Eugene Volokh's Blog, page 203

[Eugene Volokh] No Right to Discovery as to Possible Selective Prosecution in Prosecution for Burning Police Car at George Floyd Protest

From U.S. v. Wilson, decided yesterday by Ninth Circuit Judge Danielle Forrest, joined by Judge Patrick Bumatay and District Judge James Donato (N.D. Cal.) (for a similar result in a case alleging selective prosecution against alleged white supremacist rioters, see U.S. v. Rundo (9th Cir. 2024)):

On May 31, 2020, Defendants-Appellees Nathan Wilson and Christopher Beasley allegedly joined a protest in Santa Monica, California [following the killing of George Floyd] and set fire to a police car. They were both federally indicted on one count of arson. Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views.

The panel held (disagreeing with the trial court) that defendants weren't entitled to "discovery on their selective-prosecution claim":

The Executive Branch has "'broad discretion' to enforce the Nation's criminal laws." Thus, a "'presumption of regularity supports' … prosecutorial decisions and, 'in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'" Selective-prosecution claims—assertions that a prosecutor has brought charges for reasons forbidden by the Due Process Clause of the Fifth Amendment—require courts "to exercise judicial power over a 'special province' of the Executive." …

Given the separation-of-powers concerns at play, the standard for proving selective prosecution is "a demanding one." The Supreme Court has established a two-factor standard: the defendant must demonstrate "clear evidence," first that the decision to prosecute "had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose." "[T]he showing necessary to obtain discovery" on a selective-prosecution claim is "correspondingly rigorous," and is intended to be a "significant barrier to the litigation of insubstantial claims." …

To show discriminatory effect sufficient to warrant discovery, a defendant must "produce some evidence that similarly situated defendants … could have been prosecuted, but were not." … Defendants argued to the district court that they were unconstitutionally prosecuted based on a policy of the Trump Administration to prosecute an arbitrary class: "'individuals associated with protests who the government thought held anti-government views, regardless of what actual views they held.'" And they asserted that to evaluate the discriminatory effect of their prosecution, the district court should look to "a control group consisting of 'all individuals whom the [U.S. Attorney's Office] could charge federally for arson.'" …

Focusing on its selected control group—arsonists in the Central District of California—the district court turned to statistics. It noted that the U.S. Attorney's Office for the Central District brought four arson cases related to the George Floyd protests, two arson cases in the previous 10 years, and nine others in the decade before that. It also highlighted that the George Floyd protest cases were the first stand-alone arson charges brought since 2007. The district court further surveyed arson cases occurring in the area within the Central District overall, finding that between 2010 and 2019, an annual average of 3,500 arsons were reported and 559 were prosecuted. Based on these statistics, the district court found that the U.S. Attorney's Office was "obviously aware of and chose not to federally prosecute far more serious and damaging arsons" than the police-car burning for which Defendants were charged. As a result, it concluded that Defendants met their burden to show evidence of discriminatory effect.

This was an abuse of discretion because the district court "based its ruling on an erroneous view of the law." In defining the control group with only two shared facts—(1) arson (2) within the Central District—the district court did not account for many other facets of the crimes….

Here, Defendants did not offer evidence, and the district court did not make any findings, about the nature of the proposed comparators other than that they committed a shared crime in a shared location. There are no facts indicating, for example, which of the other arsons identified were eligible for federal prosecution or if the arsons involved government property, were committed by defendants with criminal records, were committed by defendants in connection with the expression of ideas, or were publicly touted by the defendants. Rather, the district court simply presumed, without evidence, that the comparator arsonists fell outside Defendants' defined arbitrary class of "'individuals associated with the protests who the government thought held anti-government views.'" This is insufficient to satisfy the "rigorous" standard that must be met before ordering the Government to produce selective-prosecution discovery….

[W]e resolve this case on the discriminatory-effect factor alone and decline to address whether Defendants presented evidence of discriminatory intent. {The discriminatory-intent factor is quite muddled. As the Sixth Circuit has recognized, "the appellate courts … have had difficulty articulating a clear and uniform standard for what constitutes 'some evidence' of discriminatory intent."} Because Defendants failed to meet their burden to produce some evidence that similarly situated individuals could have been prosecuted but were not, we reverse the district court's selective-prosecution discovery order and its dismissal of the Defendants' indictment without prejudice, and we remand for further proceedings consistent with this opinion.

Judge Bumatay joined the other judges, but added a concurring opinion:

While I join the majority opinion showing that the district court botched the discriminatory-effect analysis, it's worth explaining why the district court's discriminatory-purpose analysis was also flawed. The district court found that the Defendants proved "some evidence" of discriminatory intent because it concluded that the government "may have identified, as 'anti-government extremists,' individuals accused of engaging in criminal activity during the George Floyd protests." The district court held that targeting violent lawbreakers with "anti-government" views "qualifies as an arbitrary classification within the meaning" of the Fifth Amendment Due Process Clause. But that's wrong.

First, the government does not engage in arbitrary classifications when it singles out political violence for prosecution. Of course, prosecution "may not be deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification, including the exercise of protected statutory and constitutional rights." But targeting political violence is not arbitrary—it's central to governance. The federal government has done so since the ratification of the Constitution. President Washington himself rode at the head of an army to suppress the Whiskey Rebellion. And federal military officers helped to stamp out the Ku Klux Klan during the early years of Reconstruction. Indeed, compelling evidence suggests that the Fourteenth Amendment's Equal Protection Clause is an explicit guarantee of federal protection against violence. See Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021).

It defies common sense and constitutional history to say that the Executive acts arbitrarily when it weeds out one of the "great natural and historical enemies of all republics[:] open violence." No one can deny the government's interest in combatting political violence. And it's also true that the government cannot eradicate all political violence. Thus, "[m]ere selectivity in prosecution creates no constitutional problem." Selecting some violent extremists for prosecution doesn't mean the government is acting with improper intent. And, of course, a government "investigation spurred by a high-profile event," like the wave of violent protests in the summer of 2020, "is not unconstitutional." … "[T]he Government's enforcement priorities … are not readily susceptible" to judicial review ….

Second, while no one denies the central importance of free speech, the First Amendment doesn't alter the government's discretionary authority to target political violence. While political speech is no doubt protected, "[t]he First Amendment does not protect violence." … So while the Defendants may have attempted to express some heartfelt political belief by burning the police car, they are not free from prosecution simply because they committed arson "in order to 'protest' the law." …

Third, the Defendants offered no evidence that the government prosecuted them for protected non-violent expression. Defendants cite several statements from President Trump and Attorney General William Barr. But these statements only communicated the intent to prosecute rioters for their violence—not for any political belief the government thought they expressed….

District Judge Donato likewise joined the other judges but also added his own concurring opinion:

There is no doubt that this claim "asks a court to exercise judicial power over a 'special province' of the Executive." "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute … generally rests entirely in his discretion."

It is also true that a prosecutor's discretion is not "unfettered." "Selectivity in the enforcement of criminal laws is … subject to constitutional constraints," including but not limited to the fundamental right against viewpoint discrimination under the First Amendment and the equal-protection guarantee of the Due Process Clause of the Fifth Amendment. A prosecutor may not charge a person based on "an unjustifiable standard such as race, religion, or other arbitrary classification," "including the exercise of protected statutory and constitutional rights."

The constitutional protections remain just as robust irrespective of whether the charged conduct involves violence, the destruction of property, or other mayhem. Perpetrators of violent conduct should be prosecuted, but the Constitution commands that prosecutors may not charge only those perpetrators whose race, religion, or political viewpoints are disfavored by the government….

[W]e must take care to ensure that the threshold a defendant must cross for obtaining discovery is not so high as to foreclose a plausible selective-prosecution claim before the merits are even examined…. [Nonetheless, n]either defendant produced evidence establishing a "colorable basis," for concluding that similarly situated individuals were not prosecuted for arson because they did not engage in the public expression of certain political viewpoints…. On remand, I see no reason why defendants may not seek to renew a selective-prosecution discovery request and claim with proper evidence….

I close by noting that neither … [the] precedents, nor our decision today, preclude district courts from asking the government to provide "some response," short of document productions or evidentiary hearings, when the evidence before the court is "sufficiently disturbing." … In this case, it is undisputed that the 2020 charges filed against Wilson and Beasley were the first stand-alone prosecutions for arson by the United States Attorney for the Central District of California since 2007. It is also undisputed that defendants were prosecuted after the then-President and Attorney General made public statements blaming the violence at George Floyd protests on individuals with leftist viewpoints such as antifa and anarchism, and threatening them with severe criminal penalties and long jail sentences. In these circumstances, the District Court could reasonably request a word of explanation from the prosecutors….

Alexander P. Robbins argued for the government.

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:@WilliamBaude: Book Recommendations from Me (and My Colleagues)

Every holiday season, the University of Chicago Law School collects and shares book recommendations from the faculty. Here are three from me:

Klara and the Sun, by Kazuo Ishiguro: A first-person novel told from the point of view of a solar-powered Artificial Friend. It is hard to say much more about the plot without spoiling it or failing to render it as beautifully as Ishiguro does. The book begins with Klara sitting in a shop window, and the reader discovers the world through Klara's eyes, as she manages to explore, understand, and misunderstand it, and develops her own deep relationships, quests, and failures. Written in 2021, but perhaps even more timely today.

The President's Lawyer, by Lawrence Robbins: A page-turner of a novel about the intersection of criminal defense and Washington scandal. The main character is a career litigator whose childhood best friend, the former President of the United States, has been accused of murdering his mistress. Plot twists, personal entanglements, and several entertaining trial scenes ensue. The author (recently deceased) was himself an experienced DC litigator, from criminal trials to Supreme Court arguments, and co-founded his own law firm, Robbins, Russell, Englert, Orseck & Untereiner, where he was once my boss.

Law for Leviathan, by Daryl Levinson: How is constitutional law like international law? Both of them struggle with the fact that there are no international law police or constitutional law police who can directly apprehend and sanction law breakers. That is because they are law for states, and so they must figure out how to establish legal rules without simply relying on any one state to enforce them. This academic but readable book argues that this is possible, but requires a range of strategies outside of simply laying down the law and expecting it to be obeyed. One of the most refreshing books about constitutional law I have read in a while. [You can also hear a Divided Argument podcast discussion with Daryl about this book, Separation-of-Powers Police.]

Here's the whole list. I also recently read and enjoyed the Grover Cleveland biography, which is recommended by my colleague Todd Henderson.

Feel free to make your own nominations in the comments!

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[Josh Blackman] Today in Supreme Court History: December 20, 1976

12/20/1976: Craig v. Boren decided.

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[Eugene Volokh] Thursday Open Thread

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[Eugene Volokh] California Officials Agree to Preliminary Injunction Blocking Law That Limits Discussing Arrest Records

FIRE, which represents the First Amendment Coalition and me in challenging the law, reports:

A federal court, acting on a stipulation agreed to by the California attorney general and San Francisco city attorney, today halted enforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO's sealed arrest records.

Under the law, any person — including journalists, advocates, witnesses, and victims of crimes — faced a civil penalty of up to $2,500 for sharing public information. The court order results from a First Amendment lawsuit filed by the Foundation for Individual Rights and Expression in November, which led the California attorney general and San Francisco city attorney to agree not to enforce the law while the lawsuit is pending….

In October 2023, journalist Jack Poulson published articles about a controversial tech CEO's arrest, sharing a copy of the arrest report sent to him by an unidentified source. The San Francisco Police Department had previously made that report public, even though the executive had successfully petitioned a state court to seal the record.

Almost a year after Poulson published the report, the city attorney of San Francisco — working with the tech executive — sent three letters to Poulson and his webhost, Substack, demanding they remove articles and the sealed report. Those letters threatened enforcement of California's anti-dissemination statute, Penal Code § 851.92(c). The law imposes a civil penalty of up to $2,500 on any person (except the government officials charged with maintaining the secrecy of sealed records) who shares a sealed arrest report or any information "relating to" the report — even if the information is already publicly available.

Concerned by the implications of the statute, FIRE sued the San Francisco city attorney and the California attorney general on behalf of the Bay Area-based First Amendment Coalition, its Director of Advocacy Ginny LaRoe, and legal commentator Eugene Volokh. Each regularly comments on censorship campaigns precisely like the one the tech CEO and city attorney launched against Paulson and Substack. But the anti-dissemination statute prohibited them from covering the CEO story, even though the information has been publicly available for over a year.

Today, the court entered a preliminary injunction agreed to by both California and the city attorney that prohibits them from enforcing the law with respect to publicly available information. The preliminary injunction protects not only FAC and Volokh, but anyone — including journalists like Poulson — who publishes information made available to the public.

The case is proceeding, and there will presumably be briefing as to whether the law should be permanently enjoined; but while that's happening, the law is being preliminarily blocked, as to reporting on publicly available information. Here's an excerpt from FIRE's memorandum arguing in support of the preliminary injunction, which I take it helped persuade the government defendants:

Both as applied to Plaintiffs and on its face as to everyone who disseminates lawfully obtained information about sealed arrests, the anti-dissemination statute violates the First Amendment as a presumptively unconstitutional content-based speech restriction that cannot withstand strict scrutiny. Reed v. Town of Gilbert (2015); see also IMDb.com v. Becerra (9th Cir. 2020) (prohibition on "dissemination of one type of speech: 'date of birth or age information'" was a content-discriminatory restriction on a category of speech). This is all the more so given binding Supreme Court precedent protecting dissemination of lawfully obtained information, and holding that penalizing dissemination as pertains to sealed arrests is not the least restrictive means to achieve a compelling state interest. See Smith v. Daily Mail Publ'g Co. (1979) (other states had "found other ways of accomplishing the objective" of protecting the identity of juvenile offenders)….

The anti-dissemination statute regulates speech in covering only "disseminat[ing] information" and is content-based in reaching only speech "relating to a sealed arrest." Cal. Penal Code § 851.92(c). The "dissemination of information [is] speech within the meaning of the First Amendment." Sorrell v. IMS Health Inc. (2011)…. As the Supreme Court held decades ago, a state may not "punish publication" of "lawfully obtain[ed]" "truthful information about a matter of public significance," such as information about an arrestee. Daily Mail Publ'g Co.; see also, e.g., Worrell Newspapers of Ind. v. Westhafer (7th Cir. 1984) (striking down as overbroad a statute prohibiting any person from disclosing the existence of a sealed indictment before the defendant is arrested)….

[The statute] is also presumptively unconstitutional on its face. By its content-based terms, the statute penalizes disseminating lawfully obtained information about sealed arrests in an extensive number of its applications. True enough, the statute also covers those who disseminate information about sealed arrests they obtained through independently unlawful means. But more predominantly, the anti-dissemination statute punishes only what the First Amendment protects—publishing lawfully obtained information about matters of public concern. See Daily Mail Publ'g Co. And as detailed next, penalizing that range of protected expression cannot survive constitutional scrutiny because it is facially unconstitutional as to a substantial amount of the dissemination of lawfully obtained information. See United States v. Stevens (2010) (a law will be "invalidated as overbroad if 'a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep'")….

Being presumptively unconstitutional, the anti-dissemination statute triggers strict scrutiny, but Defendants cannot meet the heavy burden of showing the law is "narrowly tailored to serve compelling state interests." First, as the statute "punishes publication" of "lawfully obtain[ed,] truthful information about a matter of public significance," Defendants must show "a need to further a state interest of the highest order," Daily Mail Publ'g Co., with a showing "far stronger than mere speculation about serious harms" or "[u]nusual" incidents. And they must overcome the fact that the Supreme Court has never upheld a comparable regulation even where there were far weightier interests, such as encouraging rape victims to come forward and limiting publicity to the names of youthful offenders, than those California identified in enacting the law. Fla. Star v. B.J.F. (1989) (name of rape victim); Daily Mail Publ'g Co. (youthful offenders).

In enacting the statute, California sought to "remove barriers [to] employment and housing opportunities" that an arrest history might pose. Because "background checks conducted by consumer reporting agencies" are the primary "way information of arrests generally finds its way into the hands of potential employers, housing providers, and other decision makers," the Legislature sought to "[p]rovid[e] restraints on consumer reporting agencies" by imposing the anti-dissemination statute's civil penalty.

But any governmental interest in remedying harm to an individual's reputation— whether directly or because of economic reasons—takes a constitutional backseat to the First Amendment right to share truthful information of public concern. "[R]eputational interests" do not "justify the proscription of truthful speech." Butterworth v. Smith (1990). Likewise, the desire to prevent employment discrimination does not generally justify restricting truthful speech about people. See IMDb.com. Here, the anti- dissemination statute targets truthful statements—the fact of an arrest or the existence of a sealed record—to avoid downstream economic harm. But the First Amendment does not permit the State to privilege the reputation of a person—whether a public official, public figure, or purely private person—over the dissemination of truthful statements of public concern. Landmark Commc'ns v. Virginia (1978) (injury to "official reputation" of judges); cf. N.Y. Times Co. v. Sullivan (1964) (public officials must show falsity and actual malice); Garrison v. Louisiana (1964) (absolute defense of truth in connection with any "public affairs").

The Supreme Court's decision in Florida Star v. B.J.F. illustrates why California's interests here fall short of being of the "highest order." In Florida Star, the Supreme Court invalidated a finding of civil liability against a newspaper for publishing the name of a rape victim obtained from a publicly released police report. The story concerned only the victim's report, not an arrest or trial. The Court found that the First Amendment protected the newspaper's truthful report and that "investigation of a violent crime which had been reported to the authorities" was a "matter of public significance." In doing so, it recognized that "the privacy of victims of sexual offenses," risks to their "physical safety … if their names become known to their assailants[,] and the goal of encouraging victims" to come forward were "highly significant interests"—but these interests did not amount to a compelling "need" to punish the publication.

Compared to the privacy of a rape victim involuntarily thrust into the legal system, speculation about potential economic harm from disclosure of a sealed arrest rings hollow. That's especially so here, where officials have rushed to the defense of a high-profile CEO. Because the anti-dissemination statute does not serve a compelling state interest, it cannot survive strict scrutiny, and the Court should enjoin it….

Even if the anti-dissemination statute served a compelling interest, it still fails strict scrutiny because Defendants cannot make the "exceptionally demanding" showing that it is the "least-restrictive means" to meet that interest. "If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." Under strict scrutiny, "[e]ven if a state intends to advance a compelling government interest, we will not permit speech-restrictive measures when the state may remedy the problem by implementing or enforcing laws that do not infringe on speech." IMDb.com.

The law is not narrowly tailored three times over: First, Supreme Court precedent forecloses the state from punishing those who publish lawfully obtained facts of public interest to reinforce the government's interests in keeping its own confidences. Second, the statute is over-inclusive because its plain language reaches any speaker, not just those with an obligation to maintain a secret, and the State ignored obvious means of narrowing the law in manners that would protect journalists, publishers, and public commentators. Third, it is under-inclusive because it exempts the government agencies and employees who do have an obligation to prevent the release of government records….

FIRE's Adam Steinbaugh, JT Morris, and Zach Silver represent us.

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[Will Baude and Richard Re] Calling for the Views of the President-Elect

[This post is co-authored by Will Baude and Richard Re and cross-posted at Re's Judicata.]

When a new presidential administration begins, the executive branch often changes position on some cases pending before the Supreme Court. But why wait till inauguration day to hear the views of the incoming administration?

The TikTok litigation casts this question in stark relief. The statute effectively banning TikTok goes into effect on January 19, the day before President-Elect Donald Trump is slated to begin his second presidential term. Recognizing that deadline, the justices have crafted an expedited briefing schedule with oral argument on January 10.

The Biden administration will of course litigate the case. But Trump has made public statements indicating that he may be more supportive of TikTok. In this situation, it might make sense for Trump to appear as an amicus. As the imminent president, he would hardly be a run-of-the mill friend of the court.

New administrations generally try not to change the executive's litigation position too much or too often, since doing so can undermine the Solicitor General's long-term credibility and draw attention to the political nature of the new position. Yet these changes do happen. And when they do, the new administration's views are often informative. The justices can be receptive to them.

For similar reasons, the justices might especially want to know the President-Elect's views on the TikTok case. For example, they might want to know how banning TikTok would interact with Trump's planned domestic and foreign policy plans. They might want to know whether and how the new administration will enforce the law starting January 20. Or they might simply be curious about what a different, new administration thinks about the question presented.

Of course, Amicus Trump would lack the formal trappings of office. For instance, he would not yet have taken his (second) oath of office or be fully in touch with the Nation's national security system. Yet even with those limitations there is significant room for judicial interest in the views of the future executive branch.

In the past, presidents-elect have generally avoided trying to openly disrupt the policies of their lame-duck predecessors before inauguration day. But that norm may already be fraying, as evidenced by Trump's stated views, and the logic behind it might be undermined in a time of sharp political polarization. If any incoming president would buck this norm, thereby creating a new one, it is Donald Trump.

It is even possible to imagine that the justices would invite Trump's views, essentially calling for the views of the president-elect (CVPE). Such a move would also have some appeal in cases like US v. Skrmetti, where the Biden administration's position is almost surely not the one that the Trump administration will or would adopt, and where the new administration's position might affect the viability of the case.

The appeal of a CVPE is at its apex in the Tiktok litigation, which involves a decision almost on the eve of a dramatic turnover in the Executive Branch.

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[Eugene Volokh] Allegation: Carnegie Mellon Prof to Jewish Student: Time on Jewish-Related Project "Would Have Been Better Spent" Exploring "What Jews Do To Make Themselves Such a Hated Group"

Some excerpts from Canaan v. Carnegie Mellon Univ., decided Tuesday by Judge Scott Hardy (W.D. Pa.); the opinion is 15,000 words, so this can only give a flavor of the matter. First, the allegations from plaintiff's Complaint (which, at this stage of the case, the court assumes to be factually accurate in determining whether the plaintiff has a legal basis for her claim):

Ms. Canaan was taking one of her required studio classes where students receive hands-on, practical instruction in architectural design, making models and applying lessons learned in their other classes. These studio classes typically involve small groups, open discussions, and one-on-one meetings with professors. Students receive critically important feedback individually as well as in small group and class-wide settings. On May 5, 2022, Ms. Canaan had the final review for her semester-long studio class project, which was a model she designed depicting the conversion of a public space in a New York City neighborhood into a private space through an eruv (i.e., an integral feature of neighborhoods with large devout Jewish populations). {Plaintiff's Complaint describes an eruv as a "small wire boundary that symbolically extends the private domain of devoutly religious Jewish households into public areas, permitting activities within it that are normally forbidden in public on the Sabbath."}

In response to questions, Ms. Canaan was explaining the concept of an eruv to Mary-Lou Arscott, Professor and Associate Head for Design Fundamentals at the School of Architecture …, when Professor Arscott cut Ms. Canaan off and told her that "the wall in the model looked like the wall Israelis use to barricade Palestinians out of Israel," and that the time Ms. Canaan had used to prepare her project "would have been better spent if [Ms. Canaan] had instead explored 'what Jews do to make themselves such a hated group.'" …

[Discussion of Canaan's complaints to CMU, and CMU's allegedly dilatory and inadequate responses, omitted. -EV] [A]pproximately six months after Professor Arscott had directed offensive comments at Ms. Canaan in Ms. Canaan's studio class[, ]CMU's administration finally scheduled a meeting with Ms. Canaan and Professor Arscott over Zoom on November 2, 2022. The Complaint describes this Zoom meeting as an unproductive endeavor: the meeting took place, but Vice Provost Heading-Grant said and did nothing as facilitator, Professor Arscott refused to apologize and showed no remorse, and, further, Professor Arscott referenced and subsequently emailed contents of a blog titled "The Funambulist" to Ms. Canaan and Vice Provost Heading-Grant. Professor Arscott urged Ms. Canaan to read the contents of The Funambulist that she linked in the email because it provided her with "insightful … perspective."

According to the Complaint, The Funambulist contains anti-Jewish and anti-Israel content, including, among other things, the promotion of pictures of terrorist organizations throwing Molotov cocktails at Jewish people and articles with titles such as "Israeli Apartheid" and "Israeli Police: The Daily Practice of Collective Punishment Against Palestinians." A sample passage from one article, dated April 8, 2022, that could be considered particularly pertinent to Ms. Canaan's circumstances and Professor Arscott's refusal to apologize reads: "[Y]ou never make concessions to the oppressor. If you're going to get punished, and you might, if you piss off Zionists, it's always a possibility, right, then stare the oppressor in the face, and take whatever punishment is coming. Don't concede, don't start apologizing …. The Palestinians aren't backing down, nor should we … [we] do not make concessions to the oppressor."

There are further allegations, including:

In addition to her averments concerning the CMU staff discussed above, Ms. Canaan also avers that Professor Theodossis Issaias, a personal friend loyal to Professor Arscott, also harbored unlawful animus towards her. According to Ms. Canaan, she sought out Professor Issaias to assist and guide her concerning the antisemitic treatment she had endured due to Professor Arscott's statements and actions, but Professor Issaias nevertheless invited Ms. Canaan's entire class to a party at Professor Arscott's home. When Ms. Canaan expressed how disturbed she was by the location of this social gathering, Professor Issaias told Ms. Canaan that "breaking bread is a process of reconciliation," Ms. Canaan needed to stop "acting like a victim," he was "not there to fight her battles for her," Ms. Canaan was "calling all of us antisemites," and that he "cannot be an advocate for the Jews."

Professor Issaias then became aggressive toward Ms. Canaan in front of her classmates—so much so that several classmates asked Ms. Canaan what she had done to draw his ire—and he refused to work with Ms. Canaan, including for critical one-on-one attention that he gave to all of Ms. Canaan's classmates in the architecture program's practical skills studio coursework, thereby causing her to lose individualized feedback. Professor Issaias gave Ms. Canaan a C in his 18-unit studio class—the lowest studio grade Ms. Canaan ever received at CMU—which prevented her from receiving an Honors degree and put her scholarship at risk. Professor Issaias also gave Ms. Canaan a lower grade than classmates in her same group for a group project….

The court allowed plaintiff's discrimination claim to go forward:

A careful examination of Ms. Canaan's Complaint reveals numerous factual averments that plausibly show that CMU intentionally discriminated against her through its deliberate indifference because she is Jewish and of Israeli descent. Ms. Canaan's averments plausibly show that she was met with roadblocks time and again after her encounter with Professor Arscott on May 5, 2022, when Professor Arscott told Ms. Canaan that she should have focused on exploring "what Jews do to make themselves such a hated group" instead of working on her semester-long architecture studio class project. The parties expressed at Oral Argument that they are generally in agreement that this comment—asking a student to consider what his or her racial, ethnic, or religious group does to make themselves "hated"—is (if true) offensive. And yet, according to Ms. Canaan, she received only the façade of action from those administrators at CMU who "knew that a harm to a federally protected right was substantially likely." …

At this stage of the litigation, any reasonable inference that can be drawn from these factual allegations must, of course, be drawn in Ms. Canaan's favor. It is the Court's determination that Ms. Canaan's allegations are sufficient to show that CMU failed to meaningfully react to Professor Arscott's offensive and discriminatory interactions with Ms. Canaan. The CMU executives responsible for addressing discriminatory mistreatment of a Jewish student, such as Ms. Canaan, failed or refused to prevent or sufficiently stop it. Indeed, the Dean of Students, Vice Provost of DEI, School of Architecture Director of DEI, and the Title IX Coordinator and Assistant Vice Provost of DEI, all knew of Professor Arscott's racially and ethnically offensive conduct directed at Ms. Canaan, but showed deliberate indifference toward Ms. Canaan's federally protected right not to be discriminated against on the basis of her Jewish identity.

The court allowed plaintiff's hostile educational environment harassment claim to go forward:

[I]n considering the totality of circumstances, the Court also evaluates the instances of harassment purportedly perpetrated by Professor Arscott in the context of her position, role, and relationships with Ms. Canaan, her fellow professors, and important CMU administrators. In this regard, Ms. Canaan's Complaint contains facts supporting inferences that Professor Arscott is in a position of authority and influence over students and certain colleagues and administrators….

Professor Arscott's averred relationships with CMU's administrators responsible for administering CMU's policies prohibiting discrimination and harassment also reasonably suggests that Professor Arscott had influence with them, too…. It is reasonable to infer from those facts not only that Ms. Canaan was subject to instances of harassment (e.g., being asked what Jewish people do to make themselves hated, reinforced later by Professor Arscott's refusal to apologize followed by The Funambulist email), but also that [CMU administrators] were deliberately indifferent to Professor Arscott's putative bigotry….

{Additionally, though more attenuated, the Court must also take as true and consider Ms. Canaan's factual averments that CMU received more than a half billion dollars in funding from Qatar from 2004 to 2019, that Qatar "shelters and protects antisemitic, anti-Jewish, and anti-Israel terrorist organizations," that Professor Arscott spent time professionally in Qatar where CMU maintains a campus, and that CMU's lucrative relationship with Qatar influences both CMU's and Professor Arscott's treatment of Jewish students such as Ms. Canaan.}

Not only that, but when the Court also considers Ms. Canaan's allegations concerning Professor Issaias, a reasonable inference of pervasiveness of harassment and deliberate indifference also arises. Professor Issaias's response to Ms. Canaan's sharing that she had been harassed by Professor Arscott was to: invite Ms. Canaan to a gathering at Professor Arscott's home; tell Ms. Canaan to stop "acting like a victim"; complain that Ms. Canaan was "calling all of us antisemites"; and, further, to inform Ms. Canaan that he could not "be an advocate for the Jews."

Thereafter, Professor Issaias denied Ms. Canaan one-on-one instruction and became so hostile toward her in class that his behavior drew the attention of her classmates and prompted them to ask her "what she did to cause Issaias to treat her so poorly." Professor Issaias also gave Ms. Canaan a lower grade than classmates who were part of her group project and omitted her work from a booklet he compiled of every other student's work for those students who were in the class that semester.

Ms. Canaan alleges that she informed Assistant Vice Provost Rosemeyer of Issaias's conduct—including that he had subjected her "to further antisemitic abuse" and of her low grade in his class, but instead of addressing the harassment aspect of her complaint Rosemeyer offered only to refer Ms. Canaan to grade appeals and connect her to emotional support groups. Drawing all inferences in Ms. Canaan's favor, Ms. Canaan's allegation that Assistant Vice Provost Rosemeyer ignored her reports of Issaias's discrimination supports an inference of failure to act, i.e., a clearly unreasonable response when presented with alleged antisemitic harassment.

{In addition to the encounters in 2022 and 2023 described in this section, the Court also acknowledges that Ms. Canaan avers that in May 2021 she sent an email to CMU's President Farnam Jahanian and Dean Casalegno expressing her concerns of antisemitism on CMU's campus and telling them that Jewish students "no longer feel safe on this campus" after the president of a student group posted a message in a 5,700 member Facebook group implicating Jewish students in the tensions and aggressions related to Israel and Gaza and disseminating screen shots of internal emails from the campus Jewish community that made it easy to identify Ms. Canaan and other Jewish students on campus. CMU argues that this incident was not attributable to the University, and the Court acknowledges that point. Nevertheless, the Court assumes this, like all of Ms. Canaan's other averments, is true and considers it as part of the totality of circumstances relevant to Ms. Canaan's Title VI claims.}

The court also allowed plaintiff's retaliation claim to go forward, partly based on the Issaias allegations. The court allows plaintiff's breach of contract claim to go forward, based on the argument that CMU's alleged behavior "breached its contractual obligations set forth in its … Policy Against Retaliation [and] … Title IX Resource Guide." But the court reject plaintiff's intentional infliction of emotional distress claim, reasoning that:

The Court cannot find an averment in Ms. Canaan's Complaint that would allow it to infer that the alleged extreme and outrageous conduct she endured—predominantly by Professor Arscott—was 'actuated, at least in part, by a purpose to serve the employer' [and could thus lead to liability for CMU]. For that reason, the Court will dismiss Ms. Canaan's IIED claim, albeit without prejudice to amendment should she seek to cure the deficiency addressed herein.

I think the First Amendment should generally prevent Title VI liability for professors' anti-Israel speech said to the public, or to classes generally—and, I think, even outright anti-Jewish speech. But here there are allegations that a professor had singled out a student because she did a Jewish-related project; that the professor's later sending anti-Israel materials to the student was tied to that; and that another professor had given the student an unfairly low grade in retaliation for the student's discrimination complaints. Again, recall that these are just allegations; any actual fact-finding would come later in the case.

Albert Tagliaferri, Alexander Rabinowitz, Bryce Friedman, Jamie Fell, Michael Torkin, and Zachary J. Weiner (Simpson Thacher and Bartlett LLP) and Ziporah Reich (The Lawfare Project) represent plaintiff.

The post Allegation: Carnegie Mellon Prof to Jewish Student: Time on Jewish-Related Project "Would Have Been Better Spent" Exploring "What Jews Do To Make Themselves Such a Hated Group" appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: December 19, 1940

12/19/1940: U.S. v. Darby argued.

 

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[Eugene Volokh] First Amendment Censorship Claims Against Stanford Internet Observatory Can Go Forward to Discovery as to Jurisdiction and Standing

From Hines v. Stamos, decided today by Judge Terry Doughty (W.D. La.):

This case stems from Defendants' alleged participation in censoring Plaintiffs' speech on social media. Defendants are "nonprofits, academic institutions, and researchers alleged to have been involved in examining the issue of the viral spread of disinformation on social-media and the resulting harms to society." Plaintiffs are social media users, each with significant followings, who allege that the acts of Defendants caused Plaintiffs' disfavored viewpoints to be censored—namely their speech concerning COVID-19 and elections. As a result of this alleged past and ongoing censorship, Plaintiffs filed this putative class action lawsuit on behalf of themselves and "others similarly situated," against Defendants….

The court didn't agree with plaintiffs that they had conclusively established that the federal court in Louisiana had personal jurisdiction over defendants—but it did conclude that plaintiffs had sufficiently alleged facts that would justify further discovery as to personal jurisdiction:

To earn jurisdictional discovery, the movant must first make "a preliminary showing of jurisdiction." A preliminary showing does not require proof that personal jurisdiction exists, but "factual allegations that suggest with reasonable particularity the possible existence of the requisite contacts." In other words, Plaintiffs must state what facts discovery is expected to uncover and how those facts would support personal jurisdiction….

Plaintiffs have alleged—to the point of "possible existence"—that the Stanford Defendants effectuated censorship in Louisiana by "assigning analyst[s] specifically to Louisiana, determining whether speech originated in Louisiana, tracking the speech's spread from Louisiana, and communicating with state officials in Louisiana about supposed disinformation." And as such, Plaintiffs have adequately alleged that the Stanford Defendants' online activities may support personal jurisdiction. Limited jurisdictional discovery is thus necessary to show to what extent Defendants' online activities were "directed" at the forum state.

And the court held that plaintiffs had sufficiently alleged that they had standing to sue (which in this case means that various platforms had restricted their speech because of the defendants' actions, rather than just because of the platforms' own independent decisions), and were thus entitled to further discovery on this as well:

Defendants mainly cite the Supreme Court's ruling in Murthy v. Missouri (2024), for the proposition that Plaintiffs here lack standing because Plaintiffs' alleged injuries are not adequately traceable to the Stanford Defendants. In doing so, Defendants challenge Plaintiffs' ability to show that a "particular defendant pressured a particular platform to censor a particular topic before that platform suppressed a particular plaintiff's speech on that topic." Instead, Defendants reiterate their contention that it was the social media companies' independent idea to censor Plaintiffs' speech—if at all….

First, Defendants err in their appraisal of what Murthy said. Murthy did not say that those plaintiffs did not have standing to maintain suit. Instead, Murthy held that those plaintiffs failed to show standing sufficient for a preliminary injunction. As the instant case does not rely on the higher burden that Murthy demanded, Defendants cannot summarily demand a similar outcome.

Second, neither Missouri v. Biden nor Kennedy v. Biden have been dismissed, as Defendants argue should be done here. In fact, in November of this year, this Court ordered jurisdictional discovery on standing in the Missouri case….

Just as with personal jurisdiction, "District courts may permit jurisdictional discovery to determine whether the court has subject matter jurisdiction." But plaintiffs are "not entitled to jurisdictional discovery if the record shows that the requested discovery is not likely to produce the facts needed to withstand a Rule 12(b)(1) motion." And such jurisdictional discovery is improper "… when the proponent of such discovery only supports the request by conjecture, speculation, or suggestion." Such is not the case here.

Instead, we find that Plaintiffs have provided sufficient allegations to put beyond mere conjecture or suggestion that Defendants, through their participation in the Election Integrity Project and Virality Project, caused Plaintiffs to be censored on social media platforms. Specifically, Plaintiffs allege that Defendants were active participants, if not architects, of a vast censorship scheme, and—in collaboration with government officials—actively monitored, targeted, and ultimately induced social media platforms to censor Plaintiffs' speech (among many others). As jurisdictional discovery on the finer points of Plaintiffs' allegations can aid in establishing whether Defendants' conduct is traceable to Plaintiffs' harms, and thus, is "likely to produce the facts needed to withstand a Rule 12(b)(1) motion," such discovery warranted….

[W]e "circumscribe the scope of discovery … to only the factual questions necessary to determine [our] jurisdiction." …

For substantially the same reasons that we deny dismissal—and order jurisdictional discovery in the alternative—above, we do so too with [the Aspen Institute]. Plaintiffs have alleged—to the point of "possible existence"—that Aspen effectuated censorship in Louisiana, and that personal jurisdiction may exist. So limited jurisdictional discovery is thus necessary to show to what extent Aspen's online activities were "directed" at the forum state. As for standing, we similarly find that Plaintiffs have provided sufficient allegations to put beyond mere conjecture or suggestion that Plaintiffs' alleged injuries are fairly traceable to the acts of Aspen. Specifically, Aspen is alleged to have a "coordinating role in the EIP/VP's censorship activities challenged herein," or even more personally, "strategizing … to silence Plaintiff Jim Hoft[]," and Plaintiffs attach emails supportive of this alleged censorship coordination to their Complaint. Accordingly, Plaintiffs have "demonstrated the necessity of [jurisdictional] discovery," on the issue of standing as well….

The full list of defendants includes the Stanford Internet Observatory (and Stanford), Graphika, the Atlantic Council and its Digital Forensic Research Lab, the Aspen Institute, and associated individuals.

Keep in mind that these are just preliminary procedural decisions, and the case may eventually get dismissed on jurisdiction/standing grounds, on the grounds that defendants' alleged behavior was purely private action that didn't violate the First Amendment, or on other grounds.

Plaintiffs are represented by John Sauer, whom President-Elect Trump intends to nominate as Solicitor General; Justin Smith (James Otis Law Group, LLC); Julianna Parks (Langley & Parks, LLC); and Gene P. Hamilton, Reed D. Rubinstein, Nicholas R. Barry, Michael Ding, Juli Z. Haller, James K. Rogers, and Andrew J. Block (America First Legal).

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[Ilya Somin] Institute for Justice Petitions Supreme Court to Take Case Seeking to Overrule Kelo v. City of New London

Susette Kelo's famous "little pink house," which became a nationally known symbol of the case that bears her name. (Institute for Justice.)

 

Today, the Institute for Justice filed a cert petition urging the Supreme Court to hear Bowers v. Oneida County Industrial Development Agency, a case in which IJ seeks to overrule Kelo v. City of New London (2005). Kelo is the controversial case in which the Supreme Court held that the government could use eminent domain to take property in order to promote private "economic development." Although the Fifth Amendment states the the government may only take private property for "public use," a narrow 5-4 Supreme Court majority built on earlier precedents to rule that virtually any potential public benefit qualifies as such. The Court also ruled the government need not prove that the supposed public benefit will actually materialize. In the Kelo case itself, it never did, and the condemned property ended up being used mainly by feral cats.

The Institute for Justice is, of course, the public interest firm that represented the property owners in the Kelo case. I wrote about the case, its development, and why the Court got it wrong, in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain.

Here is an excerpt from IJ's description of the Bowers case:

Bryan Bowers and his business partner Mike Licata build things. And they pride themselves on building things the people in their upstate New York community actually want and need. That is what led them to buy a plot of land across from a new hospital in Utica, New York: They had heard from doctors in the area that they would happily rent space from a Bowers building if one went up.

Unfortunately, they weren't the only ones with plans for a medical office building near the hospital—or with plans for their newly acquired land. A different group of doctors had formed a private company they called Central Utica, LLC, that had plans for a building next door. After Bryan and Mike signed a contract to buy their new land, Central Utica announced that it wanted Bryan and Mike's land, too—to use as a private parking lot for its building.

Two different people wanting the same thing is nothing new, whether it's toddlers with toys or private businesses with land. The difference is that this dispute happened in New York, where local and state officials sometimes behave like spoiled children.

Central Utica wrote a letter to a local government agency, the Oneida County Industrial Development Agency, asking it to take Bowers' land using eminent domain. Shockingly, the county agreed. In the county's telling, the new private office building would create jobs and economic growth, and that was reason enough to invoke the power of eminent domain. (Bryan, of course, proposed to build an office building that would also have created jobs, and the location was already surrounded by literally thousands of parking spots, including a brand-new multi-level garage, but the county didn't seem troubled by that.)

That may seem like a flimsy basis for taking away someone's private property, but in New York, it's standard procedure. New York is the nation's leading abuser of eminent domain, and it is a stark example of the excesses of one of the Supreme Court's most reviled decisions: Kelo v. City of New London….

Against this backdrop, the condemnation of Bryan's property is just more of the same. Sure, a private business went to the government and asked to be given someone else's private property—but that's not unusual in New York. While most states would have a problem with that, in New York, it took the court all of a paragraph to conclude that the taking was constitutional. If it weren't enough that the new private office building would create jobs, the court identified another secondary benefit that would justify the condemnation: The public, it said, could use the new parking lot at night, when its new private owner didn't need it.

Of course, that isn't true. Once the new owners took over the land, they immediately put up signs making clear that the general public wasn't allowed….

But in New York, that doesn't matter. It doesn't matter whether the public can actually use the land that's being taken, and it doesn't matter that in reality the land is a private parking lot in a sea of public parking spaces—just like it didn't matter in Kelo whether the government would actually build anything at all. All that matters is whether the government can imagine a good reason for the taking.

A rule that says the government can take your property whenever it can imagine a benefit to doing so is just a rule that says the government can take your property whenever it wants to. It will be up to the Supreme Court to decide whether the Constitution demands more than that.

Four current Supreme Court justices have previously expressed interest in overruling or at at least revisiting Kelo. Unlike the recent "passive park" case, this case seems like a good vehicle for doing so. It features a dubious condemnation for private development, and one that also raises a number of issues that could help clarify Kelo's extremely vague standards for what qualifies as a forbidden "pretextual" taking. If the Court doesn't want to overrule Kelo outright, they should at least clarify and strengthen the pretextual taking rules.

As IJ notes, many states have passed eminent domain reform legislation since Kelo or repudiated it as a standard for the public use clauses of their state constitutions. But, as described in my book, many of the reform laws are weak, and still permit a wide range of abusive takings.

I will likely have more to say about this case in future posts.

NOTE: I have worked with the Institute for Justice on various other property rights issues over the years, but have no involvement in this case. However, I may file an amicus brief urging the Supreme Court to hear it.

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