Eugene Volokh's Blog, page 204

[Eugene Volokh] Odds Are Against TikTok at the Supreme Court

The Supreme Court's decision to hear the TikTok divestment statute case is better for TikTok than the alternative: The D.C. Circuit had upheld the statute, and now TikTok has a chance to try to reverse that.

But it's not a high chance, I think, chiefly because the D.C. Circuit opinions on the First Amendment were detailed and careful, and were written by a highly respected and ideologically mixed group of judges: Douglas Ginsburg, a Reagan appointee; Sri Srinivasan, an Obama appointee; and Neomi Rao, a Trump appointee. Srinivasan took a different approach on the First Amendment issue than did Ginsburg and Rao, but he reached the same result: All three voted to uphold the law.

It seems to me a good bet that most of the Supreme Court Justices will take a view similar to either Ginsburg's and Rao's or Srinivasan's. It's hard to identify up front any Justices who, as a matter of their general jurisprudence or of their particular First Amendment views, are likely to be quite different than all three of the D.C. Circuit judges. There are certainly highly plausible arguments against the law, as well as in favor. It just seems unlikely to me that those arguments will persuade five Justices when they persuaded neither Ginsburg nor Srinivasan nor Rao.

To be sure, sometimes this rule of thumb doesn't work well. Sometimes, for instance, even a unanimous lower court decision by an ideologically mixed and broadly respected panel of judges might be based on Supreme Court precedent that the lower court had to follow but that the Supreme Court may overrule. But that seems unlikely here.

Likewise, sometimes the Court's decision to consider a case is a signal that the Court finds something wrong with the decision below—or else why not just leave the lower court decision standing? But I think the answer to this "or else" question is likely just that this is an important, high-profile case raising important constitutional questions. It seems to me likely that the Justices thought an issue of this significance ought to be resolved by the highest court in the land, not by an intermediate appellate court.

Of course, I may be wrong; perhaps the Court's decision to hear the matter did indeed flow from at least four Justices' skepticism about the D.C. Circuit decision. (It takes four Justices of the nine to agree to hear a matter.) And of course while the current Justices loosely fit into the same ideological wings as the three judges on the D.C. Circuit panel, they of course have their own views which may well differ from fellow conservatives' or liberals' views. But if I had to bet on the case, I'd pretty confidently bet on the government.

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[Josh Blackman] Tick, Tock Goes the SCOTUS Clock

Today, the Supreme Court acted on pending applications in the challenges to the "Protecting Americans from Foreign Adversary Controlled Applications Act." The Court did not grant an injunction pending review. Instead, the Court construed the applications as petitions for writs of certiorari, and granted them. The Court set a blazing fast briefing schedule, with opening briefs due two days after Christmas, reply briefs to be filed two days after New Years, with oral argument one week later.

The parties are directed to file electronically simultaneous opening briefs, limited to 13,000 words, and a joint appendix on or before 5 p.m. (EST), Friday, December 27, 2024. Reply briefs, limited to 6,000 words, are to be filed electronically on or before 5 p.m. (EST), Friday, January 3, 2025. Any amicus curiae briefs are to be filed electronically on or before 5 p.m. (EST), Friday, December 27, 2024. Booklet format briefs prepared in compliance with Rule 33.1 shall be submitted as soon as possible thereafter.

The case is set for oral argument on Friday, January 10, 2025.

Happy Holidays everyone!

The timing here is extremely tight, with good reason. The law goes into effect on January 19, 2025. The President can only extend this deadline once, assuming that certain conditions are satisfied.

Again, the Court did not grant some sort of temporary injunction. In the past, Justices Barrett and Kagan have been critical of granting injunctions on the shadow docket. That the Court agreed to promptly hear oral argument, and placed it on the rocket docket, seems consistent with past precedents.

What happens after oral argument? I see a few different possibilities.

First, a majority of the Court promptly affirms the D.C. Circuit. I think this can be done fairly quickly. Judge Ginsburg's decision is extremely thorough, and there is no need to reinvent the wheel. It is also possible that one or more Justices finds persuasive Judge Srinivasan's concurrence. But a simple majority affirm could be done in a summary fashion. There may be dissents filed right away, or the dissents could be issued at a later date.

Second, a majority of the Court promptly reverses the D.C. Circuit. That sort of opinion would have to be more-fully developed, and explain why Judge Ginsburg erred. I think that sort of outcome, especially on a prompt timeline, is unlikely. Then again, that opinion may already be drafted. Bush v. Gore was written on a tighter timeline. And the Justices have had months to think about the case. (Justice Barrett's NetChoice concurrence presaged some of these issues.)

Third, the Court could grant a temporary injunction immediately after oral argument, to provide enough time to develop a written opinion. This opinion could ultimately affirm, but more likely would reverse. Again, an affirmance can be done quickly without making any broad pronouncements about First Amendment law. Any injunction may have one or more dissents, which would provide a preview of the final vote count.

Fourth, on January 11, the Court denies an injunction, but does not rule on the petition for a writ of certiorari. That outcome would create an unusual game of chicken with the White House. President Biden would then have about eight days to decide whether an extension should be granted. SCOTUS could then wait until January 18 to decide whether to release its opinion. (I am not certain what time the law goes into effect on January 19.) Remember, if TikTok comes into compliance with the law, there is no need for the Court to resolve this issue. And who knows what happens when Trump comes into office. He has spoken in support of TikTok. If somehow TikTok comes into compliance with the law, then Judge Ginsburg's opinion will be vacated under Munsingwear and we can all forget this ever happened.

Fifth, if January 18 comes, and there is no extension granted, the Court will have to do something. Or it could do nothing at all. Indeed, if the President and the Court fail to act by January 19, TikTok would suffer the same fate as Heinrich Quirin. Remember, by the time the Court decided Ex parte Quirin, the Nazi Saboteurs had already been executed.

Tick Tock, goes the clock.

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[Eugene Volokh] S. Ct. Will Hear First Amendment Challenge to TikTok Divestment on Jan. 10

The question presented is:

Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

The parties' briefs are due the same day, Dec. 27, as are friend-of-the-court briefs. Both parties appear to be entitled to file reply briefs by Jan. 3. Two hours are allotted for oral argument. For more on the D.C. Circuit panel majority opinion, see this post; for the concurring opinion's alternate path to reaching that result, see this post.

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[Eugene Volokh] Trump v. Selzer Likely Going Nowhere

Monday's Complaint in this case essentially alleges that pollster Ann Selzer's Nov. 2 poll for the Des Moines Register, which showed Harris ahead in Iowa by 3 points, was deceptive to consumers and thus violated Iowa consumer fraud law:

62. President Trump, together with all Iowa and American voters, is a "consumer" within the meaning of the statute.

63. Defendants furnished "merchandise" to consumers within the broad meaning of the statute since they provided a service: physical newspapers, online newspapers, and other content that contained the Harris Poll.

64. Defendants engaged in "deception" because the Harris Poll was "likely to mislead a substantial number of consumers as to a material fact or facts," to wit: the actual position of the respective candidates in the Iowa Presidential race.

65. Defendants engaged in an "unfair act or practice" because the publication and release of the Harris Poll "cause[d] substantial, unavoidable injury to consumers that [was] not outweighed by any consumer or competitive benefits which the practice produced," to wit: consumers, including Plaintiff, were badly deceived and misled as to the actual position of the respective candidates in the Iowa Presidential race. Moreover, President Trump, the Trump 2024 Campaign, and other Republicans were forced to divert enormous campaign and financial resources to Iowa based on the deceptive Harris Poll. Consumers within Iowa who paid for subscriptions to the Des Moines Register or who otherwise purchased the publication were also badly deceived. Additionally, Iowans who contributed to the Trump 2024 Campaign were similarly deceived.

66. The Harris Poll was deceptive and misleading, unfair, and the result of concealment, suppression, and omission of material facts about the true respective positions of President Trump and Harris in the Presidential race, all of which were known to Defendants and should have been disclosed to the public.

67. Moreover, as demonstrated by the leak of the Harris Poll before publication in the Register Article, Defendants created, published, and released the Harris Poll for the improper purpose of deceptively influencing the outcome of the 2024 Presidential Election….

I'm far from sure that, as a statutory matter, the Iowa consumer fraud law should be interpreted as applying to allegedly deceptive informational content of a newspaper, untethered to attempts to sell some other product. But in any event, the First Amendment generally bars states from imposing liability for misleading or even outright false political speech, including in commercially distributed newspapers—and especially for predictive and evaluative judgments of the sort inherent in estimating public sentiment about a candidate. To quote the Washington Court of Appeals in WASHLITE v. Fox News, where plaintiff unsuccessfully sued Fox for allegedly false statements about COVID,

[T]he Supreme Court in U.S. v. Alvarez (2012) disavowed the principle that false expressions in general receive a lesser degree of constitutional protections simply by virtue of being false. The court stated that its precedent restricting the value or protections afforded objectively false statements

all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.

The court went on to explain that,

[w]ere the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition.

WASHLITE's allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State's undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

United States v. Stevens (2010).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). Although WASHLITE pursues the meritorious goal of ensuring that the public receives accurate information about the COVID-19 pandemic, the challenged statements do not fall within the narrow exceptions to the First Amendment's protections. We affirm the trial court's conclusion that, however laudable WASHLITE's intent, its CPA claim is barred by the First Amendment.

The same logic applies here, I think. To be sure, as WASHLITE and Alvarez noted, there are some historically recognized exceptions to First Amendment protection for knowing falsehoods, such as for defamation, fraud, and perjury. But those are deliberately exceptions. Defamation is limited to knowing (or sometimes negligent) falsehoods that damage a particular person's reputation. Fraud is limited to statements that themselves request money or other tangibly valuable items. Perjury is limited to lies under oath in governmental proceedings. There is no general government power to punish political falsehoods outside these narrow exceptions.

In addition to the Alvarez plurality statements cited by the Washington court, note that five Justices and three dissenting Justices in Alvarez agreed that

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech…. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law.

That's from Justice Breyer's two-Justice concurrence, but Justice Alito's three-Justice dissent took the same view, adding "The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth." I think this logic applies to media decisions about how to predict the likely results of an election (again, outside the narrow exceptions noted above). And while some old decisions have upheld state laws focused on knowing falsehoods in election campaigns, post-Alvarez state and federal appellate cases have struck down even such specially targeted laws.

I should note that, when it comes to over-the-air broadcasting, the Court has left the Federal Communications Commission more latitude to restrict speech than the government has with regard to books, films, the Internet, and even cable television. Thus, the Court has upheld the Fairness Doctrine and the ban on broadcasting certain vulgarities. Lower courts have likewise allowed some policing by the FCC of alleged "distortion," see, e.g., Serafyn v. FCC (D.C. Cir. 1998). And the FCC has a specific "broadcast hoaxes rules" barring the publication of knowingly "false information concerning a crime or a catastrophe," if the information foreseeably "cause[s] substantial public harm."

But fortunately, in recent years the FCC has recognized the dangers of policing speech this way, whether in the service of trying to restrict disfavored views or supposed misinformation. The case involving the Washington Redskins is one example; the FCC there recognized that the Court's decision upholding the viewpoint-neutral restrictions on sex- and excretion-related vulgarities in Pacifica couldn't be extended to allegedly bigoted words, which would be punished precisely because of their supposed viewpoints. The FCC commissioners' statements quoted above support this as well, as does the FCC's 2020 decision related to the broadcast hoaxes rule:

[T]he Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press's assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications. Accordingly, the Commission has recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited."

On the Court, Justices Thomas and Ginsburg had also suggested that it was unsound to offer lesser First Amendment protection to broadcasting; I expect that, if the issue were to come before the Court today, Red Lion and Pacifica would at least be sharply limited and perhaps overruled altogether.

In any event, whatever the status of this special treatment of FCC regulation of over-the-air broadcasting, it has always been understood as limited to such broadcasters, and as not extending to newspapers. And even as to over-the-air broadcasting, it never been extended to allow state law to be used to restrict supposed political misinformation, including on broadcasting networks.

(Note that this post is adapted from a Nov. 1 post about Trump v. CBS Broadcasting, a case in which Trump is suing CBS over its editing of the Harris 60 Minutes interview; the analysis in both situations, I think, is quite similar.)

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[Josh Blackman] Today in Supreme Court History: December 18, 1944

12/18/1944: Korematsu v. U.S. decided.

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[Eugene Volokh] No Pseudonymity for Attempt to Get President-Elect Trump Disqualified and to Allow Him to Be Privately Prosecuted

From Doe v. Chutkan, decided today by Chief Judge James Boasberg (D.D.C.):

In this pro se lawsuit, Plaintiff John Doe seeks, first, a court declaration that President- elect Trump is constitutionally ineligible to serve as President and the Supreme Court's recent decision holding otherwise is "void"; and, second, an order requiring Defendants Judge Tanya Chutkan and Attorney General Merrick Garland to preserve and provide Plaintiff grand-jury materials and other documents so that he and other private citizens may "prosecute" President-elect Trump.

Plaintiff moves here to proceed pseudonymously on the ground that bringing this lawsuit will "expose [him] to retribution." As Plaintiff has not made the detailed showing required to overcome the presumption in favor of disclosure, the Court will deny the Motion, subject to any further consideration by the United States District Judge to whom this case is randomly assigned….

Generally, a complaint must identify the plaintiffs. That requirement reflects the "presumption in favor of disclosure [of litigants' identities], which stems from the 'general public interest in the openness of governmental processes,' and, more specifically, from the tradition of open judicial proceedings." A party moving to proceed pseudonymously thus "bears the weighty burden of both demonstrating a concrete need for such secrecy, and identifying the consequences that would likely befall it if forced to proceed in its own name." As a result, the court must "'balance the litigant's legitimate interest in anonymity against countervailing interests in full disclosure'" ….

The court concludes that the public interest in identifying the plaintiff is especially strong here:

[Plaintiff] aims to remake large swaths of the American constitutional landscape. It is hard to imagine a case in which the "public interest in open and transparent proceedings" would be more "intensified."

The court also concludes that it would be especially unfair to the defendants to allow plaintiff to sue pseudonymously while "'disparag[ng]' multiple 'government employees,' including one of the Defendants" through "his vituperative filings." (Courts have often held that it's especially unfair for plaintiffs to shield their own names while impugning the reputation of individual defendants.) The court concludes that this is not a case where pseudonymity can be justified by a concern for personal privacy:

Nowhere in his Motion or Complaint does Plaintiff suggest that this lawsuit will touch on anything related to him, much less the kind of "sensitive and highly personal" information that can weigh in favor of pseudonymity, such as information related to "sexual activities, reproductive rights, bodily autonomy, medical concerns, or the identity of abused minors."

And it rejects plaintiff's argument that he should be pseudonymous to avoid retribution against him:

Doe asserts that … bringing this lawsuit will "expose" him to "retribution" from the President-elect's incoming Administration and its supporters. Plaintiffs' claims, however, are "speculative and unsubstantiated." To be sure, his Motion notes instances in which supporters of the President-elect have reportedly lashed out at those they perceived as a legal or political threat to the President-elect. Indeed, as the Motion partially points out, both the Special Counsel who prosecuted the President-elect and the judge of this Court assigned to that case (whom the Plaintiff has made a putative Defendant here) had their homes "swatted."

But Plaintiff's claims of impending retribution are ultimately too bare and attenuated. This case is a far cry from those in which the second factor has supported anonymity. Rather than offer "detailed declarations supported by [his] prior experiences" or those of others similarly situated, he invokes examples of Soviet and North Korean repression. Because he provides no concrete basis upon which to conclude that this lawsuit might provoke retaliatory "physical or mental harm" from the President-elect's allies and supporters, his allegations are "conclusory" and therefore "must be rejected."…

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[Orin S. Kerr] "Out of My Peripheral I Felt as if Something Could Have Taken Place."

Here's some remarkable testimony from the suppression hearing in State v. Barnes, handed down yesterday by the Ohio Court of Appeals, in which an officer searched through a suspect's pockets and found drugs.  The officer had already frisked the suspect for weapons and found nothing, but then searched him again on the suggested ground that another suspect might have just handed him something:

On cross-examination, Patrolman Risner admitted that the body camera footage contained no indication that any type of exchange occurred but stated that he "felt as if something could have taken place." (Emphasis added.) (Tr. 136). The following exchange then occurred:

[Defense Counsel:] At no time do we see from the body cam any type of exchange occur, do we?

[Patrolman Risner:] We don't see the exchange, no.

[Defense Counsel:] And you didn't either, did you?

[Patrolman Risner:] Out of my peripheral I felt as if something could have taken place.

[Defense Counsel:] But you didn't see anything, did you?

[Patrolman Risner:] No, I didn't see a handoff, no.

[Defense Counsel:] Now why on the body cam, then, did you tell Mr. Barnes that you saw him put that in his pocket?

[Patrolman Risner:] Because I believed that I did.

[Defense Counsel:] Okay. But you didn't, did you?

[Patrolman Risner:] No.

* * *

[Defense Counsel:] I mean, how do you believe you see something from what we just saw [on the body camera footage]?

[Patrolman Risner:] I can't explain to you how I felt at that moment. I was busy dealing with her [Williams]. Out of my peripheral, it looked like something could have been potentially handed off so I investigated further and I was right.

The very unimpressed Court of Appeals ruled that the search violated the Fourth Amendment and that the trial court properly suppressed the evidence.

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[Josh Blackman] Jurisprudence on the Adjournment Power, Old and New

Last month, Washington was in a tizzy about whether President Trump could use the adjournment power as a means to create a recess, and then make recess appointments for his cabinet member. That frenzy seems to have died down, but scholars continue to investigate the issue.

There are two primary legal questions to consider about the adjournment clause. First, can the President invoke the clause to adjourn any session of Congress, or only those extraordinary sessions that he may convene? Second, does the adjournment power empower the President to decide when to adjourn Congress, or does it merely empower him to decide the duration of an adjournment?

I'd like to flag two recent entries in the debate. First, Alan Erbsen wrote a draft article titled "Constitutional Limits on the President's Authority to Adjourn Congress." Second, Jason Willick and Phillip Huff publishded a detailed column in the Washington Post, titled How a long-ago fight over a dormant constitutional weapon echoes today.

Erbsen contends that the adjournment power is limited to extraordinary sessions:

First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them.

To his credit, Erbsen cites Section 1557 of Justice Story's Commentaries, which suggests the power is not so limited:

§ 1557. The power to adjourn congress in cases of disagreement is equally indispensable; since it is the only peaceable way of terminating a controversy, which can lead to nothing but distraction in the public councils.

Erbsen also contends that the President can only determine the date that Congress can adjourn till, and even then, Congress can choose to reconvene on its own power:

Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate's inherent authority to reconvene on an earlier date.

Mike Stern made a similar point on the Lawfare Podcast (starting at 26:21). Stern argues that this power is only triggered when the House and Senate both wish to adjourn, but they do not agree how long that adjournment should be. And, the President can mediate that disagreement to decide how long the adjournment should be. He argues the power is not triggered when the House wants to adjourn but the Senate does not want to adjourn.

Erbsen also cites a contrary source, which I am embarrassed that I had forgotten about: Justice John Marshall Harlan's lecture notes, which I transcribed with Brian Frye and Michael McCloskey. Harlan seems to be saying the President has the broader power to adjourn Congress, and not just to set the date on which the adjournment ends.

"The Senate wants to adjourn to one period. The House says, 'No, we won't agree to that. We propose to adjourn to another day.' Well, the Senate won't agree to that. And here is a hung jury, to use a popular phrase. And the time of the country, and the money of the country, is not to be wasted in fruitless endeavor of these two Houses to agree as to the time to which they shall adjourn. Now, in that state of case the President may interfere and say, 'I adjourn you both to a certain day in the future.' That is lawful."

Harlan and Story did not seem to limit the power to extraordinary sessions.

Alan has a rich and detailed history of these provisions, which I would commend to your attention.

Now, let's turn to Willick and Huff's article in the Post. They reveal that debates over these two questions are not new. Indeed, both of these issues were debated in 1834--one year after Story's Commentaries were published. At the time, President Andrew Jackson considered whether to adjourn the Senate to prevent the re-authorization of the Second Bank of the United States. Willick and Huff describe this episode as "largely forgotten." They're right. I hadn't heard about it before, and I don't recall it being mentioned in last month's recess kerfuffle. The authors cite a wealth of primary sources.

First, was the adjournment power limited to extraordinary sessions? The Globe, a pro-Jackson newspaper, argued that the adjournment power was not limited to extraordinary sessions:

The Globe, a paper close to Jackson's administration, published a forceful defense of presidential adjournment power two days after Adams's speech. It accused senators of threatening to stay in session until the Bank of the United States — which Jackson had vowed to destroy — was rechartered. Jackson could preempt this supposed senatorial extortion: The Constitution, the Globe insisted, empowers "the Executive, whenever the two Houses, on any occasion, cannot agree as to the time of their adjournment, to interpose and untie for them the Gordian knot."

The Globe also cited the drafting history of the Constitution. This citation is significant, because Madison's records of the convention were not published until 1840, after Madison's death. It is not clear which sources the Globe was relying on. Perhaps they simply used the journal of the convention, which was available shortly after ratification.

The pro-Jackson editorialists even appealed to the Constitution's drafting history to support their point. They noted that in an early draft of the Constitution, the president's power to call special sessions and his power to adjourn Congress "were written separately, in distinct sentences." It was only in a later draft that they were "condensed into one sentence." That suggested that the president's adjournment prerogative existed independently of his power to convene Congress, the Globe argued. The Framers ultimately linked the two powers together "from mere taste as to punctuation and euphony in the structure of the section."

I recently had the occasion to review this drafting history of the convening and adjourning clause. It is true that the provisions were originally drafted separately, but they were tethered together early in the convention by the Committee of Detail. This was not some sort of "stylistic" change stuck in by Gouverneur Morris at the end of the convention. Erbsen provides the cites to Farrand's on Pages 25-26 of his draft.

Willick and Huff cite another newspaper, which rejects the Globe's reading of the drafting history:

Another newspaper commentary put a different spin on those revisions, surmising that the merging of the two clauses was intended "not for euphony, but for fundamental law." Perhaps the drafters of the Constitution combined the two prerogatives into one sentence deliberately to link the president's adjournment power to special sessions. Either way, they left an ambiguity that enabled the clause to be read both ways even within living memory of the Constitution's ratification.

Two years later, in 1836, President Jackson seemed to endorse this reading in a veto message of unrelated legislation. Jackson referred to the adjournment power as a "contingent power of the Executive which in anticipated cases of disagreement is vested in him." Jackson did not view this power as limited to extraordinary sessions.

The Whigs, who were Jackson's political opponents, argued that the power was limited to extraordinary sessions. Their argument was premised on the text of Article II, Section 3. Willick and Huff cite a May 1834 article in the Richmond Whig & Public Advertiser:

The adjournment prerogative, he observed, is triggered "'in case of disagreement between them' — between whom? The two Houses — what two Houses? The two Houses extraordinarily assembled [by the President]— the only two Houses alluded to in the section."

The authors cite another source:

As an article in the National Gazette and Literary Register observed, "no great injury can result from permitting the President" to dismiss a Congress he himself convened. But allowing a president to combine with one house of Congress to suppress the other in a regular session would undermine the legislative branch's ability to check the executive. The Gazette piece claimed that if the president's power applied even to ordinary sessions of Congress without limitation, "it would virtually establish a Dictatorship."

In 1836, Maryland Senator Robert Henry Goldsborough responded to Jackson's veto. Goldsborough cited the "grammatical and legal construction" of the Constitution. Article II, Section 3, enumerates the President's convening power "in the same breath" as the adjourning power. This structure, he explained, "evidently confin[es] this power to the convention of both Houses 'on extraordinary occasions." Goldsborough suggested that the Framers were "more likely to anticipate that its use would be necessary" when the President had convened the session in the first place.

In 1834, the Democrats and Whigs also debated what exactly the adjournment power allowed the President to do:

The second limit on Jackson's power that the Whigs proposed was more subtle. They argued that even if the prerogative extends beyond special sessions of Congress, it does not allow the president to cut a regular session short. Instead, it only allows him to settle a disagreement about when Congress should reconvene.

This reading is also sensible, but it takes some parsing to see why. The phrase "time of adjournment," one writer observed in the New-York American, is "evidently ambiguous" because it could refer either to when the adjournment starts or to how long it lasts. Which meaning did it have in the Constitution?

The New-York American did what textualists often do today: cite a dictionary:

An article in the same newspaper the following week argued that this forward-looking interpretation was truer to the actual meaning of "adjourn":

The word, as its derivation shows, refers to the time of again convening. It comes from the two French words à journée, to a day. When a body of men separate to meet at a future day they are said to adjourn, not because they separate, but because they are to meet again on a fixed day… The force, the point, the gist, if I may so, of the word adjourn is the indication of a day of again convening.

Another Whig newspaper gave an example of how that power could be used:

A June 1834 note in the Richmond Whig gave an example. Suppose the House and Senate want to adjourn for the summer. But the Senate wants to reconvene on Oct. 1, while the House wants to reconvene on Nov. 1: "The President then comes in under the authority of the Constitution, and prorogues them to the 15th November or 1st December."

There really is nothing new under the sun. The same argument we are debating today roiled the country nearly two centuries ago.

Finally, Erbsen includes a citation to my 2016 article Gridlock, which I had also forgotten about!

Adjourning the Senate to make recess appointments at the start of a presidential term would also raise concerns about the quality of appointees. The President might claim to be seeking expedited staffing of the executive branch without obstruction by political foes in the Senate.

See Blackman, supra note 11, at 300 (situating the Disagreement Clause within discourse about "gridlock").

At the time, behind the veil of ignorance, I wrote:

Second, vesting the Executive with a near-infinite range of authority to fashion "conditional self-help powers" forgoes actual contingency authority built into the Constitution. If the Congress was unreasonably blocking the President's recess appointments, under his vested Article II powers, he could have adjourned the Senate, forcing them into recess: "in Case of Disagreement between them, with Respect to the Time of Adjournment, [the President] may adjourn [Congress] to such Time as he shall think proper." The Constitution speaks to congressional gridlock — "in Case of Disagreement" — and gives the President a power to work around the Congress that cannot agree to adjourn. Once adjourned, a recess appointment could be made.

I guess I made this argument long before it was cool.

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[Eugene Volokh] Missouri Legislative Employee Was Unconstitutionally Fired for Pro-Mask-Policy Letter

From Mayfield v. Missouri House of Representatives, decided Friday by Eighth Circuit Judge Jane Kelly, joined by Judges Lavenski Smith and Jonathan Kobes:

On August 3, 2020, while employed in the assistant clerk's office of the Missouri House of Representatives …, Mayfield sent an email to Elijah Haahr, the Speaker of the House, and Dave Schatz, the President Pro Tem of the Missouri Senate, titled "Capitol Safety." It read:

I am writing to you because I feel an ethical and moral obligation to do so. We are living in unprecedented times that requires, likewise, unprecedented actions and decisions from the leadership and citizens of our state. Those actions and decisions, or lack thereof, will be recorded in history as either appropriate measures that helped save lives, or inappropriate and resulted in an increase in lives lost.

Businesses, cities, and states across this great nation have heeded the CDC's warnings and implemented a number of measures designed to slow/stop the spread of COVID-19, including mandatory face coverings, if we are to continue in our efforts to reopen the economy and get people back to work. I am grateful the Missouri House of Representatives has implemented some of the same measures in an attempt to protect Members, staff, and visitors to our Capitol. Unfortunately, as of yet, the decision to require face coverings in the chambers and public spaces in our Capitol has not been made, leaving all who enter our Capitol at greater risk of contracting COVID-19, and ultimately, negates any benefit received by the measures that have been implemented.

It is important to consider, Members from every district in this state are convening in our chambers and then returning to their respective communities to continue campaigning and holding fundraisers for their reelection bids, or assisting in the election of their successors. It compounds an already serious health crisis for Members to unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in our Capitol, and then return home to unknowingly transmit it to their constituents. All this while hundreds if not thousands of new cases are reported in our state every day.

For the health and well-being of all who enter our Capitol, I am requesting that you, as leadership in the House and Senate, adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within our Capitol, excluding the personal office spaces of Members.

With all due respect and for the safety of all Missourians ….

Three days later, Mayfield was fired; he sued, and won $15K in lost wages, $15K in punitive damages, plus over $160K in attorney fees and court costs, and the Eighth Circuit panel affirmed:

We agree with the district court that Mayfield's speech in the August 3 email was a matter of public concern. First, the email's content focused on protecting the public from the COVID-19 pandemic. Mayfield wrote that he was advocating "[f]or the health and well-being of all who enter [the] Capitol" and requested that leadership "adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within [the] Capitol, excluding the personal office spaces of Members." In the email, Mayfield did not express personal concerns, but rather addressed the welfare of communities across Missouri. Mayfield reasoned that without a masking requirement, "all who enter[ed] [the] Capitol [building were] at greater risk of contracting COVID-19." And he said that, with the special session, "Members from every district" would come to the Capitol, "unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in [the] Capitol, and then return home to unknowingly transmit it to their constituents."

The August 3 email was devoid of any mention of Mayfield personally. Although Mayfield noted capitol staff once, he mentioned them along with elected representatives and visitors, all of whom he thought were at risk of contracting COVID-19 by entering the building. Unlike his previous communications with White, Miller, and the human resources director, Mayfield did not express concerns specific to his or his family's health. Mayfield also did not request remote work accommodations. Rather, the email focused solely on public health and safety during what the Defendants have described on appeal as "the defining political issue of the time." In sum, the content in Mayfield's email squarely addressed a matter of public concern.

Defendants urge that the form and context of the August 3 email dictate otherwise. They point to Mayfield's other, more personal COVID-related communications—asking to stay at home, expressing disappointment that face masks were not being required at the capitol, and the like—to reject the public nature of the email at issue. Defendants argue that the email was merely a continuation of "the same, personal considerations" and "veneer for Mayfield's private desire to continue working at home." Defendants also argue that the form of Mayfield's speech—"an internal, nonpublic email" sent through his work account and during work hours—further shows his email was not a matter of public concern.

The August 3 email's form and context do not change the result here. Mayfield sent a formal email from his work address to his elected representatives, and he sent it in the context of the COVID-19 pandemic, at a time when many staff and elected representatives were planning to convene at the state capitol. The fact that Mayfield previously shared his private concerns about COVID-19 with his superiors and human resources representative does not change the nature of the August 3 email: a public employee's request for individual accommodation does not waive that employee's right to later speak about a related "subject of general interest and of value and concern to the public." …

Because Mayfield's speech was on a matter of public concern, we then ask whether his public employer "has produced evidence to indicate the speech had an adverse impact on the efficiency of the [employer's] operations." "If there is evidence of disruption, an analysis under the so-called Pickering balancing test is necessary."

Defendants bear the burden of putting the Pickering balancing test into play by submitting evidence of disruption. "Any underlying factual disputes concerning whether the plaintiff's speech is protected … should be submitted to the jury through special interrogatories or special verdict forms." This is because "the jury should decide factual questions such as … whether the speech created disharmony in the work place." Here, Defendants failed to submit jury instructions on the Pickering issue. Without factual findings from the jury to support their assertion of disruption, Defendants cannot show that their interests as a public employer outweighed Mayfield's First Amendment rights….

The evidence presented at trial showed that one day after Mayfield sent the August 3 email, Defendants decided to terminate him. And on August 6, Defendants fired Mayfield. Where—as here—temporal proximity between the protected conduct and the adverse employment action is "very close," that proximity can create a factual issue as to whether the protected activity was a substantial or motivating factor in the adverse action. Defendants argue that the reason for Mayfield's termination was "poor performance." But the evidence adduced at trial showed that Mayfield consistently received good performance reviews: in his seven years employed at the House, he had to speak with Miller once about an incident with another employee, but he was never placed on any correction plans or probation. Given this evidence, the issue was not "so one-sided" that the district court could have determined as a matter of law that the August 3 email was not a motivating factor in the decision to terminate Mayfield….

The panel also concluded that the law was clearly established enough that defendants weren't entitled to qualified immunity.

Brandon Corl and Kirk Daniel Holman represent plaintiff.

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[Eugene Volokh] Judge Rejects Meta's Attempt to Seal Various Information About Moderating Practices

From Judge William Alsup's opinion Thursday in Dangaard v. Instagram, LLC (N.D. Cal. 2024):

The public enjoys the right to know to whom the public courts provide relief (or not). Filings "more than tangentially related to the merits of a case" may be sealed only for "compelling reasons." That "standard applies to most judicial records," with a "good cause" standard applying otherwise….

This order now addresses materials contained within Meta's motion for summary judgment that Meta wishes to keep sealed…. First, Meta states that citing to its internal policies of how it moderates content and statistics reflecting how Meta blocks certain content would allow "malicious actors to take advantage of this specialized internal information to circumvent or otherwise render ineffective" Meta's moderation processes…. Second, that Meta's content moderation policies could cause competitive harm if disclosed because competitors could copy Meta's techniques to better operate their online services. Third, that some of the information contains personal identifying information and other material implicating the privacy interests of third parties.

As a preliminary issue, Meta seeks to seal portions of the motion for summary judgment itself. Given that the motion is dispositive, Meta must articulate a compelling reason to justify sealing swaths of a dispositive motion. This order finds that Meta has not met its burden. Though Meta seeks to seal specific sentences and headers, all of the proposed redactions speak to the merits of the action for which the public should have access.

The manner in which Meta moderates content from an adult platform competing with OnlyFans versus content that originates from OnlyFans is directly at issue. Therefore, Meta's general policies which articulate the extent to which sexual content is permitted on any of Meta's social media platforms are also relevant. Moreover, this order finds that Meta has not demonstrated that any of the proposed redactions threaten competitive harm or would teach someone how to override its moderation process; Meta makes vague arguments but none articulate how an unsealed motion would actually lead to any of these supposed harms. For these reasons, Meta's proposed redactions within its motion for summary judgment are DENIED.

Meta also seeks to seal portions of its opposition expert report, written by Mr. Doug Bania. As with the written motion for summary judgment, this order finds that Meta has not met its burden in identifying a compelling reason as to why it should seal parts of this expert report. The proposed redactions expound upon issues that tie directly into the merits of this action; absent any compelling reason regarding prospective harm, this exhibit must be unsealed. As such, Meta's proposed redactions for Exhibit 31 attached to its motion for summary judgment is DENIED….

The court does, however, allow redaction of information implicating third parties' privacy interests. David Azar (Milberg Coleman Bryson Phillips Grossman PLLC) represents plaintiffs.

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