Eugene Volokh's Blog, page 196

[Eugene Volokh] Punishing Revenge Porn as (Federal) Criminal Libel

From U.S. v. Uhlenbrock, decided Tuesday by Fifth Circuit Judge Jerry Smith, joined by Judges Carl Stewart and Kyle Duncan:

A jury convicted Mark Uhlenbrock of violating 18 U.S.C. § 2261A-(2)(B) for publishing [on Reddit] his ex-girlfriend's nude images and videos and exhibitionist and masturbatory stories that he wrote in her name…. Some of [the] images she had voluntarily sent to him during their romantic relationship, but some he surreptitiously recorded. She never allowed him to share any of the media or to post it online.

Accompanying those pictures and videos, Uhlenbrock shared stories that he drafted in the first-person using YT's maiden name. They further identified her by occupation, employer, and state of residence. Writing as YT, he claimed to be an "addicted" "exhibitionist." For example, he stated, "I am a real US Airline flight attendant…. Here, I share clothed to naked pics, 'G' and 'R' rated home videos and erotic stories that you can read about my exhibitionist fantasies." Another post read, "I enjoy stripping nude and masturbating for men I meet on my layovers. It's my favorite way of sexually expressing and satisfying myself." He invited men to look for YT on their flights and sexually to proposition her….

A grand jury indicted Uhlenbrock on one count of cyberstalking under 18 U.S.C. § 2261A(2)(B), which states, in relevant part,

Whoever … with the intent to … harass[ ] [or] intimidate … engage[s] in a course of conduct that … causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress to a person … shall be punished as provided ….

A jury convicted Uhlenbrock, and the district court sentenced him to 60 months' imprisonment, three years' supervised release, and restitution….

The court concluded that Uhlenbrock could be punished under the cyberstalking statute because his speech fit within a First Amendment exception—in this case, defamation:

Uhlenbrock's speech was [knowingly] false. He claimed that YT had authored his internet posts, though she had not. He wrote, for example, "I am a real US Airline flight attendant…. Here, I share clothed to naked pics, 'G' and 'R' rated home videos and erotic stories that you can read about my exhibitionist fantasies."

He also falsely called her an "addicted" "exhibitionist." YT testified that, upon discovering her naked photos and videos online in 2007, she was "humiliated and embarrassed by this and fearful that [she] would be discovered." She said that, after court proceedings following his 2016 conviction for the same conduct, she "wanted to kill [her]self to make this go away." And after she discovered his 2020 posts, she felt "instant fear and disgust that opened that wound again." She became "reclusive and paranoid" and "hid[ ] out under a baseball hat." That is not the reaction of an addicted exhibitionist.

Uhlenbrock's speech was also "defamatory." He "impute[d] … unchastity" to YT by conveying that she freely shared her naked pictures and videos with the internet, inviting men to look for her when they flew, and suggesting that she would strip and masturbate for them….

The court rejected Uhlenbrock's vagueness challenge to § 2261A(2)(B):

"[S]ubstantial emotional distress" is an "easily understood term[ ]." A familiar term from tort law, "[e]motional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, and nausea."

So is the term "reasonably expected." Indeed, we have explained that potential vagueness is not created but, instead, "constitutionally remedied" "by the inclusion of [a] reasonable person standard."

Under those definitions, § 2261A(2)(B) "clearly proscribed" Uhlenbrock's conduct. He posted YT's nude photographs and videos, after she had gone to great lengths to stop him from posting. Those photos and videos—some of which he captured without her permission—exposed her breasts, vagina, and buttocks in sexually charged poses. Some showed her masturbating. Her face was visible in most. Alongside those pictures and videos, he appended stories that invited men to look for her when they flew, suggesting that she would strip and masturbate for them if they winked at her.

That conduct alone would be "reasonably expected" to cause YT to experience "substantial emotional distress." But he also identified her to the world by signing the posts with her real maiden name, real occupation, real employer, and real state of residence. It beggars belief that, by using YT's maiden name, he "effectively eliminat[ed] the possibility" that she would discover his posts and, thus, experience any distress. Again, as Uhlenbrock acknowledges, YT's family friend found his posts, identified YT in them, and alerted her to them.

Because § 2261A(2)(B) "clearly proscribed" Uhlenbrock's conduct, he "cannot complain of the vagueness of the law as applied to the conduct of others."

The court also concluded the jury had sufficient evidence to find that Uhlenbrock
"intended to harass or intimidate YT":

The jury had sufficient evidence to conclude that Uhlenbrock intended to harass or intimidate YT. Each time he had posted her nude media in prior years, she discovered it. A rational jury could conclude that he expected that she would also learn about his 2020 Reddit posts. Likewise, because he knew the "humiliation" and "fear" that she had suffered in past years, a rational jury could conclude that he expected to cause the same result this time, too. The jury could thus conclude that he intended "to disturb [YT] persistently; torment, as with troubles or cares; bother continually; pester; persecute" her or "to make timid" or "fill [her] with fear."

A rational jury could also conclude that he intended to harass her by sending strange men to find her. He invited readers to "keep an eye out for [YT] when" flying on her airline. "Who knows where a suggestive wink will lead. You could get a sexy strip tease from a pretty Latina flight attendant who, after an erotic nude dance, will lie back, spread her legs …."

Resisting that conclusion, Uhlenbrock says that his posts "were not directed to YT; they were posted in a [forum] that the alleged victim only found out about when a close family friend provided a link." But the question is "whether any rational trier of fact could have found" the requisite intent "beyond a reasonable doubt." The answer is yes….

And the court concluded the jury had sufficient evidence to find that Uhlenbrock's "conduct was 'reasonably expected' to cause substantial emotional distress" or did cause such distress:

[A] rational jury could conclude that Uhlenbrock's conduct was "reasonably expected to cause" such distress to YT. As we have recounted several times already, Uhlenbrock published her nude photographs, masturbation videos, and exhibitionist fantasies to internet forums. He signed them with her maiden name and told readers her occupation and employer. He invited men to look for her when they flew. People could link the posts to YT; she found out about them from a family friend.

Regardless, a rational jury had enough evidence also to conclude that Uhlenbrock's conduct "cause[d] … substantial emotional distress." When YT saw the 2020 posts, she "immediately started searching" for them and "spent eight, nine hours a day scouring the internet to find these images to see how bad this was going to be again." Seeing the pictures brought her "instant fear and disgust." She "feared for [her] safety" because her "private and personal information was in these pornographic stories and [she] feared that anyone who could see these could find [her] at home or at [work]." She "became very reclusive and paranoid," covering her face "under a baseball hat" and "not wearing any make-up." "Overprotect[ing] her grandchildren," she controlled what they could wear and who could photograph them. The posts disturbed her so much that she contacted the FBI.

Note that this particular theory worked only because the posts suggested that YT had posted the items herself. If Uhlenbrock had made clear that he was the one posting the images and stories, without YT's approval (and that the stories were fictional and thus didn't accurately describe YT's fantasies), there wouldn't be any false statement. Perhaps the material might then still be punishable on some other theory, but not a defamation theory.

Note also how the federal cyberstalking statute—which, to oversimplify slightly, essentially criminalizes communications (at least those that fall within a First Amendment exception) that fit within the intentional infliction of emotional distress tort—is being used as a form of federal criminal libel statute. Some state harassment statutes are likewise being used to revive criminal libel law, even in states that have generally repealed criminal libel (see the closing paragraph of this post).

This yields what strikes me as a good result in this revenge porn case. But keep in mind that § 2261A is by no means limited to revenge porn, and can be used for other repeated libels that are seen as "inten[ded] to … harass" and that "cause[], attempts to cause[], or would be reasonably expected to cause substantial emotional distress" (as libels often would); see, e.g., U.S. v. Morris (E.D.N.C. 2023); U.S. v. Sergentakis (3d Cir. 2019); U.S. v. Gonzalez (8th Cir. 2018); U.S. v. Sayer (D. Me. 2012). That might be good or bad, depending on what you think about criminal punishments for libel; but I think it hasn't drawn as much attention as it should.

Elizabeth Berenguer and Joseph H. Gay, Jr. represent the government.

UPDATE: The discussion of falsity in the "Note that" paragraph above was originally imprecise (I was focused on the posting of the photos, rather than the text); I've corrected it. Thanks to commenter ReaderY for alerting me to this.

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[Eugene Volokh] Former Democratic Socialist Houston Judge Franklin Bynum Reprimanded by Texas Judicial Disciplinary Board, for …

An excerpt from Friday's more-than-9000-word-long opinion in In re Bynum, by the Texas Special Court of Review ("Robert Burns, Chief Justice of the Fifth Court of Appeals; Justice W. Bruce Williams of the Eleventh Court of Appeals, and Justice Jeff Rambin of the Sixth Court of Appeals"):

Before this Review Tribunal is an appeal de novo from a Public Reprimand issued by the Texas State Commission on Judicial Conduct (Commission) against the Honorable Judge Franklin Bynum (Petitioner), former judge of County Criminal Court at Law No. 8, Harris County, Texas. The Commission's Public Reprimand concluded that Petitioner

failed to comply with the law and maintain competence in it; lent the prestige of his office to advance his private interest in his admitted agenda of extreme criminal justice reform; failed to treat people with whom he dealt in his official capacity with patience, dignity, and courtesy; performed his judicial duties with bias and prejudice, and/or manifested through words or conduct bias or prejudice in the performance of his judicial duties therewith; failed to accord the State the right to be heard according to the law; engaged in improper ex parte communications with defense attorneys and/or defendants while the State was not present; made improper public comments regarding pending and impending criminal proceedings which suggested to a reasonable person Petitioner's probable decision in cases involving law enforcement officials and the Harris County District Attorney's Office; and conducted extra-judicial activities that cast reasonable doubt on his capacity to act impartially as a judge and/or interfered with the proper performance of his judicial duties.

Based on the findings above, the Commission found that Petitioner engaged in "willful or persistent conduct clearly inconsistent with the proper performance of his duties, casting public discredit upon the judiciary and the administration of justice in violation of Canons 2A, 2B, 3B(2), 3B(4), 3B(5), 3B(6), 3B(8), 3B(10), 4A(1), and 4A(2) of the Texas Code of Judicial Conduct, Section 33.001(b)(5) of the Texas Government Code, and Article V, Section 1-a(6)(A) of the Texas Constitution." … [W]e conclude that the Commission met its burden of proving Petitioner willfully violated [those] Canons … and Article V, Section 1-a(6)A of the Texas Constitution and we issue a Public Reprimand to Petitioner….

Petitioner campaigned for Judge of County Criminal Court No. 8 in Harris County as a Democratic Socialist. At the time, he was known as an advocate for radical criminal justice reform. While in office, Petitioner made several posts on his social media accounts disparaging the Harris County criminal justice system and expressing his support for reforms.

During Petitioner's judicial tenure, the Harris County District Attorney's Office (HCDAO) filed numerous complaints with the State Commission on Judicial Conduct carefully detailing what it described as Judge Bynum's "incompetent," "willful," "persistent," "intentional or grossly indifferent" conduct. In July of 2020, the HCDAO filed a complaint against Petitioner, adding supplemental complaints in September 2020, November 2020, January 2021, and October 2021. While the detail is too voluminous to include here, in sum, the HCDAO alleged that, while on the bench, Petitioner "repeatedly and willfully ignored basic principles of criminal jurisprudence and conducted proceedings in his court with an unprofessional and irredeemable bias against the State of Texas and its prosecutors." …

As set forth below, the evidence demonstrates by a preponderance of the evidence that Petitioner refused to set aside his own personal views of what he wanted the law to be, failing to enforce Texas law as written.

[1.] Petitioner required prosecutors to appear in person for court proceedings in violation of Texas Supreme Court emergency COVID-19 orders….

[2.] Petitioner, sua sponte and without notice to the state, made no probable cause findings in violation of Article I, Section 13 of the Texas Constitution.

[3.] Petitioner sua sponte issued orders of protection prohibiting the Harris County Sheriff's Department from collecting DNA specimens in violation of the Texas Government Code…. [Note that in all these items the "in violation of" refers to the petitioner's violations; he was found to have violated the Texas Government Code by prohibiting the Sheriff's Department from collecting DNA specimens. -EV]

[4.] Petitioner set aside charging documents in violation of the Texas Code of Criminal Procedure….

[5.] Petitioner conducted bench trials without obtaining the State's consent to a jury waiver in violation of the Texas Code of Criminal Procedure….

[6.] Petitioner refused to impose mandatory jail time in violation of the Texas Code of Criminal Procedure….

­[7.] Petitioner refused to forfeit defendants' bonds after the defendants failed to appear in court in violation of the Texas Code of Criminal Procedure….

[8.] Petitioner improperly credited a defendant with thirty days of jail time when he had not earned thirty days credit, in violation of the Texas Code of Criminal Procedure….

The Commission [also] alleges Petitioner lent the prestige of his judicial office to advance his private interests in violation of Canon 2B of the Texas Code of Judicial Conduct. Canon 2B provides, in relevant part, "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others." Specifically, the evidence demonstrates that after assuming the bench, Petitioner:

openly expressed his continuing desire to contribute to the "demolition" of the criminal justice system as it currently exists during an interview with The Nation magazine; in public statements, made clear he would continue his advocacy for criminal justice reform in his role as a judge, only now from "within" the system; and took a selfie while wearing a "Defund Police" t-shirt given to him by the Chicago Public Defender's Office, which was posted on his Twitter feed and reposted on the Houston Police Officers Union's Facebook page.

During his testimony, Petitioner admitted he publicly expressed his desire for the destruction of the criminal justice system on at least two or three occasions. He explained, however, that he made such statements "sparingly" and only in the context of "seeking judicial office," and not for the purpose of the "destruction of criminal courts in general." We know, however, that Petitioner gave an interview to The Nation magazine stating his desire to "destroy" the criminal justice system after he was elected to the bench.

As for the "Defund Police" t-shirt, Petitioner initially testified he did not recall wearing the shirt. But after he was shown a picture of himself posted on his twitter account—wearing the t-shirt while thanking the Chicago Public Defender's Office for giving it to him—he acknowledged that he indeed wore the t-shirt after he assumed the bench. Petitioner also admitted that all or virtually all the cases before him involved law enforcement officials. Petitioner stated, however, that he did not believe wearing such a t-shirt would cause the public to perceive him as not impartial in the administration of justice because he did not "wear the shirt on the bench."

Petitioner testified he did not intend to lend the prestige of his judicial office to advance his private interests, but this alone is not dispositive of our inquiry….

In his post-submission brief, Petitioner argues that these statements were "within his First Amendment rights as recognized in Republican Party of Minnesota v. White (2002)." While it is true that a candidate for judicial office in a state where judges are selected by elections has a right to make statements about topics that he may decide—that right is not without limitation. Furthermore, Republican Party only delineates those rights to a candidate for office. The matter before us now involves statements made while Petitioner was a judge.

Petitioner has publicly expressed an interest in "demolishing" the criminal justice system; defunding the police force certainly has the appearance of furthering that goal. We find the Examiners established by a preponderance of the evidence that Petitioner willfully violated Canon 2B by lending the prestige of his judicial office during his efforts to advance his private interest of undermining the existing criminal justice system….

The Commission further alleges Petitioner failed to treat with patience, dignity, and courtesy people with whom he dealt in his official capacity in violation of Canon 3B(4) of the Texas Code of Judicial Conduct….

The evidence demonstrates Petitioner committed numerous acts that violated Canon 3B(4). Among them, Petitioner implemented a series of targeted court policies directed toward the HCDAO which included:

denying HCDAO staff the opportunity to communicate with the judge or his staff by email, while not prohibiting similar communications between the judge or his staff and defense attorneys; prohibiting HCDAO staff from communicating with other court participants during Zoom proceedings; adopting a blanket policy of not accepting agreed pleas from the State; refusing to allow HCDAO staff to view court proceedings remotely; and forcing prosecutors to wait for hours on Zoom hearings before Petitioner showed up for court….

The Commission alleges Petitioner routinely performed his judicial duties with bias and prejudice, and/or manifested through words or conduct such bias or prejudice in the performance of same …. The Commission points out Petitioner's bias against the State was demonstrated by his act of denying the HCDAO staff the opportunity to communicate with him or his staff by email, while not prohibiting similar communications between himself or his staff and defense attorneys….

Petitioner also appeared prejudiced against victims of domestic violence and exhibited a pattern of refusing to protect victims of family violence. For instance, Petitioner made no probable cause findings in at least twenty cases of alleged family violence cases. And Petitioner refused to issue protective orders in domestic violence cases. Prosecutors testified that Petitioner's behavior interfered with their ability to represent victims in the state of Texas.

According to Petitioner, "the county is pretty safe right now" and family-violence cases are "over done." {After Petitioner stated that family violence cases are "over done," he remarked, "A person who murders will only do it once, so he is essentially harmless after that one murder is accomplished." One prosecutor testified that it was not uncommon for Petitioner to comment, "people don't normally murder again."} Petitioner believed and publicly stated that the HCDAO used domestic violence victims as "pawns." …

The Commission alleges Petitioner made adverse public comments regarding pending and impending criminal proceedings which suggested to a reasonable person the Petitioner's probable decision in cases, in violation of Canon 3B(10) of the Texas Code of Judicial Conduct…. The evidence demonstrates Petitioner took a selfie while wearing a "Defund Police" t-shirt given to him by the Chicago Public Defender's Office, which was posted on his Twitter feed and reposted on the Houston Police Officers Union's Facebook page. As Petitioner acknowledged, he presided over a misdemeanor criminal court and virtually all of the cases before him involved law enforcement officials. He also stated he understood, as it related to the message on his t-shirt, "it's a controversial thing to say."

Yet, despite the negative message displayed on his t-shirt, Petitioner claimed he treated all parties in his courtroom fairly, including police officers. He maintained the words "Defund Police" would not cause a reasonable person to anticipate his rulings in cases involving law enforcement officials and the HCDAO. We disagree. The message on Petitioner's t-shirt to "Defund" police could reasonably be seen by the public as an expression of animosity towards law enforcement officers—suggesting to a reasonable person Petitioner's probable decision in cases involving police officers. We are concerned that Petitioner continues to overlook the harm created by even the appearance of bias or prejudice….

Petitioner's public attacks on the criminal justice system in general, and the HCDAO specifically, created doubt that he could be fair in dealing with the State, despite his proclamation that his feelings about the criminal justice system would never influence his judgment….

Article V, Section 1-a(6)A of the Texas Constitution provides, in pertinent part, that a judge shall not engage in "willful or persistent conduct" that is "clearly inconsistent with the proper performance of his duties or cast[s] public discredit upon the judiciary or administration of justice."

As set out above, the evidence showed that Petitioner failed to comply with and maintain professional competence in the law in his handling of cases, exhibited bias in favor of criminal defendants and prejudice against the State, denied litigants and attorneys the right to be heard according to law, made public comments about pending or impending proceedings that suggested to a reasonable person his probable decision on particular cases, and engaged in willful and persistent conduct that was clearly inconsistent with the proper performance of his duties and cast public discredit upon the judiciary and the administration of justice.

UPDATE: As the title notes, Bynum is the former judge, but I should have briefly noted the source of his former-ness: He had been elected in Nov. 2018 (56-44%), but was then defeated in the Mar. 2022 Democratic primary (59-41%), and thus served from Jan. 1, 2019 to Dec. 31, 2022. Former prosecutor Erika Ramirez, who defeated him, won office in Nov. 2022 (51-49%).

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[Eugene Volokh] Thursday Open Thread

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[Josh Blackman] Has J.D. Vance "Raised the Specter of Open Disregard for Federal Court Rulings"?

Chief Justice Roberts's 2024 year-end report warned that "elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings." When I read that claim, I had no idea who the Chief was referring to. I know that critics have talked about jurisdiction stripping, court expansion, term limits, and so on, but open defiance? Who has proposed that?

Ruth Marcus has a theory. She writes that Roberts was taking a swipe at J.D. Vance. She points out several things Vance has said over the years. (I had missed a piece in Politico Magazine that cited several of these sources.) I follow law and politics pretty closely, and I had never heard of any of these statements. Let's walk through them, one a time.

First, Marcus writes that in September 2021, candidate Vance appeared on the Jack Murphy Live podcast. You can listen to the entire podcast here, or read the transcript here. And here is a section (27:13) that Marcus quotes, in part. (She omits the "constitutional crisis level" bit.)

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, because this is, I think, a constitutional level crisis if we continue to let bureaucrats control the entire country, even when Republicans win elections, then we've lost. We've just permanently lost. We've permanently given up.

Vance returns to that theme a few minutes later in the podcast (32:39):

And I guess to me, the fundamental problem here of the administrative state is that civil servants have no real consequence, and elected officials, specifically, the President, has no real recourse when the civil servants get out of line. Now, the left doesn't care about this, because the civil servants are all on their team. But we should really care about this, because the civil servants are like 90 to 10 not on our team. And so I think 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, like that, to me, is the meat of the administrative state. Now, that doesn't mean you're going to have, like, civil servant turnover, like, every time you have a new president, they're going to fire everybody, but just the knowledge that they can be fired can actually bring a lot of these administrative bureaucracies to heal that is that is like the fundamental fact of the federal government is that the people who implement the policy are very often totally unaccountable to the the people that we elect to actually do policy like that is crazy. That's not a real constitutional republic when that happens. But that is, unfortunately where we are these days.

Here, Vance makes clear that he is not calling for the defiance of the Courts. He will see how far the courts will let the President take things--that is a strategy well in bounds.

I think if you consider the full podcast, Vance is not actually calling for defiance of the Supreme Court. The Andrew Jackson line is almost cliche at this point. It is apocryphal anyway--Jackson almost certainly didn't say it.

Second, Marcus quotes Vance's appearance on ABC in February 2025. George Stephanopoulos asked Vance about his appearance on the podcast:

STEPHANOPOULOS: Fire everyone in the government, then defy the Supreme Court?

You think it's OK for the president to defy the Supreme Court?

VANCE: No, no, George, I did not say fire everyone in the government. I said replace the mid-level bureaucrats with people who are responsive to the administration's agenda. That's called democracy.

STEPHANOPOULOS: Every civil servant in the administrative state.

VANCE: One of the problems -- no, George, I said the mid-level bureaucrats. And one of the problems that we have in this government…

STEPHANOPOULOS: You said, "every civil servant in the administrative state."

VANCE: Who don't actually -- who don't -- let me finish the answer, George. You asked the question. We have a major problem here with administrators and bureaucrats in the government who don't respond to the elected branches.

Let's just give one very real-world example of this. In 2019, Donald Trump, having defeated ISIS, said that we should redeploy our troops in Syria and Jordan out of the region. You had multiple members of the Defense Department bureaucracy who fought him on that.

So what happened? We have people who are sitting ducks in the Levant right now, three of whom just got killed because the bureaucrats aren't listening to the political branches.

That's a fundamental component of our government, George, that whoever is in charge, agree or disagree with him, you have to follow the rules. If those people aren't following the rules, then of course you've got to fire them, and of course, the president has to be able to run the government as he thinks he should. That's the way the Constitution works. It has been thwarted too much by the way our bureaucracy has worked over the past 15 years.

STEPHANOPOULOS: The Constitution also says the president must abide by legitimate Supreme Court rulings, doesn't it?

VANCE: The Constitution says that the Supreme Court can make rulings, but if the Supreme Court -- and, look, I hope that they would not do this, but if the Supreme Court said the president of the United States can't fire a general, that would be an illegitimate ruling, and the president has to have Article II prerogative under the Constitution to actually run the military as he sees fit.

This is just basic constitutional legitimacy. You're talking about a hypothetical where the Supreme Court tries to run the military. I don't think that's going to happen, George. But of course, if it did, the president would have to respond to it. There are multiple examples throughout American history of the president doing just that.

STEPHANOPOULOS: You didn't say "military" in your answer, and you've made it very clear you believe the president can defy the Supreme Court.

Stephanopoulous only quotes part of the podcast, not where Vance says the President should go "as far as the Supreme Court will let you take it." And I think Vance's clarification is consistent with what he said. Vance is also correct about what would happen if the Supreme Court blocked the President from removing a general.  Does anyone disagree?

Third, Marcus points to a March 2024 interview in Politico Magazine:

On several other occasions — most recently during his interview with Stephanopoulos — Vance has suggested that a second-term President Trump should summarily fire a significant number of midlevel federal bureaucrats, and if the Supreme Court steps intervenes to stop him, he should openly defy its order.

I asked him if this was an accurate description of his views.

"Yup," he said.

I asked him to explain.

"For me, this is not a limited-government thing — this is a democracy thing. Like, you need the bureaucracy to be responsive to the elected branches of government," he said. "The counterargument is, you know, 'Aren't you promoting a constitutional crisis?' And my response is no — I'm recognizing a constitutional crisis. If the elected president says, 'I get to control the staff of my own government,' and the Supreme Court steps in and says, 'You're not allowed to do that' — like, that is the constitutional crisis. It's not whatever Trump or whoever else does in response. When the Supreme Court tells the president he can't control the government anymore, we need to be honest about what's actually going on."

Here, I think Vance is again alluding to a hypothetical constitutional crisis. Once we get to a point where the Court itself is flagrantly violating the Constitution, then I think there is a different conversation to be had. Frankly, I appreciate Vance's candor. Roberts can hide behind the veneer of judicial supremacy, but there is a limit to any Court's powers. And we shouldn't pretend otherwise.

Let's go back to Roberts's quote:

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.

Rulings, plural. Was the Chief talking about J.D. Vance? I think that is a stretch.

And this is yet another reason why I severely dislike podcasts. This was a 90 minute long discussion where Vance hit on lots of points. If you pluck out a few words here and there, and ignore the broader context, a lot will be missed.  I transcribe podcasts, for good reason.

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[Jonathan H. Adler] Will the EPA Limit Water Fluoridation?

In the closing days of the Presidential campaign, Robert F. Kennedy Jr. announced that "the Trump White House will advise all U.S​. water systems to remove fluoride from public water." Multiple news reports pounced on the statement as another example of RFK Jr's fringe and potentially dangerous views about public health.

Often unmentioned in these news stories is that the next Secretary of Health and Human Services' views on fluoridation will likely matter less than the views of the next Environmental Protection Agency Administrator--and the views of both could matter less than those of federal judges.

This past September, in Food & Water Watch v. EPA, a federal district court judge in the Northern District of California concluded that recommended levels of fluoride in drinking water present an "unreasonable risk" to public health under the Toxic Substances Control Act (TSCA), and ordered the EPA to address this concern. And while it's Donald Trump who has nominated a fluoridation skeptic to HHS, this judge (Edward Chen) was appointed by President Obama.

Judge Chen's opinion begins:

In 2016, Congress amended the Toxic Substances Control Act ("TSCA"), empowering United States citizens to petition the Environmental Protection Agency ("EPA") to consider whether a chemical presents an unreasonable risk of injury to health. See Pub. L. No. 114-182, 114th Congress (Frank R. Lautenberg Chemical Safety for the 21st Century Act) (the "Act"). The Act addresses the modern day reality that "human beings and the environment are being exposed each year to a large number of chemical substances and mixtures," 15 U.S.C. § 2601(a)(1), and that, "among the many chemical substances and mixtures which are constantly being developed and produced, there are some whose manufacture, processing, distribution in commerce, use, or disposal may present an unreasonable risk of injury to health or the environment," id. § 2601(a)(2).

To this end, under TSCA, as amended by the Act ("Amended TSCA"), a citizen is entitled to judicial review of the EPA's denial of the citizen's petition, wherein a court considers whether the chemical poses an unreasonable risk de novo, i.e., without deference to the EPA's decision. See id. § 2620(b)(4)(B). Amended TSCA sets up a system of judicial review that is remarkably different from the usual scope of judicial review of administrative actions under the Administrative Procedure Act, which confers substantial deference to administrative agencies. See id. Under Amended TSCA, the Court owes no deference to the EPA in assessing the risk posed by chemical substances. See id. If the Court finds anew that the chemical at issue presents an unreasonable risk, it then orders the EPA to engage in rulemaking regarding the chemical. See id. The EPA is afforded in the first instance the authority to respond; regulatory actions can range from requiring a mere warning label to banning the chemical. See id. § 2605(a)(1)-(7). The EPA, in short, has options. See id.

The issue before this Court is whether the Plaintiffs have established by a preponderance of the evidence that the fluoridation of drinking water at levels typical in the United States poses an unreasonable risk of injury to health of the public within the meaning of Amended TSCA. For the reasons set forth below, the Court so finds. Specifically, the Court finds that fluoridation of water at 0.7 milligrams per liter ("mg/L") – the level presently considered "optimal" in the United States – poses an unreasonable risk of reduced IQ in children. It should be noted that this finding does not conclude with certainty that fluoridated water is injurious to public health; rather, as required by the Amended TSCA, the Court finds there is an unreasonable risk of such injury, a risk sufficient to require the EPA to engage with a regulatory response. This order does not dictate precisely what that response must be. Amended TSCA leaves that decision in the first instance to the EPA. One thing the EPA cannot do, however, in the face of this Court's finding, is to ignore that risk.

The court's judgment was delayed, the EPA reportedly has until January 21 to appeal. This means the incoming Trump Administration could decide how the EPA responds to the decision, and whether to take action that could limit water fluoridation. Note also, that while RFK Jr. promised to recommend that public water systems cut back or cease fluoridation, the EPA could adopt regulations that actually require such steps.

More from Judge Chen's opinion:

Water fluoridation has a long history in the United States and has been a source of political discord, at times. See, e.g., Dkt. No. 429-3, Trial Ex. 13 at 15.1 In 1975 the EPA recommended adding fluoride to water, with an optimal level up to 1.2 mg/L for its dental health benefits. Id. at 16. Between 1981 and 1984, fluoride's association with adverse effects including osteosclerosis, enamel fluorosis, and psychological and behavioral problems was contested. Id. at 17-18. Still, as of 1986, up to 1.2 mg/L water fluoridation was considered optimal, and the maximum level was 4 mg/L. Id. at 14-18. After evidence increasingly established fluoride's connection to adverse effects, including severe enamel fluorosis, risk of bone fracture, and potential skeletal fluorosis, recommended levels were lowered in 2006. Id. at 10. Community water fluoridation has since continued at levels believed to be safe for its dental health benefits. At present, fluoride is added to tap water in the United States, with an optimal level of 0.7 mg/L.

However, scientific evidence has increasingly identified a link between fluoride exposure and adverse cognitive effects in children (reduced IQ). Accordingly, Plaintiffs exercised their power under Amended TSCA and petitioned the EPA to consider whether fluoride in drinking water presents an unreasonable risk of injury to human health. Notwithstanding the growing and robust body of evidence indicating an association between fluoride intake and cognitive impairment in children, the EPA denied Plaintiffs' petition. Plaintiffs filed suit in this Court, arguing that the EPA was wrong and that community water fluoridation at 0.7 mg/L (the "condition of use") poses an unreasonable risk of injury to human health. . . .

To succeed in a suit brought under the Amended TSCA, Plaintiffs must prove, by a preponderance of the evidence, that a risk of injury to human health is present and that such risk is unreasonable. For a risk to be present, Plaintiffs must show that some segment of the United States population is exposed to the chemical at issue at levels that either exceed, or are too close to the dosage at which the chemical presents a hazard. The reasonableness of the risk is informed by several factors, including inter alia, the size and susceptibility of impacted populations, severity of the harm at issue, and the frequency and duration of exposure.

There is little dispute in this suit as to whether fluoride poses a hazard to human health. Indeed, EPA's own expert agrees that fluoride is hazardous at some level of exposure. And ample evidence establishes that a mother's exposure to fluoride during pregnancy is associated with IQ decrements in her offspring. The United States National Toxicology Program ("NTP") – the federal agency regarded as experts in toxicity – undertook a systematic review of all available literature near the time of publication considering whether fluoride poses cognitive harm, reviewing 72 human epidemiological studies considering this question. The NTP concluded that fluoride is indeed associated with reduced IQ in children, at least at exposure levels at or above 1.5 mg/L (i.e., "higher" exposure levels). And notwithstanding inherent difficulties in observing effects at lower exposure levels, explained in further detail below, scientists have observed a statistically significant association between fluoride and adverse effects in children even at such "lower" exposure levels (less than 1.5 mg/L).

Notwithstanding recognition by EPA's expert that fluoride is hazardous, the EPA points to technicalities at various steps of the risk evaluation to conclude that fluoride does not present an unreasonable risk. Primarily, the EPA argues the hazard level and the precise relationship between dosage and response at lower exposure levels are not entirely clear. These arguments are not persuasive.

Importantly, the chemical at issue need not be found hazardous at the exposure level to establish that a risk is present under Amended TSCA. Instead, the EPA requires a margin exist between the hazard level and exposure level to ensure safety; if there is an insufficient margin then the chemical poses a risk. The trial evidence in this case establishes that even if there is some uncertainty as to the precise level at which fluoride becomes hazardous (hazard level), under even the most conservative estimates of this level, there is not enough of a margin between the accepted hazard level and the actual human exposure levels to find that fluoride is safe. Simply put, the risk to health at exposure levels in United States drinking water is sufficiently high to trigger regulatory response by the EPA under Amended TSCA.

To this end, as mentioned previously, the NTP compiled and analyzed all relevant studies it could find and concluded that, at least at dosages of 1.5 mg/L or higher, fluoride is associated with reduced IQ in children. Subsequently, toxicology experts endeavored to put a finer point on the impact of fluoride on children's IQ at "lower" exposure levels, i.e., those below 1.5 mg/L, and conducted a pooled benchmark dose analysis to define the precise hazard level of fluoride. For reasons described below, this pooled benchmark dose analysis benefited from increased statistical power relative to the NTP's assessment due to its methodology (i.e., the benchmark dose analysis used individualized, continuous data, while the NTP assessment did not, due to quantity and variety of studies the NTP reviewed in that assessment). The pooled benchmark dose analysis concluded that a 1-point drop in IQ of a child is to be expected for each 0.28 mg/L of fluoride in a pregnant mother's urine. This is highly concerning, because maternal urinary fluoride levels for pregnant mothers in the United States range from 0.8 mg/L at the median and 1.89 mg/L depending upon the degree of exposure. Not only is there an insufficient margin between the hazard level and these exposure levels, for many, the exposure levels exceed the hazard level of 0.28 mg/L.

The EPA challenges, for a variety of reasons, whether this 0.28 mg/L hazard level (measured in maternal urinary fluoride) is appropriate for this risk evaluation. The EPA argues, among other things, that the hazard and exposure levels should not be expressed in maternal urinary fluoride because that metric reflects total fluoride exposure – not just exposure resulting from drinking fluoridated water from one's community. Fluoride may also be ingested through, e.g., tea, fish, toothpaste, and commercial food and beverage made with fluoridated water. Nonetheless, the risk analysis should consider the additive effect of the chemical under the subjected condition of use (here, fluoridated community drinking water), especially where, as here, the fluoridated drinking water is a significant (and likely primary) contributor to aggregate exposure to fluoride. Indeed, the Amended TSCA, expressly contemplates that the aggregate exposure to a chemical will be considered when conducting a risk assessment. See 15 U.S.C. § 2605(b)(4)(F). In this sense, maternal urinary fluoride is not just an acceptable metric, it is highly useful in assessing the real-world end result of exposure from drinking fluoridated water along with other sources.

Even if urinary fluoride were not the appropriate metric in assessing health risk, or even if the toxicologically determined hazard level of 0.28 mg/L were deemed insufficiently substantiated, evidence in the record still establishes with little doubt that fluoridated drinking water presents a risk of injury to health. Using a highly conservative estimate of the hazard level of 4 mg/L measured in drinking water fluoride (well above the 1.5 mg/L identified as hazardous to children by the NTP) based on the consistent and repeated observation of adverse effects summarized in the NTP's assessment, a risk is present. There is little dispute that there is a statistically significant association between IQ decrements in children and fluoride concentration levels at 4 mg/L.

The EPA's default margin of error requires a factor of 10 between the hazard level and exposure level due to variability in human sensitivities. Put differently, only an exposure that is below 1/10th of the hazard level would be deemed safe under Amended TSCA, given the margin of error required. Here, an even greater margin (100x) is owed because the methodology (which yields the 4 mg/L hazard level) uses the lowest observed adverse effect level ("LOAEL"); this methodology adds an additional level of uncertainty (and hence the application of a 100x rather than 10x margin). But even if only the default 10x margin is required, the safe level of fluoride exposure would be 0.4 mg/L (4 mg/L (hazard level) divided by 10). The "optimal" water fluoridation level in the United States of 0.7 mg/L is nearly double that safe level of 0.4 mg/L for pregnant women and their offspring.

In all, there is substantial and scientifically credible evidence establishing that fluoride poses a risk to human health; it is associated with a reduction in the IQ of children and is hazardous at dosages that are far too close to fluoride levels in the drinking water of the United States. And this risk is unreasonable under Amended TSCA. Reduced IQ poses serious harm. Studies have linked IQ decrements of even one or two points to e.g., reduced educational attainment, employment status, productivity, and earned wages. Indeed, the EPA recognizes that reduction of IQ poses a serious community health issue. Moreover, highly susceptible populations are impacted, including over two million pregnant women and babies, a number far exceeding population size the EPA has looked to in determining whether regulatory action was warranted in other risk evaluations (i.e., 500 people or less).

Thus, the Court finds Plaintiffs have met their burden in establishing, by a preponderance of the evidence, that community water fluoridation at 0.7 mg/L presents an unreasonable risk of injury to health under Amended TSCA and that the EPA is thus obliged to take regulatory action in response. The Court does not in this order prescribe what that response should be.

The American Dental Association does not believe that current water fluoridation levels pose a meaningful risk and remains "staunchly in support" of maintaining public water fluoridation.

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[Josh Blackman] President Lyndon B. Johnson's TV Station and the "Blind Trust"

I recently wrote about the purportedly "blind" trust created for President Jimmy Carter's peanut business. President Lyndon B. Johnson also had a "blind" trust created for his television station.

In 1943, Lady Bird Johnson purchased a small radio station in Austin, Texas for $17,500. Robert A. Caro, The Passage of Power: The Years of Lyndon Johnson, Vol. IV at 286 (2013). At the time, her husband, Lyndon B. Johnson, served in the House of Representatives. The future President would often boast that he had no interest in the business. Caro at 286. However, under Texas's community marital property law, the husband had a half-interest in his wife's business. Caro at 286. Mrs. Johnson's business would later also include a television station under the call sign KTBC. As Mr. Johnson rose through the ranks in the House, and later the Senate, Robert Caro observed, there was a "twenty-year-long string of strikingly favorable rulings by the Federal Communications Commission" for KTBC. Caro at 286. Coincidentally, Austin was "one of the few metropolitan areas with only a single commercial television station." Caro at 286. And Robert Dallek wrote that Johnson's "involvement in a business that largely depended on the actions of a Federal agency for its success created a clear conflict between his private interests and public position." Robert Dallek, Lyndon B. Johnson: Portrait of a President 52 (2004). Over the decades, KTBC would generate millions of dollars of profit for the Johnsons.

When Johnson became Vice President in 1963, his staff "urged him to sell the station" to avoid potential conflicts of interest. Len Costa, A Wink And A Nod, Legal Affairs (January 2006), https://perma.cc/5CVT-JS5P. But the Johnsons refused to divest the business. Instead, tax lawyer Sheldon Cohen set up a trust. Cohen was a partner at Arnold, Fortas, & Porter, the firm co-founded by Johnson's close associate, Abe Fortas. (Johnson kept his friends close; he would later appoint Fortas to the Supreme Court and appoint Cohen as Commissioner of the Internal Revenue Service.) Under the terms of the trust, Mrs. Johnson would still own the business, but she "temporarily transferred control of her shares of KTCB to two Texas lawyers who were old family friends." Costa. They were Donald S. Thomas, an Austin attorney, and Jesse Kellam, who was the executive director of KTBC. Dallek at 365. The trustees had full discretion over how to manage the shares, and had the right to sell them. Cohen insisted that there was no "unstated agreement by the lawyers not to sell the shares." Costa.

Still, it is questionable whether this arrangement could be characterized as a blind trust. One of the trustees, Jesse Kellam, was also the executive director of KTCB. Robert Dallek, Flawed Giant: Lyndon Johnson and His Times, 1961-1973, at 611 (1998). The other trustee, Donald S. Thomas, had known Johnson for two decades. Thomas started "handling the affairs of radio station KTBC" in 1944 after he graduated from law school. Oral History at 2. While Vice President, Johnson hired Thomas to acquire land for him in Austin. There were longstanding and ongoing connections between Johnson and the trustees. Dallek wrote that "[i]t is difficult to believe, despite the blind trust, that Johnson did not keep tabs on his financial holdings while President." Dallek, Portrait at 365. And Professor Megan J. Ballard observed, "[g]iven that one of his trustees was the executive director of the Johnsons' broadcasting stations, Johnson must have had some degree of comfort that the trustees would not sell his interests." See Megan J. Ballard, The Shortsightedness of Blind Trusts, 56 U. Kan. L. Rev. 43, 55 (2007). To be a qualified blind trust, "A qualified trustee must be an independent, disinterested and non-familial financial institution or other fiduciary." It is not clear that either trustee was entirely independent and disinterested. Still, Dallek wrote, the trustees asserted that Johnson was "very careful not to violate any conflicts-of-interest laws as President."  I am not certain what specific conflicts-of-interest law Dallek was addressing.

After Johnson left office in 1969, his wife continued to own KTCB. The callsign was later changed to KLBJ, the initials of both the President and First Lady. Dallek at 611.

The stories from the Carter and Johnson presidencies teach several lessons. First, it is very difficult for a successful business person, who is elected to the presidency, to disentangle himself entirely from a business associated with him and his family. Lady Bird Johnson and her husband, Lyndon B. Johnson, owned the only television station in Austin, and had managed it for decades. And the peanut farms had been in the Carter family for generations. Even if the ownership of these businesses was placed in a fully blind trust, the public would still know who was deriving the profits from the trust. Because of the high-profile nature of the presidency, public scrutiny of the president's business will make a "blind" trust virtually impossible. 

Second, presidents are hesitant to entrust their business with a completely independent and disinterested trustee--a requirement for a blind trust. Rather, presidents want someone familiar with the enterprise to manage the entity. The Johnsons appointed as trustees two close associates, one of whom was still a personal attorney for the President. Carter selected his close friend, who advised him in the White House. 

Third, the Presidents were not willing to divest their interests--especially in a compressed time frame. President Carter did not sell his agricultural concerns. The Johnsons did not sell their media business.

There are no perfect solutions when a successful business person becomes President, and has only two months between election day and inauguration day to settle his affairs. And to demand that a president sell off his business holdings is to in effect create a new qualification outside the text of the Constitution.

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[Josh Blackman] A Window Into Chief Justice Roberts's Mind

After you reach a certain age, the novelty of New Year's Eve tends to wear off. Indeed, one of the few things I look forward to on December 31 is the Chief Justice's year-end report. They provide some insights into how John Roberts views the world. I've been writing about them since 2009. As best as I can recall, the 2024 year-end report is the most intense Robertsgram I've read. Let's walk through it.

First, the theme of the report is the importance of judicial independence. But the subtext is that other branches, and critics, are unduly encroaching on the judiciary. Roberts tells a story that stretches from King George III to the Articles of Confederation to Article III to Federalist No. 78 to Marbury. (I appreciate that Roberts gives Hamilton credit for "presag[ing] Marshall's analysis in Marbury.) Roberts explains why judicial independence is so important, quoting two jurists with very different worldviews:

One reason judicial review has endured and served us well lies in yet another insight from Chief Justice Rehnquist, articu-lated in his 2004 Year End Report: "The Constitution protects judicial independence not to benefit judges, but to promote the rule of law." Or, as Justice Kennedy put it, "Judicial independence is not conferred so judges can do as they please. Judicial independence is conferred so judges can do as they must."

I can see why Roberts would quote both Rehnquist and Kennedy for the purposes of optics. He does like balance. But remember, the former jurist dissented in Casey and the latter jurist wrote the controlling opinion.

What must Justice Kennedy do with his judicial independence? Write stuff like this:

Given these premises, we find it imperative to review once more the principles that define the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.

Our obligation is to define the liberty of all, not to mandate our own moral code.

Liberty must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to the woman's liberty to determine whether to carry her pregnancy to full term.

To quote Justice Scalia, "the Imperial Judiciary Lives."  Then again, when Roberts had the opportunity to overrule Roe, he blinked. I think Roberts's hard right turn last term can be traced back to his Dobbs concurrence. The Chief does not want to be sidelined on his own Court.

Second, Roberts offers this account of the Bank of the United States debate and McCulloch v. Maryland:

In truth, some tension between the branches of the government is inevitable and criticism of judicial interpretations of the people's laws is as old as the Republic itself. In Hamilton's and Jefferson's time, the debate was framed by pitting those who believed that the government's powers extended only to those specifically enumerated in the document against those who found in it more expansive powers. Today we often use terms like originalism and pragmatism to describe these differences of opinion.

Huh? I don't even know where to start with this passage. Would anyone characterize the debate between Hamilton and Jefferson/Madison as a debate between originalism and pragmatism? I think both sides offered careful accounts of the text of the Necessary and Proper Clause. Perhaps Hamilton's approach was a bit more consequentialist, in that it considered the needs of the growing Republic. But he was an originalist. And Chief Justice Marshall's decision in McCulloch largely cribbed from Hamilton's defense of the bank bill. Marshall too was being originalist in that sense, although I would admit more pragmatism seeps through that decision. But Roberts wasn't talking about McCulloch, decided three decades after Washington approved the national bank. I'm not sure if this passage is meant as some sort of attack on originalism, or defense of pragmatism. It left me scratching my head. This is not one of Roberts's finer arguments.

Third, Roberts writes:

The political branches sometimes inquire into judicial philosophy when considering nominees for the federal courts. But the oath—and the duties that follow—are the same regardless of the President who nominated and the Senate that confirmed every new Article III judge.

"Sometimes"? Always! From the beginning, Presidents considered judicial philosophies. Compare the Federalist Judges to the Jeffersonian Judges. Roberts surely knows this from his experience in the Reagan White House.

Fourth, Roberts observes:

Since the beginning of the Republic, the rulings of judges have shaped the Nation's development and checked the excesses of the other branches.

"Checked the excesses"? As I recall the Chief's Obergefell dissent, it is the excesses of the Court that have checked the other branches.

Fifth, Roberts gets to the core of his report:

Unfortunately, not all actors engage in "in-formed criticism" or anything remotely resembling it. I feel compelled to address four areas of illegitimate activity that, in my view, do 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.

Roberts relates that the number of threats to judges have increased significantly in recent years. I have written about the threats against Judge Kacsmaryk. The U.S. Marshall service keeps a chart that connects these threats to specific tweets. Roberts mentions that Judges have had to wear bulletproof vets, which Justice Barrett has alluded to. And Roberts turns to doxing:

Doxing also can prompt visits to the judge's home, whether by a group of protestors or, worse, an unstable individual carrying a cache of weapons. Both types of activity have occurred in recent years in the vicinity of the Nation's capital. Activist groups intent on harassing judges have gone so far as to offer financial incentives for posting the location of certain judicial officers.

Of course, this is a clear reference to the protests outside the Justices's homes during the Dobbs case, and the attempted assassination of Justice Kavanaugh. (By the way, it looks like the Defendant in that case is going to trial in summer 2025.)

But this criticism is not limited to randos on the internet. Roberts focuses on unnamed "public officials" who have attacked unnamed judges.

Public officials, too, regrettably have engaged in recent attempts to intimidate judges—for example, suggesting political bias in the judge's adverse rulings without a credible basis for such allegations. Within the past year we also have seen the need for state and federal bar associations to come to the defense of a federal district judge whose decisions in a high-profile case prompted an elected official to call for her impeachment. Attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary, but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others.

Roberts does not name names, but I have to think the female district court judge he mentioned is Aileen Cannon. Then again, have any bar associations defended her?

Sixth, Roberts veers into the category of "disinformation."

Disinformation, even if disconnected from any direct attempt to intimidate, also threatens judicial independence. This can take several forms. At its most basic level, distortion of the factual or legal basis for a ruling can under-mine confidence in the court system.

Disinformation, huh? Sounds like protected speech to me.

Seventh, Roberts references some unnamed foreign adversaries who have affected the Courts.

But much more is needed—and on a coor-dinated, national scale—not only to counter traditional disinformation, but also to confront a new and growing concern from abroad. In re-cent years, hostile foreign state actors have ac-celerated their efforts to attack all branches of our government, including the judiciary. In some instances, these outside agents feed false information into the marketplace of ideas. For example, bots distort judicial decisions, using fake or exaggerated narratives to foment discord within our democracy. In other cases, hackers steal information—often confidential and highly sensitive—for nefarious purposes, sometimes for private benefit and other times for the use of state actors themselves. Either way, because these actors distort our judicial system in ways that compromise the public's confidence in our processes and outcomes, we must as a Nation publicize the risks and take all appropriate measures to stop them.

It isn't clear if China has hacked into judicial systems, or just spread some memes. (It was just announced that China hacked into Treasury systems.) After the Dobbs leak, I speculated whether it could have been a hack. Roberts knows more than he is letting on. Speaking of China, if the threat of foreign hacking is on the Chief's mind, I can predict how he will approach the TikTok case. I would wager that TikTok is blocked on court devices.

Eighth, Roberts turns to what he sees as the greatest threat to judicial independence: defiance.

The final threat to judicial independence is defiance of judgments lawfully entered by courts of competent jurisdiction. As noted above, two of the major pillars of our Republic—separation of powers and judicial re-view—create an inevitable tension between the branches of our government. Hamilton foresaw, and Chief Justice Marshall confirmed, the role of the judicial branch to say what the law is. But judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court's decrees.

I recently had occasion to re-read Ex parte Merryman. Chief Justice Taney would be better to cite than Chief Justice Marshall, but optics. Taney explained that the Take Care Clause imposes an obligation on the President to enforce judicial decrees. Taney wrote that the President is "not authorized to execute [the laws] himself . . . but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the co-ordinate branch of the government to which that duty is assigned by the constitution."

The Take Care Clause is an actual textual basis that requires the executive branch to enforce the Court's decrees. But nothing in the Constitution binds non-party state executive branch officials to the Supreme Court's edicts. Read the Supremacy Clause over and over again, and you will not see it.

Roberts moves onto the massive resistance.

After Brown v. Board of Education, for example, multiple state governors sought to defy court orders to desegregate schools in the South.

Roberts wisely does not say that southern states defied Brown itself. That is a common myth. Instead, he writes that local officials "sought to defy court orders." Notice his careful phrasing. Roberts does not say these officials actually defied court orders. That was the point of the Southern Manifesto and the massive resistance. They didn't actually defy court orders. Parties who were bound by judgments did not violate those judgments. Instead, powers were shifted to other parties, who were not bound by judgments. This practice led to the Court's decision in Cooper v. Aaron, which established the principle of judicial supremacy and what I called judicial universality.

Roberts does not praise Cooper. Good! Roberts rightly praises the lower federal district court judges who toiled to desegregate schools with "all deliberate speed." He also lauds the executive branch officials who actually took the steps to desegregate schools.

The courage of federal judges to uphold the law in the face of massive local opposition—and the willingness of the Eisenhower and Kennedy Administrations to stand behind those judges— are strong testaments to the relationship between judicial independence and the rule of law in our Nation's history.

Roberts could have also mentioned Congress, which used its power of the purse to deny funding to segregated schools.

Ninth, Roberts writes that in recent years, elected officials have called for defying court rulings:

Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the Nation has avoided the standoffs that plagued the 1950s and 1960s. 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.

I think here Roberts is addressing Senator Schumer's "No Kings Act." But this law does not allow parties to defy Supreme Court judgments. Rather, the law instructs lower courts to not follow Supreme Court precedent. I described part of the law here:

The law provides that federal courts "may not consider whether an alleged violation of any criminal laws of the United States committed by a President or Vice President was within the conclusive or preclusive constitutional authority of a President or Vice President or was related to the official duties of a President or Vice President unless directed by Congress." If taken literally, this statute directs lower courts to not follow binding Supreme Court precedent--they cannot consider the exact thing that the Supreme Court said must be considered. If only Republicans responded this way to Planned Parenthood v. Casey: federal courts "may not consider' whether a law imposes a substantial burden on access to abortion. That would have been so simple!

Congress is certainly free to make such statements. It is a coordinate department of government that is entitled to interpret the Constitution. But unless we are willing to cross the rubicon of judicial supremacy, lower courts would be required to ignore Congress and follow SCOTUS. Now don't get me wrong. I despise Cooper v. Aaron. If it takes Trump Derangement Syndrome to blow up judicial supremacy, then that may have been worth it. I think of Heath Ledger as the Joker walking away from the exploding hospital. But Schumer doesn't quite have the chutzpah to go that far. Instead, he proposes a ham-handed way of playing keep-away from John Roberts.

And keep-away it does. This law stops short of disregarding any court decision.  I know many academics and pundits have made these assertions. But which politician? And is Roberts thinking about fringe members of Congress, or people in positions of power? Roberts here is opaque. And I'm not sure what "raised the spectrum" means here. Instead, the usual approach of the left is to expand the Court, strip jurisdiction, impose term limits, etc. Not even Abraham Lincoln called for "disregarding" Dred Scott. He would have simply limited the holding to the parties involve in that case. I think this fear must keep John Roberts up at night, but I'm not entirely sure if it is founded.

Tenth, speaking of Court packing, Roberts describes CJ Hughes's response to FDR's plan this way:

endurance. I also echo the words of Chief Justice Charles Evans Hughes, who remarked—in the after-math of a significant prior threat to judicial independence—that our three branches of government "must work in successful cooper-ation" to "make possible the effective functioning of the department of government which is designed to safeguard with judicial impartiality and independence the interests of liberty."

"Significant prior threat to judicial independence," indeed. Roberts responded to the Presidential Commission on the Supreme Court in his 2021 year-end report. Remember the Commission? Remember President Biden's pointless Op-Ed?

***

What occasioned Roberts to write this report now? Was it the President's Commission? The assassination attempt of Justice Kavanaugh? The Dobbs leak? The No Kings Act? Death threats against Texas federal judges prompted by tweets? No. I think Roberts is worried about the imminent inauguration. Could he have imagined that he would one day issue the oath of office to Trump, after having presided over Trump's first impeachment trial, and declined to preside over Trump's second impeachment trial?

Hang on, the next four years will be different. Expect the unexpected.

The post A Window Into Chief Justice Roberts's Mind appeared first on Reason.com.

[Josh Blackman] CJ Roberts Starts Off The New Year With An Old Error

As is tradition, Chief Justice Roberts released his year-end report. On page 2, there is a glaring error:

After securing independence, the fledgling United States did not immediately set about creating a national judiciary. Indeed, among the many defects of the Articles of Confederation, the absence of any mention of a judicial branch—or judges at all—seems particularly glaring.

The Constitutional Convention of 1787 remedied that oversight.

A simple CTRL-F of the word "judge" and "court" in the Articles proves this statement is wrong.

Article IX spells out a fairly involved process for appointing judges to courts to settle disputes over piracies, felonies on the high seas, and captures:

The united states, in congress assembled, shall have the sole and exclusive right and power of . . . appointing courts for the trial of piracies and felonies committed on the high seas; and establishing courts; for receiving and determining finally appeals in all cases of captures; provided that no member of congress shall be appointed a judge of any of the said courts.

Indeed, there is a judicial incompatibility clause, which barred delegates from serving on these courts. Seth Barrett Tillman and I discussed this provision in Part IV of our ten-part series.

There is also a process by which Congress could appoint judges to settle a controversy between states:

Whenever the legislative or executive authority, or lawful agent of any state in controversy with another, shall present a petition to congress, stating the matter in question, and praying for a hearing, notice thereof shall be given, by order of congress, to the legislative or executive authority of the other state in controversy, and a day assigned for the appearance of the parties by their lawful agents, who shall then be directed to appoint, by joint consent, commissioners or judges to constitute a court for hearing and determining the matter in question . . .  and the judgment and sentence of the court, to be appointed in the manner before prescribed, shall be final and conclusive; and if any of the parties shall refuse to submit to the authority of such court, or to appear or defend their claim or cause, the court shall nevertheless proceed to pronounce sentence, or judgment, which shall in like manner be final and decisive.

I always appreciate the Chief's prose, but sometimes the attention to detail in these reports takes a back seat to his broader narrative.

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[Eugene Volokh] Court Rejects Copyright Lawsuit Over Ole Miss Coach's Use of Motivational Speaker's "Winning Isn't Normal" Passage

From Bell v. Kiffin, decided two weeks ago by Judge Michael Mills (N.D. Miss.):

With any beneficial law, … there will always be some litigants who seek to abuse it, and this court believes that there is good reason to suspect that this case involves such a litigant. In so stating, this court notes that this case bears an extraordinary similarity to another copyright action dismissed by the Fifth Circuit in its February 2022 decision in Bell v. Eagle Mountain Saginaw Indep. Sch. Dist. (5th Cir. 2022). [For more on that Fifth Circuit decision cited in the case, see this 2022 post. -EV] In that action, the Fifth Circuit dismissed an action by the very same plaintiff in this case, based on an almost identical quotation on social media of an inspirational passage from his book Winning Isn't Normal. {[I]t is impossible for this court to improve upon holdings which are, by their very nature, binding precedent in this circuit.}

In Eagle Mountain, the Fifth Circuit described plaintiff's book as follows:

In 1982, Bell published Winning Isn't Normal, a 72-page book that provides strategies for success in athletics. Bell continues to market and sell Winning Isn't Normal through online retailers and his personal website, where he also offers merchandise, including t-shirts and posters that display the passage that was quoted in the tweets.

That passage, which Bell calls the WIN passage, is separately copyrighted. Bell offers licenses for its use. The passage reads:

Winning isn't normal. That doesn't mean there's anything wrong with winning. It just isn't the norm. It is highly unusual.

Every competition only has one winner. No matter how many people are entered, only one person or one team wins each event.

Winning is unusual. And as such, it requires unusual action.

In order to win, you must do extraordinary things. You can't just be one of the crowd. The crowd doesn't win. You have to be willing to stand out and act differently.

Your actions need to reflect unusual values and priorities. You have to value success more than others do. You have to want it more. Now take note! Wanting it more is a decision you make and act upon—not some inherent quality or burning inner drive or inspiration! And you have to make that value a priority.

You can't train like everyone else. You have to train more and train better.

You can't talk like everyone else. You can't think like everyone else. You can't be too willing to join the crowd, to do what is expected, to act in a socially accepted manner, to do what's "in." You need to be willing to stand out in the crowd and consistently take exceptional action. If you want to win, you need to accept the risks and perhaps the loneliness … BECAUSE WINNING ISN'T NORMAL!

This case arises from Kiffin's March 20, 2022 tweet of the exact same passage quoted above ….

This court observes that, after quoting this same passage in Eagle Mountain, the Fifth Circuit noted plaintiff's predilection for suing public schools and other non-profit entities, in a manner which many would regard as considerably less than inspirational. Specifically, the Fifth Circuit wrote that:

Bell has another revenue stream. He zealously seeks out and litigates unauthorized uses of the WIN Passage. Between 2006 and 2017, Bell filed over 25 copyright lawsuits. Most of the defendants were public schools or nonprofits, which published the WIN passage on social media.

In affirming the district court's award of attorneys' fees against Bell, the Fifth Circuit had very harsh words for his litigation practices, writing that:

Bell is not the typical copyright plaintiff seeking "a fair return for [his] creative labor." He has a long history of suing public institutions and nonprofit organizations over de minimis uses of his work. Taking these cases into account, the district court reasonably concluded that Bell is a serial litigant, who makes exorbitant demands for damages in hopes of extracting disproportionate settlements. This case is another in the line. The school shared a single page of Bell's work with fewer than 1,000 online followers and immediately removed the posts upon request. Bell was unable to identify any actual financial injury associated with that use but brought suit anyway. Attorney's fees were thus an appropriate deterrent, both with respect to Bell and other copyright holders who might consider a similar business model of litigation.

While there was clearly a strong air of disapproval in the Fifth Circuit's description of plaintiff's serial litigation practices, that court nevertheless gave his copyright arguments thorough consideration before ultimately concluding that the fair use doctrine protected the reposting on social media of the same "Winning Isn't Normal" passage which is at issue here….

The complaint does not suggest that the school's use had any cognizable, adverse impact on Bell. What it does make clear is that the softball team and flag corps used Bell's work in good faith, for no commercial gain, and for the laudable purpose of motivating students to succeed. We cannot see how the creative arts would be better served by permitting Bell's suit to proceed. Because a successful fair-use defense "appears on the face of the complaint," and Bell can "prove no set of facts" that would overcome it, the district court properly dismissed the case.

This court notes that plaintiff appears to have an exceedingly high opinion of the literary value of his WIN passage, proclaiming on his website that "[t]he separately copyrighted Winning Isn't Normal passage ("WIN") is likely the most read & widely used literary work in history!" This extraordinary assertion, with which Shakespeare, Tolstoy and Faulkner might take issue, frankly causes this court to wonder whether it is dealing with a litigant whose feet are firmly planted on the ground. While this court might ordinarily suspect that such an assertion was made in jest, there is nothing funny about the dozens of lawsuits which plaintiff has filed against numerous entities which, as the Fifth Circuit noted in Eagle Mountain, were mostly "public schools or nonprofits." Moreover, while the defendant in this case, a wealthy and famous football coach, is considerably less of an "underdog" figure than many of the other entities that plaintiff has sued, Kiffin does have the advantage of being a defendant living in this circuit who made the allegedly offending Twitter post after the Fifth Circuit had issued its opinion in Eagle Mountain.

This court notes that, following the Fifth Circuit's decision in Eagle Mountain, plaintiff appears to have simply shrugged his shoulders, loaded his covered wagon and taken his traveling litigation show to the next courthouse. In December 2022, plaintiff's show made a stop in Wisconsin where, as in Eagle Mountain, a district court found his litigation tactics to be sufficiently abusive to award attorneys' fees against him….. Having now seen plaintiff's traveling litigation show make a stop in its courthouse, this court is not required to ignore the facts that 1) reviews of that show are filtering in from surrounding communities, and 2) those reviews are not at all positive….

[P]reventing the federal courts from being used as a forum for abusive shakedown lawsuits is essential for the integrity of the federal judiciary as a whole and for public confidence in it. In this vein, this court notes that the Fifth Circuit has held that "[a] district court may bar a vexatious litigant from filing future civil rights complaints unless she seeks the prior approval of a district or magistrate judge." This court is not suggesting that plaintiff has reached this point with his WIN passage lawsuits (yet), but the existence of this authority makes it clear that federal courts are not required to ignore prior findings of abusive litigation practices by other judges in evaluating the merits of a particular claim….

In arguing that Kiffin acted in bad faith, plaintiff emphasizes his allegation that, in 2016, Kiffin took down a tweet of the WIN Passage after he sent him a cease-and-desist letter. Accepting this allegation as true, plaintiff's problem with seeking to assign bad faith to Kiffin in this regard is that the Fifth Circuit issued its opinion in Eagle Mountain shortly before defendant tweeted the WIN passage a second time in 2022. That being the case, this court believes that a reasonable person in Kiffin's position who cared to research the issue would have concluded that he had every legal right to re-tweet the WIN Passage, at least in this circuit. This makes it very difficult for any federal court to assign bad faith to him in this regard, since that would amount to that court saying that an individual acted in bad faith for doing something which the relevant federal appellate court had already said he had a right to do….

In addressing this third [fair use] factor {"the amount and substantiality of the portion used in relation to the copyrighted work as a whole"}, plaintiff has chosen to play it coy in his briefing, emphasizing that, while the Fifth Circuit noted that the complaint in Eagle Mountain specifically alleged that the WIN Passage was freely available online, his complaint in this case contains no such allegation. Specifically, plaintiff writes in his brief that:

Kiffin nonetheless argues [the third] factor is "neutral" because Dr. Bell made the WIN Passage "freely accessible" through authorized images he posted online. The FAC, however, never alleges that, at the time Kiffin copied the WIN Passage in 2022, freely accessible, authorized images of the WIN Passage were available online. Kiffin asks the Court to assume that the factual allegation in Eagle Mountain Saginaw that the WIN Passage was freely available at the time of the school district's posting in "December 2017[,]" remained true when Kiffin copied the WIN Passage on March 20, 2022. When ruling on a motion to dismiss, a court cannot make that factual assumption that falls outside the four corners of the pleadings.

This is the sort of too-clever-by-half argument which this court dislikes under any circumstances, but which it finds particularly distasteful within the context of plaintiff's ongoing abuse of the copyright litigation process. In so stating, this court takes judicial notice of the fact that anyone who visits plaintiff's website today can see the entire WIN Passage for free, at several different links on that site. See, e.g. https://winningisntnormal.com/product.... Moreover, plaintiff does not dispute that this was also the case when Eagle Mountain was decided. That being the case, it certainly stands to reason that Bell's website offered visitors free views of the WIN Passage at the time Kiffin made the tweet at issue in this case, and at no point in his briefing does plaintiff deny that this is the case. Plaintiff has instead chosen to take a coy "I'm not saying it is, but I'm not saying it isn't either" position on this issue, with which this court has little patience.

This court wishes to be clear that, based on plaintiff's prior litigation history, there is very good reason to suspect that this case is part of an ongoing scheme on his part to enrich himself by abusing the judicial process. This court is willing to give plaintiff an opportunity to persuade it otherwise, but he will not accomplish that with coy and disingenuous arguments.

Quite to the contrary, the manner in which plaintiff makes these arguments, combined with the manner in which his factual allegations appear to change based upon his evolving view of what will allow him to recover, simply leads this court to conclude that this case is not, in fact, any different from Eagle Mountain or Milwaukee and that a common thread of bad faith runs through them all….

Defendant's motion to dismiss this case will therefore be granted. Defendant has indicated that he may file a motion for attorneys' fees, and this court will therefore refrain from issuing the judgment in this case pending consideration of any such motion.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer. J. Cal Mayo, Jr., John Andrew Mauldin, and Paul Bowie Watkins, Jr. represent defendant Kiffin.

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[Josh Blackman] President Carter's Peanut Business and the "Blind" Trust

After the 2016 election, many commentators urged President-Elect Trump to follow the lead of President Carter, and create a blind trust. The Associated Press, for example, observed "The tradition stretching back to Jimmy Carter in the late 1970s is for presidents to put personal holdings such as stocks into a 'blind trust' run by an independent trustee with no ties to the occupant of the Oval Office." That tradition, however, was not so clear.

Governor Jimmy Carter of Georgia operated successful farms and a peanut warehouse business in the Peach State. The 3,000 acres of farmland had been in his family for six generations. In 1977, President Carter's shares in the family enterprise were valued at approximately $350,000, or about $1.8 million in present-day value. The business was valued at about the same amount. On January 4, shortly before the inauguration, President Carter announced a plan to transfer his holdings from his family businesses into a trust. This trust agreement would let Carter retain ownership of the land, but "insure that he will not benefit financially from agricultural policy decisions that he may make as President." Specifically, the farm and business would be leased for a fixed amount that would not be affected by the administration's policies. But Carter would continue to receive income from the businesses while he was in office. In the trust document, Carter explained that he "wants the trustee to arrange the assets of the trust so that no one should reasonably assert that [his] actions as President were motivated by a desire to foster his own personal monetary gain or profit." (p. 140). 

Carter's arrangement has often been described as a blind trust. Indeed, the Carter Presidential Library calls the arrangement a "blind trust." Carter's trust, however, was not blind in every sense. Pursuant to Section 102(b)(3) of the Ethics in Government Act, which Carter signed in 1978, a strict wall of separation was needed between the grantor and trustee. The trust, however, was managed by Carter's close personal friend and longtime confidant, Charles Kirbo. And Kirbo served as an adviser to the President, frequently visiting Carter in the White House. Kirbo was not an independent, disinterested trustee. The New York Times reported that the Lincoln bedroom was Kirbo's "home away from home." Moreover, the President was not really separated from his enterprises. In 1977, Carter had to "bail out" the family business. 

Eventually, the President would acknowledge that the trust was not blind. In 1979, Carter's team characterized the trust as open, rather than blind. Even after that recharacterization of his role as trustee, Kirbo continued serving as trustee. The New York Times observed that had Carter chosen to claim his trust was blind, "he would have taken the risk that Mr. Kirbo, a close friend and confidant, might be ruled an invalid trustee." Under the rules, "[t]he trustee of that blind trust must be completely independent of the person whose business is being managed. But with "an open trust," the director of the Office for Government Ethics explained, "Mr. Kirbo's role [was] a moot point." 

There would be more conflicts with Carter's businesses and his presidency. In 1976, the President's brother, Billy Carter, had taken a $6.5 million loan for the family business from the National Bank of Georgia—approximately $30 million in present-day value. (Billy Carter was perhaps most famous for marketing "Billy Beer," a beer that bore his name.) In January 1977, President Carter appointed Bert Lance, the President of the National Bank of Georgia, to serve as director of the Office of Management and Budget. Lance resigned as director in September 1977 after allegations arose concerning his mismanagement of the bank. Lance was tried and acquitted on nine counts of bank fraud. 

In March 1979, Attorney General Griffin Bell appointed Paul J. Curran as special counsel to investigate whether loans from the National Bank of Georgia to Carter's business may have been illegally diverted to Carter's presidential campaign. (Curran was not appointed as an independent counsel under the Ethics in Government Act of 1978.) Curran deposed President Carter, who testified under oath for nearly four hours. In October 1979, the special counsel concluded his investigation. Curran found "no evidence whatsoever . . . that any monies were diverted from the warehouse [business] into the campaign." I contacted the Carter Library in Atlanta to obtain a copy of the Curran report, but was told it was still sealed. I were not able to find any records suggesting that the Carter businesses transacted with state or foreign governments. 

In short, Carter's trust was messy. The Washington Post described the complex arrangement this way: Carter had "two fairly large businesses (particularly for the time), a cozy relationship with the guy put in charge of his business, and, at one point, the appointment of a special counsel to dig into loans one of his businesses received—from a bank whose president ended up serving in Carter's administration." After Carter left office in 1981, the businesses were over $1 million in debt.

Billy Carter would create even more financial conflicts for his brother. In 1980, Billy became a registered agent of the Libyan government, and accepted a $200,000 loan from the Gaddafi regime. Billy defended himself from the scandal, which became known as Billygate. He said, "I considered myself to be a private individual who had not been elected to public office and resented the attention of different Government agencies that I began to hear from almost as soon as Jimmy was sworn in." A Senate investigation found that the President was negligent in not disassociating himself from his brother's foreign entanglements. Billy would only pay $1,000 of the loan.

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