Eugene Volokh's Blog, page 193

[Eugene Volokh] Challenge to California Policy Limiting Teachers' Disclosure to Parents of Student's Changed Gender Identity …

From Mirabelli v. Olson, decided today by Judge Roger Benitez (S.D. Cal.), the introduction and the conclusion:

Plaintiffs are teachers in the Escondido Union School District ("EUSD") and parents of students in other California school districts…. The Plaintiffs contend that a state policy promulgated by the California Department of Education and adopted by local school districts violate their rights under the First and Fourteenth Amendments …. The gravamen of the state policy is that public school teachers are not to reveal to parents a student's announced change of gender identity in order to maintain the student's privacy, except where the student consents to disclosure….

It is still true that a request to change one's own name and pronouns may be the first visible sign that a child or adolescent may be dealing with issues that could lead to gender dysphoria or related health issues. Yet, for teachers, communicating to a parent the social transition of a school student to a new gender—by using preferred pronouns or incongruent dress—is not generally permitted under EUSD's and the State Defendants' policies.

The Supreme Court has long recognized that parents hold a federal constitutional Due Process right to direct the health care and education of their children. The Defendants stand on unprecedented and more recently created state law child rights to privacy and to be free from gender discrimination. These rights may compete when it comes to information about a child's expressed gender incongruence in a public school. Parents have a right to know about their child gender expression at school. And a child has a right to keep gender expressions private and to be protected from discrimination.

The Supreme Court and the Ninth Circuit have clearly and unambiguously declared parents' rights as they relate to their children…. "We have long recognized the potential conflict between the state's interest in protecting children from abusive or neglectful conditions and the right of the families it seeks to protect to be free of unconstitutional intrusion into the family unit, which can have its own potentially devastating and long lasting effects." …

There are no controlling decisions that would compel this Court to limit or infringe parental rights, notwithstanding the State's laudable goals of protecting children. This Court concludes that, in a collision of rights as between parents and child, the long-recognized federal constitutional rights of parents must eclipse the state rights of the child. Therefore, the Court finds that the Plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied.

The opinion is over 8000 words long, but here's an excerpt:

While the government may hire teachers to deliver prescribed curricular speech, it may not compel its employees to do so in a way that intentionally abridges parental constitutional rights or in a manner that is unlawful. The teacher Plaintiffs allege that the state and EUSD policies compel them to abridge parental constitutional rights and to do so in a manner that is intentionally deceptive and unlawful. These allegations fairly state a plausible claim for relief that the policies infringe on the teachers' own constitutional rights under the First Amendment Free Speech Clause.

The arguments by the State Defendants against both the teachers' claims, and later the parents' claims, rely on legal suppositions which this Court rejects. For example, in arguing that the teachers fail to state a claim, the State Defendants contend that "parents do not have a constitutional right to be informed of their child's transgender identity." Likewise, in arguing that the parents fail to state a substantive due process claim, the State Defendants assert that parents do not enjoy a fundamental right to be informed about their student. Specifically, the State Defendants assert, that parents "do not have a fundamental right to be informed of their students' gender identity at school, and accommodating a student's social transition at school is not medical care triggering any right to parental involvement."

This cramped definition of parental rights is conclusory and requires the suspension of disbelief. Constitutional rights of parents to bring up a child and decide how to handle health care issues are some of America's oldest foundational rights. "The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court." This is especially true with regard to issues of health.

"Surely, [a parent's right] includes a 'high duty' to recognize symptoms of illness and to seek and follow medical advice." A child's gender incongruity is a matter of health. Matters of a child's health are matters over which parents have the highest right and duty of care. Parental rights over matters of health continue to be preeminent even where the government may worry about a general possibility of abuse or parental non-acceptance due to their child's exhibition of gender incongruity. The Supreme Court took this approach in Parham v. J.R. (1979),

Appellees argue that the constitutional rights of the child are of such magnitude and the likelihood of parental abuse is so great that the parents' traditional interests in and responsibility for the upbringing of their child must be subordinated at least to the extent of providing a formal adversary hearing prior to a voluntary commitment.

Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." …

The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children….

Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state …. Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments.

And although the State Defendants disagree, it easily follows that parents do have a constitutional right to be accurately informed by public school teachers about their student's gender incongruity that could progress to gender dysphoria, depression, or suicidal ideation, because it is a matter of health….

The Defendants' policies do little to protect a parent's interests in their child's health. On the contrary, when on occasion these interests collide, the Defendants' policies promote the ascendancy of a child's rights over the child's parents. The Supreme Court's precedents point the other way toward "permit[ting] the parents to retain a substantial, if not the dominant, role" in a health care decision. For example, the Supreme Court points out that "[t]he fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parent's authority to decide what is best for the child."

There are no controlling decisions for this Court to follow in this case. This case presents the question of whether the constitutional rights of parents may be subordinated by a state's imposition of policies that elevate a child's state created and unprecedented rights above or beyond the rights of their parents. At least as far as decisions on healthcare in school settings are concerned, the long-recognized federal constitutional rights of parents must preponderate and a claim that school policies trench on parents' rights states a plausible claim for relief. Because this is a lynchpin argument for the State Defendants, an argument with which the Court disagrees, the State Defendants' motion to dismiss the parent Plaintiffs' claim for violation their substantive due process rights (Claim 7) is also denied….

[B]oth the teachers and the parents have [also] adequately stated claims upon which relief can be granted in asserting that the non-disclosure policies substantially burden their First Amendment right to the free exercise of religion.

The State Defendants … argue that their policies do not force the parents to act contrary to their religious beliefs. According to the Complaint, the policies force parents to accede to a school's plan to neither acknowledge nor disclose information about their child's gender dysphoria. By concealing a child's gender health issues from the parents, parents are precluded from exercising their religious obligations to raise and care for their child at a time when it may be highly significant, because they are kept uninformed of the need for their child's religious guidance. "Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary." For parents who are not rich and have limited financial resources to choose private schooling or homeschooling for their child, there remains only public school placement for satisfying the state truancy law obligation of school attendance.

Whether the teachers and parents can prove their allegations may remain for summary judgment or trial but they have adequately stated plausible free exercise claims….

EUSD also argues for dismissal of West's Title VII claims. West asserts a religious discrimination claim based on a failure to accommodate (Claim 4) and a retaliation claim (Claim 5). Concerning the failure to accommodate claim, EUSD argues facts to prove that it has engaged in sufficient efforts to accommodate West. For example, it says "EUSD initiated good food [sic] efforts to accommodate West's religious beliefs through meetings…." And EUSD says, "During this process, EUSD came to an agreement with Mirabelli and West…." Id. EUSD may be able to prevail on its defenses at summary judgment or trial, but its arguments here are premature. After all, "[a]n employer who fails to provide an accommodation has a defense only if the hardship [on the employer] is 'undue,' and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered 'undue.'" …

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[Eugene Volokh] "FIRE to Defend Veteran Pollster J. Ann Selzer in Trump Lawsuit over Outlier Election Poll"

Just saw this announcement from FIRE; very glad to hear it. I copy below my explanation from Dec. 18 for why I think Trump's claim is unsound.

[* * *]

[The] Complaint in this case essentially alleges that pollster Ann Selzer's Nov. 2 poll for the Des Moines Register, which showed Harris ahead in Iowa by 3 points, was deceptive to consumers and thus violated Iowa consumer fraud law:

62. President Trump, together with all Iowa and American voters, is a "consumer" within the meaning of the statute.

63. Defendants furnished "merchandise" to consumers within the broad meaning of the statute since they provided a service: physical newspapers, online newspapers, and other content that contained the Harris Poll.

64. Defendants engaged in "deception" because the Harris Poll was "likely to mislead a substantial number of consumers as to a material fact or facts," to wit: the actual position of the respective candidates in the Iowa Presidential race.

65. Defendants engaged in an "unfair act or practice" because the publication and release of the Harris Poll "cause[d] substantial, unavoidable injury to consumers that [was] not outweighed by any consumer or competitive benefits which the practice produced," to wit: consumers, including Plaintiff, were badly deceived and misled as to the actual position of the respective candidates in the Iowa Presidential race. Moreover, President Trump, the Trump 2024 Campaign, and other Republicans were forced to divert enormous campaign and financial resources to Iowa based on the deceptive Harris Poll. Consumers within Iowa who paid for subscriptions to the Des Moines Register or who otherwise purchased the publication were also badly deceived. Additionally, Iowans who contributed to the Trump 2024 Campaign were similarly deceived.

66. The Harris Poll was deceptive and misleading, unfair, and the result of concealment, suppression, and omission of material facts about the true respective positions of President Trump and Harris in the Presidential race, all of which were known to Defendants and should have been disclosed to the public.

67. Moreover, as demonstrated by the leak of the Harris Poll before publication in the Register Article, Defendants created, published, and released the Harris Poll for the improper purpose of deceptively influencing the outcome of the 2024 Presidential Election….

I'm far from sure that, as a statutory matter, the Iowa consumer fraud law should be interpreted as applying to allegedly deceptive informational content of a newspaper, untethered to attempts to sell some other product. But in any event, the First Amendment generally bars states from imposing liability for misleading or even outright false political speech, including in commercially distributed newspapers—and especially for predictive and evaluative judgments of the sort inherent in estimating public sentiment about a candidate. To quote the Washington Court of Appeals in WASHLITE v. Fox News, where plaintiff unsuccessfully sued Fox for allegedly false statements about COVID,

[T]he Supreme Court in U.S. v. Alvarez (2012) disavowed the principle that false expressions in general receive a lesser degree of constitutional protections simply by virtue of being false. The court stated that its precedent restricting the value or protections afforded objectively false statements

all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.

The court went on to explain that,

[w]ere the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition.

WASHLITE's allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State's undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

United States v. Stevens (2010).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). Although WASHLITE pursues the meritorious goal of ensuring that the public receives accurate information about the COVID-19 pandemic, the challenged statements do not fall within the narrow exceptions to the First Amendment's protections. We affirm the trial court's conclusion that, however laudable WASHLITE's intent, its CPA claim is barred by the First Amendment.

The same logic applies here, I think. To be sure, as WASHLITE and Alvarez noted, there are some historically recognized exceptions to First Amendment protection for knowing falsehoods, such as for defamation, fraud, and perjury. But those are deliberately exceptions. Defamation is limited to knowing (or sometimes negligent) falsehoods that damage a particular person's reputation. Fraud is limited to statements that themselves request money or other tangibly valuable items. Perjury is limited to lies under oath in governmental proceedings. There is no general government power to punish political falsehoods outside these narrow exceptions.

In addition to the Alvarez plurality statements cited by the Washington court, note that five Justices and three dissenting Justices in Alvarez agreed that

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech…. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law.

That's from Justice Breyer's two-Justice concurrence, but Justice Alito's three-Justice dissent took the same view, adding "The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth." I think this logic applies to media decisions about how to predict the likely results of an election (again, outside the narrow exceptions noted above). And while some old decisions have upheld state laws focused on knowing falsehoods in election campaigns, post-Alvarez state and federal appellate cases have struck down even such specially targeted laws.

I should note that, when it comes to over-the-air broadcasting, the Court has left the Federal Communications Commission more latitude to restrict speech than the government has with regard to books, films, the Internet, and even cable television. Thus, the Court has upheld the Fairness Doctrine and the ban on broadcasting certain vulgarities. Lower courts have likewise allowed some policing by the FCC of alleged "distortion," see, e.g., Serafyn v. FCC (D.C. Cir. 1998). And the FCC has a specific "broadcast hoaxes rules" barring the publication of knowingly "false information concerning a crime or a catastrophe," if the information foreseeably "cause[s] substantial public harm."

But fortunately, in recent years the FCC has recognized the dangers of policing speech this way, whether in the service of trying to restrict disfavored views or supposed misinformation. The case involving the Washington Redskins is one example; the FCC there recognized that the Court's decision upholding the viewpoint-neutral restrictions on sex- and excretion-related vulgarities in Pacifica couldn't be extended to allegedly bigoted words, which would be punished precisely because of their supposed viewpoints. The FCC commissioners' statements quoted above support this as well, as does the FCC's 2020 decision related to the broadcast hoaxes rule:

[T]he Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press's assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications. Accordingly, the Commission has recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited."

On the Court, Justices Thomas and Ginsburg had also suggested that it was unsound to offer lesser First Amendment protection to broadcasting; I expect that, if the issue were to come before the Court today, Red Lion and Pacifica would at least be sharply limited and perhaps overruled altogether.

In any event, whatever the status of this special treatment of FCC regulation of over-the-air broadcasting, it has always been understood as limited to such broadcasters, and as not extending to newspapers. And even as to over-the-air broadcasting, it never been extended to allow state law to be used to restrict supposed political misinformation, including on broadcasting networks.

(Note that this post is adapted from a Nov. 1 post about Trump v. CBS Broadcasting, a case in which Trump is suing CBS over its editing of the Harris 60 Minutes interview; the analysis in both situations, I think, is quite similar.)

The post "FIRE to Defend Veteran Pollster J. Ann Selzer in Trump Lawsuit over Outlier Election Poll" appeared first on Reason.com.

[Jonathan H. Adler] Why Did the D.C. Circuit Make It More Difficult to Find Opinions? -- Redux

Last fall, I noticed that the U.S. Court of Appeals for the D.C. Circuit had redesigned portions of its website, creating a new opinions portal. Alas, as I noted at the time, the new portal actually made it more difficult to find opinions because it lacks a search function.

Today the D.C. Circuit provided a good example of how this supposed "upgrade" was nothing but, at least if one is concerned about public access to the work of our federal courts.

Today the D.C. Circuit denied a petition for en banc rehearing in Lewis v. Becerra. There were no noted dissents, but Judge Pillard offered an opinion respecting the denial which comments on the panel opinion.

Seeing this, some might want to read the original panel opinion, perhaps to note who was on the panel or to look at the passages Judge Pillard cites (using the slip op's pagination)--and therein lies the problem. Because the D.C. Circuit website no longer has a a search function on its opinion page, there is no way to do this from the website. It is possible to browse by date, but no way to search by docket number or party name.

This change may not be a problem for biglaw attorneys (or even academics) with Westlaw or Lexis subscriptions of PACER access. But for others--like, say, the general public--this is a real problem. (Yes, I was able to find the original panel opinion, but why should i have to resort to other websites or services to do so? And what about members of the general public who may not know as much about how to track such things down, or how to track down cases where party names change or that involve repeat litigants.)

Note that my complaint is not that the D.C. Circuit failed to design a website that suits my tastes. Rather it is that the D.C. Circuit revised its website in a manner that eliminated prior functionality--functionality that is easy to provide, that the court used to provide, and that serves the aim of enhancing public access to the work of federal courts.

Court websites should be enhancing public accessibility, and this is particularly true for appellate courts. In this respect, the D.C. Circuit's recent revisions to its website--however aesthetically pleasing--are a major step backwards, and that's a shame.

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[Eugene Volokh] A Test Suite for Proposals to Restrict "Doxing"

The term "doxing" is not well defined, but is often used broadly to refer to publicly disclosing a person's name, photograph, address, phone number, employer name, and the like, in connection with some express or implied condemnation of the person. The concern is that such disclosure can instigate or facilitate violence or vandalism targeting the person, or the sending of threats, or the sending of insulting messages, or economic retaliation (often through the person's employer). Different states have different rules dealing with such matters, and they generally define "doxing" differently, both as to what information is covered, who is protected against such disclosure, what (if any) specific purposes on the discloser's part must be shown to lead to liability, and more.

In any case, in thinking about the subject (and especially the questions that aren't limited to information such as social security numbers, bank account numbers, and the like), I came up with a set of hypotheticals that I hoped might be helpful. If any of you are interested in this, I'd love to hear your thoughts about which, if any, of these situations should lead to, say, criminal or civil liability (and, briefly, why). One can of course think that none should lead to liability—at least unless the allegations are false and therefore libelous, or are part of a criminal conspiracy involving the speaker, or involve some other factual feature not included in the hypothetical—or one can think that all should, or one can come to some conclusion in between.

Some doxing rules might not involve criminal or civil liability, and might not be subject to First Amendment restraints: For instance, a private university might restrict such speech by its students (especially about other students, staff, or faculty), or a social media platform might restrict such speech on the platform, or a newspaper might set up editorial policies about what kinds of material it publishes. But for purposes of this comment thread, I thought it would be good to focus on criminal or civil liability.

[1.] Dentist Who Shot Cecil the Lion: In 2015, Minnesota dentist Walter Palmer was publicly "named and shamed" through many people's social media posts for killing Cecil, a famous Zimbabwe lion, on a hunting trip. This led to likely economic harm to his practice, and to his "receiv[ing] a slew of death threats on social media." How the Internet Descended on the Man Who Killed Cecil the Lion, BBC, July 29, 2015. Assume the posts identified Palmer and the name of his dental practice.

[2.] Central Park Karen:

The white woman dubbed "Central Park Karen" when a video of her confrontation with a black birdwatcher went viral three years ago [in 2020] says she is still living in hiding and struggling to stay employed.

Amy Cooper claimed in a new opinion piece for Newsweek that she has received an endless flurry of hate mail that told her she deserves to be raped in prison or to kill herself and referred to her as a "Karen"—a term used for white women who victimize people of color—since the 2020 encounter in the Manhattan park….

Cooper was fired from her job as an insurance portfolio manager at Franklin Templeton Investments within 24 hours of the viral confrontation on May 25, 2020—the same day that George Floyd was killed by police in Minneapolis, sparking a national reckoning over racism.

She was caught on camera yelling at science and comic book writer Christian Cooper (no relation) and calling the police to claim an "African American man" was "threatening" her while she was walking her dog in the Ramble in Central Park….

Cooper was charged by Manhattan prosecutors in July 2020 with falsely reporting an incident—and while the rap was ultimately tossed after she attended therapy sessions on racial bias, she still lost her job.

Olivia Land, NYC's 'Central Park Karen': I Still Live in Hiding Three Years After Viral Video, N.Y. Post, Nov. 7, 2023. Assume some of the posts included the video, her name, and the name of the employer.

[3.] Accused Child Molester: A newspaper reports on allegations of child molestation against a local resident, and includes the man's name and place of employment (e.g., the school through which the molestation allegedly occurred). As a result, the man or his family get death threats. This is based, with the addition of the place of employment, on Ashleigh Panoo, His Twin Brother Allegedly Molested a Girl. Now He's Getting Death Threats, Fresno Bee, Jan. 13, 2018. (The Fresno Bee story doesn't indicate whether the threats came as a result of newspaper coverage, but it seems likely they would, in this case or in some other.)

[4.] Boycott Noncomplier: An NAACP chapter organizes a black boycott of white-owned stores. "Store watchers" stand outside stores and write down the names of black residents who aren't going along with the boycott; the names are then "read aloud at meetings at the First Baptist Church and published in a local black newspaper." Apparently as a result, there are crimes against some violators: three incidents of shots fired into homes, "a brick … thrown through a windshield," "a flower garden [being] damaged," and two beatings. The addresses of the targeted people aren't published, but they are presumably known in the community. These are basically the facts of NAACP v. Claiborne Hardware, 458 U.S. 886 (1982).

[5.] Palestinian Advocates: A truck with a billboard bearing the words "Columbia's Leading Antisemites" alongside the names and faces of students and faculty is circling around the Columbia campus. The truck lists 29 Columbia students and faculty who allegedly signed a statement of Palestinian solidarity; so does a website titled "Columbia Hates Jews," run by the same conservative group that hired the truck. The website states that the people listed belong to various pro-Palestinian campus groups who signed statements of solidarity with Palestinians and opposition to Israel in the days following the Oct. 7 attacks; the website's operators view those statements as expressing support for the attacks.

The website calls on readers to send messages to Columbia's board of trustees urging them to "take a stand" against "these hateful individuals." The group has also bought the Internet domain names that correspond to the actual names of several students and faculty on the list. The truck also regularly patrols outside the targets' homes. Two law students who were targeted by the truck had job offers withdrawn by prestigious New York law firms. See Esha Karam, 'Doxxing Truck' Displaying Names and Faces of Affiliates It Calls 'Antisemites' Comes to Columbia, Columbia Spectator, Oct. 25, 2023; Sabrina Ticer-Wurr, Nearly Two Dozen Palestinian Solidarity Groups Release Open Letter, Joint Statement, Columbia Spectator, Oct. 11, 2023.

[6.] Real Estate Broker: A self-described civil rights group believes that a local real estate agent is engaging in sales practices that undermine the group's goal of having a racially integrated community. (Assume that the practices are legal.) To pressure the agent, they "distribute[] leaflets" in the agent's home town describing and criticizing his actions. They do this each week for several weeks at local shopping malls; twice, they distribute leaflets "to some parishioners on their way to or from [the agent's] church"; they also leave leaflets "at the doors of his neighbors." "The … leaflets gave plaintiff's home address and telephone number and urged [the home town's] residents to call [the agent] and tell him to" agree to the group's demands that he change his practices. These are basically the facts of Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971).

[7.] School Board Member: Three School Board members—elected officials, who serve part-time—take a controversial stand on the display of Black Lives Matter materials in local schools. Three parents post online the names and phone numbers of the members' employers, hoping that readers will pressure the employers (e.g., through threat of boycott) into pressuring the members to change their positions. Assume that some readers do call the employers, which makes the members fear for their careers. Assume also that a few readers also send threatening e-mails to the officials personally (by finding the e-mail addresses on the Board's website). This is loosely based on the facts of DeHart v. Tofte, 326 Ore. App. 720 (2023).

[8.] Police Chief: Charles Kratovil, founder and editor of the online publication New Brunswick Today, believes that New Brunswick police chief Anthony Caputo is living in Cape May, two hours away from New Brunswick. He wants to write about this, and to include a voter record that he has obtained from some government agency that shows Caputo's home address. Caputo demands that Kratovil not do this, because Caputo is concerned that people might use the information to physically attack Caputo or his family, or at least vandalize his home. These are basically the facts of Kratovil v. City of New Brunswick, now pending before the New Jersey Supreme Court (see 258 N.J. 468 (2024), granting review of 2024 WL 1826867 (N.J. Super. Ct. App. Div. Apr. 26, 2024)).

[9.] Judge: John Smith, a disgruntled litigant who is unhappy about Judge Mary Jones' decisions in his now-completed divorce case posts a website accusing Judge Jones of being biased against men. He includes Jones' photograph and home address, and encourages people to join him in picketing her home. Some people leave threatening messages for Jones at her home; others do indeed join him for the picketing. Assume that residential picketing is not illegal in that jurisdiction.

[10.] Election Worker: William Johnson posts a video of a poll worker, accompanied with (1) a note saying that Johnson thinks the actions depicted on the video might be indicative of election fraud, and (2) a request for information about who the poll worker is. An anonymous commenter posts the poll worker's name, and the name of the poll worker's employer. That in turn leads to anonymous threats sent to that poll worker, and demands sent to the employer to fire the poll worker.

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[Eugene Volokh] Prof. Michael McConnell on The Supreme Court's Religion Docket

I'm delighted to be able to pass along this item from my Stanford colleague Prof. Michael McConnell (Stanford Law School), one of the nation's leading scholars on the Religion Clauses:

The Supreme Court has a unique opportunity this Term (or next) to hear four cases with major implications for religious liberty. One case is already on the merits docket—Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission, which involves a challenge to Wisconsin's determination that Catholic Charities is not sufficiently religious to qualify for an exemption from the state's unemployment program.

This Friday, the Court will consider adding three more:

Apache Stronghold v. United States—in which Native Americans are challenging the federal government's plan to destroy a sacred site by turning it into a copper mine. Mahmoud v. Taylor—in which Muslim parents are challenging a school district's refusal to notify parents or let children opt out when teachers present controversial readings on sex and gender identity. Roman Catholic Diocese of Albany v. Harris—in which religious groups are challenging New York's mandate to cover abortions in their health insurance plans.

(Full disclosure: I participated in amicus briefs in all four cases.)

While these cases may seem unrelated, they converge on two pressing issues that have divided lower courts, distorted the law, and harmed religious liberty. The Court should hear all four cases. Here's why.

[1.] Apache Stronghold and Mahmoud present the first issue that has divided lower courts: What kind of "burden" on religious exercise triggers heightened judicial scrutiny?

The Apaches have been worshipping at their sacred site, Oak Flat, since before European contact. Oak Flat occupies a unique role in Apache cosmology as a site of specific religious rites that cannot take place elsewhere. Now the government plans to transfer Oak Flat to a mining company that will destroy it—ending Apache rituals forever. This would seem to be a textbook case of a "substantial burden" on religious exercise under the Religious Freedom Restoration Act (RFRA). Yet the en banc Ninth Circuit, in a 6-5 ruling, held that there is no "cognizable" burden at all. According to the court, "the Government's management of its own land and internal affairs" does not burden religious exercise unless the government also coerces, discriminates, imposes a penalty, or denies equal rights.

It is, of course, possible that the copper mine would be found to serve a compelling governmental purpose—but RFRA was intended to put the government to the test on matters such as these. I know little about the geological circumstances, but it is often possible to find ways to advance important governmental interest while minimizing impacts on religious exercise.

In Mahmoud, a public school district requires children as young as three to participate in reading and discussion of controversial books on sexuality and gender identity—with no notice to parents and no opportunity to opt out. Muslim parents say that subjecting their children to this instruction violates their faith. Yet the Fourth Circuit held that there is no "cognizable" burden on their religious exercise unless the school "coerces" the children "to change their religious beliefs or conduct."

Both rulings are counterintuitive. Of course destroying the irreplaceable locus of sacred rites burdens the ability to practice those rites. And of course subjecting children to sexually-themed lessons that are forbidden by their religion burdens their religious exercise. Other circuits have recognized the obvious burden on religious exercise in similar circumstances, as the cert petitions have noted. Yet the Ninth and Fourth Circuits strained to find no burden in either case. Why?

The answer may lie in the much-maligned Employment Division v. Smith, which rejected heightened judicial scrutiny for laws that are "neutral" and "generally applicable" toward religion. Smith was animated by Justice Scalia's desire to get courts out of the business of granting case-by-case exemptions from laws that burden religious exercise. But whether or not Smith was correctly decided—in my opinion, it wasn't—the law has changed significantly since Smith was decided. First, Congress enacted RFRA, which expressly calls for courts to engage in case-by-case overrides of religion-burdening laws. Second, the Supreme Court itself has made it harder for governments to claim the mantle of Smith by tightening up what it means for laws to be "neutral" and "generally applicable."

The upshot is that the law now often requires heightened judicial scrutiny of laws the burden religious exercise. But some courts remain reluctant to engage in that scrutiny—whether motivated by a Scalia-like aversion to case-by-case balancing, distaste for the religious beliefs at issue, fear of slippery slopes, or other policy concerns. So we get decisions like Apache Stronghold and Mahmoud—where courts bend over backwards to avoid finding a "cognizable" burden on religious exercise, even when the burden is staring them in the face. The Supreme Court should grant review to address the issue.

[2.] But which case should the Court take—Apache Stronghold or Mahmoud? While it might be tempting to grant cert in one and GVR the other, doing so would not fully address the division in the lower courts or prove fruitful here, given differences in the facts and legal issues in each case.

Consider, first, a grant in Apache Stronghold and a GVR in Mahmoud. Apache Stronghold focuses mainly on RFRA, which requires strict scrutiny when the federal government "substantially burdens" religious exercise. If the Court resolves Apache Stronghold based on the ordinary meaning of "substantial burden" in RFRA (as it should), that would not necessarily control the application of the Free Exercise Clause to the local government policy at issue in Mahmoud. It would be easy for the Fourth Circuit, after a GVR in Mahmoud, to treat Apache Stronghold as limited to the language of federal RFRA and to reissue the same ruling in Mahmoud.

Alternatively, consider a grant in Mahmoud and a GVR in Apache Stronghold. If the Court resolves Mahmoud on the ground that subjecting children to religiously-forbidden instruction without parental knowledge is a burden under the Free Exercise Clause, that would not necessarily control the RFRA question in Apache Stronghold, because the Apache Stronghold court purported to divine a land-use-specific meaning of "burden" from the Supreme Court's earlier decision in Lyng v. Northwest Indian Cemetery Protective Association. Thus, it would be easy for the Ninth Circuit, after a GVR in Apache Stronghold, to say that the ruling in Mahmoud does not affect its land-use-specific analysis under Lyng.

To fully address the conflict in the lower courts, the Court should grant cert in both cases, allowing it to address the vitally important burden issue under both RFRA and the Free Exercise Clause.

[3.] Catholic Charities Bureau and Diocese of Albany presents the second issue dividing lower courts: the issue of religiously discriminatory exemptions. In both cases, a state has enacted a general rule, crafted a narrow religious exemption, and then applied the exemption in a way that discriminates among religious groups.

In Catholic Charities Bureau, Wisconsin generally requires nonprofits to pay into its unemployment program, but exempts organizations controlled by a church and "operated primarily for religious purposes." Based on this provision, Wisconsin exempts, for example, the Diocese of Superior. But it refuses to exempt Catholic Charities—the social ministry arm of the Diocese of Superior—on the ground that, because Catholic Charities serves and employs non-Catholics, it is not engaged in "typical" religious activities and therefore is not "operated primarily for religious purposes."

Likewise, in Diocese of Albany, New York generally requires employer health insurance plans to cover abortions, but exempts religious organizations that have the "purpose" of "inculcat[ing] … religious values" and that primarily "employ[]" and "serve[]" those of the same religion. Based on this exemption, New York exempts some churches and religious schools but not others, based on whether they hire and serve people of other faiths.

In both cases, the narrow religious exemption has the effect of discriminating among different religious institutions. Yet in both cases, state high courts upheld the exemption—despite contrary rulings from other state high courts, federal circuit courts, and the Supreme Court.

The Court has already granted cert in Catholic Charities Bureau; argument will be heard in March or April. But what should the Court do with Diocese of Albany? It may be tempting to hold Diocese of Albany and later GVR it in light of Catholic Charities Bureau. That may, in fact, be the simplest course. But as the Petitioner in Diocese of Albany has noted, that case has already been GVR'ed before in light of Fulton v. Philadelphia. And the New York courts thumbed their noses at Fulton during three more years of litigation. Another GVR could simply lead to a third cert petition after several more years of state-court litigation. Stronger medicine is needed; the Court should grant plenary review in Diocese of Albany, too.

[4.] Granting all four of these cases would not be unusual. The Court resolved four religion cases in OT 2021 (Kennedy, Carson, Shurtleff, and Ramirez) and OT 2020 (Tanzin, Little Sisters, Our Lady, and Espinoza)—five if you count Our Lady and St. James School v. Biel separately. It resolved three religion cases in OT 2015 (Holt, Reed, Abercrombie) and OT 2014 (McCullen, Town of Greece, Hobby Lobby). If anything was unusual, it was the much-commented-on absence of any religion cases from the Court's docket in OT 2023.

Meanwhile, important conflicts linger in the lower courts. Two of those conflicts are cleanly presented by this set of cases. The conflict presented in Apache Stronghold and Mahmoud is especially important, given the centrality of the "burden" issue in almost every RFRA and free exercise case. Those conflicts are also uniquely urgent given the irreversible consequences faced by the plaintiffs in these cases—the physical destruction of the sacred site and permanent erasure of religious practices in Apache Stronghold, and the loss of parental rights and childhood religious autonomy in Mahmoud. And Diocese of Albany presents an important opportunity for the Court to clarify that laws that discriminate among religions are not neutral and generally applicable, at least absent grounds for distinction that meet that test. The Court can do a great service to the jurisprudence of the Religion Clauses by granting review in all four cases.

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[Eugene Volokh] Is Threatening to Kill Jews Generally—with No Person or Institution Specifically Named—Punishable?

From People v. Farca, decided last week by California Court of Appeal Justice Tracie Brown, joined by Contra Costa County Judge Danielle Douglas:

Around June 2019, Farca had two accounts on Steam, an online gaming website and social platform…. The name of one of Farca's accounts was "Adolf Hitler (((6 MILLION)))." The description of the account said "Brenton Tarrant is a hero!!" and had an icon of the flag of New Zealand. Brenton Tarrant shot and killed about 50 Muslim people at mosques in Christchurch, New Zealand. The description of the Steam account also stated, "I have a fully semi automatic assault weapon AR15 with multiple high capacity magazines. Wanna see a mass shooting with a body count of over 30 subhumans?" The Nazi party in World War II referred to Jews as subhumans.

Using that account, Farca sent a message to three other users, saying, "I currently own an AR15 semi auto rifle but I can buy/make the auto sear and get the M16 parts kit. What do you think of me doing what John Earnest tried to do, but with a Nazi uniform, an unregistered and illegally converted 'machine gun' and actually livestreaming it with Nazi music? I would get a body count of like 30 kikes and then like 5 police officers because I would also decide to fight to the death 1) you don't surrender to the ZOG 2) ever watch US prison documentaries? Also I would not spam full auto, I would just use it for clusterf,ucks [sic] of kikes. Generally you want to be on semi auto only so you don't waste ammo plus depending on the target richness and need for suppression eventually I may go low on ammo so I would need to resupply from the dead officers since it's 5.56." Farca also posted, "I just would need a better target than f,ucking [sic] some random synagogue with kikes that aren't really a threat. Preferibly [sic] with some high value targets, even though they would have their own security." John Earnest shot and killed one person at a synagogue in Poway in early 2019. "Kike" is a derogatory term for a Jewish person.

Acting on a tip from the FBI, Detective Gregory Mahan of the Concord police found Farca's Steam posts. The FBI tip identified the Steam user as Farca. Mahan conducted a background check and discovered that Farca lived in Concord and had purchased a "stripped lower" for an AR-15 a few months earlier. A stripped lower is the most basic part of a firearm on which a gun is built by adding other components….

In [a search of] Farca's bedroom, police found, among other things, an AR-15-style semiautomatic rifle with a pistol grip, detachable magazine, telescoping stock, and two types of scopes…. Also in Farca's home were a Japanese sword, a military-style combat fixed-blade knife, and a military-style camouflage uniform. Farca had numerous history books about World War II and Nazi Germany, as well as two pro-Jewish books. Laptops and a cell phone in Farca's room had a large amount of anti-Semitic and pro-Nazi material, including a copy of Mein Kampf, as well as a video of the Christchurch shooting. The laptops were linked to the Steam accounts. The Internet history on Farca's laptops and phone included searches for "Concord police scanner," "First Lutheran Church in Concord," "sf jewish library," and "sf jewish museum." The devices had saved copies of Steam chats and Youtube comments in which Farca's account mentioned suicide by cop, being willing to slaughter law enforcement officers, and not being willing to go to prison.

Deborah K., the executive director of a synagogue in Lafayette, learned through a media article and law enforcement bulletin that Farca had been arrested less than 10 miles from the synagogue and had said online that he wanted to attack Jewish people and kill police. She also learned that the police seized an assault weapon during the search. Deborah K. felt concerned or threatened because of her knowledge of the attacks earlier that year by Tarrant and Earnest and the fact that Farca was arrested nearby with the means to carry out an attack. She contacted the local police, and the synagogue hired armed, full-time private security. Deborah K. knew that Farca had not posted anything directly identifying her synagogue or its rabbi or congregants….

The court upheld Farca's weapons-related convictions, as well as a conviction for threatening a police officer (for more on the facts of that, see the opinion), but it vacated his conviction for "interfering with another person's exercise of civil rights by threat of force … through his online posts":

Section 422.6, subdivision (a) states, "No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim [including gender, nationality, race or ethnicity, and religion]." … "[N]o person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat." …

Our Supreme Court in In re M.S. (Cal. 1995), rejected an argument that section 422.6 was not sufficiently specific as to the persons threatened and therefore unconstitutionally vague. The court interpreted the phrase "'group of persons'" … "to mean a specific group of individuals, not abstract groups or protected classes." The Supreme Court explained, "Reading the statute as a whole, we are persuaded the Legislature meant to proscribe 'true threats' as traditionally understood, not what might be termed 'group libel.' So read, section 422.6 is neither overbroad nor vague in this respect." Consistent with this decision, the pattern jury instruction for section 422.6, which the trial court delivered, requires the prosecution to prove that a defendant threatened physical violence against "a specific group of people." …

Farca's Steam posts contained vile anti-Semitic rhetoric and statements about using his assault weapon to kill like 30 kikes" or "over 30 subhumans." However, Farca did not threaten violence against any specific individuals or group of Jewish people, so his statements do not satisfy the "group of persons" victim element of the offense as our Supreme Court interpreted it in In re M.S…. Farca did not identify any individual Jewish worshippers, any specific synagogue, or even a town, county, or state whose synagogue or synagogues he intended to target. Nor did he explain what would make any Jewish person a "high value" target…. If the undefined category of "high value" Jews in synagogues were sufficient to satisfy {the "specific person or group of persons" requirement} …, the requirement would be meaningless, as would the Supreme Court's distinction between specific groups of individuals and abstract groups or protected classes….

The People [also] cannot make Farca's words more specific merely by presenting testimony from someone who falls within the protected classes of Jews or worshippers in synagogues. Farca's speech must have "itself threatened violence against a specific person or group of persons." Deborah K. was not specifically threatened in Farca's posts, nor was the synagogue where she worships. Indeed, Deborah K. learned of Farca's posts from a police bulletin and media article only after police arrested him and seized his rifle. It would be anomalous to allow law enforcement to define a specific target for those posts by publicizing them in a certain community, after any danger Farca posed had already been neutralized through his arrest and the confiscation of his weapon….

Nor is there any indication in the record that Deborah K.'s synagogue was noteworthy in any way, or that Farca would consider the people who attended services there to be "high value targets." This is significant because Farca's Steam post said explicitly that he "would need a better target than f,ucking [sic] some random synagogue with kikes that aren't really a threat."

Justice Jeremy Goldman agreed with the majority opinion generally, but took a different view as to the online threats issue:

While I do not find unreasonable the majority's conclusion that Farca's posts were insufficiently specific when all the surrounding circumstances are taken into account, I would not adopt as a rule that a threat of violence against a synagogue or other house of worship necessarily lies outside the statute's reach in the absence of additional information about the location of the speaker or the threatened attack….

In re M.S. … construed the statute to reach only "'true threats,'" which do not receive First Amendment protection. While the court did not say that section 422.6 … requires no more particularity than necessary to bring a threatening statement within that category, its discussion at least suggests that First Amendment law may be relevant….

The United States Supreme Court has written that true threats "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." But the Court did not discuss what the phrase "particular individual or group of individuals" means, and the Virginia statute at issue itself prohibited cross burning "with 'an intent to intimidate a person or group of persons.'" The case involved members of the Ku Klux Klan burning a cross on private property with the owner's permission; it was apparently sufficient that the cross was visible from a nearby public road and from neighboring houses.

In its most recent formulation, the Court defined true threats simply as "'serious expression[s]' conveying that a speaker means to 'commit an act of unlawful violence.'" As In re M.S. pointed out, threats of violence differ from other forms of unprotected speech "because they coerce by unlawful conduct, rather than persuade by expression, and thus play no part in the 'marketplace of ideas.'" There is no claim here that Farca's posts were "'political hyperbole'" or expressions of "jest or frustration" that a reasonable person would not take seriously.

A threat's failure to identify a target precisely does not suggest that it is unlikely to be carried out—or that the victims will not be specific individuals. For someone who seeks to "injure, intimidate, interfere with, oppress, or threaten" members of a religious group "in the free exercise or enjoyment" of their religion, a failure to identify the location of the house of worship could be an intentional effort to spread fear more widely. A threat does not necessarily become innocuous or unimpactful simply because its reach is broad enough that the people described as its targets may find some solace in statistical probabilities. However they might estimate the odds that the person making the threat would ultimately choose their own congregation for the attack, they could reasonably understand that the threat was directed at them.

For that reason, I do not think a person who takes to social media to threaten an attack against a house of worship necessarily falls outside the scope of section 422.6 … simply by failing to indicate a geographic location. Suppose, for example, that Farca had announced on a widely visited website that he would seek to kill 30 Jews at a synagogue and would choose its location at random. Such a threat, with its express effort to invoke the terror of unpredictability, seems to lie close to the core of what the statute is intended to prevent. Moreover, contextual clues could effectively narrow a threat geographically regardless of what the person says explicitly.

Here, however, there does not appear to be anything purposeful about the vagueness in Farca's posts. The Attorney General has not argued that Farca's reference to "high value targets" supplied meaningful additional specificity, nor that there was any context for the threats beyond what Farca wrote in his posts. Given those considerations, I find the majority opinion to be a reasonable resolution of a close question, but for the reasons discussed above, I would expressly leave open the possibility that, under even slightly different circumstances, a threat could be sufficiently specific … notwithstanding the absence of geographical particularity.

Instead, Judge Goldman would have reversed Farca's "interference with civil rights by threat" conviction on different grounds, "namely, that there is insufficient evidence that Farca had 'a specific intent to interfere with a person's right protected under state or federal law'"—a requirement of the California statute—given that Farca was just corresponding with a few people online. (First Amendment law allows states to punish threats when the speaker is reckless about the possibility that their targets will feel threatened, without a showing of a specific purpose to threaten; but California law is more speaker-protective here.)

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[Josh Blackman] Today in Supreme Court History: January 7, 1972

1/7/1972: Justices Lewis F. Powell and William H. Rehnquist take oaths.

The Burger Court (1972-1975)

 

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[Josh Blackman] Hail to the Chief!

It is a new era in Texas. Chief Justice Nathan Hecht stepped down in December after a distinguished career that spanned more than three decades. I would wager the parents of Hecht's final crop of clerks were not even in college when Hecht was appointed to SCOTX.

Today, Governor Abbott has elevated Justice Jimmy Blacklock to the Chief Justice Position.

Governor Abbott first appointed Justice Blacklock to the Court in 2018. Justice Blacklock was born in Houston and grew up in Missouri City, Texas, where he attended public school, graduating from Elkins High School. He then graduated from the University of Texas at Austin and from Yale Law School. Before joining the Court, Justice Blacklock served as Governor Abbott's general counsel and in the Attorney General's office, where he practiced appellate litigation among other duties. Justice Blacklock was appointed by President George W. Bush to serve in the U.S. Department of Justice's Civil Rights Division. He clerked for Judge Jerry Smith on the U.S. Court of Appeals for the Fifth Circuit and worked in private practice in Houston and Austin. He lives in Austin with his wife and their three daughters.

And Abbott nominated James P. Sullivan to fill Justice Blacklock's old seat.

Sullivan has served as the governor's General Counsel since 2021. He previously served as Assistant Solicitor General of Texas and Deputy General Counsel to the governor. He earned his Bachelor of Arts degree at Rice University. A Harvard Law graduate, Sullivan was a law clerk to Judge Thomas B. Griffith on the U.S. Court of Appeals for the D.C. Circuit, has served as an adjunct professor at George Mason University, and has been an appellate litigator in private practice.

Congratulations to them both!

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[Ilya Somin] How Political Ignorance Helped Cause the January 6 Attack and Trump's Subsequent Political Comeback

The attack on the Capitol. January 6, 2021. (Probal Rashid/ZUMAPRESS/Newscom)

 

Today is the fourth anniversary of the January 6, 2021 attack on the Capitol, and - ironically - also the date Congress certifies Donald Trump's victory in the 2024 presidential election. As I have previously written, widespread voter ignorance and bias in evaluating political information played a major role in both causing the attack, and facilitating Trump's subsequent political comeback.

I wrote about the role of ignorance and bias in causing the attack in a 2022 post.As explained there, ignorance and partisan bias enabled Trump to  persuade a large part of the GOP base that the 2020 election was somehow stolen from him, even though that claim was a blatant lie.

More recently, Trump's 2024 win was itself facilitated by ignorance, in ways I outlined in a post written just before election day:

Ignorance and bias are playing a huge role in Trump's relative success. Polls consistently show that a third or more of Americans - including a large majority of Republicans - believe Trump's lies about the 2020 election, despite the overwhelming evidence against them, including numerous court decisions rejecting Trumpian claims of voter fraud (including some written by conservative judges appointed by Trump himself). Ignorance and partisan bias are great enough that many millions of GOP base voters reject fairly obvious facts here. If you believe the 2020 election was "stolen" from Trump, then his reaction may well seem justified, or at least excusable.

But this isn't the full story. If Trump only had the support of voters who actually believe his lies about the 2020 election, he could still have won the 2024 GOP nomination. But he would be losing the general election in a landslide of about 60-40 or even more. He remains competitive with Kamala Harris because there are many voters (probably around 10-15% or so of the electorate) who reject his take on 2020, but prioritize other issues, such as the economy or immigration.

Here, more conventional political ignorance is playing a role. Surveys indicate that the economy is the highest priority for voters, including swing voters, and many are angry about the inflation and price increases that took place in 2021-23…. Swing voters blame incumbent Democrats for the inflation and price increases, even though actually both parties supported the policies that caused them (primarily massive Covid-era spending). Even worse, they tend to think Trump will bring down prices, even though his agenda of massive tariff increases and immigration restrictions would predictably raise them.

The problem of voter ignorance and biased evaluation of information isn't limited to GOP voters or the political  right. It's a serious problem on the left, too, though right-wing version more immediately dangerous now. See my discussion of left-wing ignorance and bias here.

Sadly, there is no quick and easy solution to these problems. But I go over various possible strategies in this 2023 article. See also my book Democracy and Political Ignorance (introduction available for free here) for much more extensive analysis of the problem and possible solutions.

I've been writing about the dangers of political ignorance since long before the rise of Trump, beginning with my  1998 article "Voter Ignorance and the Democratic Ideal." Early on, it was mostly left-liberals who opposed me, arguing ignorance is not much of a problem. In the Trump era, the ideological and partisan valence of political ignorance has flipped. But it remains a grave danger, nonetheless.

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[Eugene Volokh] Monday Open Thread

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