Eugene Volokh's Blog, page 192

[Ilya Somin] The Laken Riley Act is Unjust - and a Trojan Horse

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Yesterday, the House of Representatives passed the Laken Riley Act (LRA), in a 264-159 vote. This legislation - named after a student killed by an undocumented immigrant - is often sold by proponents as a tool for combatting murderers and sex offenders. In reality, it focuses on detaining undocumented immigrants charged with theft-related crimes, including minor ones. It also includes a Trojan horse provision making it easier for states to challenge a variety of programs that make legal migration easier. These policies are unjust, and likely to impede genuine crime-fighting efforts more than they help them.

The main provision of the Laken Riley Act requires mandatory federal detention of any undocumented immigrant who "is charged with, is arrested for, is convicted of, admits having committed, or admits committing acts which constitute the essential elements of any burglary, theft, larceny, or shoplifting offense." Notice that the provision is triggered by a mere arrest or charge, and does not require any proof of guilt beyond that. Moreover, even the most minor forms of theft, burglary, or shoplifting qualify. If a migrant is arrested on suspicion of stealing a dime or a paperclip from a store, that's enough to trigger mandatory detention. Ditto if he or she is charged with even the most minor theft-related offense.

Pretrial detention is already overused, even when it comes to US citizens.  Forcibly detaining people who have never been tried or convicted of any crime is presumptively unjust, and should only be resorted to when it is the only way to prevent some grave threat to public safety, as in the case of suspected serial killers or terrorists.  The whole point of requiring trial and conviction before imprisoning people is to ensure that only those actually guilty of crimes are subject to such severe punishment. Making pretrial detention mandatory for a large population for arrests and charges for even the most minor theft-related crimes only makes the injustice worse.

Moreover, detention is expensive. Federal immigration detention currently costs an estimate $165 per day per detainee, and that doesn't count the costs of taking people out of the workforce. Those funds can be put to better crime-fighting use by, for example, putting more police on the streets, a strategy with demonstrated crime-reducing effects. Spending them on detention of migrants arrested or charged with even minor theft-related crimes is a waste. As my Cato Institute colleague and immigration policy expert David Bier notes, the first Trump administration's efforts to detain and deport nonviolent asylum seekers and undocumented immigrants predictably diverted resources from combating serious crime. If enacted, the Laken Riley Act will likely have a similar effect.

Moreover, the Laken Riley Act creates perverse incentives for state and local police and prosecutors. Normally, they are reluctant to arrest and charge people when there is little change of securing a conviction. But under the LRA, a bogus arrest or indictment of an undocumented immigrant on a theft-related offense leads to mandatory detention paid for by the feds - not the state and local governments themselves. And such detention occurs even if the target is never convicted of anything. This could well incentivize officials with nativist sentiments (or those catering to such sentiments) to make dubious arrest and charging decisions. After all, the feds will foot the bill!

To be sure, a person suspected of even minor theft might, if released until trial, commit more serious crimes. Detaining such people will prevent at least a few more serious offenses. But by that reasoning, we should preemptively detain anyone who is suspected of even the most minor offense. There is always a small chance they might otherwise commit murder, rape, or assault.

For fairly obvious reasons, such preemptive mass detention would be gravely unjust. It would also actually undermine crime-fighting efforts by diverting resources from more effective strategies. And that is even more true for mass detention policies that target undocumented immigrants, who have significantly lower violent crime rates than native-born citizens.

Elsewhere, I have argued that migrants who commit crimes should get the same punishment as natives, not the more severe additional punishment of deportation. Governments can and should severely punish people who commit crimes of violence and theft.  But no one should get extra punishment merely because of an arbitrary circumstance of birth. That position is one of my more unpopular views. But even if you don't accept it anything likely fully, you should at least consider whether it's just to have preemptive mass detention of undocumented migrants arrested or charged for very minor crimes - even in cases where the evidence against them is weak and the underlying crime would not normally result in a prison sentence upon conviction.

The LRA also includes a provision unrelated to any kind of violent crime or even theft, that gives state attorneys general standing to challenge in federal court any supposed violation of the requirement  "that parole [for immigrants] solely be granted on a case-by-case basis and solely for urgent humanitarian reasons or a significant public benefit," so long  as the state or its residents suffer any "harm" as a result, "including financial harm in excess of $100."  There is a similar provision giving state AGs standing to challenge grants of other types of visas.

The goal of this provision is to make it easier for states to challenge federal programs that grant visas or parole (temporary legal entry, employment, and residency in the US), such as the Biden Administration CHNV program for people fleeing horrific violence and oppression in four Latin American nations (including three ruled by brutal socialist dictatorships). Last year, a conservative federal judge ruled against a lawsuit brought against the program by a coalition of red states, on the ground that the latter lacked standing due to not having suffered the requisite "harm" because of the program.

The LRA would make it much easier to get such standing. The requirement of $100 in financial harm can almost always be met, especially since the statute doesn't require a showing of net harmful effects. If a parole or visa program cost the state or one of its residents $101 on one occasion, that's enough, even if the state and its private sector actually derived large net benefits from the program, such as increased tax revenue and economic growth.

As a longtime critic of restrictive standing rules (at least as a constitutional matter), I am actually somewhat ambivalent about this provision. But, on balance, I oppose asymmetrical reduction in standing requirements that makes it easier for states to challenge federal policies that make legal migration easier, but not those that aim for the opposite effect. If we are going to reduce state standing requirements for challenges to immigration policies, we should at least do it for both sides.

It is possible that courts will strike down the standing provisions of the LRA. The Supreme Court has ruled (wrongly in my view) that "harm" and other standing requirements are constitutional rules that cannot be overridden by statute. If federal judges conclude that the LRA state standing rule lowers standing requirements below constitutional minimums (as defined by the courts), it might be invalidated.

Standing doctrine is vague and fuzzy enough that I'm honestly not sure what will happen if this issue gets to court. In recent years, the Supreme Court has been relatively restrictive on state standing, including in immigration cases. But the relevant precedent is far from a model of clarity.

In sum, the Laken Riley Act is unjust and likely to undermine efforts to combat serious crime. It also includes Trojan horse provisions intended to make it easier for state governments to pursue lawsuits to block various types of legal migration.

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[Jonathan H. Adler] FERC Not Required to "Second Guess" State Energy Choices Under NEPA

Yesterday the U.S. Court of Appeals for the D.C. Circuit, in Citizens Action Coalition of Indiana v. FERC, rejected Citizens Actions claim that FERC had to consider alternatives to state-approved natural gas turbines before approving a natural gas pipeline. The opinion, written by Judge Rao, explains why such a requirement would impose far broader environmental review obligations than can be justified, and may represent a trimming of the D.C. Circuit's unduly expansive approach to NEPA (an approach currently under review by the Supreme Court in Seven County Infrastructure Coalition v. Eagle County, Colorado).

Here's how Judge Rao summarizes the opinion:

As night follows day, an environmental challenge follows the approval of a natural gas pipeline. In this case, the State of Indiana approved a plan that would retire a coal-fired facility and replace it with wind and solar energy sources. To ensure grid reliability with the move to renewable energy, the plan also included two new natural gas turbines. The Federal Energy Regulatory Commission approved a natural gas pipeline to serve those turbines. The Citizens Action Coalition of Indiana petitions for review, alleging that FERC's environmental analysis and order were unreasonable and inconsistent with the National Environmental Policy Act and the Natural Gas Act.

Citizens Action alleges numerous errors, but its core claim is that FERC was required to analyze non-gas alternatives before approving the natural gas pipeline. We disagree. Congress gave FERC authority to promote the development of interstate natural gas pipelines, but it left the choice of energy generation to the States. The purpose of the pipeline was to support Indiana's energy plan, and FERC has no statutory authority to consider non-gas alternatives already rejected by the State. Because FERC acted lawfully and reasonably when conducting the environmental analysis and assessing the public convenience and necessity for the pipeline, we deny the petition for review.

From later in the opinion:

In its first set of NEPA challenges, Citizens Action broadly argues that FERC should have assessed alternatives to natural gas, instead of focusing only on the mix of generation sources chosen by CenterPoint and the Indiana Commission. But NEPA does not require FERC to consider non-gas alternatives that are outside of FERC's jurisdiction and would fail to serve the purpose of the Project. We hold that FERC properly identified the Project's purpose as supporting CenterPoint's new natural gas units and reasonably considered alternatives that would satisfy that purpose.

The court also rejected other challenges, including claims that FERC was obligated to characterize predicted effects on greenhouse gas emissions, instead of merely reporting them in quantitative terms.

The opinion ends:

In its challenge to the Texas Gas Project, Citizens Action in effect seeks a judicial directive exhorting FERC to promote general environmental concerns. But such a directive would far exceed our review under the APA as well as FERC's authority under the NGA and NEPA. Congress charged FERC with the development of natural gas pipelines, not with making local energy decisions or setting national environmental policy. For the foregoing reasons, we deny the petition for review.

Of note, the opinion also included a footnote addressing the D.C. Circuit's recent decision (since taken for which there is a pending en banc petition) that the Council on Environmental Quality lacks the authority to adopt binding regulations governing NEPA review, noting that since FERC complied with CEQ's "guidance," making the question a non-issue for this case.

[Note: Post corrected as indicated. The en banc petition has not yet been granted.]

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[Eugene Volokh] 5th Cir. Says More on When Federal Ban on Gun Possession by Drug Users Is Unconstitutional

From Monday's U.S. v. Daniels decision, written by Fifth Circuit Judge Jerry Smith, joined by Judge Don Willett:

Title 18 U.S.C. § 922(g)(3) bars an individual from possessing a firearm if he is an "unlawful user" of a controlled substance. A jury found that Patrick Daniels, Jr., was such an unlawful user, and a judge sentenced him to nearly four years in prison. But the jury did not necessarily find that Daniels was intoxicated at the time of his arrest, nor did it identify the last time Daniels used an unlawful substance. So we reversed the conviction and held that § 922(g)(3), as applied to him, was inconsistent with the Second Amendment. The Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of United States v. Rahimi (2024).

After Rahimi, this circuit heard a similar challenge to a prosecution brought under § 922(g)(3). In that case, United States v. Connelly, we held that the government could not constitutionally apply § 922(g)(3) to a defendant based solely on her "habitual or occasional drug use." That case controls this one. Because the jury did not necessarily find that Daniels was presently or even recently engaged in unlawful drug use, we reverse his conviction again and remand.

For more on Connelly, see this post. Monday's decision adds:

This is a closer case than Connelly because, unlike Connelly, this case went to trial, and the facts at trial seemed to reveal a defendant who was often intoxicated while transporting weapons. Daniels admitted to using marihuana roughly half the days of each month. Officers twice saw him with guns and marihuana in his truck. The marihuana in his truck was burnt, that is, used. When he was pulled over, he had a loaded handgun within arm's length and a loaded rifle in the back seat. If Connelly was an easy case because the defendant there merely used marihuana occasionally before bed while keeping a gun for home defense, this case is far less clear cut; all signs here point to a defendant's routinely driving around town while intoxicated with loaded guns in his car.

Crucially, though, that is not what the jury instruction required the government to prove at trial. The jury was instructed that, to find that Daniels was an "unlawful user," it need not find "that he used the controlled substance at the precise time he possessed the firearm" because "[s]uch use is not limited to the use of drugs on a particular day, or within a matter of days or weeks before." Instead, the jury was instructed that it need only find "that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct." {The jury then unanimously found Daniels guilty "beyond a reasonable doubt of knowingly possessing a firearm … while knowingly being an unlawful user of a controlled substance."}

his language dooms Daniels's conviction. The jury did not necessarily find that Daniels had even used marihuana "within a matter of … weeks before" his arrest, but only that his use "occurred recently enough" to indicate Daniels was "actively engaged" in unlawful use. What precisely this means is nebulous, and we "resist[ ] inquiring into a jury's thought processes." What we do know is that the jury could have found Daniels guilty even while believing that he had not used marihuana for several weeks. This would mean that Daniels was convicted for exactly the type of "habitual or occasional drug use" that we said, in Connelly, could not support an indictment (let alone a conviction).

In other words, the government's burden of proof was too low, as it was not required to convince a jury that Daniels was presently or even regularly intoxicated at the time of arrest. And even if the government had persuaded the jury that Daniels was frequently intoxicated, here, as in Connelly, the government offers no Founding-era law or practice of disarming ordinary citizens "even if their intoxication was routine." Because of this instructional error, § 922(g)(3) must thus again be held unconstitutional as applied to Daniels….

To reiterate our holding in Connelly: Section 922(g)(3) is not facially unconstitutional, and our nation's "history and tradition may support some limits on a presently intoxicated person's right to carry a weapon." We need not decide now whether § 922(g)(3) could also be constitutionally applied to defendants who are not actively intoxicated when found in possession of a firearm. But because many § 922(g)(3) prosecutions will likely involve defendants who are not using or under the influence of a controlled substance at the precise moment that they are arrested, we make a few tentative observations gleaned from recent precedent.

First, although Connelly rejected a blanket analogy between all drug users and the mentally ill, we suggested that gun restrictions could be constitutionally applied to "someone whose mental illness is so severe that she presents a danger to herself and others." So, if the government could show that an individual's drug use was so frequent, severe, and impairing as to render him analogous to the dangerously mentally ill, disarming him under § 922(g)(3) might find support in the historical tradition of confining and disarming mental patients.

Second, even where a defendant is not presently intoxicated, the historical intoxication laws invoked by the government might also support some applications of § 922(g)(3), depending on the facts admitted by a defendant or proven at trial. Specificity in jury instructions will likely be crucial here. Instructions requiring jurors to find a tight temporal nexus between an individual's drug use and his possession of firearms could bring § 922(g)(3)'s application closer in line with historical laws targeting the presently intoxicated, the mentally ill, or those who pose a danger to others, and avoid concerns that § 922(g)(3) deprives individuals of a constitutional right merely for past or even habitual drug use.

Analogies to historical laws disarming the mentally ill or the intoxicated will likely find stronger footing if the government can establish a connection between the defendant's active or regular drug use and violent or dangerous conduct. For instance, the government could attempt to establish that a defendant's frequent or recent drug use renders him presumptively dangerous because laws throughout our nation's history have aimed "to keep guns out of the hands of presumptively risky people." Though the government's attempted dangerousness analogues in Connelly failed, Connelly addressed only the "two groups" of laws that the government had proffered: laws barring political dissidents from owning guns during periods of conflict and laws disarming religious minorities.

Our analysis in Connelly does not foreclose the government from attempting to reformulate its dangerousness argument in the context of different as-applied challenges moving forward. Connelly held only that, because the government had "not shown how [Connelly's] marijuana use predisposed her to armed conflict or that she had a history of drug-related violence … the government's attempt to analogize non-violent marijuana users to dangerous persons failed to present a relevantly similar 'why.'" The analysis as applied to a different defendant could vary depending on that defendant's history and conduct.

The government has not pointed to sufficiently analogous historical laws to establish why Daniels himself should be considered presumptively dangerous. And, as explained, even had the government supplied sufficient historical briefing to support a theory of dangerousness, the jury instruction employed in Daniels's trial was too open-ended to support his conviction because it left open the possibility that Daniels had not even unlawfully used a controlled substance in several weeks.

But our holding is not a windfall for defendants charged under § 922(g)(3), present company included. The government remains free to reprosecute Daniels under a theory consistent with a proper understanding of the Second Amendment. We hold only that the first prosecution failed to meet that bar….

Judge Stephen Higginson agrees the conviction should be vacated, but adds:

I read Connelly to confirm the constitutionality of 18 U.S.C. § 922(g)(3) prosecutions at least when the defendant possesses a firearm while "presently" unlawfully using drugs.

Here, the parties and the district court did not have the Connelly decision during the jury charging stage. The district court … instructed the jury using the definition of "unlawful user" found in 27 C.F.R. § 478.11. Under those instructions, the jury was allowed to conclude that Daniels was an "unlawful user" based on use of controlled substances "within a matter of days or weeks" or based on a "pattern of use or possession." But we are obliged by Connelly to hold that this instruction was constitutionally deficient.

As an intermediate appellate court, it is our imperative both to faithfully apply the Supreme Court's constitutional corrections of our caselaw, as in Rahimi, and also to provide district courts with clear, exact, and workable instructions moving forward. It is crucial for our district court colleagues, who adjudicate § 922(g)(3) prosecutions daily across the country—as well as for the government, defendants, and indeed, all Americans—that we clarify the precise contours of constitutionally sound convictions for firearm possession. We should not allow some Americans to be imprisoned for conduct that deemed criminal in some districts, while such convictions are invalidated elsewhere. Americans must be given clear notice of what conduct is criminal….

Because the jury instruction here allowed the jury to convict Daniels based solely on the conclusion that he had used drugs weeks before he was found in possession of firearms, I would say no more than that his conviction is unconstitutional under Connelly's binding precedent.

{The majority offers "tentative observations" that different historical evidence could be presented in other cases, perhaps resuscitating our McCowan rule. It also implies that even present users who may not be "dangerous" might not be constitutionally prosecutable. I lack confidence in this dicta. It seems to me that both points could inject constitutional uncertainty in every § 922(g)(3) prosecution and might prompt parties to relitigate precedent based on either perceived, new historical evidence or each defendant's "history and conduct" showing dangerousness or lack thereof.}

The majority responds:

Our concurring colleague conscientiously reads Connelly as stating "that a § 922(g)(3) conviction is constitutional when "the temporal nexus is one of contemporaneity—meaning the jury found that the defendant possessed a firearm while presently (that is, actively) using controlled substances unlawfully." While such a formulation has the merit of providing a clear rule to the government and potential defendants, we do not read Connelly so narrowly. Connelly concluded that "[t]he history and tradition before us support, at most, a ban on carrying firearms while an individual is presently under the influence."

Courts reviewing a Second Amendment challenge can follow the principle of party presentation, so we do not read this passage to hold that § 922(g)(3) can apply only to situations where a defendant is caught using unlawful drugs while simultaneously carrying a firearm. If more analogous historical research reveals that the states routinely disarmed drunkards or drug addicts even when they were not actively intoxicated, for example, we do not read Connelly to foreclose a future court from considering that evidence and rejecting a § 922(g)(3) defendant's as-applied challenge on that basis…. Further, Connelly contemplates other potential applications of § 922(g)(3) beyond prosecutions solely targeting active use….

We sympathize with the desire to articulate a bright-line rule that district courts could apply going forward. But, with due respect, the "contemporaneity-only" rule advanced by the concurrence relies on an unduly narrow reading of Connelly and an understandable but unwarranted aversion to letting Second Amendment doctrine develop more fully as more cases involving different fact patterns arise. A piecemeal approach to laws such as § 922(g)(3), determining the contours of acceptable prosecutions through the resolution of continual as-applied challenges, is what Bruen and Rahimi require. {See William Baude & Robert Leider, The General-Law Right to Bear Arms, 99 Notre Dame L. Rev. 1467, 1511 (2024) ("Exactly where in between to draw the line [in § 922(g)(1) cases] is something the courts are currently debating and would eventually resolve in common-law fashion."); id. at 1514 ("[T]his kind of general common-law exposition is what Bruen calls for—not blanket deference to the legislature or the mindless parsing of historical analogies.").} We decline to short-circuit that process now.

Kimberly Golden Gore argued on behalf of defendant.

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[Eugene Volokh] Thursday Open Thread Will Be Moved to Friday Open Thread

Given the experiment with the Midweek Midday Open Thread, I thought I'd space things about by moving the Thursday Open Thread to Friday, at least for this week and the next several.

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[Eugene Volokh] Defamation Lawsuit Over Statements Related to 2020 Georgia Ballot Counting Controversy Dismissed

From Pick v. Raffensperger, decided Nov. 22 by Judge Eleanor Ross (N.D. Ga.), but only posted several days ago on Westlaw (an appeal is pending):

On November 3, 2020—election day—State Farm Arena in Atlanta, Georgia, served as a site for ballot counting. The ballot counting activity at State Farm Arena was recorded in an over 20-hour long Surveillance video ("Video"). After the 2020 election, Plaintiff (a licensed but non-practicing attorney) volunteered to "assist with election related matters in Georgia" and, in that capacity, "helped organize and summarize investigative facts and affidavits" from individuals alleging "potential or actual irregularities, misconduct, or fraud in the administration" of the election. Two of the affidavits Plaintiff assisted with were from individuals alleging irregularities in ballot processing at State Farm Arena.

On December 3, 2020, the Georgia State Senate Election Law Subcommittee held a hearing about the "alleged election irregularities, misconduct, or fraud in the 2020 election." Plaintiff attended the hearing and made a presentation using the Video. She did not show the Video in its entirety; rather, she "instructed the A/V tech multiple times to 'fast forward' or 'back up' to various times on the single video file[.]"

During her presentation, Plaintiff pointed to the ballot containers shown on the screen and said, "I'm going to call [the "containers for ballots"] a suitcase." Plaintiff, the only person to present the Video at the hearing, focused her presentation "solely on questions and potential irregularities that anyone could observe from the [V]ideo, matched to the statements in witness affidavits," and she raised "legitimate questions of why the ballots under the table were separate from the others and not coming from the same place that ballots had come from throughout the day."

In Integrity Counts, Defendant referred to the segments of the Video that Plaintiff showed during her presentation at the December 3, 2020 hearing as (1) "GIULIANI's SLICED-AND-DICED VIDEO," (2) "deceptively sliced and edited so that it appeared to show the exact opposite of reality," (3) "a slice of video that removed the clear evidence that Fulton County election works had protected the ballots and the process as required by law," (4) "chopped up," and "sliced and diced." Defendant allegedly also testified that the Video was "doctored" or "false." Plaintiff alleges that, through those statements, Defendant falsely accused Plaintiff of a crime under Georgia law—i.e., presenting misleading and false evidence to the Georgia legislature.

Defendant also recounts in his book that his office had to "punch down lies" or had to correct "outright lying" that the official boxes containing ballots were "suitcases" or "secret suitcases." He republished in the book a journalist's statement that "if you are someone who doesn't even believe the simple, basic fact (that has nothing to do with anything) that these are not suitcases - you live in a world outside of reason & reality." According to Plaintiff, through those statements, Defendant falsely accused her of "sensationalizing" by using the term "suitcase" when, in fact, poll workers and Defendant's own state election monitor use that term for "ballot transfer bags." …

[a.] "Suitcase"

To maintain a defamation claim concerning Defendant's statements about ballot containers identified as "suitcases" or "secret suitcases," Plaintiff must plausibly allege that the statements were "concerning" her. That is, she must allege that the statements "refer to some ascertained or ascertainable person, and that person … is the plaintiff." Plaintiff has failed to do so. Not only is Plaintiff not mentioned by name in Integrity Counts, Defendant's "suitcase" statements do not refer to her by "ascertainable implication."

Plaintiff claims that Defendant falsely accused her of sensationalizing the events at State Farm Arena through her reference to ballot containers as "suitcases." According to Plaintiff, "'suitcase' is field jargon commonly used by Fulton County election workers to describe ballot containers." As discussed here, this is how Plaintiff used the term during her December 3, 2020 presentation, and nothing in Integrity Counts's discussion of "suitcase" suggests that the book was referring to those individuals who use the term simply as "field jargon." Integrity Counts does not place in it its crosshairs those individuals who informally refer to official, secure ballot containers as "suitcases"; rather, it accuses those using the term in such a way as to advance the view that ballots were maintained in unofficial, unsecured containers (e.g., literal suitcases). In republishing a journalist's statement that "if you are someone who doesn't believe the simple, basic fact … that these are not suitcases –you live in a world outside of reason & reality," Defendant makes clear that the journalist is referencing an image of a "secure case to hold ballots." The thrust of the statement concerns those who believe that referenced ballot containers are literal suitcases as opposed to legitimate receptacles for ballots.

Similarly, Defendant's statements regarding the existence of "secret suitcases" being lies is concerning those individuals implying or asserting that those ballot containers were not official, secured ballot containers. Specifically, Defendant recounts one of his staff members explaining that "[w]hat you saw, the 'secret suitcase' [with Gabe's air quotes] with magic ballots, were actually ballots that had been packed into those absentee ballot carriers by the workers in plain view of the monitors and the press." The reasonable read of this statement is not that it is sensationalism or a lie to call ballot containers "suitcases" but that it is a lie to say that there were "secret suitcases" packed, outside of the presence of monitors and the press, with ballots from outside of the normal chain of custody.

Plaintiff, although she used the term "suitcase" during her presentation at the December 3, 2020 hearing and questioned why the ballots in the "four suitcases … underneath the table" were "separate from all the other ballots" and why they were counted "whenever the place is cleared out with no witnesses," she did not imply that the containers she referred to were literal suitcases or were something other than ballot containers used in the regular course of vote counting. Rather, she explained to her audience that in using the term "suitcase" she was referring to the "containers for ballots" seen at State Farm Arena. Thus, Plaintiff has not plausibly alleged that Defendant's "suitcase" statements were concerning her. In view of this failure to establish that necessary element, Plaintiff's various forms of defamation by libel and defamation per se claims premised on the "suitcase" statements fail.

[b.] "SLICED-AND-DICED VIDEO," etc….

Plaintiff claims that Defendant falsely accused her of slicing and dicing the Video, of deceptively slicing and editing it, of presenting a slice of the Video that removed contrary evidence, and of chopping up and doctoring the Video. But her own allegations (and the transcript of the December 3, 2020 hearing presentation) establish that Plaintiff showed only select portions of the over 20-hour Video. Specifically, Plaintiff alleges that she fast forwarded and reversed "to various times on the single video file." During her presentation, Plaintiff plays select sections of the Video. Thus, it is true that Plaintiff showed only select portions of the Video. In view of that, it is not false to say that slices of the Video were presented or that portions of the Video were edited out or removed.

Moreover, the underlying gist of the descriptors such as "sliced and diced" and "chopped up" is that selective segments of the Video were shown. That underlying gist—the selective showing—is true. Integrity Counts takes aim at that selective showing, by figuratively or hyperbolically referring to the segments as "sliced and diced," "chopped up," etc. Such use is not actionable. Horsley v. Rivera (11th Cir. 2002) (concluding that "rhetorical hyperbole" is "protected by the First Amendment and by Georgia law").

Contrary to Plaintiff's argument, Defendant does not accuse anyone of physically altering the Video's contents to present something different than what was recorded. Rather, considered in the context of the Chapter in which they are presented, the only reasonable reading of Integrity Count's statements about the Video is that they accuse the individuals using the Video to support their position that fraudulent ballots were being counted of misleading their audience or of not showing reality by failing to show portions of the Video making the chain of custody for those ballots apparent. In doing so, Defendant uses hyperbolic speech or truthfully recounts that the Video was "sliced" or "edited" to "remove" portions contradicting the fraudulent ballot claim….

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[Eugene Volokh] 9th Cir. En Banc Upholds Oregon's Ban on Surreptitious Recordings of Conversations

An excerpt from yesterday's en banc decision, written by Judge Morgan Christen, in Project Veritas v. Schmidt (reversing the July 2023 panel decision); the full opinions are over 20,000 words long, so this just gives a flavor of the analysis:

Oregon's conversational privacy statute prohibits unannounced audio-only recordings of oral communications between two or more persons, and the audio portion of audiovisual recordings of oral communications. It does not address video-only recordings or photographs.

Oregon's general prohibition on unannounced recordings of face-to-face conversations has several exceptions, but Project Veritas focuses its challenge on two of them. The first, the felony exception, allows a person to "record[ ] a conversation during a felony that endangers human life." … The second, the law enforcement exception, allows a person to "record[ ] a conversation in which a law enforcement officer is a participant" if certain conditions are met. The recording must: (1) be "made while the officer is performing official duties"; (2) be "made openly and in plain view of the participants in the conversation"; (3) capture a conversation that is "audible to the person by normal unaided hearing"; and (4) be made from "a place where the person lawfully may be." …

The court concluded that the statute "regulates speech protected by the First Amendment":

It is well established that audio recordings and audiovisual recordings are generally entitled to First Amendment protection….The Supreme Court has recognized that "[w]hether government regulation applies to creating, distributing, or consuming speech makes no difference." Moreover, the Supreme Court has expressly applied First Amendment protections to speech-creation processes….

We do not suggest that any conduct related in some way to speech creation, however attenuated, is necessarily entitled to First Amendment protection. A law that regulates logging may incidentally raise the price of paper used to write a manuscript. A law that regulates mining silica sand may incidentally raise the price of microprocessors used to facilitate the writing of an electronic article. It is certainly not obvious that the First Amendment would invariably provide protection for activities like these, where burdens on speech are merely incidental….

[But a]t the pleading stage, we accept Project Veritas's assertion that giving notice to conversation participants that they are being recorded may alter the contents of conversations in which Project Veritas's reporters participate. Accordingly, we accept that Oregon's conversational privacy statute burdens an act of speech creation in which Project Veritas seeks to engage. Protection for this act of speech creation is implicit in any right Project Veritas has to publish the resulting recording….

But the court concluded that the Oregon statute was content-neutral:

[The statute] does not "draw[ ] distinctions based on the message a speaker conveys," and it was not adopted because of the government's "disagreement with the [speaker's] message."

And this was so despite the exceptions:

We start with the felony exception, which applies when a conversation is recorded "during a felony that endangers human life." This exception does not address the content of the audio recording. The plain language of the statute dictates that its application turns on when a recorded conversation occurs, and not the subject matter of that conversation. The conversation need not relate to the felony; indeed, it could encompass any content whatsoever….

We reach the same conclusion when considering the law enforcement exception. This exception applies to recordings of conversations "in which a law enforcement officer is a participant," provided certain other conditions are satisfied. Like the felony exception, this exception is not content based within the meaning of controlling First Amendment precedent…. It does not concern a "particular viewpoint[ ]" or prohibit discussion of "an entire topic." The exception … applies to conversations that involve law enforcement officers, regardless of what the conversation is about. Put another way, it draws a line based on the circumstances in which a recording is made, not on the content of the conversation recorded…. It does "not inherently present 'the potential for becoming a means of suppressing a particular point of view.'"

The court then went on to uphold the law under the "intermediate scrutiny" applicable to content-neutral regulations:

To survive intermediate scrutiny, a content-neutral regulation of speech must be "narrowly tailored to serve a significant governmental interest, and … leave open ample alternative channels for communication of the information." …

[1.] Oregon argues that it has an important interest in ensuring that its residents know when their conversations are being recorded. We easily conclude this is a significant governmental interest…. Where one "impart[s] information to strangers, one inevitably risks its secondhand repetition," but "there is 'a substantial distinction between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device.'" In a world where one knows that any conversation can be secretly recorded at any time, and subsequently disseminated, it is easy to imagine that there might be a deleterious effect on the "uninhibited exchange of ideas," and a pervasive "chilling effect on private speech." … If all that is heard may be recorded, such a regime "might well smother that spontaneity—reflected in frivolous, impetuous, sacrilegious, and defiant discourse—that liberates daily life." …

Oregon's interest in conversational privacy also extends to ensuring that its residents retain control of their own speech. A party's "secret monitoring denies the speaker an important aspect of privacy of communication—the right to control the nature and extent of the firsthand dissemination of his statements." A secret recording may enable a party to disseminate another's oral comments in a way the speaker did not intend. Appropriating another's speech implicates what the Supreme Court has described as the "principle of autonomy to control one's own speech." "The First Amendment securely protects the freedom to make—or decline to make—one's own speech," and "it bears less heavily when speakers assert the right to make other people's speeches." Oregon's statute "directly enhance[s] private speech" by allowing individuals to choose not to speak, and thereby protects the "freedom not to speak publicly." …

[2.] The next step is deciding whether Oregon's statute is narrowly tailored to its significant interest. We conclude that the statute is sufficiently narrow….

To further its interest in preserving conversational privacy, Oregon adopted a relatively modest notice requirement. Absent an applicable exception, Project Veritas must inform participants in a conversation that they will be recorded before initiating a recording. Keeping the purpose of the statute in mind, section 165.540(1)(c) is exceptionally well tailored to protecting Oregonians' private conversations. By requiring that participants in a conversation be informed before an audio recording begins, but not requiring that they consent to the recording, the statute minimizes the infringement upon Project Veritas's journalistic efforts while still protecting the interviewees' right to knowingly participate in Project Veritas's speech—or not. Once a person is on notice that she will be recorded, she may choose to speak or remain silent. Either way, a noticed recording does not violate a privacy interest. Moreover, consistent with Oregon's interest in conversational privacy, the statute does not sweep in photography or video recordings; it applies only to recordings of face-to-face oral communications.

Oregon's statutory scheme is well tailored because it also accounts for some settings in which people cannot reasonably expect not to have their oral statements recorded…. These exceptions permit open recordings at public gatherings, including protests, and private meetings in which participants should reasonably expect that they will be recorded….

[3.] We are also persuaded that section 165.540(1)(c) leaves open ample alternative channels of communication for Project Veritas to engage in investigative journalism and to communicate its message.

It is well established that an alternative channel need not be ideal, but merely adequate. "[T]he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired." The Supreme Court "generally will not strike down a governmental action for failure to leave open ample alternative channels … unless the government enactment will foreclose an entire medium of public expression across the landscape of a particular community or setting."

A restriction runs afoul of the "alternative channels" requirement if it eliminates the only method of communication by which speakers can convey their message to a particular audience. But a regulation does not fail intermediate scrutiny merely because the other available channels of communication would convey the same message somewhat less conveniently or effectively. An alternative channel is adequate if it "permits the more general dissemination of a message." …

Project Veritas retains numerous alternative channels to engage in its journalistic speech activities. It may employ all the traditional tools of investigative reporting, including talking with sources, reviewing records, taking photographs, recording videos openly during public and semi-public meetings and events, recording videos that do not capture oral conversations, recording conversations after announcing it is doing so, and making use of Oregon's freedom-of-information laws.

Project Veritas may have its reporters go undercover and report on what they have seen and heard—without secretly recording its targets—as journalists have done for centuries. Powerful exposés authored by people like Nellie Bly, Gloria Steinem, and John Howard Griffin clearly demonstrate what our court has long recognized: "hidden mechanical contrivances" are not "'indispensable tools' of newsgathering." Dietemann v. Time, Inc. (9th Cir. 1971) (rejecting the argument that the First Amendment accorded journalists immunity from invasion of privacy torts). These many approaches to traditional investigative reporting remain available to Project Veritas and they satisfy the alternative-channels requirement….

[In its overbreadth argument,] Project Veritas makes passing references to other applications it contends are unconstitutional—e.g., recording a loud argument on the street or a political provocateur on a subway. The dissent does the same, imagining a public official berating a Chipotle employee or uttering a racial slur on a sidewalk. But even assuming that these examples qualify as face-to-face conversations within the meaning of section 165.540(1)(c) and that the statute is unconstitutional as applied to them, "the ratio of unlawful-to-lawful applications is not lopsided enough to justify the 'strong medicine' of facial invalidation for overbreadth." …

Judge Mark Bennett concurred in the judgment; a brief excerpt:

In 2018, when evaluating the creation of audiovisual recordings, we declared that "the recording process is itself expressive," meaning that "the creation of audiovisual recordings is speech entitled to First Amendment protection as purely expressive activity." Animal Legal Def. Fund v. Wasden (9th Cir. 2018). The breadth of that statement is rooted neither in the history of the Free Speech Clause of the First Amendment nor in any decisions from the Supreme Court….

Even when conduct relates to speech, Supreme Court cases counsel that that conduct may not be speech protected by the First Amendment, particularly when the regulation of such conduct still permits the speaker to express his desired message and there are important countervailing interests.

For example, in Zemel v. Rusk (1965), the appellant claimed that the Secretary of State's "refusal to validate his passport for travel to Cuba," because of the United States's breaking of diplomatic ties with Cuba and implementation of a travel ban, "denie[d] him rights guaranteed by the First Amendment." This was allegedly so because the travel ban "direct[ly] interfere[d] with the First Amendment rights of citizens to travel abroad so that they might acquaint themselves at first hand with the effects abroad of our Government's policies, foreign and domestic, and with conditions abroad which might affect such policies." Although the Court acknowledged that the ban did burden the free flow of information, it did not implicate the First Amendment because the ban was ultimately "an inhibition of action." The Court observed:

There are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. For example, the prohibition of unauthorized entry into the White House diminishes the citizen's opportunities to gather information he might find relevant to his opinion of the way the country is being run, but that does not make entry into the White House a First Amendment right. The right to speak and publish does not carry with it the unrestrained right to gather information.

In Branzburg v. Hayes (1972), the Court relied on Zemel and held that requiring journalists to testify before grand juries did not violate the First Amendment—even though "news gathering may be hampered" by the requirement…. [Branzburg] established that the regulation of some conduct—even when it may impact speech—simply does not implicate the First Amendment, particularly when the speaker is still allowed to express his desired message and the regulation is needed to protect important countervailing interests….

These cases support that all secret or unannounced audio recordings cannot be per se protected speech under the First Amendment, even if some of those acts of secret or unannounced recording could be indirectly linked to speech. First, we know that, even if the act of recording might be related to speech, the act itself does not automatically qualify as protected speech. There must be limits. See Zemel. We have expressed this sentiment. Dietemann ("The First Amendment is not a license to trespass, to steal, or to intrude by electronic means into the precincts of another's home or office.").

Second, a prohibition on secret and unannounced audio recording permits a speaker to use other means of "capturing" the audio contents of a conversation. He can still record, so long as he announces that he is doing so. And, without any announcement, he can still write or type notes during the conversation; he can still write or type notes immediately after the conversation; and he can still dictate the contents of the conversation using a recording device after the conversation. The prohibition on secret and unannounced audio recording also does not restrict his ability to communicate the information that he obtained from the conversation.

Finally, there is a strong countervailing interest protected by the regulation of secret or unannounced audio recording: the interest in maintaining the privacy of communication. "Privacy of communication is an important interest," as it "encourage[es] the uninhibited exchange of ideas and information among private parties." Indeed, "[t]here is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect." …

Given these considerations, the secret or unannounced audio recording of all conversations is not per se protected speech under the First Amendment. Thus, neither the text or the history of the First Amendment, nor Supreme Court precedent interpreting the Free Speech Clause, supports that the act of pressing an audio record button to record all conversations—either in secret or without announcement—is per se speech protected by the First Amendment. Our precedent also offers no persuasive reason to conclude otherwise….

Judge Kenneth Lee, joined by Judge Daniel Collins, dissented:

Journalists, as well as regular citizens, routinely record the powerful and the privileged behaving badly. Today's decision imperils the right to capture such abuses of power and other newsworthy events.

Oregon does not just ban surreptitious recordings that may implicate privacy concerns: It also criminalizes audio-recording someone—even conversations in public with no reasonable expectation of privacy—if "not all participants in the conversation are specifically informed that their conversation is being obtained." So, for example, a citizen in Oregon cannot lawfully audiotape a public official berating an employee at a Chipotle or uttering a racial slur on a public sidewalk—unless that citizen expressly tells that official he is being recorded….

Oregon's law is grossly overbroad and not narrowly tailored to advance the state's interest in conversational privacy (even assuming intermediate scrutiny applies). Oregon prevents citizens from recording even in public areas if they do not announce that they are audiotaping. Oregon thus tramples on people's ability to record and report on a large swath of public and newsworthy events. And because the law bans the taping of conversations where there is no reasonable expectation of privacy, Oregon's statute is not narrowly tailored to further the state's interest in conversational privacy.

In any event, Oregon's law should be subject to strict scrutiny, not intermediate scrutiny, because the statute is not content-neutral. The statute has a law-enforcement exception that allows citizens to legally record law enforcement officials—but no one else—without announcing that they are recording them. Oregon has essentially carved out only law enforcement matters from its ban on unannounced recording. Because this is a content-based restriction, strict scrutiny applies—and Oregon's law must fall to the wayside….

Oregon's law-enforcement exceptions are necessarily content-based because they "single out a[ ] topic or subject matter"—law enforcement—"for differential treatment." By its plain language, the statute allows citizens to record—without making an announcement—a police officer performing his or her official duties. No similar exception exists for any other profession or field. It is unlawful for citizens to tape (without an announcement) elected officials, schoolteachers, public housing agency administrators, environmental services employees, tax collectors, department of water and power representatives, child welfare investigators, and anyone else. But it is lawful to record law enforcement officials—and only law enforcement officials—without any announcement. {Oregon's law thus may not just be content-based but also viewpoint-based, because critics of the police are given a speech tool that the statute denies to critics of other officials.}

The majority argues that the statute is not content-based because "the requirement in § 165.540(5)(b) that a law enforcement officer be involved in the conversation does not regulate a 'topic' because the statute is unconcerned with the content of the conversation in which an officer participates." That assertion defies common sense and the statutory language. That is like saying that a law that bans Hollywood from featuring law enforcement officers—or anti-police brutality activists—in its movies is not content-based because it does not regulate a specific topic or conversation in the movie. The whole point of the statutory exception is to carve out law enforcement as a subject matter by allowing citizens to tape officers during their official duties without making an announcement….

The content-based nature of Oregon's law becomes even clearer if we consider other analogous scenarios. Assume Oregon enacts a similar carve-out for labor union officials—it is lawful to record a labor union official while he or she is "performing official duties" (but nobody else). It would be obvious that the law is content-based, i.e., topics pertaining to labor unions are treated differently from other topics. Or assume that Oregon bans non-consensual audiotaping except that citizens can lawfully record officials at the University of Oregon's Division of Equity and Inclusion who are "performing their official duties." Such a distinction would be content-based, as it treats some topics differently from others. We would not say such a law is not content-based because "the statute is unconcerned with the content of the conversation in which [a labor union official or DEI personnel] participates." …

Benjamin N. Gutman, Philip M. Thoennes, and Michael A. Casper represent defendants.

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[Josh Blackman] Today in Supreme Court History: January 8, 1973

1/8/1973: Trial begins for seven men accused of illegal entry into Democratic headquarters at Watergate hotel. The break-in would give rise to U.S. v. Nixon.

The Watergate Complex

 

 

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[Stephen Halbrook] Second Amendment Roundup: Supreme Court Considering Arms Ban Petitions on Friday

The Supreme Court has distributed two important cases for its conference of January 10.  is Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes.  The other is Ocean State Tactical v. Rhode Island, which asks whether a retrospective, confiscatory ban on the possession of ammunition feeding devices that are in common use violates the Second Amendment.

The Court should grant the petitions for writs of certiorari.  The cases present a critically important question going to the heart of the Second Amendment – may the government prohibit mere possession of AR-15s and similar semiautomatic rifles and of standard magazines that come with most semiautomatic rifles and pistols?

As I explained in my recent post "Firepower and the Fourth Circuit," Maryland's prohibition on AR-15s and the like rifles was upheld en banc on the merits under reasoning in direct conflict with the Supreme Court's precedents.  Likewise, the First Circuit's affirmance of the denial of a preliminary injunction against the Rhode Island ban follows the same trend by certain circuit courts flaunting even the most recent of the Court's rulings.

For most of the Nation's history, long guns – rifles and shotguns – were seen as good, while handguns were depicted by some as bad.  The muskets fired at Lexington and Concord became a symbol of American freedom.  Restrictions on the carrying of concealed pistols arose in the nineteenth century.  New York's Sullivan Law of 1911 required a permit just to keep a handgun in the home.  But as the New York court explained in People v. Raso (1958), "a rifle may be possessed in the home or carried openly upon the person on the street without violating any law," since in restricting concealed weapons, the legislature "carefully avoided including rifles because of the Federal constitutional provision and [NewYork's] Civil Rights law provision."  I personally heard Justice Scalia tell how, when he was on the high school rifle team, he carried his rifle on the New York subway.

The initial bill that became the National Firearms Act of 1934 listed pistols and revolvers first among the firearms that would be subject to registration.  Attorney General Homer Cummings depicted them as the ultimate gangster weapons, but they were removed from the Act as passed.

Repeating rifles with magazines holding numerous cartridges had been around since the mid-nineteenth century in the form of lever-actions.  Semiautomatic rifles with detachable magazines were on the market by the turn of the century.  Virtually no restrictions on either type were enacted.

Fast forward to District of Columbia v. Heller, in which the District's brief argued that its handgun ban "do[es] not disarm the District's citizens, who may still possess operational rifles and shotguns."  The law "continues to allow private home possession of shotguns and rifles, which some gun rights' proponents contend are actually the weapons of choice for home defense." Its amicus Violence Policy Center contended that "a wealth of evidence" shows that "in almost all situations 'shotguns and rifles are much more effective in stopping a [criminal].'"

Invalidating the handgun ban in Heller, the Supreme Court set forth principles that apply to both handguns and long guns.  First, "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."  Second, the Second Amendment protects arms that are "'in common use at the time' for lawful purposes like self-defense" and are "typically possessed by law-abiding citizens for lawful purposes."  Third, handguns as a class are protected by the Amendment and may not be banned; the Court did not need to mention that most handguns are semiautomatic.  Fourth, the Court suggested that "M-16 rifles and the like," i.e., fully automatic machineguns, and "sophisticated arms that are highly unusual in society at large" may be banned.

As its interpretative tools, Heller was based on text, which was informed by the original public understanding, and history, particularly the allowance from the Founding that the "carrying of dangerous and unusual weapons" could be restricted, but that arms could not be banned.  The Court rejected Justice Breyer's argument that the right could be eliminated based on judicial "interest balancing."

In response to the Heller decision, the District legalized handguns but banned numerous rifles it characterized as "assault weapons" together with "large capacity" magazines.  Given the above points from the Heller decision, we thought that a challenge to that ban would be a no-brainer, and brought the case that came to be known as Heller II.

In a 2-1 decision, the D.C. Circuit fully conceded that the banned rifles and magazines were commonly possessed in America, but upheld the ban under intermediate scrutiny, the very method of Justice Breyer that the Supreme Court rejected.  In "Reality Check," Georgetown Journal of Law & Public Policy, I explained how the factual record in the case refuted the unsworn claims by antigun lobbyists in the legislative record relied on by the court.  But the Heller II decision opened the Pandora's Box of intermediate scrutiny on which other circuits upheld semiautomatic rifle and magazine bans.

The silver lining in the cloud was then-Judge Brett Kavanaugh's dissenting opinion, which is a blueprint for how the Supreme Court should analyze similar rifle bans.  The opinion brilliantly exposits Heller's analytic method of text and history as well as traces the over-a-century history in which semiautomatic rifles with detachable magazines have been accepted by and are in common use by the American public.  Judge Kavanaugh anticipated what the Supreme Court empathically later held so clearly in Bruen – that the correct method begins and ends with text and history, and as Justice Thomas put it, intermediate scrutiny is "one step too many."

Now denied use of the term "intermediate scrutiny," the Fourth Circuit in Snope and the First Circuit in Ocean State Tactical continue to apply their own subjective judicial balancing tests in which the Second Amendment always loses.  The Snope court upheld Maryland's ban because supposedly the 9 mm cartridge, not the .223 caliber cartridge, is best for self-defense, oblivious to the fact that the ban is based on model and generic features, having nothing to do with caliber.  Yet even though the majority use .223 rounds, there are AR-15 type rifles designed to fire 9 mm rounds, and they too are banned based on their features.

Similarly, the Ocean State Tactical court decided that no evidence exists that magazines holding over ten rounds "are used in self-defense," and thus that banning them "imposes no meaningful burden" on the right to self-defense.  It wrote off what the people actually choose with the half-joke: "True, one could imagine Hollywood-inspired scenarios in which a homeowner would need to fend off a platoon of well-armed assailants without having to swap out magazines."

The Supreme Court should grant cert in these cases.  The courts of appeal that have upheld such bans openly flaunt the Court's jurisprudence.  It began after Heller, and it has now repeated itself after Bruen.  While the states with bans are outliers, their large populations represent a significant number of Americans whose rights are being trampled.

There is no circuit split because most states respect the Second Amendment and would not enact such bans.  The circuits that have upheld the bans appear to reflect the political judgments of at least some of the states under them.

The Snope litigants are represented by David Thompson (see cert petition) and the Ocean State litigants are represented by Paul Clement (see cert petition).  I've covered the topic at length in America's Rifle: The Case for the AR-15.

There are also two other worthy cases that are distributed for the Court's conference on January 10.  is Gray v. Jennings, which seeks review of the Third Circuit's affirmance of the denial of a preliminary injunction against Delaware's ban on semiautomatic rifles.  The issue posed is "Whether the infringement of Second Amendment rights constitutes per se irreparable injury."  The is Maryland Shall Issue v. Moore, which seeks review of Maryland's handgun license qualification requirement, which requires a redundant background check and duplicative waiting periods.

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[David Bernstein] FLASHBACK: Glenn Greenwald: Pro-Israel sentiment in the U.S. is at least as bad for freedom of speech as Islamist terrorists murdering cartoonists

My post from a decade ago is now behind a Washington Post paywall, but I reprint it below:

Apparently, the real lesson we should be learning from the murder of "blasphemous" French cartoonists is that American pro-Israel activists are at least as repressive as Islamist terrorists. That's because the former have purportedly created a "taboo" against criticizing Israel–a purported taboo, I should note, that Greenwald himself and many other bloggers, along with every major American newspaper and left-of-center journal, violate regularly, and one that somehow doesn't stop professors hostile to Israel from dominating Middle East Studies Departments in universities across the United States, such that the actual taboo in such departments is to express sympathy for Israel. Here's the money quote, which comes at the end of Greenwald's post:

That [criticizing Israel] is a real taboo – a repressed idea – as powerful and absolute as any in the United States, so much so that Brooks won't even acknowledge its existence. It's certainly more of a taboo in the U.S. than criticizing Muslims and Islams, which is in mainstream circles including the U.S. Congress – that one barely notices it any more. This underscores the key point: there are all sorts of ways ideas and viewpoints are suppressed in the west. When those demanding publication of these anti-Islam cartoons start demanding the affirmative publication ofthose ideas as well, I'll believe the sincerity of their very selective application of free speech principles. One can defend free speech without having to publish, let alone embrace, the offensive ideas being targeted. But if that's not the case, let's have equal application of this new principle.

The article is full of logical fallacies, and suggests that Greenwald doesn't understand why Charlie Hebdo was targeted (hint: it wasn't because of an allegedly offensive reference to Boko Haram's sex slaves), apparently doesn't understand what "blasphemy" means and certainly appears to believe that Der Sturmer-like anti-Semitic cartoons are the moral and logical equivalent of making fun of Moses or Muhammed. Put another way, what Greenwald is saying, in practice, is that until hostility to Israel becomes popular in the U.S., such that there is not even a prospect of social sanction for expressing it, and such that anti-Israel sentiment is expressed as often as Greenwald thinks it should be, pro-Israel advocates are at least as bad as Islamist terrorists. This, let's remember, is from a guy who many, including some of my libertarian friends, hold up as a poster boy for civil liberties. I can only imagine what other profound lesson Greenwald thinks we should draw from the murder by Islamist terrorists of four French Jews in a kosher supermarket in Paris today, but I'm guessing that it also has something to do with Israel.

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[Ilya Somin] More on Birthright Citizenship and Undocumented Immigrants

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The incoming Trump administration plans to deprive children of undocumented immigrants of birthright citizenship. As I explained in a recent article in Just Security, this would be a blatant violation of the Citizenship Clause of the Fourteenth Amendment, which grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." There is no exception for children of illegal migrants. Legal scholars Amanda Frost (Univ. of Virginia) and Paul Gowder (Northwestern), have recently published excellent articles on the same topic: Frost in the Atlantic (there is a paywall), and Gowder in the UnPopulist. They effectively refute the various specious rationales offered for claims that children of undocumented immigrants aren't entitled to birthright citizenship because they are not "subject to the jurisdiction" of the US.

Among other things, they poke holes in the idea that these children aren't entitled to citizenship because their parents' entry into the US did not have "consent." I would add that nothing in the Citizenship Clause requires "consent," and that no real-world government genuinely enjoys the consent of the people it rules. Moreover, to the extent we care about consent, depriving children who have no other home of the right to live in the US would itself be an egregious nonconsensual exercise of government power.

In my Just Security article, I pointed out that denying birthright citizenship to the undocumented would in various ways go against the central objective of the Citizenship Clause which was to ensure citizenship rights for blacks denied them by the Supreme Court's ruling in the notorious Dred Scott case. Frost highlights another way in which this would be true:

In a recent law-review article, the legal scholars Gabriel Chin and Paul Finkelman explained that for decades, Africans were illegally brought to the United States as slaves even after Congress outlawed the international slave trade in 1808, making them the "illegal aliens" of their day. The nation was well aware of that problem. Government efforts to shut down the slave trade and deport illegally imported enslaved people were widely reported throughout the years leading up to the Civil War. Yet no one credible, then or now, would argue that the children of those slaves were to be excluded from the citizenship clause—a constitutional provision intended to overrule Dred Scott v. Sandford by giving U.S. citizenship to the 4.5 million Black people then living in the United States.

If children of people who entered the US illegally are not entitled to birthright citizenship, that logic would have applied to the children of illegally transported slaves.

There are many more good points in both articles. People interested in this issue should read both.

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