Eugene Volokh's Blog, page 2

[Eugene Volokh] Wednesday Open Thread

[What's on your mind?]

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[Josh Blackman] Judge William Young Should Retire

Last month I wrote a post about Judge William Young of the U.S. District Court for the District of Massachusetts.

I offered this unsolicited advice:

Judge Young turns 85 later this month. He has had a distinguished judicial career spanning half a century. A lot has changed since he graduated law school in 1967. Perhaps this apology provides a moment to reconsider where his talents and efforts are best suited.

Judge Young did not take my advice. Instead, he styled a judicial decision as a 161-page letter to an anonymous postcard writer. It began in this fashion:

 

And closed like this:

I offer no comments on the merits here. Instead, I see the case of a judge who has forgotten what the judicial role is. Perhaps Judge Young has been led astray by zealous clerks who are taking advantage of the situation. Perhaps Judge Young is ignoring advice from friends and colleagues, and wrote this decision himself. Or perhaps there is some other situation at hand. I don't know.

Judge Young should step down. Article III offers life tenure, not a life sentence. Judge Young already took senior status during the early Biden Administration, so Trump cannot name his replacement. And Young's absence would have no negative impact on restraining President Trump. Indeed, quite the opposite would be true. Any other judge in Boston could reach the same result, with an opinion that is far less likely to be reversed. To paraphrase William F. Buckley, I would rather be governed by the first 2,000 people in the Boston telephone directory than by Judge Young.

Let this 161-page decision be Judge Young's magnum, and farewell, opus.

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[Ilya Somin] Federal Court Rules Speech-Based Deportations of Non-Citizen Students and Academics Violate the First Amendment

[The decision is the most thorough in a line of recent court decisions reaching similar results.]

Today, in AAUP v. Rubio, federal district Judge William G. Young (appointed by Ronald Reagan) ruled that speech-based deportations of foreign students and academics violate the First Amendment. Here is his summary of his long and detailed ruling (which runs to 161 pages in all):

This case -– perhaps the most important ever to fall within the jurisdiction of this district court –- squarely presents the issue whether non-citizens lawfully present here in United States actually have the same free speech rights as the rest of us. The Court answers this Constitutional question unequivocally "yes, they do." "No law" means "no law." The First Amendment does not draw President Trump's invidious distinction [between citizens and non-citizens] and it is not to be found in our history or jurisprudence… No one's freedom of speech is unlimited, of course, but these limits are the same for both citizens and non-citizens alike.

With this constitution ruling firmly undergirding its approach, the Court here held a full hearing and a nine-day bench trial on the issue of whether the rights of these
plaintiffs to constitutional freedom of speech have been unconstitutionally chilled by the deliberate conduct of any or all of these Public Official defendants. The Court heard 15 witnesses and admitted 250 exhibits consisting of documents, photographs, and video clips.

Having carefully considered the entirety of the record, this Court finds by clear and convincing evidence that the Secretary of Homeland Security Kristi Noem and the Secretary of State Marco Rubio, together with the subordinate officials and agents of each of them, deliberately and with purposeful aforethought, did so concert their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members of the plaintiff associations. What remains after issuing this opinion is to consider what, if anything, may be done to remedy these constitutional violations.

Much of the opinion is a long detailed recitation of the extensive evidence showing that the administration does indeed have a policy of targeting non-citizen students and university employees for deportation based on their anti-Israel or pro-Palestinian speech. One can quibble with some of the details here. But the combined weight of evidence is overwhelming, in so far as high officials from the president on down have openly said that is what they are doing. In several cases, such as that of Tufts graduate student Rumeysa Ozturk, they have indeed tried to deport people whose only offense was to engage in speech disapproved of by the administration. Thus, Judge Young is right to conclude there is a basis for a lawsuit by the AAUP and the Middle East Studies Association, both of which have members vulnerable to deportation under the policy.

The latter part of the opinion (beginning at pg. 116) has a solid explanation of why the First Amendment's protection for freedom of speech applies to non-citizens present in the US, and why Supreme Court precedent supports that position, or at least does not preclude it. Here is one key point:

Lastly,…. this Court observes that, on its face, the First Amendment does not
distinguish between citizens and noncitizens; rather, it states simply, "Congress shall make no law . . . abridging the freedom of speech[.]" U.S. Const. amend. I. As the Supreme Court's now  frequently cited statement in Bridges v. Wixon confirmed, this text at least arguably implies that "[f]reedom of speech . . . is accorded aliens residing in this country." 326 U.S. 135, 148 (1945). It also suggests something a little less obvious, but still worth saying, which is that its chief concern is with the character and quality of the "speech" that occurs on American soil, in what Justice Holmes called "free trade in ideas," which is "the best test of truth," Abrams v. United States, 250 U.S. 616, 630 (1919), and ensuring that Congress may not twist that speech in the federal government's preferred direction….

As I have pointed out previously, the First Amendment, like most constitutional rights is phrased as a generalized limitation on government power, not a privilege limited to a specific group, such as citizens. A few rights, are explicitly confined to citizens (such as the Privileges or Immunities Clause of the Fourteenth Amendment) or to "the people" (such as the Second Amendment right to bear arms), which may be a euphemism for citizens. But that makes it all the more clear that rights not explicitly limited to citizens apply to everyone, without exception.

I have defended applying the First Amendment to non-citizens in greater detail elsewhere (e.g. here and here), including responding to the view that speech-based deportations are permissible because non-citizens have no inherent legal right to be in the US:

The text of the First Amendment is worded as a general limitation on government power, not a form of special protection for a particular group of people, such as US citizens or permanent residents. The Supreme Court held as much in a 1945 case, where they ruled that "Freedom of speech and of press is accorded aliens residing in this country."

A standard response to this view is the idea that, even if non-citizens have a right to free speech, they don't have a constitutional right to stay in the US. Thus, deporting them for their speech doesn't violate the Constitution. But, in virtually every other context, it is clear that depriving people of a right as punishment for their speech violates the First Amendment, even if the right they lose does not itself have constitutional status. For example, there is no constitutional right to get Social Security benefits. But a law that barred critics of the President from getting those benefits would obviously violate the First Amendment. The same logic applies in the immigration context.

While Judge Young's ruling - following Supreme Court precedent - applies a distinction between speech-based initial exclusions and speech-based deportations (allowing greater scope for the former), I would argue both are equally unconstitutional.

As Judge Young notes, today's ruling follows a number of previous court decisions reaching similar conclusions about  Trump's speech-based deportations. But his analysis is particularly thorough and compelling.

Judge Young's opinion includes a number of rhetorical flourishes that some might consider inappropriate for a judicial ruling. For example, the beginning and end are framed as a response to an anonymous postcard sent to the court:

 

If I were in the judge's place, I probably would not have done this. While I share Judge Young's dismay at the administration's illegal actions, these remarks are unlikely to persuade readers who aren't otherwise inclined to agree with his reasoning. And the predictable controversy they engender could divert attention from the substantive reasoning underlying the court's ruling. They might also provide critics with an excuse to dismiss that reasoning without seriously engaging with it, by claiming that the judge was acting inappropriately.

That said, the debate over the appropriateness of some of the rhetoric in the opinion should not detract from the substance of Judge Young's reasoning, which is strong, and a good model for future court decisions on this issue.

In addition to the factual record and the constitutional questions, the ruling also covers claims under the Administrative Procedure Act, and a number of procedural questions (e.g. - associational standing for the plaintiffs), which I will not attempt to assess here.

The legal battle over speech-based deportations will continue. I hope higher courts will follow Judge Young's and other district courts' lead, and hold there is no immigration exception to the First Amendment.

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[Eugene Volokh] No Pseudonymity for Plaintiff Claiming Bar Exam "Has a Disparate Impact on African Americans"

From Thursday's decision by Magistrate Judge Elizabeth Preston Deavers in Doe v. Ohio Supreme Court:

Plaintiff alleges that the Universal Bar Examination score required by Defendant Ohio Board of Bar Examiners has a disparate impact on African Americans; Defendants'  conduct exhibits a pattern, or practice of intentional discrimination, or a deliberate indifference to the rights of African American Bar Candidates as well as unequal treatment"; Defendant Supreme Court of Ohio's licensing standards for attorneys are not equally applied; Defendants' scoring of Plaintiff's three bar exams was racially discriminatory; Defendant Supreme Court of Ohio's adoption of "Rule I Section 1(E) of the Supreme Court Rules for the Government of the Bar of Ohio" violates the Fourteenth Amendment; Defendant Supreme Court of Ohio permitted "its employees to participate in a pattern, or practice of intentional discrimination, or allowed its employees" to violate the Fourteenth Amendment and federal and state laws; and Defendants behavior regarding Rule I Section 1(E) negligently caused Plaintiff emotional distress….

Plaintiff argues [in support of her request to proceed pseudonymously] that her "suit challenge [sic] governmental activity, [her] claim involves sensitive topics including Bar licensing failures, racial discrimination and Civil Rights violations, and an affirmative ruling does not force the Defendants to proceed with insufficient information to present their arguments against Plaintiff's claim." Plaintiff further asserts that public announcement of her multiple unsuccessful attempts to pass the bar exam "may place Plaintiff at risk of failing to obtain future employment, and it may affect Plaintiff's ability to attract future clients …."

Plaintiff provides nothing more than conclusory statements about her generalized fears of embarrassment, inconvenience, unfairness, humiliation, and failing to obtain employment and attract clients. As Defendants note, "[u]nsubstantiated fears of speculative harm are insufficient to outweigh the presumption of open judicial proceedings." … The Court also notes Plaintiff's failure to cite a single case wherein a litigant was permitted to proceed anonymously under similar circumstances and her failure to distinguish her situation from the multitude of similar cases in which current and former law students litigate under their own names….

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[Eugene Volokh] No Pseudonymity for Police Being Sued or for Inmate Suing Alleging They Identified Him as Informant

From yesterday's order by Seventh Circuit Judges Diane Sykes, Frank Easterbrook & Michael Brennan in Doe v. M.S.:

Plaintiff seeks to hold two detectives liable under 42 U.S.C. § 1983 for making statements, when visiting his cell, that may have allowed other inmates to infer that he has supplied valuable information to law-enforcement personnel. The district court denied defendants' motion for summary judgment, and they have appealed.

The district court entered an order sealing the litigation in large measure, which effectively created anonymity for the litigants and any potential witnesses. A motion to continue the sealing during the appeal led to a one-judge order denying that request but requiring anonymity all around. The result is that the parties have filed public briefs but not identified the persons involved. After hearing oral argument, this court now concludes that anonymity is inappropriate given this court's strong presumption that adult litigants must use their own names. See, e.g., Doe v. Loyola University Chicago, 100 F.4th 910 (7th Cir. 2024); Doe v. Indiana University, 101 F.4th 485, 491–93 (7th Cir. 2024); Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir. 1997).

As far as we can see, anonymity for the defendants is utterly inappropriate. Police officers, prison guards, and many other public officials are regularly sued in their own names on account of acts said to be unlawful or even unconstitutional. At oral argument counsel for the defendants consented to the use of their names. Counsel suggested that the district judge may have believed that identifying the defendants would have identified the plaintiff too, but any such belief is unsupported. The defendants are police officers who have dealt with hundreds if not thousands of prisoners over the years. Publication of defendants' identities would not point to any one prisoner.

Plaintiff sought to remain anonymous out of a professed fear that he would be harmed by other inmates.

Once again, however, claims based on potential harm are regularly litigated in the parties' real names. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994); Grieveson v. Anderson, 538 F.3d 763, 775–76 (7th Cir. 2008). Indeed, the table of contents in plaintiff's brief, which runs to three pages, includes many decisions addressing the potential for retaliation against cooperating witnesses, and not even one of those decisions uses pseudonyms.

Although plaintiff contends that he is in fear, he does not contend that he has actually been harmed by any other inmate—and this even though the genesis of his suit is the assertion that, several years ago, defendants allowed other inmates to learn his status as a cooperator. When plaintiff commenced litigation based on this unrealized fear, he surrendered his entitlement to anonymity. (Contrast persons protected by the informants' privilege, whose names are protected in criminal trials largely because they did not bring publicity on themselves by initiating litigation.) Plaintiff cannot achieve anonymity by himself making allegations that expose him to risk.

In other cases in which we have held that a district judge erroneously allowed anonymous litigation, we have permitted the plaintiff to withdraw the suit in order to preserve confidentiality. See, e.g., Doe v. Indiana University, 101 F.4th at 493; Doe v. Smith, 429 F.3d 706, 710 (7th Cir. 2005). The same approach is appropriate here. We therefore put this appeal on hold for 14 days. If within that time plaintiff dismisses his complaint with prejudice, the case will end (and this appeal with it). If plaintiff does not dismiss his complaint, we will put all litigants' names on the public record and proceed to a decision on the merits.

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[Eugene Volokh] "18 Lawyers Caught Using AI Explain Why They Did It"

404 Media (Jason Koebler & Jules Roscoe) has the details.

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[Eugene Volokh] Oysters Aren't Drugs or Cars, Even on Wednesdays: A Very Massachusetts Case

From Commonwealth v. One (1) Check in the Amount of $480.00 for 1,600 Pieces of Wild Oysters (Crassostrea Virginica), decided Friday by Massachusetts Appeals Court Justice Joseph Ditkoff, joined by Justices Kenneth Desmond Jr. and John Englander:

This case involves the civil forfeiture of wild oysters …. The fisherman and claimant, Cheenulka Pocknett, holds a valid commercial shellfishing permit issued by the Division of Marine Fisheries (DMF). He is also a member of the Mashpee Wampanoag Tribe and, as such, has certain rights to fish for sustenance.

On Wednesday, December 4, 2019, Pocknett and a friend took a large number of wild oysters from Green Pond in Falmouth. Green Pond is closed to commercial fishing on Wednesdays (as well as Sundays, Mondays, and Fridays). See Chapter 275, Article II, § 15(D) of the Code of Falmouth. See also [Mass. Gen. Laws]. c. 130, § 52, par. 1 (authorizing municipalities to regulate shellfish fisheries). {The town of Falmouth created the Green Pond oyster fishery through aquaculture, and the restrictions are presumably to prevent overfishing.}

Pocknett kept some oysters for personal consumption; the Commonwealth took no action regarding those oysters and appears to recognize Pocknett's right to take oysters for personal consumption. Pocknett placed 1,600 oysters in containers and affixed the containers with "DMF-required shellfish tags with [his] name[ ], [his] DMF issued permit number, as well as the date, time and location of the harvest." He then sold those oysters to Big Rock Oysters in Harwich, a licensed wholesale shellfish dealer.

The same day, the Falmouth harbormaster contacted the Massachusetts Environmental Police to report unlawful shellfishing in Green Pond. The next day, an environmental police officer went to Big Rock Oysters and inspected the DMF shellfish tags that stated that the oysters were taken by Pocknett from Green Pond on a Wednesday. The officer told Big Rock Oysters that it should not have accepted those oysters. He instructed Big Rock Oysters to sell the oysters but that the state would be seizing the proceeds. The officer then called Pocknett and orally advised him of the seizure and that he would be filing an action in libel (the term used in the statute)….

Three days later, the same officer issued Pocknett a warning citation for possession of shellfish from an area closed to commercial harvest, in violation of 322 Code Mass. Regs. § 16.09(2) (2019). {That regulation makes it unlawful for a "[c]ommercial fisherman to harvest, attempt to harvest, sell, or attempt to sell any shellfish from any growing area, or part thereof, that is not open to commercial harvest by the [DMF] or the municipality that regulates commercial harvest."}

[Not drugs.] On December 16, 2019, the officer filed a complaint in libel in District Court for forfeiture of a check for $480, which appears to be the wholesale proceeds of the oysters….

In the District Court and the Appellate Division, the Commonwealth repeatedly asserted that the special civil forfeiture provisions relating to drug forfeitures apply to [forfeitures] under G. L. c. 257, thus dramatically lowering the Commonwealth's burden of proof. Under G. L. c. 94C, § 47 (d), the Commonwealth seeking to forfeit proceeds or certain instrumentalities of drug transactions need show only probable cause. The "claimant shall then have the burden of proving that the property is not forfeitable" or that another exception applies.

By its own terms, G. L. c. 94C, § 47, applies only to controlled substances and certain items related to the distribution or manufacture of controlled substances. Its unusual burdens of proof and procedural requirements apply only in that context….

Rather, we repair to the general rule that the [government] bears the burden to prove, by a preponderance of the evidence, that the property is forfeitable. Presumably, the claimant bears the burden of proving any affirmative defense by a preponderance of the evidence….

[Not cars.] Citing G. L. c. 90C, § 2 (the "no-fix" statute), Pocknett argues that the libel was barred by the warning citation issued by the environmental police officer. Under that statute, a police officer must issue a citation for a motor vehicle violation at the time and place of the violation. Failure to do so "shall constitute a defense in any court proceeding for such violation," unless one of several exceptions applies.

Consistent with the theme of this opinion, the unusual citation procedures for motor vehicle violations cannot be imported into the realm of marine fishery regulation. The "no-fix" statute does not reflect a generally applicable concept of law, but rather reflects a particular legislative solution "to replace the old system, where the decision whether to issue a warning was made over a three-day period, because that created the 'opportunity for subsequent maneuvering or pressure' in favor of the well connected." It is a sui generis system, designed to correct a problem particular to the enforcement of motor vehicle violations….

[Wednesdays.] Because it is uncontested that the oysters were taken from Green Pond on a Wednesday, that Green Pond was closed to commercial fishing on Wednesdays, and that the oysters were sold to Big Rock Oysters, the only remaining question is whether Pocknett was acting as a commercial fisherman or instead exercising his rights as a member of the Mashpee Wampanoag Tribe to fish for sustenance.

In this regard, it is important to recall that the Commonwealth did not seize the oysters that Pocknett kept for personal consumption or to share with his friends and family. Rather, the Commonwealth seized only the oysters that Pocknett sold to Big Rock Oysters. Pocknett admits that he personally affixed DMF shellfish tags to these oysters with his DMF commercial fisherman permit number. As a licensed wholesaler, Big Rock Oysters was required to obtain the fisherman's name and DMF number from any person who sold it fish. Furthermore, it could not "accept any species of fish from persons not commercially permitted by DMF."

In short, it was only by acting as a commercial fisherman that Pocknett was able to sell the oysters in question to Big Rock Oysters. Accordingly, there is no genuine issue of material fact and it is established as a matter of law that Pocknett was acting as a licensed commercial fisherman in taking these particular oysters and holding them for sale to Big Rock Oysters….

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[Eugene Volokh] Court Upholds Three-Day Suspension of "Third-Grade Math and Science Teacher" for Maintaining "LGBTQ+"-Themed Books in Classroom

An excerpt from Monday's long decision by Judge Douglas Cole (S.D. Ohio) in Cahall v. Cole New Richmond Exempted Village School Dist. Bd. of Ed.:

Plaintiff Karen Cahall is a third-grade math and science teacher …. The District, acting through one of the other individual Defendants—Superintendent Tracey Miller—imposed a three-day unpaid suspension on Cahall, asserting that she had violated the District's "controversial issues" policy based on certain reading materials she made available to the students in her classroom….

Cahall maintains a collection of books in her classroom that she makes available to students to read during in-class free time, but that she does not otherwise use in connection with instructing the students. The instant controversy arose when a parent complained about some of the books that Cahall included in that collection. In particular, in light of recent events that had occurred at the school (more on that below), Cahall decided to add four books to her collection: Ana on the Edge; The Fabulous Zed Watson; Hazel Bly and the Deep Blue Sea; and Too Bright to See.

As Cahall describes them, these books "each deal with characters who are LGBTQ+ and are coming to terms with feeling different and excluded simply because they are LGBTQ+." According to Cahall, the books "serve to reinforce [her] sincerely held moral and religious beliefs that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are."…

Cahall says her decision to add these books to her classroom collection grew out of what she describes as an earlier "controversy in the New Richmond District." According to Cahall, just before the 2021–22 school year, the District was considering allowing teachers to "wear Rainbow stickers on their name tags, or to display them on laptop cases or desk nameplates to show that [the teachers] were safe for LGBTQ+ students to confide in or to seek advice from." The District was also considering whether to provide students forms on which they could designate their "preferred gender identity preferred pronouns and name."

Word got out, though, and the District received "numerous complaints from community members" opposing those policies. As a result, the Board elected not to move forward with either plan. That in turn led still other members of the New Richmond community, this time those who supported LGBTQ+ rights, to register their disapproval of that decision at a public Board meeting on September 21, 2021. But that did not change the Board's decision.

After the debate and concerned about how societal prejudice might impact LGBTQ+ students, Cahall conducted research in an effort to "educate herself regarding the emotional support needed by LGBTQ+ youth." Those efforts convinced her that these students had higher rates of "anxiety and depression," were more likely to consider or attempt suicide, and had "higher rates of alcohol and/or drug use." She also discovered that they often "experience[] difficulty and delay in obtaining mental health care."

In an effort to address those concerns and provide LGBTQ+ youth access to "safe spaces" and "safe people," Cahall added the four books mentioned above to her classroom collection. The collection itself consists of nearly 100 books, which are stored in bins. Students are free to grab books from the bins to read during free time, but, as noted above, Cahall does not assign, or teach from, the books….

Cahall claimed that the suspension was based on an unconstitutionally vague policy, but the court disagreed:

The Board adopted the policy in 2009. It governs the school's approach to the "consideration of controversial issues" in the classroom, and in particular imposes limitations on "the introduction and proper educational use of controversial issues." The policy goes on to define a "controversial issue" as "a topic on which opposing points of view have been promulgated by responsible opinion or likely to arouse both support and opposition in the community." As for the limitations relating to controversial issues, the policy provides that they "may not be initiated by a source outside the schools unless prior approval has been given by the principal." And the policy goes on to say that "[w]hen controversial issues have not been specified in the course of study, the Board will permit the instructional use of only those issues which may have been approved by the principal." According to Cahall (and confirmed by the discipline letter she attaches to her Complaint), the Superintendent concluded she had violated this policy.

[T]he Supreme Court has expressly … [held that] "'[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.'" …

That requirement imposes an insurmountable hurdle for Cahall. She argues that the terms "controversial issue" and "instructional program" in the policies are too vague. And in some abstract sense, that might be true. The exact contours of each phrase may be difficult for a "person of ordinary intelligence" to discern. But there is no question that, on the facts here, Cahall knew that the LGBTQ+-themed books that she placed in the classroom related to a "controversial issue." The policy defined "controversial issue" as including "a topic … likely to arouse both support and opposition in the community."

Indeed, Cahall was aware that LGBTQ+ issues had done just that. In response to the District's stated intention to consider being more receptive and open to such issues, parents had complained. And in response to the District's subsequent decision to retract from that position (based on those parents' complaints), other parents complained. In short, the topic was not merely "likely to arouse both support and opposition in the community," it in fact had done so.

And Cahall knew that. Indeed, in her Complaint, she specifically notes that she added the books to her collection because of a "controversy" surrounding LGBTQ+ topics, and she did so precisely because she thought that controversy damaging to the emotional health of LGBTQ+ students in her third-grade class. A teacher's desire to protect her students' emotional health is a laudable sentiment. But against this backdrop, she, or any other reasonable person of ordinary intelligence, should have known that whatever the precise contours of a "controversial issue," there was no question that it extended to the books at issue here.

Nor is there any meaningful doubt that, under the District's controversial topics policies, she should have known that making the books available to students in her classroom might subject her to discipline. As noted, both the formal policy … and the administrative guidance … make clear that books about controversial topics require pre-approval from the Principal before a teacher includes the books in her classroom supplies and makes them available to students.

Indeed, the guideline seems even broader than the policy. It covers the "selection of resource materials" for the District generally, and it provides that "[n]o print … materials which are not part of the District's basic or supplementary materials are to be used with students without prior review and approval." Certainly, the books (i.e., resource materials) that Cahall unilaterally selected to add to her in-class library were not "part of the District's basic or supplementary materials," so she perforce should have known that "prior review and approval" was necessary before they were "used with students." That the books also addressed what she knew to be "controversial topics" only heightened the prospect that discipline might be forthcoming.

At bottom, the Court agrees with Cahall that the policies here could have been drafted more clearly. And the Court even acknowledges that other teachers in other situations may lack adequate notice that the conduct in which they are engaged may subject them to disciplinary consequences under these policies. But, on the facts as alleged here, Cahall reasonably should have known that she faced the prospect of discipline. And that means that her void-for-vagueness challenge fails as a matter of law. Moreover, in light of the facts pleaded in her Complaint, there is no way that Cahall could address this shortcoming, so the Court dismisses this claim with prejudice.

The court also added,

Cahall does not base her vagueness challenge here on her First Amendment rights to free expression. And that is probably a wise choice in light of (1) case law holding that teachers do not have a First Amendment right to make "curricular and pedagogical choices" of their own liking, as well as (2) case law more generally limiting the scope of First Amendment protection in connection with public-employee work-related speech.

Tabitha Justice and Brian L. Wildermuth (Subashi, Wildermuth & Justice) represent defendants.

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[Eugene Volokh] Addiction to Speech and Press: Content-Neutral vs. Content-Based Restrictions

I'm serializing my forthcoming Emory Law Journal article titled Addiction to Constitutionally Protected Activity: Speech, Press, and Religion. In my earlier posts, I argued that concerns about psychological addiction can't justify restrictions that interfere with behavior presumptively protected by the Free Exercise Clause. In my post yesterday, I argued that these concerns likewise generally can't justify restrictions with behavior presumptively protected by the Free Speech or Press Clause, which includes most aspects of social media and video game interface design. Today, I turn to the question whether some of the restrictions may be upheld on the grounds that they are content-neutral.

[* * *]

For the reasons given above, content-based restrictions aimed at preventing "addiction" are very likely unconstitutional: They would be judged under strict scrutiny, which "as a practical matter, it is fatal in fact absent truly extraordinary circumstances."

For instance, restrictions on "[d]isplay[ing] personal interactive metrics that indicate the number of times other users have clicked a button to indicate their reaction to content or have shared or reposted the content" target the communication of particular facts, and restrictions on communicating particular facts are content-based. The same is likely true of restrictions on speech that favorably reports the amount of time the user has remained on a site—e.g., "'badges,' 'streaks,' 'trophies,' and 'emojis' given to frequent users"—or that more broadly notifies users about content created by the social media platforms or video games.

Likewise, laws that are justified by a desire to prevent the amplification of "extremist" viewpoints are content-based as well. Same, I think, for laws justified by a concern that excessive use of social media leads to body image problems by exposing one to too many idealized and possibly edited photos of beautiful people.

On the other hand, restrictions on infinite scrolling, autoplay video, or live-streaming are likely content-neutral, so long as they aren't justified by a desire to diminish the spread of certain views: They focus solely on the manner of presenting information, not on what information is presented. The question, then, would be whether the relevant law—whether a statute or applications of common-law tort law—

advances a "significant government interest,"is "narrowly tailored" to that interest, and"leave[s] open ample alternative channels."

This sort of "intermediate scrutiny" is a pretty mushy test, and its outcome is hard to predict. But let me offer a few observations.

First, the alternative channels prong is likely to be satisfied for many of the content-neutral restrictions. For instance, if infinite scrolling has to be turned off, viewers will still be able to get access to all the material they want, just with an extra keystroke every several pages. Creators will still be able to reach pretty much the same audience, even if they may lose a few people who stop scrolling earlier than they otherwise would have.

Likewise, the social media platform will still be able to communicate to its users, again even if a few users end up stopping earlier than they otherwise would have. The alternative channels prong doesn't require that the alternative forms of communication be exactly as effective as the restricted ones.

Second, when it comes to narrow tailoring to a substantial government interest, one key question will be whether the government is allowed to try to protect some viewers by restricting (even slightly) the speech options available to others. The Court has generally frowned on what it has seen as "paternalistic" justification for restricting speech. This has been especially explicit for restrictions on commercial speech. Even though the Court has held that "commercial speech can be subject to greater governmental regulation than noncommercial speech," it has concluded that even there the government may not regulate based on a "paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely."

To be sure, perhaps courts might distinguish paternalistic rationales under the intermediate scrutiny applicable to content-neutral restrictions from such rationales under the intermediate scrutiny applicable to commercial speech restrictions. But it seems to me that the argument that publishers shouldn't be able to give readers what many of the readers want (more speech, more easily accessible), because some of the readers will consume too much speech and suffer as a result, is hard to reconcile with the general protection offered to speech and press.

[* * *]

Free Speech Coalition, Inc. v. Paxton, 145 S. Ct. 2291, 2310 (2025).

See supra text accompanying note 66; see also Lawrence, supra note 12, at 332, 347, 356, 359 (likewise noting that some proposed regulations, such as of "dangerous 'challenges,'" are content-based and likely unconstitutional); Kyle Langvardt, Regulating Habit-Forming Technology, 88 Fordham L. Rev. 129, 181 (2019).

See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552 (2011); Florida Star v. B.J.F., 491 U.S. 524 (1989). They are not viewpoint-based, but strict scrutiny under the First Amendment is required for content-based restrictions even when they are viewpoint-neutral. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 168 (2015).

See supra text accompanying note 69.

Even In re Soc. Media Adolescent Addiction/‌Pers. Inj. Prods. Liab. Litig., 702 F. Supp. 3d 809 (N.D. Cal. 2023), which was open to addictive design claims based on other features, acknowledged this, id. at 837 (cleaned up):‌‌ "Third, the timing and clustering of notifications of defendants' content to increase addictive use is entitled to First Amendment protection. There is no dispute that the content of the notifications themselves, such as awards, are speech. The Court conceives of no way to interpret plaintiffs' claim with respect to the frequency of the notifications that would not require defendants to change when and how much they publish speech. This is barred by the First Amendment."

"Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech:‌‌ laws that cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message the speech conveys. Those laws, like those that are content based on their face, must also satisfy strict scrutiny." Reed, 576 U.S. at 164.

See, e.g., First Amended Complaint, Stoudemire v. Meta Platforms, Inc., No. 4:‌‌22-md-03047-YGR, ¶¶ 82–90 (M.D. Ala. Nov. 17, 2022).

See Lawrence, supra note 12, at 338–42; Soc. Media Cases, No. JCCP 5255, Lead Case No. 22STCV21355, 2023 WL 6847378, *35–39 (Cal. Super. Ct. L.A. County Oct. 13, 2023).

Common-law negligence and product defect cases that seek to impose liability on speech or press activities are of course subject to First Amendment scrutiny as much as statutory speech or press restrictions would be. See, e.g., Olivia N. v. NBC, 126 Cal. App. 3d 488 (1981); Zamora v. CBS, 480 F. Supp. 199 (S.D. Fla. 1979); Winter v. G.P. Putnam's Sons, 938 F.2d 1033, 1036–37 (9th Cir. 1991).

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (cleaned up).

See Ward, 491 U.S. at 802.

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 (1996) (plurality opin.) (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976)). The majority opinion in Thompson v. W. States Med. Ctr., 535 U.S. 357, 375 (2002), basically adopted the 44 Liquormart plurality's view.

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[Josh Blackman] The Heritage Guide to the Constitution: Essay Nos. 101–125

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of essays 101–125.

Essay No. 101: The Presidential Oath Of Office Clause —Judge Gregory G. Katsas & Seanhenry VandykeEssay No. 102: The Commander In Chief Clause —John C. YooEssay No. 103: The Commander Of The Militia Clause —Judge Gregory E. Maggs & Robert LeiderEssay No. 104: The Opinion Clause —Todd F. GazianoEssay No. 105: The Pardon Clause —Paul J. LarkinEssay No. 106: The Treaty Clause —Michael D. RamseyEssay No. 107: The Appointments Clause —John O. McginnisEssay No. 108: The Inferior Officers Appointments Clause —Jeffrey B. WallEssay No. 109: The Recess Appointments Clause —Robert G. NatelsonEssay No. 110: The State Of The Union Clause —Chad SquitieriEssay No. 111: The Recommendation Clause —Chad SquitieriEssay No. 112: The Presidential Convening Clause —Seth Barrett TillmanEssay No. 113: The Presidential Adjournment Clause —James Burnham & Louis J. Capozzi IiiEssay No. 114: The Ambassadors Clause —Christopher T. Landau & Chase T. HarringtonEssay No. 115: The Take Care Clause —John C. YooEssay No. 116: The Commissions Clause —Robert Luther IIIEssay No. 117: The Impeachment Clause —Michael J. GerhardtEssay No. 118: The Judicial Vesting Clause —Judge Britt C. Grant & John ActonEssay No. 119: The Supreme Court Vesting Clause —Judge John K. Bush, Brennan Mancil, & Erica ShulerEssay No. 120: The Inferior Courts Clause —Judge David R. Stras & Andy HessickEssay No. 121: The Good Behavior Clause —Judge David R. Stras & Ryan ScottEssay No. 122: The Judicial Compensation Clause —Chief Judge Jennifer Walker Elrod, Jack Buckley Disorbo, & J. Andrew MackenzieEssay No. 123: The Judicial Power—Law & Equity Clause —Judge Andrew S. Oldham & Adam I. SteeneEssay No. 124: The Judicial Power—Arising Under Clause —Arthur D. HellmanEssay No. 125: The Judicial Power—Treaties Clause —Judge Carlos T. Bea & Mitchell K. Pallaki

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