Eugene Volokh's Blog, page 210

[Josh Blackman] Would Banning Social Media Implicate The Free Speech Clause? Or Would It Be an Age-Based Classification?

During oral argument in Skrmetti, Justice Thomas disputed that the Tennessee law imposed a sex-based classification. Instead, he said, this was merely an age-based classification. Adults are able to receive certain treatment, but minors cannot. And generally, age-based classifications are reviewed for minimum rationality. For example, why do different states grant drivers licenses at 15, 16, 17, and 18 years old? Courts would never even ask such a question.

JUSTICE THOMAS: Much of your -- the latter part of your opening statement suggests that the -- well, seemed to suggest that there's an outright ban on this treatment. But that's not the case. It's really for minors. So why isn't this simply a case of age classification when it comes to these treatments as opposed to a ban, as you suggested in your opening statement?

Solicitor General Prelogar pushed back on this suggestion. She explained that when the government imposes two types of classifications (suspect and non-suspect), the courts have considered it under the suspect (or quasi-suspect) classification.

GENERAL PRELOGAR: It's certainly true, Justice Thomas, that the statute classifies based on age, but it packages that age classification with a sex restriction and says that for all adolescents, you cannot take these medications if they're inconsistent with your sex.

So I acknowledge that the State so far has not banned this care for adults, although I think that the arguments it's making that this isn't a sex-based line in the first place would equally apply in that context. But the Court has likewise made clear that when you classify on the basis of multiple characteristics, you can't avoid heightened scrutiny just because you have a non-protected characteristic that accompanies the protected one.

This exchange may have implications for another type of law. Australia banned social media for minors. Sweden is considering similar rules. I'm sure states in our country will follow suit.

How should the courts consider a categorical ban on social media for minors? Is the ban merely an age-based classification? Or does the ban violate the Free Speech Clause of the First Amendment? To rephrase the SG's answer to Justice Thomas, what happens when an age classification is packaged with a fundamental right?

I can't recall if anyone argued that the law in Brown v. EMA was merely an age-based classification. But Ginsberg v. New York seemed to expressly countenance different speech restrictions for minor.

I'm not sure what the answer is to this question. I'll give it some thought.

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[Eugene Volokh] Interesting Illustration of International Subpoenas Aimed at Identifying Alleged Online Defamers

From In re Ex Parte Application of Kim, decided Thursday by Judge Beth Labson Freeman (N.D. Cal.), a case involving an application filed "pursuant to 28 U.S.C. § 1782, seeking leave to take limited discovery from Google LLC" for a South Korean civil defamation case:

Ms. Kim claims that she has been the victim of cyberbullying arising from her relationship with Tae-Won Chey, with whom she lives in the Republic of Korea, where they are raising their child. For the past eight years, Mr. Chey has been involved in legal proceedings relating to his divorce from So-Yeong Roh. Mr. Chey is the Chairman of a large Korean tech conglomerate and Ms. Roh is the daughter of former South Korean president Tae-Woo Roh.

Their divorce proceedings have garnered significant publicity, and anonymous persons have published more than 100 videos on YouTube that portray Ms. Kim in a negative light. Among other things, the YouTube videos state that Ms. Kim fabricated her academic credentials and that Ms. Kim's mother was a bar hostess and the mistress of a married man.

The videos were posted anonymously on ten different YouTube channels. The persons who posted the videos appear to be native Korean speakers, and nothing in the videos suggests that they live outside of Korea. Ms. Kim has filed ten civil defamation actions in the Seoul Western District Court in Korea. Those actions have not been served, however, because Ms. Kim has not been able to discover the identities of the persons who posted the videos.

Ms. Kim asserts that the information necessary to identify the persons who posted the videos is held by YouTube's parent company, Google LLC, which maintains its principle office in Mountain View, California….

As construed by the Supreme Court, § 1782 "authorizes, but does not require" a district court to permit discovery for use in a foreign proceeding. Intel Corp. v. Advanced Micro Devices, Inc., (2004). "Section 1782's statutory language has been distilled to permit district courts to authorize discovery where three general requirements are satisfied: (1) the person from whom the discovery is sought 'resides or is found' in the district of the district court where the application is made; (2) the discovery is 'for use in a proceeding in a foreign or international tribunal'; and (3) the application is made by a foreign or international tribunal or 'any interested person.'"

"[E]ven where an applicant satisfies § 1782's statutory prerequisites, the district court still retains substantial discretion to permit or deny the requested discovery." "This discretion is guided by the Supreme Court's articulation in Intel of four non-exclusive factors: (1) whether 'the person from whom discovery is sought is a participant in the foreign proceeding;' (2) 'the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance;' (3) 'whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States;' and (4) whether the discovery requests are 'unduly intrusive or burdensome.'"

The court went through the three textual requirements and the four additional Intel factors; some of them played out in obvious ways, but here's an excerpt as to the less obvious ones:

The third Intel factor asks whether the request for discovery is an attempt to circumvent … policies of … the United States…. Ms. Kim points out that although defamation claims may implicate First Amendment issues, the First Amendment does not apply to foreign citizens in a foreign country. See Zuru, Inc. v. Glassdoor, Inc. (N.D. Cal. 2022) ("The First Amendment doesn't apply to foreign citizens outside U.S. territory[.]"). The record suggests that the persons who posted the videos are Korean citizens, as the videos are titled and narrated in Korean, use colloquial Korean terms, and focus on Ms. Kim's relationship with a prominent Korean figure….

The fourth Intel factor asks whether the requested discovery is unduly intrusive or burdensome. The Court finds that the subpoena Ms. Kim wishes to serve on Google LLC is narrowly tailored to obtain information necessary to identify and litigate against the persons who posted the anonymous videos on YouTube. Other courts in this district have allowed the service of similar subpoenas on Google LLC pursuant to § 1782….

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[Eugene Volokh] No Pseudonymity for Plaintiffs Challenging Employer's COVID-19 Protocols

In Berens v. Yale New Haven Health Servs. Corp., decided yesterday by Judge Janet Hall (D. Conn.)'s decision, Yale New Haven Health employees sued to challenge Yale New Haven's COVID-19 vaccine protocols. Those plaintiffs who sued pseudonymously apparently all received exemptions from the vaccine mandate, but "were required to submit negative COVID-19 test results each week" from mid-2021 to mid-2022. They are alleging that Yale New Haven, acting in concert with the government, violated their due process and equal protection rights.

The merits, though, aren't yet before the court; rather, the question was whether the plaintiffs could sue pseudonymously, hiding their identities from both the defendant and the public. No, the court said:

Under Federal Rule of Civil Procedure 10(a), "[t]he title of the complaint must name all the parties[.]" This requirement "serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly." {"[I]dentifying the parties to [a] proceeding is an important dimension of publicness [because] [t]he people have a right to know who is using their courts."} … When determining whether pseudonyms are appropriately used, the court, in its discretion, must balance "the plaintiff's interest in anonymity … against both the public interest in disclosure and any prejudice to the defendant." …

This case involves a company policy requiring COVID-19 vaccination or testing, and, therefore, is not a highly sensitive matter. Indeed, "[t]he fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

The anonymous plaintiffs argue that they are justifiably concerned that Yale New Haven Health will retaliate against them if their names are disclosed. In support of this concern, the anonymous plaintiffs suggest in their memorandum that at least two of the named plaintiffs were terminated because they initiated this litigation. The Complaint, however, asserts that at least two of the three named plaintiffs, Ms. Berens and Mr. Kelly, were terminated for refusing to comply with Yale New Haven Health's vaccination policy, not for initiating this lawsuit.

The anonymous plaintiffs represent that they are concerned that revealing their names may also harm their professional reputations and livelihoods. However, "courts should not permit parties to proceed pseudonymously just to protect the parties' professional or economic life." … [Moreover,] "[s]uits against private parties may cause damage to their good names and reputations—which supports denying a request to proceed anonymously." …

[N]ondisclosure [also] risks prejudicing Yale New Haven Health…. [T]he use of pseudonyms, even temporarily, would cause it prejudice because it would inhibit its ability to conduct a thorough investigation; diminish its ability to evaluate the merits of any arguments it may wish to raise as part of motion practice; and complicate its obligation to retain documents that may relate to this case….

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[Eugene Volokh] Order Unsealing Opinion Granting New Trial Based on Judge's Sexting Relationship With One of the Prosecutors

From Judge Marco Hernandez's decision posted yesterday in U.S. v. Hernandez-Zamora (D. Alaska); for the order granting a new trial, see this other post:

On July 19, 2024, Defendant filed a motion for either dismissal of the indictment or a new trial based on misconduct by former U.S. District Court Judge Joshua Kindred and a senior Assistant United States Attorney ("AUSA 1"). Prior to filing a response to Defendant's motion, the Government sought a protective order concerning confidential material it planned to disclose to defense counsel. The Court granted the motion for a protective order, and all materials that were subject to the protective order were filed under seal, including the response and reply briefs related to the motion for a new trial.

The Court ultimately granted Defendant's motion for a new trial, finding that the relationship between Judge Kindred and AUSA 1 created an appearance of impropriety in violation of 28 U.S.C. § 455. The Court's opinion, which referenced the sealed materials, was also filed under seal.

Now, Defendant … asks that the Court unseal and remove redactions from these court filings, arguing that they contain important information about judicial and prosecutorial misconduct in this case. The Government opposes Defendant's motion….

"Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" There is a "strong presumption in favor of access" to court records except for those traditionally kept secret, such as grand jury transcripts and warrant materials. Courts, therefore, require "compelling reasons" to seal judicial records: "[T]he party [seeking to seal a judicial record] must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process." …

The Government has not demonstrated a compelling reason to maintain the materials related to Defendant's motion for a new trial under seal. There is a significant public interest in Defendant's motion for a new trial, and the information the Government seeks to maintain under seal goes to the heart of that motion. The timing and details of the relationship between AUSA 1 and Judge Kindred as well as the Court's reasoning in granting Defendant's motion for a new trial should be accessible to the public.

While the documents reference matters of a very private nature that will have repercussions for the AUSA 1, these concerns are significantly outweighed by the public's interest in the litigation surrounding the motion for a new trial given theF conduct of both Judge Kindred and AUSA 1, and its potential impact on other matters in the District of Alaska…. "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." … {Indeed, the Government has since filed a Motion for Order Permitting Production of the Court's sealed Opinion & Order granting a new trial because there are pending cases which may be affected by Judge Kindred's misconduct.}

The Court, however, finds that there are compelling reasons to protect AUSA 1's identity. To balance the public's interest with the Government's concerns that the court documents will be used for an improper purpose—such as public scandal—the Court will require the parties to amend their public filings so that the name of AUSA 1 is not revealed. Where possible, the parties shall amend their documents to refer to the senior AUSA as "AUSA 1," as the Court has done in this decision. If a document cannot be so amended—for example, in February 2023 and August 2024 letters—AUSA 1's name shall be redacted.

The Court also finds there are compelling reasons to maintain the redactions in the February 2023 and August 2024 letters. As the Government notes, the redacted materials would only serve to reveal additional private information with no relationship to the motion for a new trial. The redactions in the February 2023 and August 2024 letters include recipient information and matters unrelated to AUSA 1's relationship with Judge Kindred. This information is not relevant to Defendant's motion for a new trial….

The misconduct, according to the opinion granting a new trial, included this:

In December 2021 Judge Kindred began texting frequently with a senior [Assistant U.S. Attorney] ("AUSA 1"), sending her "selfies," and telling her that he found her attractive. Judge Kindred also began asking AUSA 1 to send him nude photographs of herself. AUSA 1 agreed to share nude photographs of herself with Judge Kindred via the encrypted messaging app Signal, and "he agreed to delete everything." AUSA 1 then began sending Judge Kindred nude photographs. AUSA 1 also sent Judge Kindred text messages "describing how [she] would perform oral sex on him." Judge Kindred would "frequently" send AUSA 1 texts "detailing … his fantasies of performing oral sex and anilingus on [her]."

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[Eugene Volokh] New Trial in Case Where Judge Had Sexting Relationship With One of the Prosecutors

From Judge Marco Hernandez's Opinion in U.S. v. Hernandez-Zamora (D. Alaska), filed Sept. 27 but just unsealed yesterday:

On May 19, 2021, Defendant Rolando Hernandez-Zamora was indicted on one count of cyberstalking in violation of 18 U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(6).

On June 1, 2021, the matter was assigned to United States District Court Judge Joshua Kindred.

On November 19, 2021, Defendant was charged in a superseding indictment with one count of cyberstalking in violation of a protective order violating 18 U.S.C. §§ 2261A(2)(A), (B), and 2261(b)(6).

In December 2021 Judge Kindred began texting frequently with a senior [Assistant U.S. Attorney] ("AUSA 1"), sending her "selfies," and telling her that he found her attractive. Judge Kindred also began asking AUSA 1 to send him nude photographs of herself. AUSA 1 agreed to share nude photographs of herself with Judge Kindred via the encrypted messaging app Signal, and "he agreed to delete everything." AUSA 1 then began sending Judge Kindred nude photographs. AUSA 1 also sent Judge Kindred text messages "describing how [she] would perform oral sex on him." Judge Kindred would "frequently" send AUSA 1 texts "detailing … his fantasies of performing oral sex and anilingus on [her]."

In late 2022, the Ninth Circuit began investigating Judge Kindred for various sexual-harassment-related offenses (which apparently go far beyond the details in this case). He and AUSA 1 denied any such offenses, and also any personal relationship with AUSA 1. Eventually, though, the truth came out, and Judge Kindred resigned; but just 9 days before Judge Kindred submitted his resignation on July 3, 2024,

On June 24, 2024, Defendant's case proceeded to trial…. On June 28, 2024, the jury found Defendant guilty of cyberstalking. On July 1, 2024, Judge Kindred held oral argument on Defendant's Motion for Acquittal and denied the motion.

After the recusal, much of the information related to the allegations against Judge Kindred came out. Defendant moved for dismissal of the charges, or at least for a new trial, based on Judge Kindred's relationship with AUSA 1, and Judge Hernandez (D. Or.)—appointed  to take over the case—concluded that defendant should get a new trial, even though "AUSA 1 … did not make an appearance in Defendant's case and had a limited role in the matter":

Here, although AUSA 1 did not enter an appearance for the government in Defendant's case, she introduced herself to defense counsel on the second day of trial, was present in the courtroom throughout trial, spoke to the AUSAs assigned to the matter, and assisted the AUSAs with trial. AUSA 1 was involved in the matter to some extent and present while Judge Kindred was conducting the trial. AUSA 1's presence and assistance—combined with her interactions and relationship with Judge Kindred—are circumstances under which a reasonable person would reasonably question Judge Kindred's impartiality. In addition, the Court concludes that the average judge in Judge Kindred's position was not likely to be neutral. The Court therefore concludes that Judge Kindred was required to recuse himself from Defendant's trial, and his failure to do so violated 28 U.S.C. § 455(a) [the judicial recusal statute]….

[W]hen determining whether a judgment should be vacated and a new trial ordered "for a violation of § 455(a), it is appropriate to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process." In addition, courts must "continuously bear in mind that 'to perform [their] high function in the best way justice must satisfy the appearance of justice.'"

The government suggests that the failure of Judge Kindred to recuse himself is harmless error because there was no reasonable possibility that prejudice resulted from the violation. Defendant points out, however, that the Supreme Court has held that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," including the right to an impartial judge.

In addition, the facts here create "precisely the kind of appearance of impropriety that § 455(a) was intended to prevent. The violation is neither insubstantial nor excusable." … Moreover, the Court finds that, under these circumstances, the risk of undermining the public's confidence in the judicial process if a new trial is not ordered is high. In summary, under these unique and extreme circumstances, the Court concludes Judge Kindred was required to recuse himself and that a new trial is warranted.

But Judge Hernandez declined to dismiss the charges against defendant with prejudice:

"When considering an exercise of its supervisory powers, a district court has various options," including "[t]he most drastic remedy:" dismissal with prejudice, which "prevents the government from retrying the defendants at all." … [I]mproper dismissal of "an indictment with prejudice encroaches on the prosecutor's charging authority" …. Dismissal of an indictment with prejudice is a "drastic measure" that "necessarily implicates separation-of-powers principles…. Such dismissal exercised under the guise of supervisory power is impermissible absent a clear basis in fact and law for doing so." …

"Under its supervisory powers, a district court may dismiss an indictment with prejudice" only when there is "(1) flagrant misbehavior and (2) substantial prejudice." The "district court must approach the remedy with some caution and [] with a view toward balancing the interests involved and have concluded that there is 'no lesser remedial action' available to it." The phrase "no lesser remedial action is available" means that "any lesser sanction will put the defense at a greater disadvantage than it would have faced had the government" not engaged in the conduct at issue.

The Court has already determined that Defendant must be provided with a new trial. The Court also concludes that a new trial will not put the defense at a greater disadvantage than it would have faced had Judge Kindred recused himself. Therefore, the Court also concludes that Defendant has not established that there is "no lesser remedy available" than dismissal of this matter with prejudice.

Alexis Howell (Carlson Law Group, LLC) represents defendant.

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[Stephen Halbrook] Second Amendment Roundup: Firepower and the Fourth Circuit

The of Snope v. Brown has been distributed for the Supreme Court's conference for December 13.  Previously styled Bianchi v. Brown, the cert petition challenges Maryland's "assault weapon" prohibition which the Fourth Circuit upheld en banc earlier this year.

The Wall St. Journal's Editorial Board just took notice in "AR-15 Rifles and the Constitution" (Dec. 8), observing that the Fourth Circuit "second-guesses people who say they keep or bear an AR-15-style rifle for self-defense."  It concludes: "But the Second Amendment isn't an inkblot on the Constitution. It means something. Can that possibly not include a right to own the gun that claims to be America's bestselling rifle?"

Now for a deeper dive.  Essential to the majority's decision was a sadly-mistaken view of the quite ordinary ammunition that the banned rifle typically fires.

Back on March 20, the case was being argued before the Fourth Circuit en banc.  Judge Harvie Wilkinson noted that "Heller talks about M16s and the like, weapons of war," and another judge chimed in that "the AR15 is the M16."  That was the basis on which the court previously upheld the ban, which was now back in the court because the Supreme Court vacated and remanded the case for reconsideration in light of Bruen.

Judge Wilkinson asked appellants' counsel Pete Patterson: "Have you ever fired an M-16?"  Counsel: "I have not your Honor."  Judge Wilkinson: "Well I have and we used them when I was in the Army Reserve.  That was way back, way way back."  (He served in 1968-69.)  Judge Wilkinson went on to state:

And when we took shots at the targets, wherever we hit, there was nothing left, the kick was so powerful that when the bullets hit the human beings, it splintered them into all sorts of little pieces, there was very little left of the human being, and that was a very earlier model of the M16, and since then it's been perfected, and perfected, and perfected into an even more lethal weapon than the ones that I used.

Actually, both back then and now, the M16 (like most AR-15s) fires the relatively-underpowered 5.56 mm cartridge.  It has very little kick.  And while obviously the 5.56 can be lethal, in no way does it even come close to "splintering" a human into "little pieces."  It won't even do that to a squirrel.

While the rhetoric was toned down when the en banc decision was issued on August 6, what it said would still make any person familiar with firearms wonder what planet the court is on.  But first let's conduct a reality check on the characteristics of different higher-powered and lower-powdered rifle cartridges.

For over a century, millions of American deer hunters have chosen the .30-06 round.  That is what our Armed Forces used in the M1903 bolt action rifle and the M-1 Garand semiautomatic rifle.  The .308 or 7.62 cartridge, which the military used in the M-14 rifle, perhaps became the most popular deer round for a time.  There are numerous other rounds on the market of equal or better take-down power, such as the 6.5 Creedmoor.

In 1950, the .222 Remington cartridge was developed for varmint hunting.  It evolved into the .223 Remington round, which in turn became the basis of the 5.56 mm cartridge adopted by the military for use in the M16 and favored by many target competitors.  Neither round is preferred by deer hunters, as most loads are too underpowered to harvest big game.

Maryland game regulations require that rifles used for deer hunting must use ammunition developing a muzzle energy of at least 1,200 foot pounds.  A typical 5.56 with a normal 55 grain bullet generates 1,223 ft.-lbs. of muzzle energy.  By contrast, a. 308 round with a 150-grain bullet fires with 2,648 ft.-lbs. of muzzle energy, over double that of the 5.56.

As is plain to see, the power of the .223/5.56 round isn't much to speak of compared to typical hunting rounds.  It is so underpowered that the Armed Forces are replacing its 5.56 M16 and M4 rifles with a new 6.8 x 51 mm round (the XM7) which has muzzle energy of 2,267 ft-lbs with a 135 grain bullet.

Now to the decision in Bianchi, authored by Judge Wilkinson.  On cartridge power, it includes a single long paragraph with citations to five district court opinions and a Washington Post article, but no expert sources.  It begins: "The firepower of the AR-15 and M16 is a key component of their 'phenomenal lethality.'" They are "[b]uilt to generate 'maximum wound effect' and to pierce helmets and body armor…."  You can't have it both ways.  Maximizing the wound size requires a bullet with a soft nose or hollow point that expands.  Piercing a helmet or armor requires a bullet with a steel core or other hard metal that will not expand.

Instead of comparing other rifle cartridges with the underpowered 5.56/.223, the court compares this rifle cartridge with handgun cartridges.  Supposedly "AR-15 bullets discharge at around 'three times the velocity of a typical handgun….'" What is a "typical" handgun?  What are your calculations?  Are you aware that rifles in the AR-15 configuration come in many calibers, including as small as .22 rimfire?

"These higher velocity rounds 'hit fast and penetrate deep into the body,' creating severe damage," continues the court.  Most bullets from most firearms have that potential.  The court adds that an AR-15 bullet "yaws" or "turns sideways" in tissue, rotating and creating a large, "temporary cavity" or "blast wave" that can be "up to 11-12.5 times larger than the bullet itself"; that is known as "cavitation."   That's from another district court opinion, not a scientific study.  And it is oblivious to the fact that more powerful rifle rounds would have much more devastating effect.  But that doesn't justify banning the rifles that fire them.

This is a complex subject, and the court just didn't do any real homework.  Dr. Martin Fackler, military trauma surgeon and former director of the Army's Wound Ballistics Laboratory, wrote in the Annals of Emergency Medicine: "The most common misconception about gunshot wound treatment is that the penetration of any 'high-velocity' bullet causes enigmatic 'shock waves' and cavitation that will doom tissues even far from the bullet path."

Regarding rounds fired from the M16, Dr. Fackler wrote in Wound Ballistic Review that "most often the bullet travels about five inches through flesh before beginning significant yaw. But about 15% of the time, it travels much farther than that before yawing – in which case it causes even milder wounds, if it misses bones, guts, lung, and major blood vessels."  In Vietnam, it was found that many bullets passed through torsos "traveling mostly point forward, and caused minimal damage."

The Bianchi court next inappropriately compares wounds from rifles to those from handguns.  It asserts that a "typical 9mm [bullet] wound to the liver" from a Glock 19 handgun "will produce a pathway of tissue destruction in the order of one inch to two inches," but an AR-15 wound "will literally pulverize the liver, perhaps best described as dropping a watermelon onto concrete."  Hyperbole aside, a .30-08 deer rifle round would cause much more injury.  Again, should deer rifles be banned?

While we're comparing rifles to handguns, consider the 7.62 x 39 full metal jacket round used in the AK-47 (which Maryland bans) and the SKS (not banned).  Dr. Fackler notes that it "does not deform in tissue and travels about 26 cm [10.2 inches] before beginning to yaw. This explains the clinical finding that most wounds caused by this bullet resemble those made by much lower velocity handgun bullets."

Bianchi tells us that the "catastrophic" damage of AR-15 rounds leaves "multiple organs shattered," bones "exploded," and "soft tissue absolutely destroyed," which "often cannot be repaired" by trauma surgeons.  That potential exists for wounds from shots fired from firearms of almost any kind.

A cartridge does not care what type of firearm fires it.  A .223 round fired from an AR-15 will cause exactly the same wound as one fired from a single-shot rifle that Maryland does not ban.  Yet the Bianchi court seeks to justify the ban on certain rifles based on the wounding potential of the cartridge they fire when countless other rifles fire exactly the same cartridge.  Presumably all rifles that fire this cartridge, not to mention all that fire more powerful cartridges, may be banned.  That would be most rifles other than the .22 rimfire.

Descriptions of wounds in the most gory manner possible to justify a gun ban loses sight of the fact that the Second Amendment protects "arms," which include "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another."  (Heller, quoting Timothy Cunningham's 1771 legal dictionary.)  That criminals injure and kill innocents with arms is reason for innocents to have arms, not to ban them.

There is much more to the Bianchi's majority opinion, and Judge Richardson (joined by four other judges) does an able job in refuting the arguments.  As a side note, he knows about firearms, writing: "Speaking from experience, many hog hunters deploy the exact weapons that Maryland bans, including the AR-15."

David Kopel's post on this blog from last year – "How powerful are AR rifles?" – provides a detailed review of the issues herein.  At a more general level, my book America's Rifle: The Case for the AR-15 discusses the broader, historical context of the issue.

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[Eugene Volokh] Monday Open Thread

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[Eugene Volokh] Minneapolis Doctor Sufficiently Alleged Demotion Based in Part on Anti-Woke Speech in 2020

From Gustilo v. Hennepin Healthcare System, Inc., decided today by Eighth Circuit Judge James Loken, joined by Judges Ralph Erickson and Steven Grasz:

Dr. Tara Gustilo, an Asian American woman of Filipino descent, is an obstetrician-gynecologist physician…. She served as Department Chair [of the OBGYN Department of Hennepin Healthcare System, Inc. ("HHS"), a subsidiary of Hennepin County] from 2015 until April 2021, when she was demoted from that position….

Before 2020, she received generally positive performance reviews. In the spring of 2020, the COVID-19 pandemic and George Floyd's murder by Minneapolis police officers produced stress and conflict within the Department that led OBGYN physicians to question Dr. Gustilo's leadership.

-- In April 2020, the Mpls. St. Paul Magazine noted in a complimentary article that Dr. Gustilo posted in March a "OB/GYN Improvement" fundraising link on her public Facebook account, identifying herself as HHS's OBGYN Department Chair. In the following months, Dr. Gustilo made a series of posts on that Facebook account concerning controversial political issues including presidential candidates, fascism, racism, police killings, Black Lives Matter, socialism, and COVID. She used the phrase "China virus" to refer to COVID-19 in one post, which some colleagues considered racist. In a September 2023 Declaration, Dr. Gustilo stated that in May 2020, "I began to educate myself on the Black Lives Matter movement, critical race theory ideology, police brutality, and the dissemination of information in the United States." She began to identify "as a classical liberal," advocating for civil liberties, economic and political freedom, and freedom of speech. "I also began to voice my opposition to critical race theory on my personal Facebook page, as well as in appropriate settings at HHS," because CRT theorists "reject the principle of equality under the law" and "warn[ ] people of color against 'internalized whiteness.'"

—Also in April 2020, HHS cut midwife salaries as part of its budget reduction. Dr. Gustilo asked Department physicians to donate a portion of their salaries to the midwives. Most voted anonymously against the proposal. Dr. Gustilo then asked members to re-vote by sending personal emails. When the re-vote passed, some Department physicians were upset and felt pressured to vote for the proposal.

—In the wake of George Floyd's murder in May 2020, a Department physician proposed sending a letter "that pledges our support for our patients." When Dr. Gustilo edited the draft letter to replace the word "unrest" with the word "riots" in discussing protests that occurred following the murder, several members "pushed back" against shifting the focus away from issues of inequality and injustice. As the only black OBGYN in the Department put it, our patients "want to know we are taking active steps to dismantle systemic racism within the healthcare system."

—In June 2020, certain Department members participated in a rally at the State Capitol held by White Coats for Black Lives, a medical student-led organization advocating for racial justice. Dr. Gustilo supported participation but not if OBGYNs displayed their affiliation with HHS while engaging in political activity. After the event, its organizers thanked HHS for participating. One speaker at the event had advocated for "defunding the police." Dr. Gustilo sent an email to Department providers opposing that idea and urging research in the future to avoid identifying HHS with controversial political stances. This resulted in multiple contrary replies and animated discussion.

—At a July 2020 Board retreat, Dr. Gustilo allegedly said, "systemic racism ended in the '60's, so why are we still talking about it." On August 5, 2020, the HHS Board of Directors adopted a Declaration of Health Equity as a strategic priority, adapted from an Institute for Healthcare Improvement white paper. The Board resolved "that HHS will support local, state, regional, and federal initiatives that advance efforts to dismantle individual to institutional to systemic racism and will promote community efforts to amplify issues of racism and its impact on health."

—In September 2020, four Department physicians approached Dr. David Hilden, then Vice President of Medical Affairs at HHS, to discuss concerns they had about Dr. Gustilo. According to Dr. Hilden, the physicians told him their division was "imploding" under Dr. Gustilo's leadership —she would not listen to their concerns, was intimidating, and frequently lectured them about her personal views on issues that had nothing to do with the provision of care in a clinical setting, primarily the murder of George Floyd and COVID-19. They felt bullied by their boss and said they would leave HHS if Dr. Gustilo remained Chair. Following this meeting, Dr. Hilden and Chief Medical Officer Dr. Daniel Hoody met with Dr. Gustilo to present concerns raised by the four physicians. Dr. Hilden testified that Dr. Gustilo "was pretty defiant" —she brought up politics, critical race theory, the presidential election, and police funding. After further inquiry and discussions with the complaining physicians and Dr. Gustilo, Dr. Hilden and Dr. Hoody hired Human Systems Dynamic Institute ("HSDI") to survey the OBGYN Department and assess the work environment under Dr. Gustilo.

—The HSDI survey results were overwhelmingly negative. The final HSDI report indicated that, among other things, Gustilo was "chronically" late, did not attend meetings she scheduled, disparaged or rejected the perspectives and concerns of others in the Department, did not collaborate, and lashed out. OBGYN physicians expressed being "afraid or traumatized or triggered" in their personal interactions with Dr. Gustilo. Department members believed there was no way forward under Dr. Gustilo's leadership and threatened to leave HHS if she remained Chair. Shortly thereafter, HHS received the results from Dr. Gustilo's "360 review," a regularly-scheduled evaluation conducted in the middle of a Department Chair's five-year term. Dr. Hilden testified that Gustilo's review was "one of the worst ones on record … devastatingly bad," indicating she would not have been retained for a second term as Chair if she had not been demoted.

Following the HSDI report and 360 review, Dr. Gustilo attended several meetings with Dr. Hoody and Jennifer Hauff, HHS Human Resources Manager. Seeing "no path forward" with Dr. Gustilo as Chair, Dr. Hoody requested that she voluntarily step down. She refused, claiming that HHS was attempting to demote her because of her political beliefs in "opposition to the Marxist and racist Critical Race Theory ideology." She was placed on involuntary leave. Dr. Laura Nezworski, whom Dr. Gustilo described as "a good choice," became interim Department Chair.

At the last of several meetings in early 2021, Dr. Nezworski presented a letter signed by thirteen of the OBGYN Department's fourteen physicians stating they could not "return to a place … where [Dr. Gustilo] could regain [their] trust." Despite this mounting pressure, Dr. Gustilo declined to permanently step down. HHS then initiated its Chair removal procedures, a two-step process prescribed by the Medical Staff Bylaws. First, two-thirds of the members of HHS's Medical Executive Committee ("MEC") must vote for removal. If they do, the HHS Board must approve the MEC's vote. The action proposed was limited to removing Dr. Gustilo as Department Chair. It would not affect her standing in the Department as an OBGYN physician with academic and clinical responsibilities.

Dr. Hilden scheduled a meeting to vote on Dr. Gustilo's removal. Before the April 13 MEC meeting, he provided MEC voting members with an information packet he created (the "Hilden Packet") and a packet Dr. Gustilo prepared. The Hilden Packet included communications with other HHS physicians regarding concerns about Dr. Gustilo, emails between Dr. Gustilo and other Department members, Dr. Gustilo's performance reviews, and the HSDI report. The Hilden Packet contained numerous references to Dr. Gustilo's controversial Facebook posts. After discussion, the MEC voted to remove Dr. Gustilo by a vote of twenty-five to one, with Dr. Gustilo casting the only contrary vote.

Following the MEC vote, Dr. Hilden sent a memorandum ("Hilden Memo") to the Board outlining the "basis for [the MEC] decision." The Hilden Memo listed five reasons why the MEC voted to remove Dr. Gustilo as Department Chair:

[1] Dr. Gustilo had lost the support of her colleagues which is a critical element of being a departmental leader and necessary for the continued success of the department [2] As a Department Chair, Dr. Gustilo had raised issues at work that are not related to the job duties and ultimately negatively impacted the staff and created a poor environment in the department [3] As a leader, Dr. Gustilo had not accepted responsibility, but rather blamed staff without apology [4] Dr. Gustilo failed to change and adapt to the environment in ways needed to support the team [5] Dr. Gustilo was not meeting critical elements of the Chair's job responsibilities….

On April 28, the Board unanimously approved Dr. Gustilo's removal as Chair.

Gustilo sued over the demotion, in part on First Amendment grounds, claiming that she was demoted in part based on her Facebook posts. The district court concluded that "Gustilo fails to create a genuine issue of material fact regarding whether the HHS Board"—the ultimate decisionmaker in the case—"considered her Facebook posts in making its decision to demote her." But the Eighth Circuit panel disagreed:

[T]he second of Dr. Hilden's five "bullet points" almost certainly referred to issues raised in Dr. Gustilo's Facebook posts. Dr. Hilden's Packet made clear that the Department OBGYN physicians had repeatedly complained about the media posts and Dr. Gustilo's aggressively pursuing those issues at work. Moreover, the district court did not acknowledge, and may not have been aware, that two members of the Board were also members of the MEC and therefore knew from the Hilden Packet that media posts were a significant part of what was viewed as Dr. Gustilo's leadership failures, even though the Hilden Memo carefully avoided any specific mention of the media posts….

We conclude that [whether the HHS Board ratified lower-level decisionmakers' reliance on Gustilo's speech] is a fact issue that cannot be decided as a matter of law on this summary judgment record. Therefore, we must remand for further consideration of ratification and other legal issues, beginning with whether Dr. Gustilo's Facebook posts are protected speech, and perhaps the development of a full record if the ratification and other issues require a trial.

The additional threshold question whether Dr. Gustilo's media posts are First Amendment protected was not addressed by the district court and warrants comment. The governing standard is well established but difficult to apply:

Whether a public employee's speech is protected by the First Amendment requires a two-step judicial inquiry. The first issue is whether the employee's speech can be "fairly characterized as constituting speech on a matter of public concern." If the speech addresses a matter of public concern, the court must balance [under the so-called Pickering test] the "interests of the [employee], as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Both of these question are questions of law for the court.

Any underlying factual disputes concerning whether the plaintiff's speech is protected, however, should be submitted to the jury through special interrogatories or special verdict forms.

Here, there can be little doubt that the subjects addressed in Dr. Gustilo's media posts were matters of public concern. That means the district court will need to apply the flexible Pickering balancing test; to do that, we weigh six interrelated factors. This is a complex task. In the district court, HHS argued that at least two of those factors "weigh decisively in HHS's favor," an assertion we decline to take up on appeal….

The post Minneapolis Doctor Sufficiently Alleged Demotion Based in Part on Anti-Woke Speech in 2020 appeared first on Reason.com.

[Eugene Volokh] Challengers Have Standing to Challenge Connecticut "Harassment" Ban for Lawyers

In Cerame v. Slack, decided today by the Second Circuit, Chief Judge Debra Ann Livingston, joined by Judges Walker and Sullivan, concluded that plaintiffs had standing to challenge Connecticut bar rule 8.4(7), which provides,

It is professional misconduct for a lawyer to … (7) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation, or to provide advice, assistance or advocacy consistent with these Rules.

The court elaborated on the scope of the ban:

Commentary to Rule 8.4 defines discrimination to "include[ ] harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories." Harassment is defined to "include[ ] severe or pervasive derogatory or demeaning verbal or physical conduct."

In addition, while previous Commentary to Rule 8.4 specified that attorneys were subject to discipline for misconduct "in the course of representing a client," the current Commentary to Rule 8.4 broadly defines "conduct related to the practice of law," as used in Rule 8.4(7)'s text, as follows:

Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or professional activities or events in connection with the practice of law.

The complaint alleges that "Rule 8.4(7)'s new focus on events unrelated to client representation is a major purpose of the amendment." {The allegation references testimony by the CBA's president before the Rules Committee regarding a CBA survey which showed members of Connecticut's bar complaining of allegedly harassing conduct by attorneys at "professional events, e.g., bar association events, CLE, professional networking."}

Finally, sanctions are not limited to those attorneys who "knowingly" engage in the prohibited verbal or physical conduct but extend to those attorneys who "reasonably should know" that their conduct is prohibited. The Commentary provides, however, that "[a] lawyer's conduct does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States Constitution or article first, § 4 of the Connecticut constitution."

The court then concluded that the lawyers had adequately alleged that the law chilled their potentially constitutionally protected speech ("Appellants" refers here to the lawyers challenging the law, and "Appellees" to the state-bar-related defendants):

First, Appellants' desire to engage in speech on controversial issues in legal blogs and articles, at CLE events, and in press releases, public speeches, and other contexts clearly involves a course of conduct affected with a First Amendment interest…. Appellants' complaint adequately alleges that Cerame and Moynahan would seek, but for Rule 8.4(7), to engage in speech of the sort that Paragraph 58 describes.

{Moynahan and Cerame …. allege in Paragraph 58 of the complaint that "[t]here are numerous examples of speech" fully protected by the First Amendment that members of the Connecticut bar will be reluctant to engage in, given the fear of a misconduct complaint. These include using "the pronoun associated with a transgender individual's biological sex when addressing that individual"; using the term "'gender preference' rather than 'gender orientation'"; "[t]elling jokes to other attorneys that the speaker does not intend to be taken seriously but that some members of a protected group deem offensive"; espousing the theories of "sociologist Charles Murray that socioeconomic disparities among racial groups are to a large degree attributable to heritable group differences in cognition and adverse social behaviors, not systemic racial discrimination"; and publishing cartoons that "satiri[ze] or mock[ ]" "a religious deity." }

To be clear, Appellants do not "intend[ ] to harass or discriminate against any members of the groups protected by Rule 8.4(7)." But this "lack of intent," they allege, "provides no protection for their speech," and they "feel forced to speak less openly" on topics similar to those about which they are already outspoken "to reduce the likelihood that [a misconduct complaint] will be filed." This is more than enough at the pleading stage to assert their desire to engage in a course of conduct affected with a constitutional interest.

Second, … Plaintiffs are not required to show that they will win on the merits of their constitutional claims to establish Article III standing. At this stage, plaintiffs' "intended conduct need only be arguably proscribed by the challenged statute, not necessarily in fact proscribed." Moreover, "a plaintiff's interpretation" of a prohibition and its application to him need not be "the best interpretation," only "reasonable enough" for it to convey standing. Rule 8.4(7) makes it professional misconduct, inter alia, to engage in "harmful verbal … conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories." While it is indeed possible that none of the speech specified in the complaint is actually proscribed by Rule 8.4(7), Appellants' contrary conclusion that such speech could be deemed professional misconduct is both "arguable" and "reasonable."

For example, it is certainly arguable that members of the SGC could conclude that referring to transgender individuals by pronouns other than those with which they wish to be addressed is harmful, a manifestation of bias on the basis of gender identity, and directed at individuals so referenced. Indeed, at oral argument, Appellees' counsel were unable to answer definitively whether this example was prohibited under Rule 8.4(7). To be clear, we do not defer to the Appellees' interpretation of the Rule to determine if conduct is arguably proscribed. But the fact that Appellees' counsel was unable to give a considered opinion as to the new Rule's application to the speech referenced in the complaint is illustrative of the reasonableness of Appellants' legitimate fear of discipline in the event that they engaged in such speech in the future.

Appellees argue that the commentary to Rule 8.4, providing that an attorney "does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States constitution" "unambiguously shows that the Rule does not proscribe protected speech." … [But b]oth the Supreme Court and this Court have made clear that in the type of pre-enforcement challenge presented here, the question is whether the contemplated conduct is "'arguably proscribed' by the challenged [provision], not whether the intended conduct is in fact proscribed." … Here, a good faith belief that the speech at issue is protected by the First Amendment is not a defense to a sanctions action brought pursuant to Connecticut's new rule. And Rule 8.4(7) is not limited to harassment or discrimination that is knowing or intentional; to the contrary, it has potential application to attorneys who may inadvertently offend their audience. Cf. Greenberg v. Lehocky (3d Cir. 2023) (finding that an attorney lacked standing to challenge a similar rule of professional conduct in Pennsylvania because that rule did not extend to inadvertent conduct and required an attorney to act "knowingly").

{Greenberg is distinguishable from the instant case due to distinctions between Pennsylvania's Rule of Professional Conduct 8.4(g), also patterned on the ABA's Model Rule 8.4(g), and Connecticut's significantly broader rule, as well as interpretative guidance provided in Pennsylvania but not here. There, the Third Circuit determined that the plaintiff lacked standing to challenge Pennsylvania's rule because the plaintiff's planned speech was not arguably prohibited. The Third Circuit reached this conclusion in part because Pennsylvania's rule, unlike Connecticut's, "prohibits only harassment and discrimination that is knowing or intentional." In addition, the Chief Disciplinary Counsel there had reviewed the plaintiff's "planned presentations, speeches, and writings and stated they do not violate the Rule" and the Office of Disciplinary Counsel had interpreted Pennsylvania's rule not to prohibit "general discussion of case law or 'controversial' positions or ideas." }

Although the First Amendment carve-out may make it more likely that the SGC will conclude that some speech that would otherwise fall within the text of Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to render Appellants' fear of a misconduct complaint and its professional repercussions "imaginary or wholly speculative" for Article III purposes. See also Gulf Oil Co. v. Bernard (1981) (noting that an exception to a speech restriction that permits constitutional speech "d[oes] little to narrow the scope of the limitation on speech" because speakers can still be required to defend the constitutionality of their speech and are at risk of "after-the-fact" liability). The question of what speech is protected by the First Amendment often requires careful consideration of its content and surrounding circumstances, especially when considering the speech of lawyers outside the familiar context of the courtroom, where "[o]bedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech." Simply put, a blanket First Amendment carve-out is not enough to negate Appellants' reasonable fear that their proposed speech may be proscribed by Rule 8.4(7).

Third, … Appellants have demonstrated that they face a credible threat of enforcement….

Appellees … argue that Appellants' fear of enforcement is not credible because Appellees have neither sanctioned anyone for similar conduct under the prior version of Rule 8.4(7), nor sanctioned anyone since Rule 8.4(7) became operative. We disagree. The lack of sanctions is unpersuasive because Rule 8.4(7) is a new rule and, at the time Appellants filed this pre-enforcement challenge, there was no history of non-enforcement from which we could infer a lack of future intent to enforce it. As we have said before, evidence of past enforcement, though relevant, is not "necessary to make out an injury in fact."

Further, the history leading up to the enactment of Rule 8.4(7) reflects an intent to go beyond the precursor to Rule 8.4(7) to reach conduct, for instance, not only in the course of representing a client, but also in the context of "participating in bar association, business or professional activities or events in connection with the practice of law." Accordingly, the lack of an earlier enforcement history does not evince a lack of intent to enforce the new rule. And nothing in the limited history of Rule 8.4(7) overcomes the general presumption that the government will enforce the laws it enacts.

{That the SGC has not sanctioned anyone while it is actively litigating the constitutionality and contours of Rule 8.4(7) is also unpersuasive because it may be making strategic choices in the context of litigation to which it is not bound after the litigation ends.}

Appellees once again point to the First Amendment carve-out, arguing that because they have "disavowed both the authority and the intent to enforce against protected speech," there is no credible threat of enforcement against Appellants. But the First Amendment carve-out is not a disavowal of enforcement against Appellants or their contemplated speech. While Appellees contend that the carve-out shows that those involved in the grievance procedures will be cognizant of First Amendment principles when enforcing Rule 8.4(7), its uncertain reach—as evidenced by Appellees' inability to answer whether specific examples of speech constitute professional misconduct under Rule 8.4(7)—makes differing interpretations of Rule 8.4(7)'s scope likely. And we are not permitted to place Appellants' First Amendment rights "at the sufferance" of the SGC.

The threat of enforcement resulting in discipline, moreover, is itself both credible and substantial. As already noted, Appellees have not disavowed enforcement of the new rule. And … the "universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations," but extends to any person. Moreover, the complaint alleges that members of the Connecticut bar have made clear that they view Rule 8.4(7) as prohibiting speech like that contemplated by Appellants and that they intend to pursue disciplinary action against attorneys who engage in such speech. And most significantly, Appellees point to no guidelines for the State Bar Counsel and the SGC, beyond the general First Amendment carve-out, that might inform the exercise of judgment in the application of Rule 8.4(7). In such circumstances, we cannot conclude that Appellants' fear of enforcement is "imaginary or wholly speculative."

Richard Samp and Peggy Little of the New Civil Liberties Alliance represent plaintiffs.

The post Challengers Have Standing to Challenge Connecticut "Harassment" Ban for Lawyers appeared first on Reason.com.

[Eugene Volokh] Free Speech Unmuted: Court Upholds TikTok Divestiture Law

My cohost Jane Bambauer and I lay out what the D.C. Circuit said. You can also watch our past episodes:

Free Speech in European (and Other) Democracies, with Prof. Jacob Mchangama Protests, Public Pressure Campaigns, Tort Law, and the First Amendment Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

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