Eugene Volokh's Blog, page 211

[Josh Blackman] Justice Thomas's Statement Reaffirms Sword-Shield Dichotomy

Today the Supreme Court denied cert in Wilson v. Hawaii, which I wrote about here. Justice Thomas wrote a statement respecting the denial of cert, joined by Justice Alito. The posture of the case is a bit unusual. The defendant was convicted of carrying a firearm without a license. At the time, Hawaii imposed a "may issue" conceal carry law. It turns out that Wilson had never applied for a carry permit. To challenge his conviction, the defendant argued that Hawaii's carry law runs afoul of Bruen. However, the Hawaii Supreme Court held that he could not raise the Second Amendment as a defense against the carry regime. Justice Thomas explains:

There, the [state] court invoked state standing law to avoid any meaningful Second Amendment analysis. It held that, because Wilson had not applied for a license and had not been charged with violating the licensing statute itself (which was not a criminal statute), he lacked standing to challenge the particulars of the licensing regime. Id., at 12–13, 543 P. 3d, at 444–445. Instead, he could argue only that the Second Amendment categorically forbids state licensing regimes. Because that is not the case, the court held, Hawaii's prohibitions on unlicensed carry "do not graze Wilson's Second Amendment right."

Justice Thomas explained why this approach is mistaken:

A defendant can always raise unconstitutionality as a defense "where a statute is invalid upon its face and an attempt is made to enforce its penalties in violation of constitutional right." Smith v. Cahoon, 283 U. S. 553, 562 (1931). A "long line of precedent" confirms this point. See, e.g., City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 755–757 (1988) (collecting cases).

Even though Wilson was not being prosecuted for violating the civil registration law, the defendant could still challenge the government's enforcement action based on the unconstitutionality of the gun control law.

Here, the Defendant does not need any sort of cause of action to raise the unconstitutionality of the statute. The Constitution is being used as a "shield."

However, Justice Thomas does not say that "A defendant can always raise unconstitutionality," full stop. It can always be raised as a "defense" or a "shield." But for the Constitution to be raised as a "sword" to seek affirmative relief, a cause of action is needed. Justice Thomas recognized this principle in last term in DeVillier v. Texas:

Constitutional rights do not typically come with a built-in cause of action to allow for private enforcement in courts. See Egbert v. Boule, 596 U. S. 482, 490–491 (2022). Instead, constitutional rights are generally invoked defensively in cases arising under other sources of law, or asserted offensively pursuant to an independent cause of action designed for that purpose, see, e.g., 42 U. S. C. §1983. (slip op. at 5.)

Wilson should have been able to invoke the Second Amendment defensively, but could only assert it offensively with a cause of action.

Justice Thomas continues to bring clarity to an area of that is often misunderstood.

For those interested in reading further, Seth Barrett Tillman and I discuss the sword-shield dichotomy in Sweeping and Forcing (pp. 389–404); see also Anderson v. Griswold, Colo., 543 P.3d 283, 348, 351 & n.7, 356 (Colo. Dec. 19, 2023) (Samour, J., dissenting) (citing Sweeping and Forcing, supra) (adopting the sword-shield dichotomy as basis for dismissing plaintiffs' purported Section 3 action).

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[Josh Blackman] Justices Thomas, Alito, Gorsuch, and Kavanaugh Are Active on the Cert Docket

Today the Supreme Court denied review in three high profile cases. In each case, Justices Thomas and Alito wrote separately. In two cases, Justice Gorsuch wrote separately. And in one case, Justice Kavanaugh would have granted cert. In all cases, Justice Barrett remained silent.

First, the Court denied cert in Boston Parent Coalition for Academic Excellence Corp v. The School Committee For the City of Boston. This case challenged the affirmative action policies of Boston Public Schools, where there as overt evidence of discrimination against Asian students. The First Circuit, following the Fourth Circuit's lead in Coalition for TJ v. Fairfax County School Board, rejected the Fourteenth Amendment claim because Asian students were "still over-represented."

Justice Gorsuch wrote a statement respecting the denial of cert in the Boston case. Here, Boston had changed its policy, and the plaintiffs had not challenged the new policy. Gorsuch observed:

Strictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review.As a result, I concur in the Court's denial of the petition for certiorari.

In other words, the Court has a discretionary docket, and he did not think this case was a good use of discretion.

Justice Alito dissented from the denial of cert, joined by Justice Thomas. He explained that the case was not moot, due to the suit for nominal damages.

Boston later replaced the challenged 2021–2022 admission policy with a new policy that the Coalition does not challenge here. But, unlike respondents, I fail to see how that moots this case. First, the Coalition seeks nominal damages to redress the unconstitutional effects of the 2021–2022 admission policy. See Record 2103; Uzuegbunam v. Preczewski, 592 U. S. 279, 292 (2021).

Alito criticized his colleagues, again, for not addressing post-SFFA "defiance":

We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions. I would reject root and branch this dangerously distortedview of disparate impact. The Court, however, fails to do so today, so I must respectfully dissent.

Recall that Justices Alito, Thomas, and Gorsuch would have granted the TJ Coalition an emergency injunction back in 2022, and Alito and Thomas (but not Gorsuch) have granted cert in that case in 2024. Justices Kavanaugh and Barrett are silent on this issue. The Court is now content to let these issues fester in the lower courts, as SSFA is ignored.

Second, the Court today denied certiorari in Wilson v. Hawaii. In this case, the Aloha state had a "may issue" carry regime that would violate Bruen. And the defendant was convicted of violating that law. But the Hawaii Supreme Court held that the defendant could not raise the unconstitutionality of the law, because he never applied for a carry license. Justice Thomas, joined by Justice Alito, wrote a statement respecting the denial of cert. They explained that the case came to the Court at an early posture, but this vehicle, or another should be granted in the future:

Although the interlocutory posture of the petition weighs against correcting this error now, I would grant certiorari in an appropriate case to reaffirm that the Second Amendment warrants the same respect as any other constitutional right.

The Hawaii Supreme Court also took time to criticize Bruen:

The Hawaii Supreme Court disagreed. It spent the bulk of its opinion explaining why the Hawaii Constitution does not confer an individual right to bear arms, with analysis that doubled as a critique of this Court's Second Amendment jurisprudence. The court specifically took aim at our focus on original meaning. Bemoaning the policy consequences, the court asserted that an originalist interpretation of the Second Amendment "disables the states' responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement," by putting firearms restrictions "mostly out of bounds." And, it denigrated the need for public carry in particular, rejecting as un-Hawaiian "a federally-mandated lifestyle that lets citizens walk around with deadly weapons." On the Hawaii Supreme Court's view, a sounder approach to constitutional interpretation would give due regard to the "spirit of Aloha" and would preclude any individual right to bear arms, or at least subject it to "levels of scrutiny and public safety balancing tests." . . .

I think there are some penumbras emanating from the "spirit of Aloha."

Justice Thomas faulted his colleagues for tolerating defiance of Bruen:

The court's contrary path "resist[s] our decisions," Rogers v. Grewal, 590 U. S. ___, ___ (2020) (THOMAS, J., dissenting from denial of certiorari) (slip op.,at 3), and demotes the Second Amendment to a "second class right," McDonald, 561 U. S., at 780 (plurality opinion). This Court cannot tolerate "such blatant defiance" in any constitutional context. Rogers, 590 U. S., at ___ (slip op., at 5).

Justice Gorsuch wrote a separate statement in Wilson v. Hawaii. Gorsuch makes slightly different arguments than did Thomas and Alito. Gorsuch faulted the Hawaii Supreme Court for not analyzing whether the "may issue" regime violated Bruen. Gorsuch also gets into the weeds of the particular Hawaii states that Wilson was charged with violating. Gorsuch also made a Sixth Amendment argument about the state "precluding the presentation of a constitutional defense."

Third, the Court denied cert in Parents Protecting Our Children v. Eau Claire Area School District, Wisconsin. This case challenged the school's policy to encourage students to transition without parental knowledge or consent. The parents raised a Fourteenth Amendment substantive due process claim for the right to make decisions concerning the rearing of their children. The Seventh Circuit panel (Wood, Scudder, St. Eve) rejected this claim on standing grounds.

Justices Alito and Thomas wrote a dissent from the denial of certiorari. Justice Kavanaugh did not join the Alito dissental, but would have granted the petition. Kavanaugh's vote to grant is consistent with some of his questions during the Skrmetti argument. Indeed, I think Justice Kavanaugh is acutely aware of these issues. He has young daughters who attended an elite prep school, and he was the coach of female athletics. He is speaking from experience here.

Alito explains why he would have granted review:

Relying principally on our decision in Clapper v. Amnesty Int'l USA, 568 U. S. 398 (2013), the Seventh Circuit suggested that a parent could not challenge the district's policy unless the parent could show that his or her child is transitioning or considering a transition. 95 F. 4th 501, 505 (2024). But the challenged policy and associated equity training specifically encourage school personnel to keep parents in the dark about the "identities" of their children, especially if the school believes that the parents would not support what the school thinks is appropriate. Thus, the parents' fear that the school district might make decisions for their children without their knowledge and consent is not "speculative." Ibid. (citing Clapper, 568 U. S., at 410). They are merely taking the school district at its word.

Alito also faults the lower courts, as well as his colleagues, for using standing law to avoid controversial issues:

I would grant the petition so that we can address this questionable understanding of Clapper and related standing decisions. I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions. While it is important that federal courts heed the limits of their constitutional authority, it is equally important that they carry out their "virtually unflagging obligation . . . to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 817 (1976).

This charge is a lack of courage. Here, I think Alito is looking right at Gorsuch. Speaking of Justice Gorsuch…

Of course, with three votes to grant, only one more was needed. But Justices Gorsuch and Barrett were silent. Gorsuch's silence is predictable. Last week, I listed the string of LGBT-related cases where Gorsuch did not vote to grant cert: Tingley, Edmo, Grimm, and Kincaid. He was silent in Skrmetti. And now add Eau Claire to that list. Yet, there is a deafening sound to this silence.

Justice Barrett's silence is also quite predictable. She is a standing stickler, and is most likely to find that parties are not injured. But more broadly, she is a cert stickler. Justice Barrett does not seem interested in parental rights here, and apparently did not vote to grant cert on the ACLU's due process petition in Skrmeti. (In my post last week, I erroneously wrote that the Court denied the petition, which in fact remains pending. )

By my best recollection, Barrett has only ever dissented from the denial of cert once. Perhaps with good reason. On any case where Barrett wants to grant review, there will almost certainly be three or four more votes to back her up. But where she wants to sit things out, cert is likely to be denied. Indeed, even if Justice Kavanaugh might be inclined to grant cert, he may not see a fifth vote for reversal, and sits it out.

The Court's docket continues to shrink. Maybe we should blame William Howard Taft for pushing the Court's discretionary docket a century ago, as flagged in Adam Liptak's column today. I still think we should expand the Court's mandatory jurisdiction.

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[Steven Calabresi] The Meese Revolution: The Making of a Constitutional Moment (2024)

Gary Lawson and I have just published an intellectual biography of former Attorney General Ed Meese, which argues that Ed Meese is the most influential person ever to hold the office of U.S. attorney general—but almost no one knows it. (The runners-up are: Homer S. Cummings (1933-1939) and Robert F. Kennedy (1961 to 1964), neither of whom helped to win the Cold War or to shape judicial selection for nearly forty years.) We explain why Ed Meese beats out Cummings and RFK in 401 pages of text. We think our book would be of great interest to many of the readers of this blog.

Ed Meese was at the center of virtually every major accomplishment of Ronald Reagan's transformational presidency, from winning the Cold War without firing a shot to the economic boom that by the end of the 1980s was the envy of the world. Meese served for nearly eight years on President Ronald Reagan's National Security Counsel, and when Meese and Secretary of State George P. Schulz disagreed, President Reagan always sided with Ed Meese. Meese also served as the Chairman of President Reagan's Domestic Policy Counsel. Ed Meese was in all matters of policy President Ronald Reagan's right hand man in waging the Reagan Revolution.

Our book reveals that Ed Meese: (1) urged Ronald Reagan to make Bill Casey his campaign manager in 1980 after Reagan won the New Hampshire Republican primary that year and later to name him as head of the CIA; (2) urged Ronald Reagan to make George H.W. Bush his running mate in 1980; (3) managed Ronald Reagan's presidential transition in 1980, baking in the submission of Reagan's revolutionary slashing of marginal tax rates in legislation submitted to Congress as soon as Reagan took office; (4) advised President Reagan on the firing of air traffic controller union members who went out on strike in 1981; (5) convened the first meeting with President Reagan in the White House on developing the strategic missile defense systems from which the Patriot missile systems now defending Kiev and Tel Aviv are descended; (6) urged President Ronald Reagan's first term judicial appointments of Judges Robert H. Bork, Antonin Scalia, and Ralph K. Winter, among many others; (7) helped President Reagan confidentially hire his third White House Chief of Staff, Howard Baker, when Donald Regan resigned because of the Iran-Contra scandal; and (8) with the help of Leonard Leo, successfully lobbied President George W. Bush to appoint Justices Samuel Alito and John Roberts to the U.S. Supreme Court in 2005.

More to the point for our book, Ed Meese is the person most responsible for the rise of constitutional originalism, a style of legal interpretation that treats the text and original meaning of the Constitution rather than the policy fads of the moment as authoritative law. Ed Meese gave more than thirty speeches on constitutional law and originalism during his tenure as Attorney General debating liberal Justices William J. Brennan, Jr. and John Paul Stevens. Meese gave speeches on originalism, constitutional criminal procedure, religious liberty, economic liberties, the separation of powers, and federalism, as well as on many other legal subjects.

Our book tells the inside story of the nominations during Ronald Reagan's presidency of Chief Justice William H. Rehnquist and of Justices Antonin Scalia and Anthony M. Kennedy, as well as the unsuccessful Supreme Court nomination of Judge Robert H. Bork. We explain that former Chief Justice Warren Burger gave Meese more than eight months notice of his resignation in June 1986, but that this news never leaked because only Reagan, Meese, and two top Meese aides knew about it. We describe Meese's success when he was Attorney General in urging President Reagan to appoint such stellar federal court of appeals judges as Judges Laurence J. Silberman, James L. Buckley, Stephen F. Williams, Douglas H. Ginsburg, David B. Sentelle, J. Daniel Mahoney, J. Harvie Wilkinson, Edith Jones, Jerry Smith, Danny Boggs, Frank Easterbrook, Pasco Bowman, Diarmuid O'Scannlain, and many, many others.

We discuss how Ed Meese's legacy of superb judicial appointments was, through Meese's shrewdness, carried on by President George H.W. Bush, and by his White House Counsel C. Boyden Gray—with the aide of Meese DOJ alumna Lee Liberman Otis—who secured Justice Clarence Thomas's appointment to the Supreme Court and the appointments to the federal courts of appeals of Judges Ray Randolph, Michael Boudin, John Walker, Dennis Jacobs, Samuel Alito, Paul Niemeyer, Morris Arnold, and many others.

Finally, we explain how Ed Meese helped bring Don McGahn, President Donald Trump's first White House Counsel and judicial appointments advisor into the Federalist Society by befriending him when he was a law student attending a Federalist Society National Lawyers' Convention in the mid-1990's. Don McGahn, and President Trump, brought to fruition the Meese Revolution on the Supreme Court between 2017 and 2021 with the splendid appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—aided again by Leonard Leo.

Today, in 2024, originalism is a major force in the courts, with a majority of Supreme Court justices and a raft of lower-court and state-court judges at least taking it seriously as a major contributor to decision-making. That would have been unthinkable in 1985 when Meese took office. At that time, originalism was essentially unknown to the legal academy and almost wholly absent from the judicial process. Ed Meese turned the U.S. Department of Justice into "the academy in exile," where originalism was developed, refined, theorized, and put into practice.

Our book describes Ed Meese's central role in the rise of originalism. Meese's story threads through virtually all important legal and policy events of the 1980's, many of which continue to shape the world of the 21st Century. We are still living through the Meese Revolution.

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[Josh Blackman] Originalist Angles Looking for Staff Writers

My work with the Harlan Institute has introduced me to many High Schoolers who have a deep knowledge of constitutional law. I am extremely proud of Originalist Angles, a national high school law journal. It has published insightful essays on pending Supreme Court, deep dives into originalist theory, as well as interviews with jurists and scholars. This is an impressive endeavor.

I am happy to pass along this announcement from Managing Editor Maclain Conlin. They are looking for Staff Writers:

Dear fellow students,
I hope that you are having a great week! My name is Maclain Conlin, and I am the Managing Editor of Originalist Angles, a national high school law journal. I am happy to report that we are looking for new Staff Writers for the coming year, and cordially invite you to apply!

What is Originalist Angles and what is its purpose?

Originalist Angles is a national law journal written by and for high school students. OA's Board of Advisors includes top law professors at UVA, Georgetown, and the University of Minnesota, and our site is listed as a recommended resource by Georgetown University's Center for the Constitution. Our purpose is to engage young minds in legal debates through the study of originalism as a lens of constitutional interpretation. We are guided by three core principles:

1. Young people have both a right and a duty to contribute to the great legal debates shaping our nation. To that end, we give students a unique chance to publish their legal writing and to participate in regular symposiums on the most pressing issues in constitutional law.

2. Freedom of speech is essential to the discovery of objective truth. In this vein, we do not require our writers to support any specific point of view. We encourage debate and counterarguments.

3. High school students should have access to the greatest legal minds of our time. To fulfill this principle, we regularly publish interviews with top federal judges, legal scholars, and practicing attorneys on their respective fields.

Who should apply?

Any student who is interested in learning more about the law, civic education, and/or our system of government should apply. We do not require any prior experience in scholarly legal writing or law-related activities, and we emphasize a diversity of perspectives and passions.

What is the application process like?

This Fall, we are looking to recruit at least two Staff Writers for the 2024-2025 school year. Students who are interested in applying should visit this link, where you will be asked to submit your name, a brief writing sample on government, literature history, or law (you are free to use past school papers on any of these topics), and answer a brief essay prompt. The deadline to apply is February 1, 2025, and the selected Staff Writers will be notified by mid-February.

What does being a Staff Writer entail?

We anticipate publishing two editions during the remainder of this school year—one in the Winter with a mid-March submission deadline and another in the Spring with a late April submission deadline. Students who are selected as Staff Writers will be asked to publish an essay in both editions. This is a very special opportunity, as our past two editions have been shared on Professor Solum's Legal Theory Blog, one of the most prestigious and widely read legal outlets in the United States. Staff Writers will also have the opportunity to interact directly with top legal minds through our virtual symposiums. At the end of the coming school year, Staff Writers will be given a preference in the selection process for OA's new leadership.

What if I am not selected as a Staff Writer but still want to participate?

If you are not selected as a Staff Writer, there are still many ways that you can participate!

First, in our "Interim Works" section, we regularly publish shorter works outside of our formal Journal editions, and we welcome submissions from all high school students. To submit a piece for this section, please send a copy of your article to MaclainConlin-at-gmail.com. In the coming year, we hope to increase our output in this section!

Second, we will host multiple symposiums during the coming school year in which students will have the chance to submit a brief entry on an assigned subject. If your entry is accepted, you will be able to share your scholarship in a virtual conference and answer questions about your paper from accomplished scholars. Last year, our Symposium on Free Speech and Social Media was led by Professors Eugene Volokh of UCLA (now of Stanford's Hoover Institution) and Josh Blackman of South Texas, two of America's leading constitutional law scholars.

Thank you for taking the time to read this note! I look forward to reviewing your application along with the rest of our leadership.
Sincerely,
Maclain Conlin
Managing Editor, Originalist Angles

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[Eugene Volokh] City's Christmas Parade May Not Exclude Pride Float Because Risk of Thrown Objects or Slashed Tires

From Friday's opinion by Judge Austin Huffaker (M.D. Ala.) in Prattville Pride v. City of Prattville:

Prattville Pride is a non-profit, LGBTQ organization that alleges that the Defendant, the City of Prattville ("City"), has excluded it from participating in the City's Christmas parade (scheduled to begin at 7:00 p.m. on December 6, 2024; i.e., this evening) in violation of the group's First Amendment right to free speech and right to Equal Protection ….

According to Prattville Pride, the group has complied with all the conditions imposed by the City to participate in the parade. The group has submitted its application, paid its fee, and was granted approval by the City to participate in the parade. Thereafter, certain members of the public made general complaints about Prattville Pride's participation in the parade because of the nature of the organization.

On December 3, 2024, the Prattville City Council met and discussed the group's participation. Apparently, members of the public voiced vehement opposition to Prattville Pride's participation in the upcoming parade…. Yesterday, Prattville Pride informed the City's Police Chief that the group had received threats which "referenc[ed] harmful actions to be taken against [the group] and [its] float during the Prattville Christmas Parade," and therefore the group requested additional security monitoring and presence.  Prattville Pride also stated that it was "concerned not only with [its] own safety but that of bystanders and parade goers as well. Having police escorts could be a[n] invaluable deterrent."

In response, the City did not reject the request [f]or additional security, or agree to provide additional security, or offer to investigate the threats. Instead, the City's mayor removed Prattville Pride from the parade, stating: that Prattville Pride had brought to the City's attention "serious safety concerns" and that the "City will not put the rights of parade participants ahead of the safety of []its citizens." …

During a telephone hearing held on the morning of December 6, 2024, the Court inquired of the parties of the nature of the threats. The only threats mentioned were online threats about throwing eggs, rocks, and water at Prattville Pride's float or possibly slashing the float's tires so that it could not roll down the three mile stretch of the parade route….

"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." The First Amendment protects the expression that marching in a parade entails.

The "heckler's veto" is one where governmental action silences "a speaker to appease the crowd and stave off a potentially violate altercation." Bible Believers v. Wayne Cnty. (6th Cir. 2015). In the hearing this morning, the City claimed that prohibiting Prattville Pride's parade participation is the least restrictive means possible to avoid violence, which again is limited to vague online threats of throwing eggs, rocks, or water and slashing the float's tires. {During the hearing, the Court provided counsel for the City with a hypothetical where it asked whether the City would react the same way and remove a float of Alabama fans who wanted to celebrate their Iron Bowl victory in response to similar threats from Auburn fans. Counsel stated that the City would do so. The Court seriously doubts that.}

The heckler's veto is what the Court has before it today. The City removed Prattville Pride from the parade based on its belief that certain members of the public who oppose Prattville Pride, and what is stands for, would react in a disruptive way. But discrimination based on a message's content "cannot be tolerated under the First Amendment," and viewers or "[l]isteners' reaction to speech is not a content-neutral basis for regulation." Forsyth Cnty. v. Nationalist Movement (1992). Thus, the Court finds that the City's decision to remove Prattville Pride from the parade is based on content and speech.

Content-based restrictions are subject to strict scrutiny, a point both sides agree is the applicable level of scrutiny. State action that limits protected speech will not survive strict scrutiny, unless the restriction is narrowly tailored to be the least-restrictive means available to serve a compelling government interest. "[R]emoving[] or [otherwise] silencing a speaker due to crowd hostility will seldom, if ever, constitute the least restrictive means available to serve a legitimate government purpose." Bible Believers.

Here, whether considered under strict scrutiny or a lesser standard, the City has presented no evidence of legitimate, true threats of physical violence. It is undisputed that the threats and public complaints are limited to vague online comments about throwing eggs, rocks, or water at Prattville Pride's float and to the possibility of the float's tires being slashed. At the hearing, the City admitted that the City can easily require two officers to escort Prattville Pride's float during the two-hour long parade and that it would not be burdensome to do so. {During the hearing, counsel for the City represented that the person behind the threat of possible tiring slashing had already been identified by police.} The Court struggles with how the City's decision to remove a law abiding parade participant could ever survive any level of scrutiny when the more easily tailored, and reasonable, response is to simply implement additional security measures, such as two or more law enforcement officers who can walk with the float on the parade route and make an arrest if an egg, water, or rock is thrown.

For the foregoing reasons, … it is ORDERED as follows:

The City of Prattville SHALL rescind its directive removing Prattville Pride from the subject Christmas parade, and is ENJOINED from prohibiting Prattville Pride from participating in the parade. The City of Prattville SHALL provide at least two law enforcement officers to escort Prattville Pride's float during the duration of the parade and to enforce the law as necessary against any person who engages in criminal conduct directed against Prattville Pride during the parade….

I think this would have clearly been the correct result if the City had tried to cancel a privately organized Pride Parade (including one on city streets) that had gotten the proper permits under a content-neutral permitting scheme. But given that this is a city-run parade, it seems to me that under Leake v. Drinkard (11th Cir. 2021), it is the city's speech, and the city can choose to exclude from it viewpoints that it wants to exclude, whether because of risk of even minor disruption (as here) or because of disagreement with the viewpoint (as in Leake, which upheld the city's right to exclude Confederate flags). To quote Leake,

[W]hen governments organize and sponsor a parade to communicate a message, the parade is their speech from which they may include or exclude participants at will. "Since every participating unit affects the message conveyed by the… organizers" of a parade, neither the government nor private parties may compel them "to alter the expressive content of their parade." This principle applies no matter whether the organizer is the government or a private party. A government cannot compel a private parade organizer to admit groups of whose views the private organizer disapproves. Hurley (holding that the State could not compel a private parade organizer to admit a gay, lesbian, and bisexual advocacy group because the "parade's organizers" had a right to choose not "to propound a particular point of view"). And we hold that a private organization cannot compel a government parade organizer to admit groups of whose views the government disapproves.

And while it looks like the parade, like the one in Leake, was open to many people, it was indeed aiming to promote a message (presumably of Christmas cheer), so that the reasoning of Leake would apply. This having been said, the matter had to be decided very quickly, with the government's position presented only at oral argument and not in any docketed written materials. Perhaps there was some concession made at oral argument that would put the matter in a different light, or perhaps it came out that the city had long treated the parade as a limited public forum in which it would accept all participants, regardless of content.

John Tyler Winans and Julia Dianne Collins (The Harris Firm LLC) represent plaintiffs.

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[Josh Blackman] Today in Supreme Court History: December 8, 1902

12/8/1902: Justice Oliver Wendell Holmes takes the oath.

Justice Oliver Wendell Holmes

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[Josh Blackman] Today in Supreme Court History: December 7, 1941

12/7/1941: Pearl Harbor is attacked.

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[Eugene Volokh] Cats Are from Berkeley, Dogs Are from Mar-A-Lago

AP reports that Harris won among voters who owned only cats, 54-45, but Trump won among those who owned only dogs, 55-44, and among those who owned both, 53-46. Harris also won among voters who owned neither (averaging her 58-41 margin among women who owned neither and Trump's 51-46 margin among men who owned neither). The story has more, including further breakdowns by sex.

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[Eugene Volokh] Did President Obama Say "the Election Proved that Democracy Is Pretty Far Down on People's Priority List"

From a recent Tweet:

But actually, here's what he says (or you can read the very similar version in Obama's Medium post):

I should tell you that when I mentioned to a few friends that our foundation would be hosting a forum on democracy and pluralism, I got more than a few groans and eye-rolls. And it's understandable; after all, here in the United States we have just been through a fierce, hard-fought election, and it's fair to say that it did not turn out as they hoped. And for them, talk of bridging our differences when the country and the world seem so bitterly divided felt like an academic exercise. It felt far-fetched, even naïve, especially since, as far as they were concerned, the election proved that democracy is pretty far down on people's priority list. And I understood their skepticism; maybe you had a conversation with a friend that felt the same way. But as a citizen and part of a foundation that believes deeply in the promise of democracy—not only to recognize the dignity and the worth of every individual, but to produce freer, and fairer, and more just societies—I can't think of a better time to talk about it.

Obama is characterizing what some people believe ("as far as they were concerned"), not stating it as his own message. Indeed, he's expressing some disagreement with those people, at least as to the value of discussing democracy now. Perhaps some might suspect that he actually does agree that "democracy is pretty far down on people's priority interest." But quoting that phrase without Obama's "as far as they were concerned" strikes me as not quite right.

Here, by the way, is another passage from the speech that I'm glad Obama included, and that I think more people, on the Left, Right, and otherwise should bear in mind:

[T]he concept of pluralism should, and is actually familiar to all of us. It means that in a democracy, we all have to find a way to live alongside individuals and groups who are different than us. So we commit to a system of rules and habits that help us peacefully resolve our disputes; we try to cultivate habits — those practices that encourage us not just to tolerate each other but also — every so often — join together in collective action. The pluralist ideal is what allows a Christian church and Muslim mosque to sit side by side on the same city block — and then maybe agree to share a parking lot. It's what keeps you from pulling down a sign in your neighbor's yard supporting a cause you find completely irritating, and it keeps him from doing the same to you; it's what encourages you to team up with a co-worker on a project and get the job done despite the fact that the two of you disagree on abortion, gun ownership, and the merits of Taylor Swift versus Beyoncé.

I read the rest of the speech, and there are of course parts that I didn't agree with. But on balance I think it teaches a pretty healthy attitude towards democracy and dealing with people who disagree with you.

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[Eugene Volokh] Judge Ginsburg (Author of the TikTok Divestiture Opinion) and His Own Foray into Social Technology

I hadn't known this until Emory law professor Matt Lawrence noted it on a discussion list, but here's an item from D.C. Circuit Judge Douglas Ginsburg's biography:

Judge Ginsburg left college for more than a year in the mid-1960's and founded a nationwide computer-dating service known as Operation Match. For a fee, the company arranged blind dates through the use of computerized data gathered from questionnaires….

It was apparently the first computerized dating service in the U.S.

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