Eugene Volokh's Blog, page 195

[Eugene Volokh] Interesting Case Related to Development Moratorium Possibly Triggered by Hostility to Muslims

A brief excerpt from the 6500+-word opinion in Zikar Holdings LLC v. Ruhland, decided Dec. 26 by Judge Jeffrey Bryan (D. Minn.):

Plaintiffs allege that Defendant City of Lino Lakes … and two of its City Council members, Defendants Michael Ruhland and Christopher Lyden, enacted a one-year moratorium on development in a discrete area of the City where Plaintiffs had proposed to build a residential development that would include a masjid (mosque), and that they did so because of their discriminatory animus toward Islam and Muslims.

Plaintiffs assert that, in doing so, Defendants have violated the Fair Housing Act (FHA), the Free Exercise Clause …, the Equal Protection Clause …, and the Religious Land Use and Institutionalized Persons Act (RLUIPA). In their motion for a preliminary injunction, Plaintiffs ask the Court to enjoin the City from enforcing the moratorium, among other things….

A brief excerpt of the background factual allegations:

Ahmed and Mohammed took an interest in developing the Robinson Property. Ahmed and Mohammed are Muslims who worship at a masjid in nearby Blaine, a suburban city directly adjacent to Lino Lakes. Ahmed's and Mohammed's masjid in Blaine had more worshippers than capacity, and its services were regularly crowded. According to certain Islamic hadiths to which Ahmed and Mohammed subscribe, Muslims receive spiritual blessings if they are able to walk to their place of worship. Ahmed and Mohammed wished to develop a community that would permit Muslim community members to walk to their place of worship. In furtherance of this idea, they formed Zikar Holdings, LLC. In late 2023, Plaintiffs identified the Robinson Property as a workable location for their contemplated residential development, which they would call "Madinah Lakes."

The court pointed out that there was evidence of religious discrimination:

On the record before the Court on this motion, a factfinder would be presented with the following evidence: Ruhland admitted that he did not think of proposing a moratorium on development in the City's northwest corner until after Zikar posted its promotional video about Madinah Lakes; Lyden openly criticized the way non-native-English-speaking proponents of the Madinah Lakes project pronounced "Lino Lakes" and suggested that, given the events on October 7, 2023 in Israel, Muslims in general are not community-oriented people; Lyden expressed his enthusiastic approval and endorsement of an email that expressed vituperative and disparaging views of Islam and all Muslim people; Ruhland did not vote in favor of censuring Lyden for endorsing the email on grounds that Lyden was entitled to his opinion about the email; the City Attorney informed the City Council that the Moratorium was not legally necessary to undertake master planning; the City Council was aware of strong public opposition to Madinah Lakes and even received into the record more than eighty-two pages of posts made on social media by their constituents regarding their negative views of Islam, Muslims, and immigrants; the Mayor asked Zikar to remove its promotional video about Madinah Lakes due to the volume of public outcry against it; the comments of members of the public, the Mayor, and Lyden at the July 8 City Council meeting (during which the City Council voted on the Moratorium) often centered on Madinah Lakes, not the merits of conducting master planning.

It is true that Plaintiffs may not rely on the motives of just two City council members to establish discriminatory animus on the part of a larger decision-making body. However, when those two council members comprise 40% of the City Council, and when those council members' statements are combined with constituent complaints that are both "public and pervasive in nature," a factfinder could make a "reasonable inference that [discriminatory] animus was a widely held motive, or that the [challenged] Ordinance 'effectuate[d] the discriminatory designs of private individuals.'"

On this evidence, the Court believes a reasonable juror could infer that the Moratorium was pretextual.

But the court concluded that "the evidence presented at this stage, prior to discovery, is not so strong that it satisfies the heightened … standard" necessary for a preliminary injunction against a statute or ordinance:

The motives and beliefs of the council members, as well as the basis for the timing of the Moratorium decision remain unknown at this stage, and absent additional circumstantial evidence of discriminatory intent, a reasonable fact-finder could conclude that supporting the Moratorium reflected the importance of complying with the 2040 Plan and prudent infrastructure and resource planning. Thus, the Court concludes that this factor is neutral, weighing neither in favor of nor against granting Plaintiffs' preliminary injunction motion….

And the court concluded that the injunction was also unjustified because of the absence of showing of irreparable harm:

Plaintiffs have told the Court—but have not shown—that the purchase agreement between Zikar and the Robinson Property's owners "expires long before the expiration of the Moratorium." … Further, the Court cannot determine for itself what the purchase agreement says because it has not been placed in the record, neither in whole nor in part, by Plaintiffs.

Further, the Court observes that Zikar does not frame the threat of irreparable harm in concrete terms. Instead, it describes the potential irreparable harm as a "likely los[t]" opportunity or a "risk[ed] los[s]." …

Moreover, based on the limited description of the purchase agreement provided by Mohammed (who the Court assumes has requisite foundation to make), the Court can discern that the purchase agreement was subject to certain conditions precedent. According to Mohammed, the purchase agreement was "contingent on [Zikar] obtaining any necessary City or government approvals." The Court observes that Plaintiffs have not provided the Court with any proof that Zikar had satisfied or was surely poised to satisfy those conditions precedent generally, let alone before any deadline that may or may not be set forth in the purchase agreement…. Plaintiff's argument amounts to mere speculation concerning theoretical future loss, and on the record presented, the Court concludes that the irreparable-harm factor weighs resolutely against granting the requested injunctive relief.

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[Eugene Volokh] Louis Farrakhan Loses Defamation and First Amendment Lawsuit Against Anti-Defamation League and Others

From Farrakhan v. Anti-Defamation League, decided today by Second Circuit Judges Susan L. Carney, Joseph F. Bianco & William J. Nardini:

Plaintiffs' sprawling allegations in the 150-page [Complaint] boil down to two types of claims: (1) First Amendment claims that focus on defendants' alleged speech-chilling activities against plaintiffs through third parties, and (2) defamation claims arising from defendants' various references to plaintiffs as anti-Semitic….

We agree with the district court that plaintiffs lack standing to assert their First Amendment claims…. To the extent plaintiffs assert claims against defendants because third parties—Morgan State University and Vimeo—denied or rescinded plaintiffs' access to speech platforms, those alleged First Amendment injuries are not fairly traceable to the defendants' actions. "Standing requires more than mere speculation about the decisions of third parties and must rely instead on the predictable effect of [defendants'] action on the decisions of third parties." Plaintiffs' allegations that ADL's general advocacy caused the third parties' decisions are unsupported by particularized factual assertions and, instead, rely on mere "[s]peculative inferences."

Plaintiffs' remaining First Amendment claims do not state any injuries in fact. The [Complaint] alleges that that ADL assisted in creating the "U.S. National Strategy [t]o Counter Antisemitism." However, such an allegation does not articulate a concrete and particularized injury. Although plaintiffs suggest that the National Strategy will provide a justification to arrest and prosecute Farrakhan, the [Complaint] does not sufficiently plead that such a threat is "actual or imminent, not conjectural or hypothetical."

Moreover, plaintiffs' claims that ADL's involvement with the New York government caused reputational harm to, and chilled the religious activities of, NOI and its members, and resulted in threatened sanctions from the state government, fail for similar reasons. At bottom, those claims rest on a tenuous chain of hypothetical events and do not show "an imminent threat of future harm or a present harm incurred in consequence of such a threat." See also Laird v. Tatum (1972) ("Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.")….

We [also] conclude that plaintiffs fail to state any plausible defamation claims because the challenged statements are nonactionable opinions or, even if actionable, are not adequately alleged to be false or to have been made with actual malice….

 "Expressions of opinion, as opposed to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation." Plaintiffs challenge a number of defendants' statements that label plaintiffs in various ways as "anti-Semitic." Under New York law, these statements are nonactionable opinions. See, e.g., Silverman v. Daily News, L.P. (N.Y. App. Div. 2015) (holding that statements in articles referring to plaintiff's "racist writings" were nonactionable opinions); Russell v. Davies (N.Y. App. Div. 2012) (holding that news stories describing plaintiff's essay as "racist" and "anti-Semitic" were nonactionable opinions); see also, e.g., Rapaport v. Barstool Sports Inc. (2d Cir. 2024) (summary order) (concluding that "accusations of racism and fraud are non-actionable because they lack a clearly defined meaning and, in this context, are incapable of being objectively proven true or false.").

Plaintiffs also challenge statements made by defendants interpreting Farrakhan's own statements. The challenged statements were either accompanied by disclosures of Farrakhan's actual statements or were based on Farrakhan's statements that were widely reported by the media. For example, the letter sent by Greenblatt to Ticketmaster, in which Greenblatt states that Farrakhan is "one of the most notorious antisemites in the country," quotes multiple statements made by Farrakhan and provides hyperlinks to two articles on ADL's website that contain additional statements by Farrakhan.

Similarly, the headline of an article challenged by plaintiffs—"Farrakhan Predicts Another Holocaust"—is accompanied by an extensive quote from Farrakhan that, as the district court found, "could be fairly interpreted as a reference to the Holocaust." Those challenged statements therefore also constitute inactionable opinions. See Gisel v. Clear Channel Commc'ns, Inc. (N.Y. App. Div. 2012) ("Because [defendant's] statements were based on facts that were widely reported by [relevant] media outlets and were known to his listeners, it cannot be said that his statements were based on undisclosed facts.").

Finally, plaintiffs challenge certain of defendants' factual statements. On de novo review, we agree with the district court that the [Complaint] fails to sufficiently allege the falsity of those statements. We further agree with the district court that the [Complaint] did not contain "facts that would raise a reasonable expectation that discovery will reveal evidence that Greenblatt or the ADL made the statement with knowledge of or reckless disregard as to the statement's falsity" [the relevant standard, given that Farrakhan is a public figure -EV]….

Nathan E. Siegel and Adam I. Rich (Davis Wright Tremaine LLP) and Julie R. F. Gerchik, Patricia L. Glaser, and Eric Y. Su (Glaser Weil Fink Howard Jordan & Shapiro LLP) represent defendants.

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[Eugene Volokh] "'Nobody Was Tricked into Voting for Trump': Why the Disinformation Panic Is Over"

An interesting article in Politico.eu (Laurie Clarke). A few excerpts:

"Everyone [following the 2016 Trump victory and the UK Brexit vote] was saying technology is to blame," said Reece Peck, associate professor of journalism and political communication at the City University of New York. "These algorithms are to blame."

What followed was almost a decade of alarm over disinformation, with legislators agonizing over which ideas social media platforms should allow to propagate, and hand-wringing at how this was all irrevocably corroding the foundations of society.

A vibrant cottage industry — dubbed "Big Disinfo" — sprang up to fight back against bad information. NGOs poured money into groups pledging to defend democracy against merchants of mistruth, while fact-checking operations promised to patrol the boundaries of reality.

Not everyone was convinced of the threat, however….

It should be noted that the most powerful misinformation isn't spread solely by anonymous internet trolls.

Instead, "the most consequential misinformation tends to come from prominent, powerful domestic actors, top politicians," said Rasmus Nielsen, professor at the Department of Communication of the University of Copenhagen.

The majority of this information isn't outright lies, either, but is more likely to be nuggets of truth framed or decontextualized in a misleading way….

And some scholars have pointed out that Big Disinfo's roots, forged in a partisan revolt against Trump, led to glaringly one-sided speech prescriptions.

"Misinformation researchers have not transcended the partisan origins of the misinformation discourse to develop an unbiased and reliable procedure for separating misinformation from true information," wrote Joseph Uscinski, professor of political science at Miami University, in 2023.

This has resulted in the field's "inadvertent tendency to take sides in the polarized political debates it attempts to study" and the "asymmetrical pathologization of what we, the researchers, consider to be false beliefs."

Of course, there is indeed plenty of falsehood (deliberate and otherwise) online and offline, as the article notes. Rather, the article and some of the sources it quotes question whether the recent focus on "disinformation" and "misinformation" has been an effective way of dealing with such falsehood.

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

New on the Bound By Oath podcast: When a SWAT team blows up an innocent person's house, who should foot the bill for the damage? The public! Since 1872, the Supreme Court has consistently said that such damage is a taking requiring just compensation. Which was also the rule at common law. Plus, what might state constitutions have to say about the matter?

Anti-abortion groups challenge New York labor law that prohibits them from discriminating against employees based on whether they've had an abortion (or any other reproductive-health decision). The groups also object to having to include information in their employee handbooks about rights/remedies under the law. Second Circuit: The groups may have an expressive-association claim, which needs more development, but the handbook claim fails. If you're the sort who reads Short Circuit on the regular, you've probably already consumed all manner of hot- and lukewarm-takes on the Second Circuit's decision upholding an NYC jury's verdict that Donald Trump defamed E. Jean Carroll. West Virginia parents of schoolchildren challenge the state's vaccination requirement for students attending public, private, or parochial school, arguing that it violates the Free Exercise Clause. The district court abstains, reasoning that state courts should first analyze the law under the state's recently enacted Equal Protection for Religion Act, which became effective the month after the suit was filed. Fourth Circuit (over a dissent): Which was error. Abstention is the exception, not the rule! Truck driver subject to a domestic violence restraining order is arrested for possessing a gun, in violation of federal law. He challenges the law as facially unconstitutional and wins … until the Supreme Court vacates and remands his case for reconsideration in light of Rahimi. Fifth Circuit: And his facial challenge cannot prevail. The district court should take another look at his as-applied challenge—and there are some as-applied challenges that might succeed (though we wouldn't hold our breath in this case). Man convicted of murder in Mississippi state court argues several jurors were struck based on their race and the prosecution's alternative reasons don't add up. District court: This looks bad! Fifth Circuit: The Mississippi Supreme Court already said this argument was waived and who are we to judge a state court when it comes to federal constitutional rights? Habeas denied. Man convicted of manufacturing spice (the illegal kind, not melange) in Mississippi federal court appeals pro se; he's dismissed for want of prosecution. He then files a habeas petition in district court. Meanwhile, though, he successfully moves to recall the appellate court's mandate, gets an attorney, the Fifth Circuit (2021) affirms his conviction and SCOTUS denies him cert. Then he files another habeas petition in district court. Is that a "second or subsequent" petition? Fifth Circuit (2025): Weird facts, so no, treat it as a first petition. Are broadband providers a telecommunications provider under the Telecommunications Act of 1996, thus subjecting them to so-called "net neutrality" rules? Under Chevron, federal courts just had to ask the FCC. Sixth Circuit: But in the wake of Loper Bright, we actually have to read and interpret the law. And the answer is no. Montana man pleads guilty to assaulting his girlfriend in 2013. In 2018, he's found in possession of firearms. He's charged and convicted of violating federal law, which prohibits gun possession by anyone convicted of a "misdemeanor crime of domestic violence." Ninth Circuit: Vacated. Federal law applies only to convictions where use of force is an element, but Montana's law can be triggered by emotional abuse. Applying the Supreme Court's "categorical approach," the conviction can't stand. Concurrence 1: But this is a pretty messed up result that Congress or the Montana Supreme Court could do something about. Concurrence 2: The categorical approach is pretty messed up in general and the Supreme Court should reconsider it. A משגיח (mashgiach) is an Orthodox Jew who supervises food preparation to make sure it's kept kosher. But is one who sues his former employer over employment-related claims also a "minister" for purposes of the ministerial exception (which categorically bars certain employment-related claims against religious organizations)? Ninth Circuit: Yes; the ministerial exception takes a "broad" view of who counts as a minister. Concurrence: Yes, even though the ministerial exception actually isn't necessarily as broad as the majority says. An Idaho inmate claimed other inmates would attack him, exhausted the grievance process, was returned to his cell—and other inmates attacked him. He sues, alleging Eighth and Fourteenth Amendment violations. Does the Prison Litigation Reform Act bar the suit because he failed to file and exhaust another grievance after the attack? Ninth Circuit (over a dissent): Under the "continuing violation doctrine," which we now adopt, a properly exhausted grievance asserting continuing harm exhausts future events arising from that harm. The inmate's suit against prison officials can proceed. Reversed in part and remanded. Firearm instructor purchases a Glock pistol modified to prevent its safety from re-engaging after firing a round. Yikes! He drops the gun during training, it shoots, and he loses a leg. The instructor sues Glock arguing, inter alia, that the gun is unreasonably dangerous. Tenth Circuit: Glock's warning and testing instructions adequately warn that modified guns may cause unintentional discharge. Alabama State University pays its athletic director (a woman) $135k, and, once she quits, pays her replacement (a man) $170k. Eleventh Circuit: Which isn't sex discrimination given the non-sex-based reasons for the difference: He had more relevant experience (13 years v. 2 years) and more education (a PhD v. a master's degree). Dissent: Should've let a jury figure it out, particularly considering the decisionmaker's gendered comments when she asked for a raise. Upon finding an unconscious inmate, corrections officers respond. He arouses and becomes combative, and it ultimately takes officers 20 minutes to restrain and get him into a wheelchair and to the medical treatment room. They do not stop to let two nurses on the scene help, nor do they check his pulse—and he has no pulse upon arrival to the treatment room. He dies. Eleventh Circuit: Totally reasonable response. Dissent: Video shows that officers applied force for at least 20 minutes, leaving him face down and throwing up while handcuffed and not resisting. And rather than see if he was okay, they took their sweet time getting him to the medical treatment room. A jury should've determined if the officers were deliberately indifferent. And in en banc news, the Fifth Circuit will not be quickly escalating to the en banc stage a challenge to a Louisiana law requiring displays of the Ten Commandments in public school classrooms. Instead, the case will be heard by a three-judge panel on its already expedited basis later this month. Three judges noted they voted in favor of an initial hearing en banc but did not issue a dissent. What was issued—and was on the Fifth Circuit's website for at least a day—was the order plus a Madlibs macro that assumedly was prepared before the votes came in. It read (p. 5-6 of pdf, without any edits by Short Circuit staff) "In the en banc poll, [enter number] judges voted in favor of hearing [list judges' last names], and [enter number] voted against hearing [list judges' last names]." And in more en banc news, the Fifth Circuit will not reconsider a panel opinion denying qualified immunity to an Austin, Tex. officer for the death of a suspect following a high-speed chase. Eight judges would have granted en banc review, nine would not, and once again no one noted their reasons. But no Madlibs this time. Friends, last week's edition contained a damnable mistake. In the case of the Aurora, Ill. officer who leg swept and punched a man at a traffic stop, it was a jury who decided the punches were not excessive force. Rather, the Seventh Circuit (over a dissent) held that several other claims were properly not presented to the jury because dashcam videos definitively show that the man was fleeing from police. The staff regrets the error. Phooey.

Onward! This week the Ninth Circuit revived a challenge to an abusive system of fines. Humboldt County, Calif. issued fines reaching into the millions of dollars for code violations that property owners did not even commit. County staff threatened rapidly escalating fines based on sometimes-years-old satellite images without on-the-ground investigations, accusing owners of unlawful cannabis cultivation any time they suspected an unpermitted building or greenhouse. IJ filed suit on behalf of a number of property owners but the district court dismissed the case. Now with the Ninth Circuit's reversal (in two opinions), the fight against the outrageous conduct can move forward.

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[Josh Blackman] Can The Judicial Conference Refer Supreme Court Justices To The Attorney General?

Federal law requires certain officials to submit financial disclosures. And under 28 U.S.C. §13106(a) the Attorney General can bring a civil action if a covered official "knowingly and willfully fails" to file such a report.

Section (b) permits agencies, including the Judicial Conference, to make referrals to the Attorney general:

(b) Referral to Attorney General.-The head of each agency, each Secretary concerned, the Director of the Office of Government Ethics, each congressional ethics committee, or the Judicial Conference, as the case may be, shall refer to the Attorney General the name of any individual which such official or committee has reasonable cause to believe has willfully failed to file a report or has willfully falsified or willfully failed to file information required to be reported. Whenever the Judicial Conference refers a name to the Attorney General under this subsection, the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral.

Does this statute permit the Judicial Conference to refer a Supreme Court to the Attorney General?

In a pair of letters, the Judicial Conference hints the answer is probably no, but announces it is studying the issue:

First, the Judicial Conference has never taken a position on whether its referral authority under 5 U.S.C. § 13106(b)—to refer judges to the Attorney General for investigation into whether they have "willfully" violated their reporting obligations—applies to Justices of the Supreme Court of the United States. The question, to be clear, is not whether the Ethics in Government Act applies to the Justices of the Court. It is whether the Judicial Conference's referral authority applies to the Justices. There is reason to doubt that the Conference has any such authority. Because the Judicial Conference does not superintend the Supreme Court and because any effort to grant the Conference such authority would raise serious constitutional questions, one would expect Congress at a minimum to state any such directive clearly. But no such express directive appears in this provision. The provision in fact contains a suggestion to the contrary. "Whenever the Judicial Conference refers a name to the Attorney General under this subsection," it says, "the Judicial Conference also shall notify the judicial council of the circuit in which the named individual serves of the referral." 5 U.S.C. § 13106(b). A Justice of the Supreme Court of the United States does not "serve[]" in a "circuit." The Conference has never addressed the meaning of this provision, and I write only to identify the issue, not to resolve it. In view of another referral request made with respect to Justice Jackson and her financial disclosure statements, however, the Conference plans to study this question in the months ahead.

This application of the clear statement rule, coupled with the reference to the "circuit," suggests the Justices are not covered. But we'll see what the Council comes up with.

By the way, these letters stem from complaints that Justices Thomas and Jackson failed to submit complete disclosures. Both Thomas and Jackson subsequently filed amended reports, and agreed to follow the rules. Nothing to see here. But the separation of powers issue is important.

Speaking of referrals, I think it was a mistake for the Judicial Conference to transmit an impeachment referral for Judge Kindred who had already resigned from office. The issue of late impeachment is a complicated one, on which people can reasonably disagree. And unlike with Trump, there is no argument that any articles of impeachment were approved before Trump left office. I recognize that the Committee on Judicial Conduct and Disability recommended that the referral be transmitted. I'm not sure that body has it within its ambit to make rulings about the federal Constitution. But the Judicial Conference could have simply declined to transmit the impeachment referral, in light of the important constitutional question at play. It would have been sufficient to simply release a public censure of former-Judge Kindred.

And speaking of censures, I have another unsolicited suggestion for the Judicial Conference. What should be done about judges like Judge Wynn who withdraw their senior status for overtly partisan reason? Issue a public censure. If Chief Justice Roberts wants us to believe there are no Obama judges and no Trump judges, then judges who act like Obama judges should be publicly called out. I suspect a swift and public rebuke from the Chief Justice would prevent any other judges from jumping ship. And unlike chastising members of the coordinate branches of government. the Chief Justice has an actual role to supervise the federal judiciary.

Enough about the Judicial Conference tonight. I'll get to the latest in the Judge Newman case in due course. I may have already exceeded my quota for 2025.

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[Josh Blackman] The Roberts Rorschach Test

John Roberts fancies himself as a very smart person. The Chief's confidence and erudition flows through his prose. Except when it doesn't. His 2024 year-end report has proven to be something of a Rorschach Test. He wrote "Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected." Who was he talking about?

In the Washington Post, Ruth Marcus wrote that it was clearly J.D. Vance, primarily based on some free-flowing comments the Senate candidate made in 2021. The Wall Street Journal Editorial page wrote that Roberts was talking about Joe Biden:

The Chief mentioned no names, but we can, and look no further than President Biden. When the High Court blocked his $430 billion student loan forgiveness plan, the President said "the Supreme Court blocked it, but that didn't stop me." He boasted of forgiving even more debt despite lacking authority from Congress.

Mr. Biden also boasted of defying the Court's warning on his illegal eviction moratorium. He admitted that "the bulk of the constitutional scholarship says that it's not likely to pass constitutional muster." But "by the time it gets litigated, it will probably give some additional time while we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the money."

Or could it be the forty-six Senate Democrats who urged President Biden to flout court orders, and certify the Equal Rights Amendment? Or was it Senator Ron Wyden of Oregon who called on the FDA to ignore the mifepristone decision?

If the Texas judge, Matthew Kacsmaryk, makes that decision, Wyden said, "President Biden and the FDA must ignore it."

Saying he'd never called for ignoring a court ruling before, Wyden said the harm that would be caused by this decision would be irreparable.

"The FDA should go on just as it has for the last 23 years since it first approved mifepristone," Wyden said. "The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. Doctors and pharmacies should go about their jobs like nothing has changed."

Who was Roberts talking about? A bunch of Democrats who actually said that specific court rulings should be disregarded? Or a Senate candidate who speculated on a podcast about what happens in a hypothetical constitutional crisis. Me thinks there is a bit too much of both-sidesism?

Sometimes when I write a post, and make a subtle reference, I think it will be clear who I am referring to. As readers will attest, those references often fall flat, or create confusion. The Chief should know better, and not take vague swipes at unnamed politicians. People on both sides will simply use the Chief's attacks to support their political priors.

Let's try this with a reference everyone should get: The way to stop politicizing the Court is to stop politicizing the Court.

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[Ilya Somin] Rights and Wrongs of Chief Justice Roberts' Year-End Report on the Judiciary

Chief Justice John Roberts. (SCOTUS)

 

Supreme Court Chief Justice John Roberts' 2024 Year End Report on the Federal Judiciary raises several genuinely serious issues that threaten the judiciary. But it offers little in the way of good solutions. In some cases, Roberts also overlooks ways in which the Supreme Court's own actions have helped exacerbate the problems he rightly flags.

Roberts highlights "four areas of illegitimate activity that…. threaten the independence of judges on which the rule of law depends: (1) violence, (2) intimidation, (3) disinformation, and (4) threats to defy lawfully entered judgments." These are all legitimate issues and the Chief Justice is right to call attention to them. But his analysis of them has some notable shortcomings.

When it comes to violence and intimidation, Roberts rightly condemns the "significant uptick in identified threats at all levels of the judiciary." Sadly, the rise of social media has made it easier to make such threats. Most of the people who make threats likely have little or no intention of acting on them. But it is often difficult to tell for sure, and threats of this kind are still painful and disturbing for those who get them. I know that from personal experience. And, as Roberts also points out, practices that stop short of direct violence, such as "doxxing," can also pose serious dangers.

Unfortunately, Roberts has little in the way of proposals for dealing with these threats. State and federal authorities can increase security for judges, and social media firms could do more to purge threats of violence from their platforms. But it is extremely difficult to truly stamp them out in our modern communications environment.

Moreover, increasing security has its own costs. Unlike the president and some other high-ranking executive officials, most judges live relatively ordinary lives. They aren't constantly accompanied by security guards, their homes are not fortress-like, and so on. Perhaps that will have to change. But living in a perpetual security bubble has serious downsides. I am not sure what the best approach to the threat of violence and intimidation is. Perhaps more security is needed. But I don't know how to strike the right balance between that and allowing judges and their families to live generally normal lives.

When it comes to misinformation, Roberts worries that "[d]isinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence… At its most basic level, distortion of the factual or legal basis for a ruling can undermine confidence in the court system." He also complains about public officials "suggesting political bias in the judge's adverse rulings without a credible basis for such allegations."

Roberts is right about this. But, as he recognizes, both elected officials and the general public have a right to debate and criticize court decisions and judges. The line between legitimate criticism and disinformation is often a fuzzy one, and Roberts' report does little to clarify it.

Moreover, in a world of widespread political ignorance, and ubiquitous efforts to exploit it for political gain, I am skeptical that much can be done to reduce the spread of disinformation about contentious judicial decisions or other political issues. I also doubt that the Chief Justice's suggestion of promoting civic education is likely to work. There is no easy solution to the problem of voter ignorance and bias. But I review several possible approaches to mitigating the harm they cause in this article.

I agree with Roberts and other conservatives that much of the criticism of the Supreme Court's "politicization" is unfair and overblown. Among other things, it ignores many important decisions where the Court has ruled against right-wing causes and political leaders. At the same time, however, some of the Court's rulings have left it open to charges of bias and politicization. This is most clear in the case of this year's rulings on presidential immunity and Section 3 disqualification, where the conservative judges largely ignored their own preferred originalist methodology and instead based their decisions on dubious policy and pragmatic considerations, while ignoring weighty considerations of the same type on the other side.

Although I think the justices got these decisions badly wrong, I  believe they were likely motivated by structural concerns about presidential power (in the immunity case) and conflicting state decisions (in the Section 3 case), rather than by narrow partisanship. In the Section 3 case, the conservative justices were, on some key issues, joined by the three liberal ones (though reliance on pragmatic and policy considerations is more consistent with the "living constitution" methodology of the liberals than with the conservatives' originalism).

But I can certainly see how other observers might reach a more cynical interpretation of the conservative justices' motives. Either way, if the justices want to avoid being perceived as political, they could start by being more consistent in sticking to their jurisprudential commitments. Doing so won't put an end to all criticism, or even all unfair accusations. And, obviously, critics who disapprove of originalism as such will (understandably) continue to oppose many of the Court's decisions. But well-informed observers would recognize that the justices are making a serious effort at consistency, and attempting to curb their own policy predilections.

Finally, the Chief Justice is right to call out "threats to defy lawfully entered judgments." Judicial independence - and judicial review - cannot survive for long if government officials can refuse to obey court decisions, and get away with it.

There has been much speculation on precisely who Roberts has in mind here. I suspect there are a number of different culprits, on different sides of the political spectrum. But the biggest elephant in the room is president-elect Donald Trump. After the 2020 election, courts - including in rulings by judges he himself appointed - consistently rejected Trump's bogus claims of electoral fraud. Yet instead accepting these decisions, Trump tried to use a combination of force (instigating and leveraging the January attack on the Capitol), and fraud (the fake elector schemes and other shenanigans) to stay in power.

You can argue this isn't a refusal to obey judicial decisions, because the courts didn't specifically enjoin the particular illegal actions Trump attempted. But if courts consistently reject your claims that you have a legal right to X (here, victory in the election), and you resort to force and fraud to try to take X anyway, that's pretty clearly defiance of judicial rulings.

It is also the case that VP-elect J.D. Vance advocated defiance of judicial rulings in the event courts reject Trump's plans to pack the federal bureaucracy with loyalists:

I think that what Trump should do like if I was giving him one piece of advice, fire every single mid level bureaucrat, Every civil servant in the administrative state, replace them with our people. And when the courts, because you will get taken to court, and then when the courts stop, you stand before the country like Andrew Jackson did and say, the Chief Justice has made his ruling. Now let him enforce it….

Conservative columnist Quin Hillyer highlights the dangers of this view:

The line about defying the Supreme Court was a quote from long-ago President Andrew Jackson, sickeningly justifying what became known as the Trail of Tears that forcibly moved and brutalized 60,000 Native Americans. But completely apart from that terrible context, the defiance itself is unconstitutional lawlessness, undiluted.

Elsewhere, I have explained why "judicial supremacy" on constitutional issues and legal interpretation is constitutionally required, and  justified despite the fact that courts are far from perfect.

Josh Blackman contends Vance didn't really advocate defiance of judicial rulings because, later in the same podcast, he said that "the thing that you can do in the Senate is push the legal boundaries, as far as the Supreme Court will let you take it to basically make it possible for democratically accountable people in the executive, in the legislature to fire mid level, up to high level civil servants." I don't think this genuinely mitigates the statement advocating executive branch defiance of the judiciary. Significantly, Vance doesn't, in this passage, say what should happen if courts rule against the president's plans to "push the legal boundaries." He does, however, address that in the other passage.

Whether the new administration will actually defy judicial rulings remains to be seen. But Trump and Vance's track records create undeniable reasons for concern.

There have also been some left-wing calls for defiance of judicial rulings, and - for those keeping track - I have duly criticized them. But none of the left-wingers advocating such action are as powerful and influential as the incoming president and VP.

As with some of the other issues he raises, Roberts offers little in the way of suggested solutions. Ultimately, obedience to judicial decisions rests in large part on political norms. In the next four years, we may see those norms seriously tested.

In sum, Roberts' report effectively raises several important issues. It is much less effective as a guide to dealing with them.

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[Josh Blackman] Or Maybe Chief Justice Roberts Was Talking About The Democratic Senators Backing The Equal Rights Amendment?

The Chief Justice's year-end report continues to confound. Roberts wrote "Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected." Who was he talking about?

Ruth Marcus thinks it was J.D. Vance. As Marcus tells it, Roberts took a swipe at the incoming Vice President. Is Roberts that dense? But in my view, Vance's full interview on the podcast reflects a sophisticated understanding of the limits of judicial supremacy. Ed Whelan made similar points.

A reader suggested that Roberts may have been talking about the 46 Democratic senators who recently signed a letter urging Biden to order the archivist to publish the ERA and recognize it as officially ratified. This move would be in defiance of several federal court rulings, as Ed Whelan also explained here and here. Was Roberts talking about nearly the entire Democratic membership in the United States? Could Roberts be so dense?

Who was Roberts talking about? None of us have any clue. We are only left to speculate. And that is a problem. The Chief Justice of the United States took a swipe at unnamed members of the coordinate branch of government, leaving people to attack politicians like the incoming Vice President and Senators with the imprimatur of the Chief Justice. Roberts tried to stay out of politics, but in the process, unduly injected the Court into politics. Sound familiar? Time and again, whenever Roberts tries to "depoliticize" the Court, he ends up making the Court more political. This episode teaches, once again, why Judges should simply stay out of politics, and politicized-judging.

Be a judge, and let the political chips fall where they may. I hope Roberts learns this lesson, and doesn't try to pick-and-choose which Trump actions deserve lectures. If you want to focus on fixing institutions, start at home. STOP THE LEAKS.

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[Jonathan H. Adler] Sixth Circuit Rejects FCC's Open Internet Order as Inconsistent with Statutory Text

This morning, in its second opinion of 2025, the U.S. Court of Appeals for the Sixth Circuit has concluded that the Federal Communications so-called "Open Internet Order," a variant of what is often referred to as "net neutrality," is unlawful. The three-judge panel, consisting of Judges Griffin, Kethledge, and Bush, concluded that the FCC's regulation was inconsistent with the statutory text of the Telecommunications Act.

Here is how Judge Griffin's opinion for the panel summarizes the case and its background:

As Congress has said, the Internet has "flourished, to the benefit of all Americans, with a minimum of government regulation." 47 U.S.C. § 230(a)(4). The Federal Communications Commission largely followed this command from the Telecommunications Act of 1996 by regulating the Internet with a light touch for nearly 15 years after enactment. But since, the FCC's approach has been anything but consistent.

Beginning in the late 2000s, the FCC undertook several attempts to impose so-called "net neutrality policies," which prohibit Broadband Internet Service Providers from controlling users' Internet access—by varying speeds or blocking connections to third-party websites, for example—based on content, commercial agreements, and other reasons a provider might want to manage a user's Internet experience. Those efforts culminated in 2015, when the FCC concluded for the first time that Broadband Internet Service Providers offer to consumers a "telecommunications service" and thus are common carriers—and subject to extensive regulation (including net-neutrality restrictions)—under Title II of the Communications Act. Id. § 153(51).

Corresponding with a change in administrations, in 2018, the FCC rescinded its 2015 determination and instead reverted to its historical hands-off approach to Internet regulation by concluding that Broadband Internet Service Providers offered only "information service." Id. § 153(24). That change lifted the net-neutrality requirements.

The D.C. Circuit heard substantial challenges to the 2015 and 2018 orders. It applied the now-overruled Chevron doctrine in each case and upheld both wholly inconsistent regulations as "permissible" under the Act.

Today we consider the latest FCC order, issued in 2024, which resurrected the FCC's heavy-handed regulatory regime. Under the present Safeguarding and Securing the Open Internet Order, Broadband Internet Service Providers are again deemed to offer a "telecommunications service" under Title II and therefore must abide by net-neutrality principles. 89 Fed. Reg. 45404 (May 22, 2024) (to be codified at 47 C.F.R. pts. 8, 20) [hereinafter Safeguarding Order]. But unlike past challenges that the D.C. Circuit considered under Chevron, we no longer afford deference to the FCC's reading of the statute. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024) (overruling Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984)). Instead, our task is to determine "the best reading of the statute" in the first instance. Id.

Using "the traditional tools of statutory construction," id., we hold that Broadband Internet Service Providers offer only an "information service" under 47 U.S.C. § 153(24), and therefore, the FCC lacks the statutory authority to impose its desired net-neutrality policies through the "telecommunications service" provision of the Communications Act, id. § 153(51). Nor does the Act permit the FCC to classify mobile broadband—a subset of broadband Internet services—as a "commercial mobile service" under Title III of the Act (and then similarly impose net-neutrality restrictions on those services). Id. § 332(c)(1)(A). We therefore grant the petitions for review and set aside the FCC's Safeguarding Order.

A few things are notable about the opinion. First, as it notes up front, while the legal fights over net neutrality have gone on for years, this is the first time an appellate court has considered this issue post-Chevron, which makes defending this broad rule more difficult for the FCC. Under Loper Bright Enterprises, the FCC's view of what constitutes an "information service," "telecommunications service," or "commercial mobile service" is due respect, but not deference.

Second, the panel concludes that the FCC's regulation is inconsistent with the statutory text without having to rely upon the "major questions" doctrine or any other interpretive dice-loading.

Third, as the Sixth Circuit was assigned the case in the multi-circuit lottery, this means the FCC's Open Internet Order is no more (and an appeal under the Trump Administration is quite unlikely).

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[Eugene Volokh] Claim Against School Board That Refused to Display "Satan Loves the First Amendment" Banner Can Go Forward

[1.] The factual allegations from today's decision by Robert Scola (S.D. Fla.) in Stevens v. School Bd. of Broward County:

The Plaintiff, The Reverend Dr. Timothy "Chaz" Stevens, is an ordained minister of The Church of Satanology and Perpetual Soiree. The Church "promote[s] religious plurality, secularism, and the separation of church and state through public expressions of minority viewpoints." As such, "displaying banners with messages advocating for religious freedom and First Amendment principles is a form of sacred observance, deeply and doctrinally rooted in The Church's belief that such advocacy is a moral and spiritual obligation." Displaying banners with phrases such as "Satan Loves the First Amendment" "are essential to fulfilling [the Church's] religious mission."

Between December 2023 and September 2024, the Defendant, the School Board of Broward County, Florida …, allowed religious organizations, such as Calvary Chapel and Potter's House, to display banners at West Glades Middle School, in Parkland, Florida, and Coral Springs High School, in Coral Springs, Florida, respectively. Such displays "carried religious messages and were permitted without issue." These banners were displayed despite the school board's policy "prohibit[ing] using school facilities to promote religious, commercial, or political interests without board approval and requir[ing] that signage not be 'sectarian in nature.'" Specifically, the policy states:

[F]acilities owned or leased by the School Board shall not be used for advertising or otherwise promoting the interests of any commercial, religious, political or other non-district agency or organization except as permitted through Board approved agreements, School Board policies, or State Statutes.

In October 2023, Stevens asked a high school and a middle school that they "display a 'Satan Loves the First Amendment' banner"; both refused, and removed banners for Calvary Church that had been displayed on the schools' property. The school board also "adopted a new policy that 'provide[s] better oversight' of the banner approval process by having '[a] regional superintendent [] approve requested banners,'" but the court held that "because Reverend Stevens has plausibly alleged an unofficial custom or policy of viewpoint discrimination (as the Court discusses below), the new policy does not affect the Court's analysis on the school board's motion to dismiss."

[2.] The court concluded that Stevens had adequately alleged that the school board's practices violated the Free Speech Clause:

The school board has arguably created a limited public forum at its schools by allowing some advertisements to be displayed on school grounds. "[G]overnmental entities establish limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects." … [In] a limited public forum …[,] "the government 'may impose restrictions on speech that are reasonable and viewpoint-neutral.'"

For a restriction to be viewpoint neutral, "the 'government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.'" Restrictions are reasonable when they are "wholly consistent with the government's legitimate interest in preserving the property for the use to which it is lawfully dedicated, and prohibited speech must be naturally incompatible with the purposes of the forum." …

As alleged, the school board's policy … is facially viewpoint neutral, and Reverend Stevens does not argue that such policy is unreasonable…. [But] the instances cited in the complaint plausibly allege "a practice or custom" of viewpoint discrimination by the school board ….

[3.] The court also concluded that Stevens had adequately alleged an Establishment Clause violation, given his allegations that the school has "put[] up some religious banners while declining to display his religion's banners":

The Establishment Clause "mandates government neutrality between religion and religion, and between religion and nonreligion." … [T]he Supreme Court has replaced the Lemon test [formerly used in Establishment Clause cases] with one that focuses on "historical practices and understandings." Despite its notice of supplemental authority, the school board does not attempt to show that any Establishment Clause claim by Reverend Stevens is insufficient under the Supreme Court's new Establishment Clause standard….

[4.] The court allowed Stevens' FRFRA (Florida Religious Freedom Restoration Act) claim to go forward as well:

Under the FRFRA, "a plaintiff has the burden of showing that: 1) he or she has engaged in the exercise of religion; and 2) that the government has substantially burdened this religious exercise." Only then does "the burden shift to the government to demonstrate that its action: 1) is in furtherance of a compelling governmental interest; and 2) is the least restrictive means of furthering that compelling governmental interest."

Under the FRFRA, the exercise of religion means "an act or refusal to act that is substantially motivated by a religious belief, whether or not the religious exercise is compulsory or central to a larger system of religious beliefs." The statute thus covers "conduct that, while not necessarily compulsory or central to a larger system of religious beliefs, nevertheless reflects some tenet, practice or custom of a larger system of religious beliefs." …

At the motion to dismiss stage, the Court must, of course, accept the allegations in the complaint as true…. Reverend Stevens alleges that the Church of Satanology "mandate[s] that members engage in public forums to promote the constitutional principles of the First Amendment," and as such "viewing public displays—such as banners—[are] vital expressions of [the Church's] religious philosophy." Moreover, "[f]or adherents, displaying banners with messages advocating for religious freedom and First Amendment principles is a form of sacred observance, deeply and doctrinally rooted in The Church's belief that such advocacy is a moral and spiritual obligation."

Therefore, Reverend Stevens has adequately alleged that he "has engaged in the exercise of religion." The school board's arguments as to the lack of evidence regarding the Church's tenets are better addressed on a motion for summary judgment or at trial, not on a motion to dismiss. And by preventing Reverend Stevens from displaying these banners, the school board has allegedly "substantially burdened this religious exercise."

In its motion, the school board only argues that Reverend Stevens cannot plead the elements of a FRFRA claim for which he has the burden. The school board's arguments as to its compelling state interest will not be considered given that they were only made in the reply and "not raised in the motion itself."

[5.] Finally, the court rejected Stevens' claim under Florida Statute § 871.04, which provides,

No person … shall publish … with reference to an establishment any advertisement that the patronage of any person is not welcome, or is objectionable, or is not acceptable because of the person's religion….

The court concluded that the statute doesn't apply here, in part because

Reverend Stevens does not allege that a banner was published on school property stating that he was not welcome because he is a member of the Church of Satanology…. The thrust of Reverend Stevens's complaint is that his church was prohibited from posting banners while other churches were allowed to do so. Those actions fall outside the ambit of § 871.04.

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