele … failed to pay commissions for a procured multi-year television hosting contract with ESPN….

This case involves whether CAA did enough to protect Steele's interests in a public relations crisis. Steele appeared on a podcast and stirred controversy through her comments. CAA stepped in to negotiate with her employer. After a week of back-and-forth, CAA secured an optimal result: Steele kept her lucrative job, without suspension or dock in pay, for the remaining 32 months on her contract. But it came at a cost: she apologized to make peace.

Steele then learned about her free speech rights and saw a missed opportunity. She contends that CAA failed her at this critical moment by not exploring a way forward that avoided an apology. In her view, CAA walked away from both its promise and its duty to her. She concludes that CAA should have done better, so she did not have to pay what she promised to pay. Accordingly, she stopped paying commissions.

But CAA met Steele's stated goal at the time—to preserve her job. And Steele's retrospective view of what CAA should have done stretches beyond the deal they made.

Steele is not excused from her end of the bargain….

In the summer of 2021, ESPN mandated that all employees vaccinate from COVID-19 by October 1, 2021. On Steele's request, Kramer [her agent] investigated whether her employment contract allowed ESPN to enforce this policy and whether she could get an exemption. Kramer consulted with CAA legal experts to review Steele's employment contract, but he exaggerated to Steele that he would get the "head of CAA legal" to do it. He returned with some answers: ESPN could enforce its vaccine policy, but Steele could request an exemption. Steele was disappointed with this news: she reiterated her desire to leave ESPN "While still getting a good portion of my contracted money." Nearly three years remained on her ESPN contract….

Steele reluctantly complied with her employer's vaccine mandate. Shortly afterwards, on or around September 17, 2021, she appeared on a podcast without ESPN approval. There, she expressed her misgivings with her employer's vaccine mandate and commented on some other hot-button issues. The podcast aired in late September 2021….

Steele's podcast comments led to internal and external controversy. From September 28 to October 5, 2021, Kramer monitored the situation, guided Steele's conversation with ESPN, and vigorously negotiated, to the word, a joint public relations response with ESPN. His efforts yielded an apology that Steele reviewed and approved, published on ESPN's website and sent to 6 media outlets. ESPN did not suspend, terminate, or deny payment to Steele as a result….

Kramer continued procuring future employment for Steele and pivoted to conservative media for new opportunities. However, by December 2021, Steele's marketing opportunities had dried up, signaling similar concerns for her employment prospects…. In August 2023, Steele announced on a social media platform that she had settled a free speech lawsuit with ESPN and decided to leave her employment there….

Steele fails to show that the scope of CAA's legal services extended to free speech rights. She knew that Khan [her initial agent] was a transactional attorney and would use that experience in negotiating contracts. But Khan never represented that CAA's legal services went any further. Steele also knew that, when questions of a contract's legal interpretation arose, CAA reviewed them for her. Both forms of legal services focus solely on contract law. They go no further. Therefore, Steele lacked a reasonable belief that CAA would provide her free speech legal counsel….

CAA contends that it met its end of the bargain [and didn't breach any duties owed to Steele] by procuring and servicing the ESPN contract. Steele contends that CAA failed to service that contract by failing to either push back on the need for an apology or advise her to seek legal services.

A person can only rescind or abandon a contract for a breach that goes to the "root of the consideration." The primary job of a talent agency is to obtain work. In this context involving a high-profile, lucrative, multi-year hosting gig, the "root of the consideration" was to get the work, then preserve it amidst a public and internal relations crisis….

Khan procured the ESPN contract by negotiating 2016 and 2017 amendments that extended Steele's ESPN tenure through June 2024…. Steele also cannot reasonably dispute that Kramer "serviced" the ESPN contract. She had a contract that would pay through the end of June 2024, but also had a brewing conflict with her co-host, Kevin Negandhi. From when Kramer stepped in to replace Khan in August 2020, Steele expressed a desire to leave ESPN on good financial terms—in her words, "While still getting a good portion of my contracted money."

In the ensuing months, Kramer provided the following services:

- He navigated a work-around for Steele's ongoing conflict with co-host Negandhi, securing a hosting gig for the same show at a different time slot, along with her own one-on-one interview show;

- He reviewed her contractual rights with respect to ESPN's mandatory vaccine policy and navigated potential exemptions; and

- He monitored the internal and external outcry arising from her September 2021 podcast appearance and vigorously negotiated an apology.

The results speak for themselves: ESPN did not terminate, suspend, or withhold wages from Steele because of her unauthorized and controversial podcast appearance. She retained the full rights to her dream job for the remaining 32 months on the contract. The root of her deal with CAA was to get, then keep, her work at ESPN, not to protect her free speech rights….

Steele suggests that CAA could have done better in at least two ways: exploring a refusal to apologize and comparing the resolution of Jalen Rose's public relations crisis. Both arguments speculate, at best, that these actions would yield a better result.

First, Steele argues that had CAA truly been loyal, it would have pushed back on an apology. But CAA correctly notes that Steele's only stated expression at the time was to preserve her financial rights under the ESPN contract. Steele does not explain how refusing to apologize would better serve her interests. Presumably, violating an employer's rule by making an unapproved appearance, then refusing to apologize for the controversy caused by that appearance, would not better serve Steele's interests in preserving her ESPN contract.

Second, Jalen Rose's public relations crisis appears to have happened in late November, more than a month-and-a-half after ESPN published Steele's apology. Steele also does not explain how Rose's situation resembles hers, or how he secured a better outcome.

CAA correctly argues that preserving that contract while Steele found a way out was her stated goal at the time. CAA met this goal. Steele does not establish that any of CAA's actions or omissions closed the door to a better option. Therefore, they did not matter…. CAA did not materially breach its fiduciary duty to Steele….

For the reasons above, the Labor Commissioner determines that Petitioner Creative Artists Agency, LLC is entitled to unpaid 10% commissions plus interest for earnings arising from or connected with … [Steele's] employment with ESPN ….

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