Eugene Volokh's Blog, page 199

[Josh Blackman] Today in Supreme Court History: December 28, 1856

12/28/1856: President Woodrow Wilson's birthday. His administration would initiate the prosecutions under the Sedition Act that gave rise to Schenck v. U.S., Debs v. U.S., and Abrams v. U.S.

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[Eugene Volokh] Trump Urges Stay of S. Ct. Proceedings in TikTok Case, Delay of Statutory Effective Date

From Trump's just-filed friend-of-the-court brief in the TikTok divestment case:

Introduction and Interest of Amicus Curiae …

Amicus curiae President Donald J. Trump ("President Trump") is the 45th and soon to be the 47th President of the United States of America. On January 20, 2025, President Trump will assume responsibility for the United States' national security, foreign policy, and other vital executive functions. This case presents an unprecedented, novel, and difficult tension between free-speech rights on one side, and foreign policy and national-security concerns on the other. As the incoming Chief Executive, President Trump has a particularly powerful interest in and responsibility for those national-security and foreign-policy questions, and he is the right constitutional actor to resolve the dispute through political means.

President Trump also has a unique interest in the First Amendment issues raised in this case. Through his historic victory on November 5, 2024, President Trump received a powerful electoral mandate from American voters to protect the free-speech rights of all Americans—including the 170 million Americans who use TikTok. President Trump is uniquely situated to vindicate these interests, because "the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation."

Moreover, President Trump is one of the most powerful, prolific, and influential users of social media in history. Consistent with his commanding presence in this area, President Trump currently has 14.7 million followers on TikTok with whom he actively communicates, allowing him to evaluate TikTok's importance as a unique medium for freedom of expression, including core political speech. Indeed, President Trump and his rival both used TikTok to connect with voters during the recent Presidential election campaign, with President Trump doing so much more effectively. As this Court instructs, the First Amendment's "constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office."

Further, President Trump is the founder of another resoundingly successful social-media platform, Truth Social. This gives him an in-depth perspective on the extraordinary government power attempted to be exercised in this case—the power of the federal government to effectively shut down a social-media platform favored by tens of millions of Americans, based in large part on concerns about disfavored content on that platform. President Trump is keenly aware of the historic dangers presented by such a precedent. For example, shortly after the Act was passed, Brazil banned the social-media platform X (formerly known as Twitter) for more than a month, based in large part on that government's disfavor of political speech on X. See, e.g., Brazil's Supreme Court Lifts Ban on Social Media Site X, CBS NEWS (Oct. 8, 2024).

In light of these interests—including, most importantly, his overarching responsibility for the United States' national security and foreign policy— President Trump opposes banning TikTok in the United States at this juncture, and seeks the ability to resolve the issues at hand through political means once he takes office. On September 4, 2024, President Trump posted on Truth Social, "FOR ALL THOSE THAT WANT TO SAVE TIK TOK IN AMERICA, VOTE TRUMP!"

Furthermore, President Trump alone possesses the consummate dealmaking expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform while addressing the national security concerns expressed by the Government—concerns which President Trump himself has acknowledged. See, e.g., Executive Order No. 13942, Addressing the Threat Posed by TikTok, 85 Fed. Reg. 48637, 48637 (Aug. 6, 2020); Regarding the Acquisition of Musical.ly by ByteDance Ltd., 85 Fed. Reg. 51297, 51297 (Aug. 14, 2020). Indeed, President Trump's first Term was highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor.

The 270-day deadline imposed by the Act expires on January 19, 2025—one day before President Trump will assume Office as the 47th President of the United States. This unfortunate timing interferes with President Trump's ability to manage the United States' foreign policy and to pursue a resolution to both protect national security and save a social-media platform that provides a popular vehicle for 170 million Americans to exercise their core First Amendment rights. The Act imposes the timing constraint, moreover, without specifying any compelling government interest in that particular deadline. In fact, the Act itself contemplates a 90-day extension to the deadline under certain specified circumstances. Pet.App.97a, § 2(a)(3)(A)-(C).

President Trump, therefore, has a compelling interest as the incoming embodiment of the Executive Branch in seeing the statutory deadline stayed to allow his incoming Administration the opportunity to seek a negotiated resolution of these questions. If successful, such a resolution would obviate the need for this Court to decide the historically challenging First Amendment question presented here on the current, highly expedited basis.

Summary of Argument

President Trump takes no position on the merits of the dispute. Instead, he urges the Court to stay the statute's effective date to allow his incoming Administration to pursue a negotiated resolution that could prevent a nationwide shutdown of TikTok, thus preserving the First Amendment rights of tens of millions of Americans, while also addressing the government's national security concerns. If achieved, such a resolution would obviate the need for this Court to decide extremely difficult questions on the current, highly expedited schedule.

There is ample justification for the Court to stay the January 19 deadline—by which divestment for ByteDance must occur, or else TikTok will face an effective shut-down in the United States—while it considers the merits of the case. First, this Court has aptly cautioned against deciding "unprecedented" and "very significant constitutional questions" on a "highly expedited basis." Due to the Act's deadline for divestment and the timing of the D.C. Circuit's decision, this Court now faces the prospect of deciding extremely difficult questions on exactly such a "highly expedited basis." Staying this deadline would provide breathing space for the Court to consider the questions on a more measured schedule, and it would provide President Trump's incoming Administration an opportunity to pursue a negotiated resolution of the conflict. Indeed, the Court recently pursued a similar course in Zubik v. Burwell, vacating lower-court decisions and pausing the enforcement of HHS's contraceptive mandate against religious organizations to "allow the parties sufficient time to resolve any outstanding issues between them."

Second, three features of the Act raise concerns about possible legislative encroachment on prerogatives of the Executive Branch under Article II. First, the Act dictates that the President must make a particular national-security determination as to TikTok alone, while granting the President a greater "degree of discretion and freedom from statutory restriction" as to all other social-media platforms. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936). Second, the Act mandates that the President must exercise his power over foreign affairs "through an interagency process" commanded by Congress, instead of exercising his sole discretion over the deliberative processes of the Executive Branch.

Third, the Act—due to its signing date—now imposes a deadline for divestment that falls one day before the incoming Administration takes power. Especially when viewed in combination, these unique features of the Act raise significant concerns about possible legislative encroachment upon the President's prerogative to manage the Nation's geopolitical, strategic relationships overall, and with one of our most significant counterparts, China, specifically. This is an area where the Nation must "speak … with one voice," and "[t]hat voice must be the President's." Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (citation omitted).

Third, the First Amendment implications of the federal government's effective shuttering of a social- media platform used by 170 million Americans are sweeping and troubling. There are valid concerns that the Act may set a dangerous global precedent by exercising the extraordinary power to shut down an entire social-media platform based, in large part, on concerns about disfavored speech on that platform. Perhaps not coincidentally, soon after the Act was passed, another major Western democracy—Brazil— shut down another entire social-media platform, X (formerly known as Twitter), for more than a month, apparently based on that government's desire to suppress disfavored political speech.

Moreover, despite the Act's enormous impact on the speech of 170 million TikTok users, the D.C. Circuit's opinion grants only cursory consideration to the free-speech interests of Americans, while granting decisive weight and near-plenary deference to the views of national-security officials. Yet the history of the past several years, and beyond, includes troubling, well- documented abuses by such federal officials in seeking the social-media censorship of ordinary Americans.

In light of the novelty and difficulty of this case, the Court should consider staying the statutory deadline to grant more breathing space to address these issues. The Act itself contemplates the possibility of a 90-day extension, indicating that the 270-day deadline lacks talismanic significance. Such a stay would vitally grant President Trump the opportunity to pursue a political resolution that could obviate the Court's need to decide these constitutionally significant questions….

Conclusion

President Trump takes no position on the underlying merits of this dispute. Instead, he respectfully requests that the Court consider staying the Act's deadline for divestment of January 19, 2025, while it considers the merits of this case, thus permitting President Trump's incoming Administration the opportunity to pursue a political resolution of the questions at issue in the case.

The brief was written by John Sauer, whom Trump has tapped as the incoming nominee for Solicitor General.

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[Ilya Somin] Address Border Chaos by Making Legal Migration Easier

A group of asylum seekers walk along the U.S.-Mexico border near San Diego, California. (Qian Weizhong/VCG/Newscom)

Since the election, a conventional wisdom has emerged to the effect that Democrats lost in large part because Joe Biden adopted lax border policies, which led to voter backlash against an influx of immigration, and therefore that tougher immigration restrictions are the road to political success. In an insightful recent piece, my Cato Institute colleague Alex Nowrasteh pushes back on some key parts of this narrative.

As Alex points out, Biden in fact did adopt numerous restrictive border policies, including continuing draconian Title 42 expulsions under bogus "public health" pretexts until May 2023, Trump-lite asylum restrictions, and more:

[David] Leonhardt ignores Biden's numerous actions on the border, from maintaining Title 42, reinstating Remain in Mexico, curtailing asylum, boosting deportations and removals over the level of Trump, and over 100 other actions to shut illegal immigration. Leonhardt blames Biden's campaign statements that imply immigrants should come to the United States. Still, Leonhardt ignores his numerous statements to the contrary since the election – such as in March 2021 when he said, "I can say quite clearly: Don't come."

President Biden even sent his VP and eventual Democratic presidential candidate Kamala Harris to Central America to repeat the message "Do not come" in 2021 – a tour that primarily highlighted the administration's inability to stop illegal immigration. Leonhardt has no explanation for why Biden's words mattered when they seemed to encourage illegal immigration, and they didn't matter when he sought to more clearly and forcefully persuade people not to come.

As Alex explains, these policies could not prevent extensive illegal border-crossing, because the latter was primarily dictated by strong US labor-market demand, and horrific oppression and economic conditions in many of the migrants' countries of origin. Indeed, restrictive policies making legal entry difficult or impossible for most would-be migrants predictably exacerbated the illegal kind. That, in turn led to the kind of disorder and chaos at the border that angers many voters, and make it politically difficult to expand opportunities for legal migration, even though the latter are the best way to prevent the chaos voters dislike.

As Alex puts it:

Border chaos is an ally of ideological immigration restrictionists like Stephen Miller, who use it to support restrictions on legal immigration. Reducing legal immigration was the greatest achievement of the Trump administration's immigration policy from Miller's perspective, and it will be again. The president has control over legal immigration; he doesn't have nearly so much power over illegal immigration…..

This is the Catch-22 of expanding legal immigration. Border chaos is caused by restrictive US immigration laws that make legal immigration impossible for most, but border chaos prevents liberalization because voters are understandably repelled by disorder. More enforcement reduces illegal immigration, but only temporarily and at high costs. With the economic benefits of migration as high as they are, it's truly incredible that the government is able to reduce immigration as much as it currently is able to, but it will always look like an utter failure.

In cases where Biden did make legal entry easier, as with the creation of the CHNV program for migrants from four Latin America nations, illegal entries from those countries declined greatly. Unfortunately, as David Bier and I explained in a 2023 article, arbitrary numerical caps and the limitation of this program to only four countries severely limited its effects.

For what it's worth, Alex, David Bier, and I have long argued that disorder at the border strengthens restrictionist sentiment, and that increasing legal migration opportunities is both good in itself, and a valuable strategy for reducing chaos and disorder. As Alex likes to put it, we need to "make immigration policy boring." His new article includes a useful thought experiment illustrating this point:

Imagine the 2024 election without the over 7.2 million border encounters during Biden's administration. Imagine a lack of shocking videos of thousands of migrants streaming across the Rio Grande, rushing Border Patrol agents, or turning themselves in to law enforcement in the desert. There are no images of barbed wire, fortifications that look like they're being stormed, soldiers, tear gas, or smugglers dropping children off on the US side of the river.

Imagine, instead, 7.2 million more legal immigrants and temporary migrant workers flying into the US on lawful visas to live, work, and start businesses during Biden's administration (encounters and individuals aren't the same, but work with me). They mostly came from a dozen Latin American countries and arrived in hundreds of locations across the US as families or as individual workers. No dramatic bussing by Texas' governor, no mass chaos at the border. Just millions of more people orderly entering through a legal immigration system simplified and expanded by Congress and an administration seeking more order and legal immigration.

No reporters would be making their careers filming border chaos because there wouldn't be much to film. Calls to build a wall would sound like fanciful calls to build a giant space laser to ward off space aliens. Immigration would have dropped from a top-tier issue to third or fourth-tier – at best.

The Democrats might still have lost the election thanks to inflation and price increases (The most important issues for voters, according to surveys). But immigration would not have been a significant cause of their woes.

Obviously, disorder at the border isn't the only cause anti-immigration sentiment. There are also various economic and cultural arguments, plus generalized xenophobia. But disorder is nonetheless a major factor, that easing legal migration could greatly reduce.

Alex makes many more good points, which are not easily summarized here. If you're interested in these issues, read the whole thing!

I would just a couple points to his analysis. First, much of the trouble supposedly caused by migration in various "blue" cities is actually a result of asylum-seekers not being allowed to work legally in the US for many months after arrival,  and zoning rules that make it difficult or impossible to build new housing in response to demand. Letting migrants work immediately and developers build new housing would simultaneously bolster the US economy and reduce anti-immigration sentiments caused by seeming burdens on city budgets.

Second, like Alex, I favor reducing migrant access to welfare (though, as he notes, migrants already use it at much lower rates than natives). But I am not, so far, convinced this will make a big difference to public opinion. Most voters are "rationally ignorant" about policy details and don't know to what extent migrants (or even natives) have access to various welfare benefits. Chaos at the border has more of an impact on public opinion because it is dramatic, and often readily visible even to people who don't follow politics closely and don't know much about most policy issues.

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

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast, YouTube version: The latest in Christmas sweater fashion plus the Virginia Readmission Act and fake environmental regulations.

New York ne'er-do-well on supervised release fails drug tests and gets caught on video outside the jurisdiction—among other violations of his release terms—and is sentenced to more prison time. But is it an Appointments Clause problem that the judge was promoted to the circuit court in the meantime and was only sitting back on the district court by designation? Second Circuit: Nope, we've done this designation business for two centuries. Also, you don't get a jury for the revocation of supervised release (based on a multifactor test from a Justice Breyer concurrence the last time this thorny Sixth Amendment issue was considered by SCOTUS). New Jersey elementary-school mom encounters LGBTQ-pride posters at school, gets upset when her seven-year-old daughter proceeds to ask her what "polysexual" means, and criticizes the school on social media. After which military personnel at nearby base (some of whom also have kids at the school) perceive her post as extremist and involve local police and state homeland-security bureaucracy. Which leads to the social-media post's being taken down (at the urging of a police chief) and armed police officers' attending the next school meeting. Mom sues for First Amendment violations, seeking damages and a preliminary injunction. Third Circuit: Since many of the officials' behavior was pretty obviously "beyond the pale," the mom may well have a good claim for damages, but because the censorship campaign had subsided before she filed suit, she lacks standing to seek a preliminary injunction. Allegation: Harrisburg, Penn. detective misrepresents and omits key facts in order to get man charged with a bevy of serious and not-so-serious crimes after 2017 shooting. Some charges are dropped, and he's acquitted of all the rest after spending 18 months in jail. Can he sue the detective for malicious prosecution? District court: Oh yes, he can. Third Circuit: There was probable cause for the misdemeanor marijuana charge, so fibbing a little to get him charged with attempted homicide was fine. Or at least a reasonable officer could have thought so until SCOTUS said otherwise earlier this year—too late to help this plaintiff. Denial of QI reversed. Married guy with 3 kids and a household income of around $300 a week underreports that income to get food stamps. In 1995. Gets 3 years' probation. Otherwise has a clean record. Can that constitutionally bar him from owning a firearm today? Third Circuit (2023, en banc): Whoa, that's a Second Amendment violation. Supreme Court (after Rahimi): Give that another look. Third Circuit: (2024, en banc): Yeah, still a violation. Concurrence 1: Natural law is rad. Concurrence 2: Food stamps, seriously? Concurrence 3: I guess this guy can have a gun, but just about no other law breaker. Concurrence 4: Maybe just no guns for the maximum sentence? Dissent: The guy dissed the Sovereign. Allegation: Laurel, Miss. police detain potentially intoxicated man at traffic stop. His brother, not detained, hangs around for a bit but then walks away hurriedly. An ICE agent who'd been summoned to the scene to help with translation (neither brother speaks English) shoots him in the arm, shouting afterwards: "Man, you shouldn't have put your hand in your f*king pocket!" He was unarmed. Fifth Circuit: Can't sue the ICE officer for excessive force under Bivens. Dissent: But he should be able to sue him under a Section 1983 "joint action" theory. A plaintiff only has to show the defendant acted jointly with a state official, not that they also conspired. Preliminary injunction whiplash! Several businesses allege that the Corporate Transparency Act (CTA), which requires nonexempt companies to report the identity of their "beneficial owners" to the Treasury Department's Financial Crimes Enforcement Network (FinCEN) or face criminal penalties and $500 in daily fines, is unconstitutional. Should the lower court's preliminary injunction of the law be stayed pending appeal? Fifth Circuit (Dec. 23, motions panel): Yes! Fifth Circuit (Dec. 26, merits panel): Actually, the preliminary injunction should go into effect. Prior order granting the stay is vacated. Allegation: The city manager conspired with other Wayne, Mich. officials to engineer a baseless stalking prosecution of a critic who advocated she be fired for running a toxic work culture at city hall. Alleged conspirators: Please grant us qualified immunity by considering a bunch of evidence outside the complaint or by saying the plaintiff needs to point to a factually identical case. Sixth Circuit: No. The Constitution provides that state legislatures shall establish the time, place, and manner of holding elections for U.S. senators and representatives. Does that mean Michigan ballot initiatives liberalizing absentee/early voting are unconstitutional? Sixth Circuit: An interesting question that the legislature would have standing to raise. But individual legislators do not. Aliens subject to deportation can sometimes avoid it if they can show, among other things, that it would cause "exceptional and extremely unusual hardship" to their U.S. citizen children. In a post-Chevron world, who decides what's "exceptional and extremely unusual"? Sixth Circuit: We do. Concurrence: This one is still the agency (but I agree this guy didn't meet the standard). Aurora, Ill. officer pulls over suspected drug dealers; an occupant flees, and the officer gives chase. A second occupant exits the vehicle and walks quickly toward the front of the officer's patrol car and stops with hands raised in front of the dashcam. A second officer arrives and tackles, punches him. Whoops! He's not a drug dealer. Excessive force? False arrest? Seventh Circuit: No, he was fleeing. Dissent: The video hardly puts that beyond doubt, so this should be the jury's call, not ours. Allegations: Papa John's and Bloomingdales.com use "session-replay" technology on their websites, which records users' mouse movements, clicks, keystrokes, search terms, and more. Missouri woman brings putative class actions, asserting violations of Missouri statutes, the Electronic Communications Privacy Act, the Stored Communications Act, and the Computer Fraud and Abuse Act. Eighth Circuit: Under the Supreme Court's kinda-sorta-history-ish view of Article III standing, the companies' behavior doesn't bear a close enough relationship to the historically cognizable harm of "intrusion upon seclusion." Cases dismissed for lack of standing. (Which, as Justice Thomas has pointed out (footnote 9), likely has a "pyrrhic" consequence for the companies: letting the woman file a similar, removal-proof lawsuit in state court.) Concerned with Chinese ownership of a telecom company, the FCC revokes its operating certificate on its own initiative. Can they, like, do that? Where's that power written down? Ninth Circuit: Well, the power to grant implies the power to revoke. Dissent: The Book of Job says the Lord giveth and the Lord taketh away, but we're stuck with what's in the U.S. Code. "I don't care what Santa promised you, Chad. Unless that was Judge Collins behind that fake beard at the Oxnard Mall, he can't make the Ninth Circuit strike down a campaign contribution limit for you for Christmas." Ninth Circuit (from behind a fake beard): [wink] Ninth Circuit: It's clearly established that officers can't shoot an emotionally disturbed person holding a knife to their own throat without effective warning. Grant of QI for this Phoenix officer reversed. And in state court news, the Iowa Supreme Court delivers a lump of coal to freedom-loving residents of Orange City who aren't too keen on gov't invasions into their homes without a warrant based on probable cause. City officials assert that they do not need any kind of individualized suspicion to demand entry into renters' homes to conduct code inspections, but the Iowa Supreme Court says residents must first submit to the inspections before they can bring their state constitutional challenge. The word "privacy" does not appear in the opinion. Bah humbug. (This is an IJ case.)

Victory! IJ client Awa Diagne wants to open an African-style braiding salon in South Fulton, Ga., but last summer officials denied her a permit after a nearby salon owner complained. The decision nearly forced Awa into bankruptcy (as she'd had to spend tens of thousands of dollars to secure the lease and fix up the storefront before she could apply for the permit). But this month, a state trial court ordered the city to allow her to open up shop: "The only evidence articulated that could be construed to support a 'No' vote—the anticompetitive stance of the one councilmember and her constituent who wanted to maintain a haircare monopoly in the strip mall in question—runs contrary to Georgia's long history of constitutional jurisprudence that 'entitles Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference.'" Hear, hear. Click here to learn more.

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[Eugene Volokh] Bringing Shame on the Family Name

From In re: Name Change of L.L.N., decided Monday by Pennsylvania Superior Court Presiding Judge Anne Lazarus, joined by Judges Jill Beck and John Bender:

The trial court set forth the factual and procedural history of this case as follows:

[Child] was born [in May 2020,] during the marriage of [the parties, who] divorced on December 19, 2022[. Mother] resumed using her prior surname of K[.], and [ ] desire[d] to change the name of [Child] from L.L.N. to L.L.K. for the following reasons: [

Father has not had contact with Child since shortly before her first birthday, in May 2021; Father has been convicted of multiple counts of DUI as well as harassment, is currently in prison, and will not be released from prison until November 2026, at the earliest; Father is precluded from having contact with Mother as a condition of his probationary sentence for harassment; Mother desires to protect Child from any stigma and/or emotional or psychological trauma that may result from having Father's last name while living in the same community in which he committed the above crimes; and Mother desires to share the same last name with Child, as well as to have Child share the same last name with her 8-year-old half-brother.] …

[Father filed a response to Mother's petition.] While [Father] does not deny his record of criminal convictions as alleged by [Mother], he does note that[, due to a correction in one of his sentencing orders, he "]should be released from SCI not later than November 2025." [Father] also alleges that [Mother] ["]has been shamelessly alienating [ ] Child from [him] long before Father ever pled guilty to DUI and began serving his sentence for it. [Mother] is apparently using this name change petition as part of her ongoing and stubborn attempt to [a]lienate [ ] Child from [ ] Father.["] …

[At the hearing, Mother presented two news articles that were returned in a Google search of "[Father's name] Mechanicsburg, Pennsylvania." The articles, from the York Daily Record and FOX43 websites, detailed an incident in which Father was "found sleeping half-naked in his car at a Rutter's store" and offered an investigating officer $50 instead of his license. The articles indicate that Father was charged with DUI, indecent exposure, open lewdness, and other related charges.] …

The appellate standard of review involving a petition for change of name is whether or not there was an abuse of discretion. An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill-will.

When considering a petition to change the name of a minor child, the best interests of the child should be the standard by which a trial court exercises its discretion….

Specific guidelines [for a child's best interests] are difficult to establish, for the circumstances in each case will be unique, as each child has individual physical, intellectual, moral, social[,] and spiritual needs. However, general considerations should include the natural bonds between parent and child, the social stigma or respect afforded a particular name within the community, and, where the child is of sufficient age, whether the child intellectually and rationally understands the significance of changing his or her name….

Here, the record supports the court's decision to grant Mother's name-change petition. The court made credibility determinations—supplemented by its review of the custody record—and concluded that Child's best interests would be best served by a name change where: (1) Father's contact with Child has been extremely limited; (2) Child would likely not recognize Father; (3) Father has not had any contact with Child since his most recent incarceration in 2022; (4) Child knows her name to be L.L.K. and her daycare providers refer to her as such; (5) Child would benefit by sharing a last name with the family with whom she resides and interacts; and (6) there is a stigma attached to Father's name as a result of publicity surrounding his legal issues. We can discern no abuse of discretion.

Finally, as the trial court astutely noted, "it must be remembered that a parent's goal 'to forge a strong and nurturing relationship with [his child]' is not dependent upon an identity of their surnames, inasmuch as 'redress for visitation and custodial rights' is separately available through the courts." Should Father genuinely wish to pursue a relationship with Child in the future, a name change would have no impact on his ability to do so.

Father's 19-year-old son, K.N. also testified to say that, "when [he] was a freshman in high school[,] a classmate discovered, through a Google search utilizing the [N.] name, [one of] the article[s] referenced above, head[lin]ed "Man with pants down offers cop money, police say," containing his father's mug shot, and it [ ] caused [K.N.] embarrassment." K.N. "considered changing his last name but decided against it after re-establishing a relationship with his paternal grandparents. K.N. testified that he realized it would upset his grandfather, as K.N. is his only biological grandson with his last name."

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[Eugene Volokh] Guilty Plea for Death Threats to Synagogue Related to Israeli-Palestinian Conflict

From a press release by the federal prosecutor's office in Massachusetts, released Nov. 25 but just posted on Westlaw:

A Millis, Mass. man pleaded guilty today in federal court in Boston to threatening to kill members of the Jewish community and bomb Jewish synagogues….

On the morning of Jan. 25, 2024, Reardon called a synagogue in Attleboro, Mass. and left a voicemail that included threats of violence.

Within 10 minutes of leaving the voicemail at the Congregation Agudas Achim, Reardon called another local Synagogue in Sharon, Mass. and left a voicemail that included threats of violence.

Reardon was arrested by law enforcement after the calls were made. Following his arrest, investigators learned that Reardon had called the Israeli Consulate in Boston 98 times between Oct. 7, 2023 and Jan. 29, 2024. In many of those calls, Reardon made harassing and intimidating statements.

The guilty plea is to three counts, which cover threats to the two synagogues and acting "with the intent to harass and intimidate" and cause substantial emotional distress to Israeli Consulate employees. The press release doesn't discuss the details of plaintiff's threats of violence, but here is what an FBI agent's affidavit in support of the criminal complaint says as to the statements to Synagogue 1:

During the course of the approximately two-minute message, the caller
stated:
a. "From the river to the sea;"
b. "you do realize that by supporting genocide that means it's ok for people to
commit genocide against you.'
c. "with supporting the killing of innocent little children, that means it's OK to kill
your children"
d. "people are going to use your logic against you stupid fucks"
e. "Guess what? We are going to use your logic if you can kill the Palestinians we
can kill you."
f. "if you can bomb their fucking places of worship we can bomb yours, if you can
kill their children we can kill yours"
g. "you people need to stop the fucking genocide"
h. "end the genocide, or it is time to end Israel and all the Jews"
i. "I supported Jewish people though. Not anymore. A matter of fact I think we
should kill you(s) all."
j. "have a lousy day and oh don't be surprised if there's pig blood on your steps
tomorrow"

As to Synagogue 2, the count of the superseding information to which Reardon pleaded guilty alleges that he "left a voicemail threatening the 'killing of all Jews' and 'stomping their babies dead into the ground.'" I couldn't find details as to just what "harassing and intimidating statements" Reardon said to the people at the Consulate.

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[Eugene Volokh] No Sealing of Transgender Prisoner's Case

From Judge Scott Rash (D. Ariz.) Monday in Fly v. Diaz:

As relevant here, in the First Amended Complaint, Plaintiff asserted claims of sexual assault, threat to safety, and equal protection based on events that occurred while she was in custody at the United States Penitentiary (USP)-Tucson. {Plaintiff identifies as transgender and is also known as Toni Fly. The Court will use feminine pronouns to refer to Plaintiff.}

In Count One, Plaintiff alleged Defendants Campbell, Vasquez, and Christiansen used excessive force against her. In Count Three, Plaintiff alleged Defendants Vasquez, Gutierrez, and Wade failed to protect her from an imminent threat of assault. In Count Five, Plaintiff alleged Defendants treated her differently; placed her at risk of sexual abuse, sexual and physical assault, sexual harassment, and rape; and denied her medical treatment, access to administrative remedies and the courts, due process, equal protection, and security in her person solely because of her transgender status. Plaintiff claimed she had been denied medical care and a safe housing assignment at a female facility because she is transgender. Plaintiff alleged she had been denied medically necessary "social role transition therapy," including gender affirming surgery, as well as assignment to a female facility for her health and safety.

In her Motion for Temporary Restraining Order, Plaintiff sought an order requiring Defendants to: immediately provide all "gender confirmation surgeries"; immediately transfer and place Plaintiff in a female housing unit or facility with non-violent females; immediately restore Plaintiff to a single cell; restore all Plaintiff's medical treatments; restore all medical duty status accommodations and medications; restore all email, telephone, visit, and postal correspondence privileges to Plaintiff; provide all "social role" transition therapy; stop the abuse, harassment, mutilation, and rape of Plaintiff; keep Plaintiff separate from all male prisoners and staff; and stop obstructing Plaintiff's mail correspondence. In addition, Plaintiff sought an order barring Defendants from ever placing Plaintiff in a Special Housing Unit, Special Management Unit, or Administrative Maximum cell, or any USP, Federal Correctional Institution (FCI) medium, or FCI low custody facility for male prisoners….

The court rejects the claim (for more, read the opinion), but also has this to say about plaintiff's motion to seal:

In Plaintiff's Motion to Seal, filed while she was in custody at FCI-Fairton, Plaintiff asks the Court to seal "the entire record" because she has been sexually and physically assaulted "due to the findings of the Court" in her criminal proceedings; Defendants previously moved to seal information threatening the safety, security, and orderly administration of the BOP, its prisoners, and Plaintiff in particular; and prisoners at FCI-Fairton are now threatening Plaintiff and "telling other inmates to pull this case" and another one of Plaintiff's cases that was sealed in North Dakota at the request of the United States Attorney "to read what it says about Plaintiff's criminal charge."

Plaintiff alleges Defendant Christiansen and other Defendants informed prisoners of "sealed information to incite sexual and physical assault upon Plaintiff." She claims prisoners are "threatening to stab her and kill her due to this information on TRULINCS and pacer.gov," and as result, she is now in the Special Housing Unit (SHU) under "elevated protective custody" status. Plaintiff identifies one prisoner whom she alleges attempted to sexually abuse her in her cell and is now in the SHU "telling all inmates to beat, rape, and kill Plaintiff, and telling them to look up this instant case…to incite them to do this harm to Plaintiff."

The public has a right to inspect judicial documents and records. Although this right is not absolute, there is a strong presumption in favor of access to judicial records. A party seeking to seal a judicial record bears the burden of overcoming this presumption by either meeting the "compelling reasons" standard if the record is a dispositive pleading or the "good cause" standard if the record is a non-dispositive pleading.

Moreover, the policy of promoting access to public documents dictates that only information for which there is good cause or compelling reasons to seal should be sealed. Accordingly, to the extent a party wishes to seal an entire document, rather than to redact certain information from that document, the party must provide either good cause or compelling reasons to seal all the information in that document. Otherwise, the party must only seek to redact information for which there is good cause or compelling reasons to seal.

Plaintiff's statements in the Motion do not warrant sealing the entire case. First, as noted above, Plaintiff has been moved to the Minneapolis RRC, and her allegations regarding her safety at FCI-Fairton are no longer relevant. Second, to the extent Plaintiff asserts her criminal case in North Dakota was sealed, it appears certain documents in her criminal case were sealed, but the entire case was not. The district court's decision in Plaintiff's criminal case to seal certain documents does not bear on this Court's decision to seal the entirety of this civil rights case.

Third, Plaintiff asserts the Court previously sealed certain information in this case at Defendants' request, but, in those instances, Defendants sought to seal specific attachments to exhibits filed in response to Plaintiff's Motions for Temporary Restraining Orders due to the sensitive nature of their content and the harm this content could potentially pose to Plaintiff and other prisoners if made public. Plaintiff has not shown good cause or compelling reasons to seal the entirety of the instant case….

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[Eugene Volokh] Did Defendant and His Girlfriend Marry Just so She Could Refuse to Testify Against Him?

From U.S. v. Bolen, decided Friday by Judge Mary Dimke (E.D. Wash.), an interesting illustration of how the legal rules related to the spousal testimonial privilege sometimes play out:

The spousal testimonial privilege "prohibits one spouse from testifying against the other in criminal cases during the course of their marriage, and 'the witness-spouse alone has a privilege to refuse to testify adversely.'" "[T]he privilege is not favored, and in consequence is narrowly construed."

"The Ninth Circuit recognizes a sham marriage exception to the marital privilege of not having to testify against a spouse." This exception is a "narrow" one "that has typically arisen when there has been a close temporal proximity between the date of a marriage and the date when a witness-spouse has been expected to testify."

While the "timing of a marriage will always be a factor," it is "only one of the factors." Other factors include whether "the marriage was entered into in good faith" and whether the spouses "plan to continue their marital relationship." … [T]he spousal testimonial privilege is not available when "the purpose of the marriage was for the purpose of invoking the marital privilege." …

Defendant Greer and MacGregor began dating in July 2015 and quickly moved in together because MacGregor had been homeless. Defendant Greer was arrested and detained on state charges, which form the basis for these federal charges, on January 15, 2022. MacGregor was interviewed by law enforcement shortly after Defendant Greer's arrest and made several incriminating statements about him. {The Court was not aware of the substance of these statements at the time it orally denied MacGregor's motion. However, MacGregor subsequently testified that she provided law enforcement photos of Defendant Greer's penis and identified Defendant Greer's penis in the photos of alleged child pornography.}

The court concluded that "the couple's May 8, 2022, marriage was designed for the purpose of MacGregor avoiding having to testify and Defendant Greer had no other intent to marry MacGregor"; here's an excerpt of the fairly long discussion:

[1.] Timing of the Marriage

On the surface, the timing of the marriage is inherently suspect. After roughly six-and-a-half years together, Defendant Greer and MacGregor engaged in an effort to marry and eventually married only after Defendant Greer's arrest on January 15, 2022, and after MacGregor made incriminating statements about Defendant Greer to law enforcement. {Notably, MacGregor did not testify as to any demonstrated intent to marry prior to Defendant Greer's arrest.}

Following Defendant Greer's arrest, recorded jail calls indicate Defendant Greer's apparent newfound preoccupation with getting married and MacGregor's apparent desperation to mitigate the potential legal damage of incriminating statements she made about Defendant Greer to law enforcement. Seven days after his arrest, Defendant Greer told MacGregor she needs to keep up her strength because of how hard she will have to work to get him out of custody. She responded by asking how much a marriage license costs. While the timing of the marriage is "only one" of the factors the Court must assess, the totality of the evidence, as discussed below, strongly weighs in favor of finding the marriage was designed for the purpose of MacGregor avoiding having to testify.

 [2.] Text Messages prior to Defendant Greer's Arrest

The Court has reviewed dozens of text messages Defendant Greer exchanged with Defendant Bolen and others beginning in October 2020 and continuing until the time of Defendant Greer's arrest. The messages strongly suggest Defendant Greer never possessed an intent to marry MacGregor prior to his arrest. Rather, these exchanges portray his and MacGregor's relationship as both unstable and in distress in the months leading up to his arrest.

The Court has reviewed messages exchanged between Defendant Greer and Defendant Bolen, with whom Defendant Greer apparently confided about MacGregor. The messages are reflective of dissatisfaction with the existing relationship. See, e.g., USA Trial Ex. 12 at 12-016-018 (discussing moving in together if Defendant Bolen gets a "big enough house," because Defendant Greer wants to "get away" from MacGregor); id. at 12-063 (Defendant Greer explaining he could not respond to Defendant Bolen's invitation to play video games because MacGregor was watching his every move, angering him); id. at 12-097-12-099 (Defendant Greer expressing displeasure that MacGregor was home for the week and that he could not play video games because she was home, referring to her as lazy and crazy); id. (the exhibit contains exchanges repeatedly and frequently expressing annoyance that Defendant Greer cannot play video games with Defendant Bolen because MacGregor was home).

The Court also considered messages Defendant Greer exchanged with two other individuals, which reflect a deep hostility to MacGregor. On September 3, 2021, Defendant Greer texted Ashley S. and Natasha H. about MacGregor: "As soon as we pulled away from you guys, she started bitching at me … and didn't stop until a few minutes ago." Ashley remarked in response: "I'm sorry Casey. If I had a spare room, I would let u stay here [sad emoji]. I feel so bad for you, no wonder you sit in the bathroom for 2 hours." Defendant Greer agreed, stating: "Yeah. I need my alone time from her and she even ruins that!" Ashley repeated the earlier sentiment: "I wish u could stay here dude." Defendant Greer again agreed, replying, "Same." Ashley later referred to MacGregor as a "little psycho," to which Defendant Greer responded, "Only a little! Try a lottle!" Ashley replied, "Haha crazy psycho." Defendant Greer again agreed, replying, "Definitely!" Ashley then remarked, "That's your future wife your talking about." Defendant Greer responded, "NO FUCKING WAY IN HELL!!!!"

On September 7, 2021, Defendant Greer again texted Ashley and Natasha about MacGregor: "I don't know who she's talking to but she's making me out to be the bad guy again, I went off on her because she wouldn't stop with her bullshit from the second I stepped in the door tonight." Ashley remarked that she "couldn't believe [he] called her a spoiled brat." Defendant Greer clarified "[t]hat's not all I called her": "Spoiled brat. Whiney little baby. Bit[c]h. I think there was more but I can't remember. She doesn't remember me calling her a bitch. … She's e[x]pecting me to apologize but it's not going to happen." Ashley responded: "Nothing to apologize for speaking your truth." Defendant Greer agreed: "Exactly." Defendant Greer also referred to MacGregor as a "[s]tupid fucking cunt."  Finally, while discussing that MacGregor was "looking at apartments," Defendant Greer noted that "if [MacGregor] moves, I can't go with her, making me homeless."  The references cited are merely examples of dozens of messages containing the same tone of discontent, and which never reflect any positive commentary about MacGregor.

The Court recognizes that ebbs and flows are ordinarily a natural part of relationships. Accordingly, the Court does not—and would not—base its finding on an up-and-down dynamic between Defendant Greer and MacGregor…. "We do not believe that courts can or should 'assess the social worthiness of particular marriages or the need of particular marriages for the protection of the privilege.'" … "The testimonial privilege applies with equal force to challenged marriages as it does to model marriages." … The Court likewise does not assess whether, after nearly two-and-a-half years, Defendant Greer and MacGregor's marriage is a "challenged" or "model" one.

Rather, it finds only that, based in part on the text messages referenced above, Defendant Greer did not have a bona fide intention to marry MacGregor prior to his arrest. Looking only to Defendant Greer's motive, the messages in the record plainly suggest that "the purpose of the marriage was for the purpose of invoking the marital privilege."

[3.] Jail Calls

The Court has reviewed a series of recorded jail calls made between Defendant Greer and MacGregor occurring after his arrest on state charges related to the conduct underlying the subsequent federal charges. The Court finds the jail calls reflect Defendant Greer entered into the marriage to avoid having MacGregor testify….

The calls reflect that, to Defendant Greer, the marriage was inexorably linked with his prosecution: Defendant Greer repeatedly was preoccupied with making sure the state prosecutor was aware of it. As with the text messages, the calls plainly suggest that "the purpose of the marriage was for the purpose of invoking the marital privilege." …

[4.] MacGregor's Testimony

The Court finds MacGregor's testimony decidedly not credible. She repeatedly invoked equivocal phrases—such as variations of "I do not recall" and "I do not remember"—at least ten times on cross-examination. In the Court's view, it was implausible for MacGregor not to remember details and conversations that were unambiguously memorable, based on the content of her calls with Defendant Greer….

The Court does not take lightly the task of assessing whether a marriage was entered into in good faith or for the purpose of wielding it as a shield in a criminal prosecution. However, the totality of the evidence compels the conclusion that Defendant Greer and MacGregor's marriage was "for the purpose of using the marriage ceremony in a scheme to defraud[.]" …

Ann Wick represents the government.

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[Josh Blackman] Today in Supreme Court History: December 27, 1771

12/27/1771: Justice William Johnson's birthday.

Justice William Johnson

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[Josh Blackman] Constitutional Questions in South Korea

I do not know the first thing about the Constitution of South Korea. But this report from the New York Times reads like an exam fact pattern.

First, the acting President refuses to make appointments to the constitutional court. And the opposition government seeks to impeach the acting president for failing to make those appointments.

Opposition lawmakers in South Korea were planning to vote on Friday to impeach the prime minister and acting president, Han Duck-soo, the latest turn in a political crisis that has created a power vacuum in the country.

Mr. Han had been made acting president just earlier this month, after the National Assembly impeached and suspended President Yoon Suk Yeol on Dec. 14 for putting the country under military rule for the first time in 45 years.

Now, barely two weeks into Mr. Han's tenure as acting president, the main opposition party has filed a motion for his impeachment as well. The move came after Mr. Han refused on Thursday to appoint three judges to fill vacancies in the Constitutional Court, the body that will be deciding whether to reinstate or remove Mr. Yoon.

This is almost like the Merrick Garland scenario in reverse. But instead of the Senate refusing to give Garland a hearing, the Acting President is refusing to make the appointment.

Second, does the Acting President have the duty to fill the vacancies? At least in our system, the President is under no obligation at all to make an appointment. He can just leave the office open. I can't speak to the Korean system.

Third, does the Acting President have the power to fill the vacancies?

The opposition has pushed for Mr. Han to sign off on nominees to fill the bench in the nation's highest court, but Mr. Yoon's governing party has argued that only an elected president has the power to appoint justices. . . .

Mr. Han said in a televised address that he would hold off on appointing the nominees until the rival parties — that is, Mr. Yoon's People Power Party and the opposition bloc comprising the Democratic Party and other smaller parties — came to an agreement on whether he had the authority to do so as the acting president.

An acting president should "refrain from exercising the president's own significant powers, including the appointment of constitutional institutions," said Mr. Han, a career bureaucrat.

The United States confronted related questions after the death of President William Henry Harrison. Did Vice President John Tyler merely become Acting President, who could exercise all of the President's powers? Or was he actually the President? In Korea, the governing party says that only the elected President can appoint the judges. I sense there is some sort of "officer" issue at play. Maybe an analogy might be whether a recess appointee can exercise all of the powers of a confirmed officer.

Fourth, these appointments are especially important since the nine-member constitutional court can decide whether to remove the impeached President from office. Letting a court decide whether to remove the President strikes me as a very risky decision. Indeed, it is even worse that the Acting President has the power to deny the court a quorum to remove the President.

At the heart of the matter is how the court might rule on Mr. Yoon's impeachment. Six or more justices out of the nine-member court must vote in favor of impeachment to remove Mr. Yoon from office. The top court currently has only six justices, after three others retired earlier this year, meaning that the impeachment could be overturned with just one dissenting voice in Mr. Yoon's trial, which is scheduled to start on Friday.

During the constitutional convention, there was some debate about letting the Supreme Court try all impeachments. One of the arguments against that option was that there would be so few judges. By contrast, there would be more Senators to cast the vote. Our Framers were wise to abandon this proposal. And, Tillman and I explained that if the Chief Justice position is vacant, the Senate trial can proceed with the Senior Associate Justice.

Fifth, the quorum rule for this court is extremely problematic. Removal is apparently premised on having 2/3 of the full court vote to remove, not only those who are present. But due to three retirements, only six judges remain. As a result, all six present judges must vote to remove. If a single judge declines to participate, the President will not be removed. And what happens if another judge retires. It would be impossible to remove the President. By contrast, under our Constitution, it takes a vote of "two thirds of the Members present," not two thirds of the total body. Again, chalk another victory for the Framers.

Sixth, the opposition party claims that the Acting President's failure to make the appointment is an act of insurrection.

Park Chan-dae, the Democratic Party's floor leader, said to reporters that Mr. Han's words were "not those of an acting president, but of one who is admitting to insurrection."

The opposition has accused Mr. Han of aiding Mr. Yoon in his brief declaration of martial law on Dec. 3. Lawmakers accused Mr. Yoon of perpetrating an insurrection by sending troops into the National Assembly to block them from voting down his martial law and to detain his opponents. The Constitutional Court has up to six months to decide whether to reinstate or remove Mr. Yoon.

Sound familiar? During the Section 3 debates, critics argued that President Trump's failure to take certain actions to put down the riot at the Capitol was itself engaging in insurrection--or as Baude and Paulsen put it, aiding and abetting an insurrection. Seth Barrett Tillman and I responded that the President's exercise of discretion to not take certain action was not itself insurrection. In South Korea, the opposition argues that the failure to make a judicial appointment is insurrection! Query whether South Korea law provides any clearer definition of insurrection than American law.

Seventh, the parties do not even agree on how many votes it would take to impeach an acting President! If there is something that should be clear, it should be the voting thresholds. But not so in South Korea.

As for Mr. Han, the rival parties have disagreed on how many votes would be needed for him to be impeached. The ruling party maintains that a two-thirds threshold must be met since Mr. Han is the acting president. The opposition asserts that a majority vote would be enough to remove him from his office as prime minister as outlined by the Constitution. The speaker of the National Assembly, Woo Won-shik, a member of the Democratic Party, will decide before the vote.

Professor Cha Jina, a law professor at Korea University in Seoul, said that Mr. Han should be subject to a majority vote because "the acting president in South Korea is not actually the president and is just working in their stead as the prime minister."

She also noted that this was the first time in the nation's history that an acting president has faced impeachment.

Thankfully, our framers created clear standards for how many votes it takes to impeach and to remove. (The question of how many votes it takes to disqualify is fuzzier.) But, there remains an open question whether a recess appointee can be impeached. Is such a position an "Officer of the United States"? Sorry, I couldn't resist the "officer stuff." Most people stopped caring about this issue once Trump v. Anderson was decided. But "officer stuff" matters in America, and in other countries.

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