Eugene Volokh's Blog, page 194

[Eugene Volokh] Arrest for "Hate-Based Threats to Kill News Reporter and Her Family"

From a Nov. 15, 2024 Justice Department press release, a summary of the allegations:

On Friday, November 8, 2024, SUMAN sent messages over Facebook and email threatening a news reporter based in Orange County, New York. "You are a dumb spick, we [are] coming for you," he said. "I will end you and your family." "You better stay in [N]ew [Y]ork." SUMAN also threatened to blow up the victim's residence: "I can blow your house off [its] foundation tread lightly."

His threats appeared motivated by an article the reporter wrote several years ago, which related to SUMAN's arrest for threatening a former roommate with a firearm, resulting in his guns being taken away. He added that all his guns were returned, stating "I have more guns than ever," including "ful[ly] auto[matic]" weapons.

SUMAN's threats also appeared motivated by gender, race, ethnicity, and national origin. "[D]umb fuckin cunt… female journalist what a joke." "[D]umb Mexican," he said, while repeating ethnic slurs against people of Hispanic, Latin American, or Spanish descent. "We are going to deport your family all of them… [u]seless life. Dumb bitch. I would drag you by your legs naked with my horse." "Guess what I have now? More [guns] than you or your family might know. Fucking spicks." …

Suman was "charged with threatening interstate communications, … willfully making a threat involving explosives, … and interstate stalking." The U.S. Attorney, Damian Williams, is quoted as saying,

The charges against the defendant demonstrate our resolve to work at lightning speed to neutralize threats against the press—which serves a vital role in our democracy….

The post Arrest for "Hate-Based Threats to Kill News Reporter and Her Family" appeared first on Reason.com.

[Eugene Volokh] Court Rejects Title VI Lawsuit Over Alleged Anti-Semitism at Haverford College

From today's decision by Judge Gerald McHugh (E.D. Pa.) in Landau v. Corp. of Haverford College:

[A] litany of complaints related in a general way to the same subject—in this instance the serious problem of antisemitism—is not the same thing as a legally cognizable complaint pled in accordance with the Federal Rules of Civil Procedure….

Plaintiffs Jews at Haverford, Alumni Ally Landau, and two anonymous students … allege that over the past year, Haverford College … has become a bastion of antisemitism that is tolerated and at times perpetuated by the College. Plaintiffs contend that they have been personally affected by the eruption of disorder on campus. Specifically, they state that they have lost friends, faced harassment, been forced to change their routines, and missed out on seminal Haverford experiences because of escalated antisemitism. They assert that antisemitism at Haverford has fostered a hostile educational environment in violation of Title VI, and that Haverford has breached certain contractual obligations by failing to deal with campus unrest.

At this stage, a court would typically review the relevant facts. I cannot cogently do so here due to the sprawling and disorganized character of Plaintiffs' Amended Complaint, which appears to detail every frustration and disagreement of Jewish students and faculty that has occurred at Haverford over the last year. It spills pages of ink on lengthy frolics about events on other college campuses and about ideological debates. Rather than isolating instances of harassment and logically relating them to the elements of a hostile environment claim, Plaintiffs set forth a running list of grievances that reads more as an opinion editorial than it does a legal complaint.

Some of the instances alleged are concerning, and if pled properly, could perhaps support a cognizable legal claim under Title VI. Yet, the Complaint is diluted by instances that no reasonable person could construe as intentional discrimination. For example, Plaintiffs contend that Haverford did not announce the month of May as "American Jewish History Month," and instead only celebrated "Asian American/Pacific Islander Month." Or, Plaintiffs complain that some graduating students at the Spring 2024 commencement donned attire that signified their support for Palestinians—a classic example of protected First Amendment expression. Elsewhere, Plaintiffs include comments made by a professor who does not even attend Haverford. As a result of Plaintiffs' scattered pleading, any serious allegations of actionable discrimination are buried as needles within a haystack of distraction.

Plaintiffs also dedicate a full eight pages of their Complaint to their effort to link Judaism to Zionism, while simultaneously insisting that they are not asking the Court to resolve any religious issues. Plaintiffs' equivocation is disingenuous, but likely strategic, seeking to blur the line between Zionism as a political philosophy and Zionism as a component of Jewish identity, and in the process implicitly sweep any and all criticism of Israel into the basket of antisemitism. {Haverford's briefing also suffers from a lack of nuance in failing to distinguish different types of Zionism or anti-Zionism, because in current usage "Zionism" can hold many different meanings. This serves Defendant's strategic purpose of deeming Zionism strictly a political philosophy, implicitly denying it can, depending on context, constitute an element of Jewish identity.} As a threshold matter, as I have done previously {Tannous v. Cabrini Univ. (E.D. Pa. 2023) (upholding termination of professor by university concerned by tone and content of social media posts about Israel)}, I reject Plaintiffs' embedded proposition that any anti-Israel speech is intrinsically antisemitic, because reasonable people acting in good faith can challenge decisions of the Israeli government without harboring antisemitic views.

Although Plaintiffs present pockets of compelling facts, the burden is on Plaintiffs to articulate how particular facts support the elements of a legal claim, not to send the Court on a scavenger hunt. As cogently observed by Judge Boudin of the First Circuit, it is not the Court's role, "especially in a counseled civil case, to create arguments for someone who has not made them or to assemble them from assorted hints and references scattered throughout the brief." …

The court therefore rejected plaintiffs' Title VI claims:

[1.] Title VI Applies to Antisemitic Harassment

On its face, Title VI does not address discrimination on the basis of religion. But there is ample precedent classifying antisemitic harassment and discrimination as tantamount to racial discrimination. The Department of Education's Office of Civil Rights has also advised that Judaism is akin to race in specific instances where attacks are levied on "shared ancestry or ethnic characteristics." How to apply it is a far more complex question.

As noted above, Plaintiffs posit that Zionism is "a central tenant of Judaism" under the purview of Title VI, whereas Haverford proposes that Zionism is merely a political belief unprotected by Title VI. For purposes of legal analysis, resort to such generalities is not useful, because the many meanings of "Zionism" make its relationship to Judaism extremely complex, made all the more complicated by strong emotions incited by strife in the region, and by the broad diversity of opinion within the Jewish population itself. { I accept that a commitment to the existence of a Jewish state—though notably not a carte blanche endorsement of any activity of the State—is a piece of ethnic identity for many (though not all) Jewish people.} Deciphering when criticism of Israel or promotion of the Palestinian cause veers into antisemitism is necessarily a fact specific endeavor, and on that score Plaintiffs' complaint is insufficiently pled….

[2.] Plaintiffs do not plead facts supporting aggregation of their claims, and as a result, fail to plausibly establish the existence of a hostile environment …

To determine whether a hostile environment exists, courts consider whether the alleged conduct was sufficiently severe or pervasive. One particularly offensive instance may be sufficiently severe. On the other hand, multiple less egregious instances over time might evince sufficiently pervasive harassment. Mere name calling or one-off instances of moderate bullying will not suffice, nor will simple disagreement with educators' management decisions….

A typical hostile environment claim considers the totality of a single individual's circumstances, such as the frequency of the harassing conduct, its severity, and whether it was physically threatening or humiliating, or instead an offensive utterance. Here, however, Plaintiffs attempt to aggregate the experiences of many Jewish people at Haverford to paint the picture of a hostile environment endured collectively by all Plaintiffs. In fact, Plaintiffs specifically represent that it is the "environment, rather than any individual acts of harassment" that create a right of action.

Courts are split as to whether multiple Plaintiffs may aggregate individual instances of harassment to establish a hostile environment. Absent Third Circuit precedent on this question, both parties cite the Sixth Circuit opinion in Berryman v. SuperValu Holdings, Inc. (6th Cir. 2012). In Berryman, a group of African American employees sued their employer under Title VII for a hostile work environment based on multiple employees' allegations about multiple different race-based incidents. The Sixth Circuit … concluded that courts may aggregate claims from multiple plaintiffs to determine whether a hostile environment exists, even where those claims were not directed at or experienced by the same plaintiff.

But Berryman further held that aggregation is only permitted where a plaintiff shows that they were personally aware of the specific instances of harassment alleged by other employees. The Sixth Circuit reasoned that courts may not infer collective knowledge where plaintiffs operate in a large space with multiple buildings. While a plaintiff does not need to be the target of or a witness to a specific instance of harassment for that instance to be considered in evaluating the presence of severe or pervasive harassment, a plaintiff does need to "marshal basic evidence" to show that they knew about it.

Yet in seeking aggregation here, Plaintiffs do not provide any facts that could support a finding that each plaintiff was aware of the other acts of harassment alleged. {Due to the anonymous nature of much of the pleadings, apart from Ally Landau's alleged instances, Plaintiffs do not specify what each plaintiff experienced or witnessed, nor what each respective plaintiff knew about other alleged instances.} Plaintiffs simply aver that "Haverford is a small and intimate campus, of approximately 1400 students in all years. The events described in the FAC were known virtually universally, and certainly among the Jewish students at whom they were directed." Such conclusory assertions of collective knowledge are insufficient to show individual knowledge on behalf of each Plaintiff.

To take one example, it is unclear who witnessed a professor's alleged comments that he would not write recommendation letters for any student seeking to study Judaism or study in Israel. Further, it is unclear who the student that initially heard the statement then told, which of the named Plaintiffs knew of that incident, and when each Plaintiff was made aware, if ever. There is no allegation, for example, that Jews at Haverford organizationally had any channel for sharing such information. The entire complaint suffers from similar deficiencies as to the spread of information about instances that purportedly created a hostile environment.

Absent clear factual pleadings as to who knew what and when they knew it, Plaintiffs cannot show that each Plaintiff was aware of each instance of harassment alleged, and as such may not aggregate their claims to demonstrate the presence of a hostile environment. Without aggregation, the vast majority of Plaintiffs' claims in isolation are not sufficiently severe or pervasive to constitute a hostile environment under Title VI.

[3.] Plaintiffs do not show that Haverford was aware of each episode of harassment, but responded with indifference

Even if one or more of Plaintiffs' allegations was sufficiently severe or pervasive to constitute actionable harassment, Plaintiffs still fail to plead facts that would allow the Court to evaluate whether Haverford both knew about the harassment and acted with deliberate indifference—a critical element of a hostile environment claim. Specifically, Plaintiffs do not set forth clearly, for each instance in the Amended Complaint, who complained to whom, if so, about what, and when….

Of the 430 paragraphs in the Complaint, only twice do Plaintiffs plead that someone put administrators on notice of allegedly discriminatory conduct, and in neither case would Haverford's response meet the legal standard for deliberate indifference. In the first instance, Plaintiffs objected to a public statement by Dean McKnight, which, according to Plaintiffs, "compared the butchery of Jews in Israel by a known terrorist group committed to eradicating the Jewish State and slaughtering all the Jews within it to a 'hurricane' or other natural disaster." Plaintiffs state that "a Jewish student leader complained," presumably to Dean McKnight himself, though the Complaint does not specify, who then responded, "I got emails from all different individuals; I can't make everyone happy." Assuming that the Dean failed to meet the moment in how he responded to the butchery of Hamas, students' disappointment with an administrator's choice of words, even deeply felt disappointment, cannot be deemed deliberate indifference….

Second, Plaintiffs aver that posters advertising a Shabbat dinner and a discussion of Jewish identity were torn down, an incident easily construed as antisemitic. The allegations regarding this incident provide the most detail as to whether anyone complained to administrators, yet still fall short of what proper pleading would demand.

The Plaintiffs aver that "a Jewish leader and several Jewish students complained to the Haverford administration and asked that this be investigated." Once again, however, the Amended Complaint omits any information as to when students complained, whether the request to investigate was formal or informal, or which administrator received the complaint(s). Ironically, while Plaintiffs contend that "no member of the Haverford Administration publicly acknowledged the intentional destruction of the posters," the very next paragraph of the Amended Complaint contradicts that, averring that that President Raymond issued a statement, saying that if there had been a "targeted removal" of any materials based on their promotion of Jewish activities, that would be "a clear case of antisemitism."

Plaintiffs then assert that an alleged perpetrator later identified himself, referencing a tweet that a Haverford student posted on his pseudonymous, personal Twitter account, which reads "I be tearing down Chabad posters and eating them like f*ckin fruit rollups." Plaintiffs repeatedly state that the student was never punished, and even won a student-selected award at graduation. Importantly, however, Plaintiffs do not plead that the alleged perpetrator was identified at any point to administrators, or that any administrator was made aware of his tweet. Title VI does not incorporate a common law negligence standard of "should have known." It requires that Haverford had actual knowledge of antisemitic conduct which it then ignored. Taking insinuation out of the equation, on the record as it stands, Plaintiffs have pleaded that there was a reprehensible incident followed by public condemnation from the College President, allegations that fall well short of pleading deliberate indifference.

For all remaining incidents in the Amended Complaint, the Court is left to wonder whether a complaint was lodged, and if so, whether the complaint was made to someone with authority to remedy the situation. For example, Plaintiffs include a series of tweets made by Haverford Professor Guangtian Ha, one of which reads "[t]he state of Israel must be dismantled and the society de-Nazified. Arms embargo, sanction, boycott, attack Zionism on all fronts. Zionism is Nazism, it is fascism. Zionists are racists." Yet, nowhere do Plaintiffs assert any facts to show that anyone with remedial authority at Haverford was ever made aware of the tweets. Elsewhere, Plaintiffs allege that anonymous posters reading "from the river to the sea" were hung around campus. But Plaintiffs do not state for how long the posters remained up, whether any administrators saw the posters, or whether anyone complained to administrators about the posters. In both instances, the dearth of information as to whether and when administrators with remedial authority were put on notice of alleged harassment makes it impossible to discern whether Haverford acted with deliberate indifference—a fundamental element of a hostile environment claim….

And the court likewise rejected plaintiffs' contract claims:

[1.] Social Media Policy

Looking first to the social media policy, Plaintiffs fail to identify a specific undertaking that is relevant to any of the facts alleged. Plaintiffs quote several lines from the Policy that appears to govern any social media use on campus, and then broadly allege that these instructions are "systematically violated on a recurring basis by students who have attacked Jewish students at Haverford who support Israel or who attend religious services…." But Plaintiffs omit language just a few lines above the quoted text that the Policy applies only to "faculty, staff, and students who administer or contribute to official Haverford College-related social media channels." … Such sleight of hand erodes not just the plausibility of the claims advanced but also Plaintiffs' credibility. Because none of Plaintiffs' allegations involving social media involve official Haverford-related social media channels, this policy is irrelevant, and no breach of contract exists.

[2.] Poster Policy

Plaintiffs' breach of contract claim as to the Haverford Poster Policy similarly fails to articulate a specific actionable promise between Haverford and Plaintiffs. The Poster Policy in relevant part provides that "[t]he posters and other small notices must contain the name of the sponsor(s). An e-mail address where the sponsor can be reached should also appear on the notice." Plaintiffs then include a photo of an anonymous poster reading "from the river to the sea Palestine will be free," accurately pleading that the anonymous poster fails to include contact information in violation of the Policy. But Plaintiffs point to no undertaking by Haverford as to enforcement of the Poster Policy. Rather, the remedy that the policy explicitly provides is one of self-help: "any member of the community may take down any posting that is in violation of this policy." An offended student could instantly remove it. As a contractual matter, the Poster Policy is more in the nature of an agreement between Haverford and those who seek to hang posters, setting forth the conditions under which posters may be displayed, not a promise to those who might see them. Plaintiffs dedicate eight paragraphs to exploring the import of the phrase on the poster, ranging from analogies to confederate flags to White House statements in response to October 7th. But the offensiveness of the phrase to students of Jewish heritage has no bearing on the legal question of whether the policy creates an enforceable contract, and I am compelled to conclude that it does not.

[3.] Scope of Expressive Freedom

Plaintiffs' breach of contract claims based upon the "scope of expressive freedom" also lack specificity, for Plaintiffs do not articulate which specific language or policy is at issue, nor which conduct is at issue. Plaintiffs include three block quotes, each from a different Haverford policy, that provide in general terms that students have a right to protest and express their views, subject to an obligation to respect the dignity of others. A generalized assurance is not the same as a specific contractual promise. Plaintiffs do not articulate any specific instances that demonstrate a clear violation of any of the three excerpts which seemingly make up Plaintiffs' "scope of expressive freedom" claim. On the one hand, Plaintiffs plead no instances where they attempted to protest and were denied the opportunity. On the other hand, that Haverford allowed protests counter to Plaintiffs' interests to proceed on campus only shows that the College was abiding by its own policies on expressive freedom. Thus, absent more specific pleading as to a precise policy provision at issue and one or more specific instances that demonstrate a violation, Plaintiffs' claim fails.

[4.] Non-discrimination Statement­

Finally, Plaintiffs allege that Haverford breached its "Non-discrimination statement." Plaintiffs include the following excerpt:

Haverford College is committed to providing an employment and educational environment free from all forms of unlawful discrimination because of race, color, sex/gender (including pregnancy, childbirth, related conditions, and lactation), religion, age, national origin, ancestry, citizenship, disability, status as a medical marijuana cardholder, genetic information, gender identity or expression, sexual orientation, current or past membership or service in the U.S. Armed Forces or a state military unit, or any other characteristic protected by law.

Beyond broadly referencing the other 278 pages of their Amended Complaint and its exhibits, Plaintiffs do not articulate in which specific instances they believe Haverford violated this policy. A college non-discrimination policy can constitute a contractual obligation where a plaintiff pleads specific facts surrounding the policy and its alleged violation…. [But] Plaintiffs summarily refer to their multiple allegations of discrimination and deem that sufficient to establish a breach of the antidiscrimination policy. This hardly suffices to plead breach of contract.

It is also worth noting that an element of a claim for breach of contract is the requirement that "a plaintiff must set forth facts regarding … resultant damages." Not a single paragraph in the entire Amended Complaint references any injury stemming directly from Haverford's alleged breaches of contract….

You can read plaintiffs' 129-page Amended Complaint for yourself here.

Haverford is represented by Joshua W.B. Richards and Levi R. Schy.

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[Eugene Volokh] David Hommrich Wins Case (Now Called Hommrich); Legislator Files Memo About "Closing the Hommrich Loophole"; Hommrich Sues for Defamation

Here's Mr. Hommrich's argument, as quoted in the Pennsylvania Record (Nicholas Malfitano) early last year:

"Plaintiff Hommrich is a pioneer in the development and production of solar energy within the Commonwealth, and his company has worked to further develop the use of solar energy as a sustainable and environmentally prudent alternative energy resource in Pennsylvania. Plaintiff's company is a legally compliant, qualified customer-generator that participates in a net-metering program – a program through which utility companies purchase excess (or 'net') solar energy produced by the company at retail value and use such surplus as an alternative energy source for electricity," the suit stated.

"Plaintiff was a successful party in the 2021 Supreme Court of Pennsylvania ruling that affirmed the Commonwealth Court's holding that the Public Utility Commission exceeded the scope of its regulatory authority, by issuing regulations which limited the eligibility of otherwise qualified participants in a net-metering program, and such restrictions were in direct contradiction with the plain meaning and purpose of the Alternative Energy Portfolio Standards Act. Per the Court's ruling in Hommrich, 'The PUC's definitions restrict the field of qualifying participants [in the net-metering program] and, in the process curtail the development of alternative renewable energy in the Commonwealth."

The suit continues the Hommrich decision "contained no mention of any ambiguity or inconsistency within the AEPS Act, no allusion or implication that the Court's ruling regarding the Act thus created a 'loophole,' enabled exploitation of the law, or other similar verbiage; rather, the Court deemed the plain meaning of the terms defined within the Act were unequivocal, and the PUC's modified definitions constituted a violation of its regulatory authority under the Act."

"On Oct. 3, 2023, at 3:18 p.m., defendant published a memorandum to all Senate members titled, 'Renewable Energy & Warehouse Solar Procurement Act.' The memorandum provides that defendant intends to introduce legislation to address perceived gaps in the AEPS Act 'upon the recommendation of the Public Utility Commission,' thus closing the 'Hommrich Loophole by limiting net metering to customer-generator systems designed to generate no more than 110% of the customer-generators' requirements for electricity. Defendant's memorandum pairs plaintiff's name with the term 'loophole,' a term which is widely recognized to refer to an ambiguity in the law which an individual or corporation has exploited for gain," the suit said.

"The text of the memorandum which reads 'Hommrich Loophole' contains a hyperlink to the Hommrich decision … thus implying that plaintiff exploits or misuses an ambiguity within the AEPS Act for improper gain. Since defendant's knowingly false publication of the memorandum, plaintiff has been notified by numerous individuals who do not serve in the Senate of the existence of such memorandum and its defamatory reference to plaintiff and his company. Such individuals include those with whom plaintiff maintains ongoing business relationships."

In response to the memorandum, the plaintiff said he both sent a cease-and-desist letter to the defendant to remove the "Hommrich Loophole" phrase from the document and to refrain from making further reference to the plaintiff and his company, attempted to call the defendant at her offices and sent her a final failure to comply notice – all three moves went unanswered, he added.

"Unless halted by the Court, defendant's knowingly false defamatory use of the phrase 'Hommrich Loophole' and refusal to remove such language and reference has caused, is causing, and will continue to cause measurable and immeasurable business and reputational injury to plaintiff and his company which cannot be compensated solely by pecuniary relief. Defendant is not entitled to falsely associate plaintiff and his company with her anticipated legislation, nor to name the aims of such legislation after plaintiff – particularly when such aims are portrayed in a negative and harmful light," the suit stated.

"By use of the phrase 'Hommrich Loophole,' defendant has improperly ascribed conduct and characteristics to plaintiff and his company which adversely affect his fitness for the proper conduct of his lawful business and profession."

I'm pretty skeptical that this claim is viable under normal defamation principles; I think a reference to the "Hommrich loophole," especially with a link to the Hommrich decision, would lead a reasonable reader to recognize that the speaker is referring to the case, not making allegations about supposedly "improper" behavior by the litigant who filed the case.

But in any event, Friday the Pennsylvania Commonwealth Court (Hommrich v. Boscola) rejected Hommrich's defamation claim under the state constitution's legislative privilege ("for any speech or debate in either House [legislators] shall not be questioned in any other place"). The opinion was written by President Judge Renée Cohn Jubelirer; Judge Michael Wojcik dissented on procedural grounds.

The post David Hommrich Wins Case (Now Called Hommrich); Legislator Files Memo About "Closing the Hommrich Loophole"; Hommrich Sues for Defamation appeared first on Reason.com.

[Eugene Volokh] Ohio Court Strikes Down Categorical Prohibition on Gun Possession by People Under Indictment

An excerpt from Friday's long decision in State v. Brown, written by Ohio Court of Appeals Judge Pierre Bergeron, joined by Judge Jennifer Kinsley:

In 2023, a grand jury indicted Mr. Brown on one count of robbery …. The court released Mr. Brown on bond with an electronic monitoring unit ("EMU") ankle monitor, but it did not place any restrictions on his ability to possess a firearm. During a home visit by the EMU team, they located a loaded firearm in his apartment. This discovery spawned a new indictment pursuant to R.C. 2923.13(A)(2) for having a weapon under a disability.

The State's robbery case against Mr. Brown eventually collapsed, which led to the dismissal of those charges against him. But …. the weapons under a disability case was still at play ….

[Under Bruen], we ask whether the disarmament imposed by R.C. 2923.13(A)(2), as applied in this case, falls within our Nation's historical tradition of firearms regulation…. [T]he State offers no evidence of any specific historical tradition, dating back either to the founding or reconstruction era, of categorically disarming individuals based solely on the fact of their indictment—either in general, for violent crimes, or for robbery in particular….

Instead, the State tries to broaden the aperture, insisting that felonious behavior justifies a determination that someone cannot be trusted with firearms. In other words, the State suggests that history and tradition grant the states the power to disarm any person found to have engaged in felony conduct.

But … Mr. Brown … had only been indicted for a felony offense when the State charged him with possessing a weapon under a disability…. [A]ny categorical felon-disarmament rule would necessarily rest on the disarmed individual's conviction. And a felony conviction, to the founding generation, meant at least two things: (1) trial by jury, and (2) a heightened burden of proof, understood today as proof beyond a reasonable doubt….

At the time when authorities discovered his weapon, Mr. Brown had received no jury trial on his robbery charge—only a one-sided grand-jury proceeding and subsequent bond hearing before a judge. Nor had he been adjudicated guilty under a reasonable-doubt standard; the grand jury only needed probable cause to indict, a threshold far lower than that necessary to convict…. The State, quite simply, fails to demonstrate any specific tradition in this country of disarming those indicted for crimes of violence….

Because they are preliminary, grand jury proceedings lack many of the touchstones of a criminal trial. Neither the defendant nor his counsel has a right to be present. Such proceedings are generally kept secret, and do not require juror-unanimity. In presenting to the grand jury, prosecutors are not encumbered by the Ohio Rules of Evidence, or the Fourth Amendment's exclusionary rule, leaving them free to rely upon hearsay or evidence seized unlawfully. Further, the prosecutor may withhold from the grand jury material evidence that would be exculpatory to the accused. This is why, as the old adage goes, many believe that you can indict a ham sandwich.

The grand jury's job is to evaluate probable cause that the crime occurred, in other words that the State "demonstrate[d] a 'fair probability' that a crime has been committed" and raised "'more than a bare suspicion'" of the defendant's guilt. A grand jury's indictment, therefore, does not warrant a presumption that the defendant committed a crime, only that probable cause existed to think that he may have….

[A] determination of dangerousness can be grounds for disarmament, even if based upon something less than proof beyond reasonable doubt. Compare Rahimi (upholding weapon disability based on dangerousness finding in domestic-violence restraining order proceeding). To determine whether a given proceeding fits within our historical tradition of disarming dangerous persons, we, like the Court in Rahimi, consider whether the modern and founding-era proceedings are comparably tailored to discern the party's dangerousness, and whether they employed at least comparable procedural protections in doing so.

To this end, the State analogizes the application of R.C. 2923.13(A)(2) in this case to founding-era surety laws, which featured prominently in Rahimi. In the late 18th century, justices of the peace and other judicial officials could, upon complaint, demand that "suspected persons find particular and special securities for their future conduct." If, after taking evidence and hearing the parties, the justice found there was "due cause shown," he could demand of the suspected individual sureties—usually sureties for the peace or for the good behavior….

The surety laws suggest that, in certain instances, individuals at the founding could be disarmed on less than conviction beyond a reasonable doubt. However, they remain a far cry from the disarmament at issue in this case. For example, the Court in Rahimi emphasized that firearm surety laws instructed a magistrate to take evidence and provide an opportunity for the accused to be heard. As noted above, Mr. Brown had no right to be heard or to present evidence in the proceeding before the grand jury that led to his indictment, and the prosecutor was not obligated to present any evidence favorable to him….

In this case, no judicial official or body found that Mr. Brown posed a prospective danger with a weapon. In fact, the one judicial officer who scrutinized his conduct let him walk free on bond without any firearm restriction. While the State insists that simply being accused of a crime warrants stripping someone of his Second Amendment rights, it fails to validate this conclusion with actual authority from the historical record.

At a bail determination, the trial judge should consider "the weight of the evidence against the defendant" and the "confirmation of the defendant's identity," as well as his history and life conditions, before imposing conditions of pretrial release. Thus, when considering whether to disarm the defendant as a condition of bail, the trial court can distinguish between a defendant caught on video firing a weapon into the ceiling of a bank, and a defendant whose indictment was founded on the testimony of self-interested informants and coincidental circumstances? So, too, might it treat an individual with a history of violent or erratic conduct differently from an individual with no criminal record and a history of responsible hunting or sport-shooting.

As best we can glean from the record, the trial court in Mr. Brown's robbery case considered the appropriate bail factors and not only allowed him to go free subject to an ankle monitor, but it declined to impose any restriction on his possession of firearms. We would not expect an inherently dangerous person to be treated this way….

The State offers two additional, non-historical arguments in support of its application of R.C. 2923.13(A)(2) to Mr. Brown. First, it points to a "robust majority" of courts that have considered and upheld 18 U.S.C. 922(n), the federal pretrial-disarmament statute, in the wake of Bruen. See, e.g., U.S. v. Posada (W.D.Tex. 2023) (collecting cases). Nearly all of these are trial court decisions, and are therefore nonprecedential even within their respective jurisdictions.

In determining what persuasive weight to accord these federal decisions, we must recall that Section 922(n) imposes a much less invasive restriction upon gun ownership. While the federal statute embraces those indicted for a broader array of crimes than R.C. 2923.13(A)(2), 922(n) only forbids those it covers "to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Simple possession is not covered under 922(n), leaving ample room for a defendant who already owned a weapon to keep it in his home for self-defense (akin to Mr. Brown's situation in this case).

Ohio's statute sweeps more broadly. R.C. 2923.13(A) renders it a crime to "knowingly acquire, have, carry, or use any firearm" if under a disability. And R.C. 2923.13(A)(2)'s and (A)(3)'s indictment-based disabilities turn every firearm a defendant owns into contraband the second he is indicted. Many of the federal decisions recognize the salience of such a distinction, emphasizing that Section "922(n) is not a wholesale prohibition on the ability keep and carry firearms; indicted individuals are prohibited only from obtaining new firearms or moving firearms already in their possession."

Further, many of these federal decisions addressing Section 922(n) rely upon analogy to the surety laws—the very analogy we have already considered and rejected with respect to R.C. 2923.13(A)(2). Most importantly, these federal cases seldom address the relevance of the more individualized and historically pedigreed process of disarming individuals as a condition of pretrial release to the Bruen inquiry. And why would they, when Section 922(n) imposes only a restriction on transfer and transport, as opposed to the wholesale pretrial disarmament that federal judges may impose on a case-by-case basis under 18 U.S.C. § 3142(c)(1)(B)(viii)?

Finally, the State contends that, because "modern and historical detention laws are far more burdensome than the prohibition against weapon possession while indicted," such a disarmament must surely be constitutional (emphasis omitted). This logic parallels the reasoning of the Supreme Court in its pretrial-asset-seizure cases, like Kaley v. United States (2014), which held a grand jury's indictment to be conclusive as to a defendant's plausible culpability in that context. Some district courts, like the District of Maryland in Jackson, have extrapolated the reasoning of Kaley to suggest that, because an indictment can take away your liberty, it can surely take away your guns.

This comparison to pretrial detention, however, ignores that the State's power to detain pretrial is circumscribed by the accused's right to bail. The bail hearing ensures an individualized determination of flight risk and dangerousness before a defendant can be released or detained. And while the government may hold some defendants without bail, it may not do so without careful consideration. Even under the restrictive federal regime of the Bail Reform Act of 1984, a defendant detained based on probable cause may be presumptively detained pending trial for certain crimes, but nevertheless must receive "a full-blown adversary hearing," at which he may attempt to rebut that presumption. Such an individualized regime contrasts sharply with R.C. 2923.13(A)(2), which demands no prompt hearing and offers no presumption to rebut; the minute you're indicted for a "violent felony" in Ohio, you must disarm.

More importantly, the State's greater-includes-the-lesser argument reveals nothing about our Nation's history and tradition of firearms regulations—and it smacks of the very interest-balancing that Bruen sought to quash in the Second Amendment context….

Judge Marilyn Zayas dissented, arguing that the court should remand for the trial court to analyze the issue in light of Rahimi. The majority in turn responded that the State's reply brief "thoroughly addressed" Rahimi, "[n]either party requested a remand for further record development in light of Rahimi, and we sit in as good a spot as the trial court to evaluate its impact."

Here's an excerpt from a recent Sixth Circuit decision (U.S. v. Gore) upholding § 922(n), though in part on the grounds that § 922(n) prohibits acquisition of guns and not just possession; the Ohio Court of Appeals decision quoted above didn't cite Gore:

The statute prohibits receiving, transporting, or shipping a firearm, but only during the stressful and fraught period between indictment and resolution of a criminal case. There are some obvious justifications for regarding this as an exceptional time: if a person obtains a gun once indicted, it might give rise to an inference that he has nefarious intentions toward a witness or victim, or toward law enforcement or court personnel; and if a person ships or transports a gun under the same circumstances, it could suggest that he wants to dispose of evidence or get a weapon into the hands of another for illicit purposes. In other words, § 922(n) furthers public safety and protects the integrity of the criminal process in the time between charge and conviction or acquittal. As for the burden, § 922(n) works a temporary, and limited, deprivation of Second Amendment rights. By its terms, it applies only while an indictment is pending. And it does not prohibit possessing firearms. So an indicted person who already possesses a firearm may continue to do so—and, therefore, will not be prevented from enjoying the "central component" of the Second Amendment right, the right of armed self-defense.

The "why" and "how" of § 922(n) are relevantly similar to our nation's tradition of pretrial detention. "The American colonists carried with them the basics of criminal bail procedure" from England. The purposes of that system were both to ensure the defendant's appearance at trial and to keep the public safe in the meantime.  The inherited English rule divided offenses into three categories: nonbailable offenses, offenses for which a judicial officer had discretion to bail, and offenses for which a defendant offering sufficient sureties was entitled to bail. Serious crimes—like treason, murder, burglary, arson, and horse-stealing—put a defendant in the nonbailable category. So those defendants were detained before trial.

In the 17th century, colonial authorities in Massachusetts and Pennsylvania reformed their approach to bail.  Under this reformed approach, pretrial defendants had a right to bail "by sufficient sureties, except in capital cases where the proof is evident or the presumption great."  Eventually, the reformed approach would emerge as the "consensus" rule across the young nation. But at the time the Bill of Rights was ratified, about half of the States still followed the English model,  while the federal government and the remaining States opted for the reformed path.

Although the reformed rule provided a right to bail as a general matter, the exception for capital offenses was significant. "[A]ll serious crimes at the time of the founding" were punishable by death. So, even in the jurisdictions following the reformed approach, defendants facing serious charges did not enjoy a right to bail. They could instead be detained—and, so, disarmed—while they awaited trial.

Section 922(n)'s prohibition is comparable to the founding-era history of pretrial detention "in both why and how it burdens the Second Amendment right." Like pretrial detention, § 922(n) restricts indicted persons' rights, during the fraught period between indictment and trial, for the purpose of furthering public safety and protecting the integrity of the criminal process. And just as bail was denied outright only for defendants facing serious charges, so § 922(n) is triggered only by indictment for a felony charge. Section 922(n) also imposes a comparable—indeed, "less heavy-handed"—burden.  This provision simply restricts defendants' ability to receive, ship, or transfer firearms—it says nothing about possession. So for those who already possess one or more firearms, § 922(n) represents only a slight burden on the Second Amendment right; and even for those who do not, § 922(n)'s prohibition is a lesser burden than detention or permanent disarmament. Cf. Rahimi ("[I]f imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible.")….

Gore offers two reasons to doubt the analogy to pretrial detention, but neither ultimately undermines it. First, § 922(n) applies automatically upon indictment for a felony, without any individualized determination of risk.  But that does not defeat § 922(n)'s facial validity. In Rahimi, the Court was careful not to "suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse."  That is what Congress has done in enacting § 922(n)—it has defined, by their circumstances, a category of persons who, in its judgment, present special risks. And that categorical judgment is comparable to founding-era approaches to pretrial detention…. [T]he uniform founding-era practice was to categorically deny a right to bail to persons charged with certain serious offenses, and it seems that most jurisdictions effectively required pretrial detention in serious cases….

That leads to Gore's second objection to the pretrial-detention analogy—he suggests that § 922(n)'s felony-indictment trigger is too broad in comparison to the class of nonbailable crimes at the founding. The Supreme Court has observed, after all, that "[m]any crimes classified as misdemeanors, or nonexistent, at common law are now felonies."  We need not dwell on that question, however. We confront a facial challenge, so our inquiry ends if § 922(n) "is constitutional in some of its applications." It is. At a minimum, it is plainly constitutional as applied to those accused of the sorts of offenses that required pretrial detention at the founding.

That is not to say that a mismatch between the founding era's "serious" or "capital" crimes and today's felonies would necessarily preclude § 922(n)'s application to those indicted for less "serious" felonies today. After all, § 922(n) and founding-era pretrial detention need not be perfect "twin[s]." Moreover, even a founding-era defendant released on bail was not relieved of all burdens—he was answerable to his sureties to both "personally appear at … court" and "in the mean time keep the peace and be of good behaviour." And those sureties were expected to "render him up for incarceration if they felt that he was becoming untrustworthy." So § 922(n)'s limited prohibitions might amount to a burden similar to founding-era pretrial release, making its application to defendants indicted on less "serious" charges permissible.

Ultimately, however, Gore has not brought an as-applied challenge to § 922(n). All we need to decide is whether the provision is facially valid. It is. So the district court properly denied Gore's motion to dismiss this count of the indictment.

For the federal district court cases dealing with § 922(n), see U.S. v. Posadaand the cases it cites; as the Ohio court notes, most of those cases uphold § 922(n), though a couple hold it unconstitutional.

Connor Reilly represents defendant.

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[Eugene Volokh] Private Voluntary Bar Association Has First Amendment Right to Discriminate Based on Race, Sex, Sexual Orientation

Dec. 20's N.J. appellate court decision in Saadeh v. N.J. State Bar Ass'n (opinion by Judge Allison Accurso, joined by Judges Katie Gummer and Kay Walcott-Henderson) upheld various race, sex, sexual orientation, and other preferences that the New Jersey Bar Association—a private, voluntary organization that had as members 16,000 of the 98,000 New Jersey licensed lawyers—set up for various leadership positions. The court applied Dale v. Boy Scouts of America (2000), which held that the Boy Scouts had a First Amendment right to exclude gays from being assistant scoutmasters, who helped convey the Scouts' values; the same, the court held, protected the Association's decisions:

[T]he Bar Association qualifies as an expressive association, and … compelling it to end its practice of ensuring the presence of designated underrepresented groups in its leadership would unconstitutionally infringe its ability to advocate the value of diversity and inclusivity in the Association and more broadly in the legal profession.

The record reflects the Association's many forms of public expression and advocacy on matters of public concern, including the importance of diversity within the Association, in the legal community, and in continuing legal education…. [T]he Bar Association also engages in expressive activity in determining the composition of its governing Board of Trustees and other leadership bodies.

The Association's by-laws are explicit in requiring representation of a cross-section of its membership on the Board of Trustees, the Nominating Committee and JPAC [Judicial and Prosecutorial Appointments Committee]. In addition to allocating slots to members representing the county bar associations and a mix of sections, the by-laws also reserve slots for members representing demographic groups historically underrepresented in the Association's leadership, a consciously deliberate choice expressing the Association's vision of diversity and inclusion in the Association and in the broader legal community.

Given the Bar Association engages in expressive activity and that it does so through its method for filling at-large seats on its Board of Trustees, Nominating Committee and JPAC, we next consider whether compelling the Association to alter or eliminate its inclusion program "would significantly affect" the Association's "ability to advocate" its viewpoints. See Dale.

As the Bar Association argues in its brief, its "message is clear"; it "deeply values diversity in the legal profession," and it expresses that value in the "intentional makeup" of the Board and Committees that lead the Association. The Bar Association's decades-long commitment to diversifying its leadership, as established in the record, leaves no doubt about the sincerity of its commitment.

The Association maintains that forcing it to end its long-standing practice for filling at-large seats runs "the risk, borne out by history," that "underrepresented groups will not be guaranteed a seat at the table." It contends that would undermine the Association's "expression of commitment to promoting equal participation" within the Association and interfere with its efforts "to maintain a leadership that models the very diversity it champions publicly."

The Association argues "an unwanted imbalance in racial, ethnic, or gender representation within its leadership bodies" would impair its effectiveness as "a collective voice in matters of concern to the legal profession" and force it "to send the undesired message that it no longer cares, or cares as much, about diversity in general or about assuring access to leadership positions for underrepresented groups in particular." As the Supreme Court has commanded, we are obliged to "give deference to an association's view of what would impair its expression." "[T]he choice of a speaker not to propound a particular point of view … is presumed to lie beyond the government's power to control."

As the Bar Association's commitment to the importance of diversity in the legal profession has been much more a fixture of its private and public expressions than the Boy Scouts' former views on homosexuality were in its private and public messaging, we are satisfied the Association has established that forcing it to alter its method of filling at-large positions in its leadership would significantly burden its ability to express its views.

Having determined the Bar Association is an expressive organization and that forcing it to end its method of guaranteeing the participation of underrepresented demographic groups in its leadership "would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require" that the Association end its method of filling at-large seats on the Board of Trustees, Nominating Committee and JPAC "runs afoul of [the Association's] freedom of expressive association." …

There is no question but that New Jersey has a compelling interest in eliminating discrimination on the basis of race, color, national origin, sex, gender identity or expression, affectional or sexual orientation, and disability under its public accommodation and private association law. But, as in Dale, that interest—an interest the Association believes it is vindicating—does not justify the "severe intrusion" of prohibiting the Association from expressing views protected by the First Amendment—here, the value of demographic diversity in the legal profession and in its own leadership. The Association cannot be forced to send the message "that it no longer cares, or cares as much, about diversity in general or about assuring access to leadership positions for underrepresented groups in particular" by ending its practice of reserving thirteen of the ninety-four seats on its Board of Trustees, Nominating Committee and JPAC for members who are Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, women, senior lawyers over seventy, attorneys with disabilities, or attorneys who are members of a diversity bar association recognized by the Association….

Saadeh has a different vision of a diverse leadership for the Association, and he objects to the Association's vision because, among other reasons, it does not take him, someone "indisputably diverse" into account. {He describes himself as a Palestinian Muslim American.} Although arguing that "[a]ffirmative action plans have never been found to excuse discrimination committed by places of public accommodation, nor could they," he claims "[w]here the [Association] has gone awry is [in] refusing to address its historically discriminatory seats." He maintains the Association "must examine why those seats have historically been discriminatory, address the causes of the problem, and implement and execute a plan to solve it considering the causes." Doing so, he maintains, would enable the Association "to determine an actual factual predicate to underpin an actual affirmative action" program.

In ascertaining the groups it believes are underrepresented in its leadership, the Association does not consider members from the Middle East generally or members of Palestinian origin specifically, nor does it consider religion, notwithstanding that national origin and religion are both protected categories under the LAD. The Association is selective as to the categories it considers to be underrepresented in its leadership and values for inclusion in its at-large seats. Thus, although the Association refers to its program as one of expressive inclusion, it is, by design, also a form of expressive exclusion recognized in Dale….

Whether viewed as a policy of inclusion or exclusion, however, through its "intentional makeup" of its Board of Trustees, Nominating Committee and JPAC, the Association is expressing its view as to the meaning of the diversity and inclusion it champions. Applying the public accommodations provision of the LAD to compel the Association to abandon its method of selecting its at-large seats significantly burdens its right to oppose a leadership that doesn't guarantee underrepresented groups, as it defines them, "a seat at the table."

It is not for this court to approve or disapprove of the Association's view of diversity or how best to attain it within its leadership. See Dale. "[P]ublic or judicial disapproval of a tenet of an organization's expression does not justify the State's efforts to compel the organization to accept members where such expression would derogate from the Association's expressive message." As the Supreme Court has unequivocally held, "[w]hile the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government."

We close with a word as to why we have elected not to address whether the Association's method for filling at-large seats in its leadership is a valid affirmative action program under the LAD as the Association asserts, or an illegal quota system in violation of the LAD as Saadeh maintains, in favor of resolving this case based on First Amendment grounds. See Facebook, Inc. v. State (N.J. 2023) (noting the general rule of avoiding constitutional questions if a case can be resolved on another basis). We've resolved the case on the constitutional question because we can do so based on well-established precedent whereas the LAD issue is novel with little to guide our inquiry.

As the first judge to address this matter in the trial court noted, there is very little law in the area of affirmative action programs involving private, not-for-profit associations such as the Bar Association, in contrast to the well-established precedent in employment under Title VII, and the evolving precedent in higher education under the Equal Protection Clause of the Fourteenth Amendment, neither, in our view, a particularly good fit for analyzing the Association's program in this case….

We conclude that notwithstanding the LAD's prohibitions against discrimination in places of public accommodation and private associations, the Bar Association has a First Amendment right of expressive association that permits it to select the membership of its governing bodies through intentional inclusion of specified underrepresented groups, in furtherance of the ideological position it expresses in numerous ways: that it is necessary and beneficial to promote diversity and inclusion in New Jersey's legal profession. An exploration of the contours of a valid affirmative action program in a purely private, non-profit organization under the LAD will have to await a case in which applying the LAD will not trench on the organization's First Amendment expressive associational rights….

Some more details from the opinion as to the Association's exact practices related to race, sex, and sexual orientation:

[T]he most recent by-law language in the record (2020) provides:

Every At-Large Trustee shall be elected from, among and by the general members of the Association to represent segments of the membership not adequately represented on the Board of Trustees. The designation of these underrepresented segments of the membership to be considered when nominating candidates for the At-Large Trustee seats shall be made by the Board of Trustees prior to September 30 each year. If no designation is made, the designations in place for the prior year shall remain. Nothing in this section shall be construed to mean that a member from any underrepresented segment can be prohibited from serving on the Board of Trustees because another member from that same underrepresented group is already serving as a Trustee. The purpose of the At-Large Trustee positions is to promote inclusion of as many underrepresented segments of the membership on the Board of Trustees as possible. Any interpretation of this section of the Bylaws shall be consistent with that purpose.

In September 2021, the Association added members of a "diversity bar association" to the underrepresented groups to be considered for the three open at-large trustee seats. At the time suit was filed, the approved designations for at-large seats were, as expressed by the Bar Association: one seat each for members who are Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, or women; and three non-designated seats open to members from any of the following groups: Hispanic/Latino/a/x, Asian/Pacific American, Black/African American, members of the LGBTQ+ community, senior lawyers over seventy, women, attorneys with disabilities, or attorneys who are members of a diversity bar association recognized by the Association{: the Asian Pacific Lawyers of New Jersey, the Association of Black Women Lawyers of New Jersey, the Association of Portuguese Speaking Attorneys of New Jersey, the Caribbean Bar Association of New Jersey, the Garden State Bar Association, the Haitian American Lawyers of New Jersey, the Hispanic Bar Association of New Jersey, the Korean Bar Association of New Jersey, the New Jersey Women Lawyers Association, the New Jersey Muslim Lawyers Association, and the South Asian Bar Association of New Jersey}.

At-large members are also selected for the Bar Association's Nominating Committee and JPAC. The Nominating Committee is responsible for qualifying candidates for positions on the Board of Trustees and Nominating Committee, and delegates to the American Bar Association. The Association's by-laws provide:

The Nominating Committee shall, in its nomination of candidates, consider all appropriate factors, including but not limited to, service to the Association and its constituent parts, service to County and/or Diversity Bar Associations, the extent of practice in the State of New Jersey, including but not limited to government and corporate service, geographical balance, and the goal of bringing into the Association's leadership broad and diverse representation of all segments of the Bar. Before nominating a candidate to any respective position, the Nominating Committee shall consult with the groups outlined elsewhere in these Bylaws, but shall not accept endorsements for any candidate from any group.

The Nominating Committee consists of fifteen members: one presidential appointee; the immediate past president; the chair of the young lawyers division; four section chairs, not to include the women in the profession and minorities in the profession sections, two from the larger sections and one each from the mid-size and smaller sections; two county trustees from among those serving on the Board; the chair of the women in the profession section or the chair of the minorities in the profession section, alternating; two from underrepresented groups; and three elected by the general membership.

JPAC is responsible for conducting "a confidential review of prospective judicial and county prosecutor candidates and advises the Governor whether the prospective candidates are qualified for appointment for those offices" pursuant to a compact "established with the Governor." Members of JPAC are appointed by the president of the Association, who "shall consider the goal of broad diverse representation of all segments of the Bar." There are thirty members of JPAC: one from each county; the president, the president-elect and the immediate past president; one chairperson; two vice-chairpersons, one from South Jersey and one from North Jersey; and three at-large from underrepresented groups.

Lawrence S. Lustberg and Julia Bradley represent the Association.

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[Josh Blackman] Today in Supreme Court History: January 6, 1964

1/6/1964: New York Times Co. v. Sullivan argued.

 

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[Eugene Volokh] Fareed Zakaria, "The Crisis of Democracy Is Really a Crisis for the Left" / "Why Is the Left Flailing? Look at New York vs. Florida"

An interesting column yesterday in the Washington Post. An excerpt:

The crisis of democratic government then, is actually a crisis of progressive government. People seem to feel that they have been taxed, regulated, bossed around and intimidated by left-of-center politicians for decades — but the results are bad and have been getting worse.

New York, where I live, and Florida, where I often visit, provide an interesting contrast.

They have comparable populations — New York with about 20 million people, Florida with 23 million. But New York state's budget is more than double that of Florida ($239 billion vs. roughly $116 billion). New York City, which is a little more than three times the size of Miami-Dade County, has a budget of more than $100 billion, which is nearly 10 times that of Miami-Dade. New York City's spending grew from 2012 to 2019 by 40 percent, four times the rate of inflation. Does any New Yorker feel that they got 40 percent better services during that time? …

It's easy to comfort oneself by thinking that these sky-high tax rates and growing government revenues are providing some crucial ingredients of progressive government. But they are often simply the toll of waste and mismanagement. The first phase of the Second Avenue subway line construction, at $2.5 billion per mile, was eight to 12 times more expensive than a sampling of similar projects in places such as Italy, Sweden, Paris and Berlin….

I think there are crises for both the Left and Right in America. I'm glad that institutions that are generally on the Left (such as the Post) are starting to taking seriously the Left's problems, and I hope that something similar is happening on the Right.

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[Eugene Volokh] "Encouraging Debate, Not Settling It": Bret Stephens Interviews Vanderbilt Chancellor Daniel Diermeier

A very interesting exchange in the Autumn 2024 Sapir Journal; a short excerpt, just to give a flavor of the whole thing:

We've seen the same data, and I've been very concerned about the drop in approval and trust in higher education. The decline has been larger among people on the conservative side of the political spectrum, but it's across the board, from the Left and the Right. My sense is that it comes from two concerns. From the progressive side, the concern is that highly selective universities are perpetuating inequality. And the concern from the Right is that we're woke factories….

The question of the politicization of higher education has come into stark relief after what we've seen last year: the conflict in the Middle East and the drama on campus. These developments have elevated into the public consciousness concerns that have been present for years. They now are front and center, much more serious, and they require a course correction by many universities….

If you look back, there were three pillars of how a university thought about its role in society.

If you look at the University of Chicago, one pillar was this commitment to free speech that goes back to the founding and then through a whole variety of presidents, reaffirmed, most recently, by the 2015 report, often referred to as the Chicago Principles. Universities need to be places for open debate.

Pillar two is what we call institutional neutrality, which means that the university will not get involved, will not take positions, on controversial political and social issues that bear no direct relevance to the university's mission. The University of Chicago's formulation of this policy was the Kalven Report from 1967, which so eloquently articulates that when the university formulates a party line on any issue, it creates a chilling effect for faculty and students to engage in debate and discourse.

And the third pillar, less appreciated but important, is a commitment to reason, to respect, to using arguments and evidence. Discourse and debate at the university shouldn't be about shouting. That's a more cultural aspect. All three have eroded, and they have eroded over the past 10 years in significant fashion. Now we see the consequences of that.

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[Eugene Volokh] Federal Court Declines to Issue Harassment Restraining Order Related to Crypto Litigation

From Judge Maame Ewusi-Mensah Frimpong's Dec. 26 opinion in Thomson v. Persistence Technologies BVI PTE Ltd.; Thomson is apparently a "[b]illionaire publishing heiress" and part owner of Thomson Reuters, and the lawsuit claims over $24+M in damages, related to Thomson's investment in the XPRT altcoin:

Thomson alleges, in summary, that Richardson and other Defendants conspired to target Thomson and induce Thomson to invest in a certain cryptocurrency, and made a series of false statements to both Thomson and the public in furtherance of this. Richardson alleges in turn, via her counterclaims, that she and Thomson were friends, that Thomson demanded that Richardson invest in cryptocurrency on Thomson's behalf, that Thomson made rude statements to Richardson and called on Richardson at all hours with requests, and that Thomson eventually made defamatory statements about Richardson….

An order prohibiting a party from harassing another party is appropriate in at least some circumstances. Courts in this district and elsewhere have recognized that it may be permissible and necessary to enjoin a litigant from harassing another party. See, e.g., Beyond Blond Prods., LLC v. Heldman (C.D. Cal. 2022) (issuing an injunction against "threatening or harassing emails" and other conduct); United Artists Corp. v. United Artist Studios LLC (C.D. Cal. 2019) (issuing an injunction against certain conduct that "constitute[s] harassment and would be performed with the intention of intimidation"); see also Test Masters Educ. Servs., Inc. v. Singh (5th Cir. 2005) (upholding a portion of the district court's injunction prohibiting Defendant "from threatening or harassing" plaintiff, plaintiff's counsel, or other associated individuals). These courts generally recognize that injunctions against harassing conduct are, to some extent, in tension with the First Amendment's protections on free speech, but nevertheless hold that such injunctions are constitutional in some circumstances, as "courts have rejected arguments that the First Amendment allows a person to make harassing or threatening communications." Beyond Blond; see also United Artists ("even under the First Amendment, courts do have the power to enjoin harassing communication"); Test Masters ("Courts have made a distinction between communication and harassment … The difference is one between free speech and conduct that may be proscribed.").

Although these opinions are not binding, the Court is aware of no precedent pointing the other way on the general question of whether orders of the nature Thomson requested are at times permissible. The Court finds that if Thomson could show sufficient harassment, then it would be appropriate for the Court to grant the Application. But given the Ninth Circuit's guidance cautioning courts regarding injunctions that control litigants' behavior, and given the First Amendment concerns that such injunctions implicate, the Court will not grant such an injunction absent a strong showing.

Here, Thomson has failed to make a sufficient showing to justify the order she seeks. In support of her Application, Thomson points to a number of text messages sent by Richardson on one day—October 13, 2024. In her text messages, Richardson threatened to "speak to the press," with "receipts," which would be a "major liability." Richardson further wrote "tell your[ ] lawyers to respond to my requests" and "Please settle this [explicative], or kill me or have me arrested, I'm [explicative] done." The messages continued along similar lines. Richardson also sent similar messages to Thomson's daughter. Thomson notes that these are particularly concerning because from previous conversations, Thomson is aware that Richardson possesses a firearm. {For the purposes of this Order, the Court will assume that Thomson's descriptions of Thomson's behaviour are true. The Court makes no definitive finding on whether the descriptions are actually true.}

But Thomson has already obtained a Temporary Restraining Order from the Monterey Superior Court based upon the same October 13 conduct. That order (once properly served) prohibits Richardson from harassing Thomson, contacting her, or attempting to determine her location. In addition, the order prohibits Richardson from owning or possessing a firearm and requires her to sell, store, or turn into law enforcement any firearms she possesses. Thomson's Application does not explain why this TRO is insufficient and certainly does not explain how she can meet the requirement of irreparable harm in light of this TRO. {The Court notes that it appears that the Superior Court TRO may have expired as of the date of this Order. The Court's determination is based on the posture of the Application at the time it was filed (when the TRO was still active).} Furthermore, it appears that in her request to the Monterey Superior Court, Thomson requested that the TRO also prohibit contact with her daughter, and that request was denied by the court. According to the Application, Thomson's daughter now has her own request pending. This Court is reluctant to grant Thomson a form of relief that she can seek from the Superior Court, has sought from the Superior Court, and has not yet been granted.

As discussed above, TROs against litigants in federal court are permissible but uncommon. In contrast, the state courts of California are familiar with handling these matters and there is a robust body of substantive law and procedural protections in the Superior Court which this Court is reluctant to disturb without good cause. Thomson has failed to show that good cause. Denying this Application is unlikely to cause harm, much less irreparable harm, given the remedies she has available to her in the Superior Court.

Even if the Court was inclined to ignore the Superior Court's TRO and issue its own, these text messages, although not civil, are not threats or harassment that this Court finds sufficient to justify the order Thomson seeks. Richardson has not threatened Thomson with physical violence. Although Richardson threatened to go to the press with evidence, this is significantly distinct, Thomson has provided no authority suggesting a court may enjoin a litigant against making threats to speak to the press, which would likely implicate greater First Amendment concerns than an injunction against threats of physical violence. Richardson's statements that Thomson should settle the case or kill Richardson are disturbing, but they are not threats of violence against Thomson. Furthermore, the record suggests that this conduct was limited to one specific day, and that it is not an ongoing pattern of harassing behavior.

This conduct is significantly distinct from the conduct in the cases discussed above where courts issued injunctions. In Beyond Blond, the party seeking the injunction presented evidence that the other party's counsel had sent a series of emails over the course of a month, including insults based on race and other offensive statements, and including statements that there will be a "lifetime war between us" and "I can't wait to meet you in person."

In United Artists, the party seeking the injunction presented evidence that one defendant had engaged in a long pattern of harassing conduct, including an incident at the courthouse, a phone call, a series of emails, and then posts on the internet. These incidents—which the defendant did not deny occurred but argued were not harassment—included references to counsel's children and statements like "you've been warned."

In Test Masters, the district court found that defendants had "had called [Plaintiff's office] dozens of times a day, including seventy-one times on one day." All of these courses of conduct are significantly distinct from the conduct alleged here. Thomson has provided no authority suggesting that the conduct she alleges—a series of non-civil but not physically threatening text messages, sent on one specific day—is sufficient for an injunction.

In sum, the Court finds that the evidence submitted is not sufficient to grant the Application. Thomson has, at minimum, failed to make a strong showing that she is likely to succeed on the merits as to a permanent injunction, or even raised serious questions, because she has not shown that Richardson's conduct is sufficient to justify the Court enjoining Richardson's speech. Although a temporary restraining order as to harassment by litigants is warranted in some circumstances, the Court will not issue one here.

For copies of Richardson's alleged texts, see here and here.

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[Jonathan H. Adler] "There Is, Technically, No Snail Darter," But the Snail Darter Still Delayed the Tellico Dam

In the 1970s, the discovery of the Tennessee snail darter in the Tellico River was used to halt completion of the Tellico Dam under the Endangered Species Act (a tale many law students learn in TVA v. Hill). The dam was only completed after Congress expressly exempted it from the ESA's dictates.

It has long been understood that the snail darter was the right species at the right time, as it gave dam opponents a powerful legal weapon. Now, the New York Times reports, it turns out the snail darter was not really the right species, as it is not a distinct species at all.

"There is, technically, no snail darter," said Thomas Near, curator of ichthyology at the Yale Peabody Museum.

Dr. Near, also a professor who leads a fish biology lab at Yale, and his colleagues report in the journal Current Biology that the snail darter, Percina tanasi, is neither a distinct species nor a subspecies. Rather, it is an eastern population of Percina uranidea, known also as the stargazing darter, which is not considered endangered.

Dr. Near contends that early researchers "squinted their eyes a bit" when describing the fish, because it represented a way to fight the Tennessee Valley Authority's plan to build the Tellico Dam on the Little Tennessee River, about 20 miles southwest of Knoxville.

"I feel it was the first and probably the most famous example of what I would call the 'conservation species concept,' where people are going to decide a species should be distinct because it will have a downstream conservation implication," Dr. Near said.

What Dr. Near is hinting at is the incentive structure created by the ESA--an incentive structure that encourages the distortion and politicization of scientific findings.

Under the ESA, the listing of a species (or subspecies or distinct species population) triggers regulatory restrictions, such as those that halted the Tellico Dam. Section 7 of the Act, for example, bars federal agencies from undertaking actions that could jeopardize a species' survival or destroy any of its critical habitat.

As I explained in this paper, this means that if an interest group wants to influence regulatory decisions under the ESA, they need to influence the scientific findings that trigger regulatory constraints. What should be policy fights over whether the benefits of a project justify harms or risks to particular species instead become fights over whether something is a species or is at risk of extinction. Thus political and ideological concenrs infect what should be scientific disputes over how best to identify what constitutes a distinct species.

From the article:

Dr. Plater, who also argued successfully for the fish in the Supreme Court case, took issue with the Yale study. He said the approach favored by Dr. Near and colleagues makes them genetic "lumpers" instead of "splitters," meaning they reduce species instead of making more. He believes the findings also lean too heavily on genetics.

"Whether he intends it or not, lumping is a great way to cut back on the Endangered Species Act," Dr. Plater said of Dr. Near.

Dr. Near said being described as a "lumper" was a pejorative in his world, and he added that most of the research he and colleagues had performed had resulted in speciation splits, including a 2022 study.

While the intent of the ESA is to provide greater protection of species, it is not clear the hard regulatory trigger actually maximizes the effectiveness of species conservation efforts. As I noted in this paper on the ESA's 50th anniversary, the Act has been far less successful at recovering species than one would like, and its unforgiving regulatory structure may be part of the reason.

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