Eugene Volokh's Blog, page 212

[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New case: In 2023, South Carolina enacted a law providing $6,000 education scholarship accounts for low-income families to be used for a virtually unlimited number of education expenses: textbooks, tutoring, homeschool materials, therapies, and tuition and fees at private and out-of-district public schools. But in response to a recent state supreme court ruling, officials have barred families from using the ESAs for private school tuition. So this week, IJ filed a petition in the South Carolina Supreme Court, arguing that the new policy falls afoul of two bedrock, towering, and monumental U.S. Supreme Court cases: Meyer v. Nebraska, which recognized the right of parents to direct the education of their children; and Pierce v. Society of Sisters, which held that this right includes the right to send one's children to a private school. Click here to learn more.

New on the Short Circuit podcast: Chicago attorney Patrick Eckler joins the podcast to share a trainwreck of a Seventh Circuit oral argument.

Concerned that China is collecting information on American citizens and covertly influencing them through the social media app TikTok, the United States enacts the "Protecting Americans' Data from Foreign Adversaries Act of 2024," which prohibits data brokers from transferring information on U.S. residents to any entity "controlled by a foreign adversary." TikTok and content creators sue, alleging the law violates the First Amendment. D.C. Circuit: This is the rare law that survives strict scrutiny. Concurrence: We don't have to go that far because it is only subject to intermediate scrutiny. Convicted felons challenge their disenfranchisement under Virginia law, alleging that it violates the Virginia Readmission Act, an 1870 federal statute that allowed Virginia to regain its representation in Congress after the Civil War. Virginia officials: We have sovereign immunity, and Ex parte Young doesn't apply to this kind of case. Fourth Circuit: Can you point to any case holding that Ex parte Young is limited in that way? Virginia officials: Nope. Fourth Circuit: Then there's no sovereign immunity. What does it sound like when the genteel Fourth Circuit is mad as hell? "We deal here with the unfortunate instance of a district court failing to follow our clear mandate to dismiss the state law claims against the school officials in this case." So says the court in (re)granting state-law official immunity to North Carolina public school officials who failed to intervene when an elementary school teacher abused an autistic first grader, reaffirming its prior 2022 ruling and emphasizing: "We meant what we said the first time." A tragic case arising from a Baltimore County, Md. jail suicide reaches the Fourth Circuit in its third interlocutory appeal. But this decision isn't on the merits, instead addressing whether this third trip was premature. It was, because the district court still hasn't fully resolved the motion for reconsideration that is the subject of the appeal. Appeal stayed until the district court finishes up. (And check out footnote 3 for a lowkey creation of a circuit split.) Texas wants to string concertina wire along part of its border with Mexico, but the U.S. Border Patrol keeps removing it. So Texas sues to stop them and for a preliminary injunction. Fifth Circuit (over a dissent): Which we grant. The feds are enjoined from removing the wire fencing except in instances where they lack the necessary access to both sides of the fence for immigration law enforcement and emergency purposes. "Two households, both alike in dignity, in fair Gary, Indiana, where we lay our scene." Hard to credit, we know, but the Seventh Circuit resisted that opening line in this (concededly grim) opinion about two rival car washes (and possible fronts for drug dealing), which features one of the car-wash owners' being killed with an AK-47, a lot of disturbing chaos, and a life sentence affirmed. Also some stuff chiding the gov't for ignoring circuit precedent on standards of review. This class-action lawsuit challenging the treatment of prisoners with gender dysphoria by the Illinois Department of Corrections takes a sharp turn towards the procedural in this Seventh Circuit opinion about whether the district court could retroactively change its preliminary injunction into a permanent one. Short answer: No. As for why it matters? Because, evidently, the Prison Litigation Reform Act provides that preliminary injunctions expire automatically 90 days after their issuance unless the district court makes certain findings about whether the injunction is narrowly tailored. Which the district court didn't do here. Little Rock, Ark. detective obtains a no-knock warrant after informant makes cocaine purchase at plaintiff's home. A SWAT team barges in. Yikes! No cocaine. Turns out the informant might not have been on the up and up. Eighth Circuit: It's not clearly established that calling in SWAT when there is no need for SWAT violates the Constitution. Just like we said last time. Allegation: During Kansas City, Mo. George Floyd protest, officer fires white smoke projectile rounds into unthreatening crowd and strikes plaintiff, permanently blinding him in one eye. Eighth Circuit: But the officer wasn't trying to single anyone out or intentionally trying to hurt anyone, so these constitutional claims fail. Idaho criminalizes "abortion trafficking," which it defines as "procur[ing] an abortion" or an abortion drug for an unemancipated minor without her parents' consent "by recruiting, harboring, or transporting" the minor. District court: There's a lot wrong with that, preliminarily enjoined. Attorney General: I'm appealing, but only as to jurisdiction. Ninth Circuit: There's jurisdiction and the law is OK when it comes to "harboring, or transporting." But we'll keep things enjoined for the "recruiting." Concurrence: I thought all we were talking about was jurisdiction, and I don't see none. Separately, Idaho penalizes doctors who "assist" with abortions. State legislator: Hey Attorney General, what's that mean? AG (on official letterhead): It includes referring a patient to someplace out of state where abortion is legal. Plaintiffs: That's a First Amendment violation. AG: You know, I get that my name was on that letter, but it was drafted by my assistant [who is now under a bus] and who cares what I think anyway, I'm just some guy, you know? Ninth Circuit: You're the state's chief law enforcement officer, and the law is enjoined. While the loser in a Ninth Circuit decision seeks certiorari, the mandate issues and the case returns to the district court, where the parties agree to stay proceedings pending resolution of the cert petition. District court: No can do, with the mandate issued I must press forward to trial. Parties: Oh no! Would the Ninth Circuit please recall the mandate to get us out of this jam? Ninth Circuit: No, recalling the mandate is only "a power 'of last resort,'" and this was all foreseeable. But we never said the district court can't stay the case, so give that another go. Several members of a Miami-based gang, including an individual with the prescient alias "The Real Rico," are convicted of doing the RICO (among other things). Was the lower court wrong to exclude an expert's testimony that the defendants were merely a "bunch of yahoos running around" rather than members of an organized criminal enterprise? Eleventh Circuit (over a partial dissent): Yep, and the gov't doesn't address whether the exclusion was harmless error. We are not combing through a nearly 8,000-page trial transcript to do so sua sponte. RICO convictions set aside and remanded. And in en banc news, the Eighth Circuit will reconsider its decision that a Springfield, Mo. school district did not violate the First Amendment when it compelled employees to attend "equity training" where they were required to complete online quizzes parroting the district's views, even if they disagreed with them, and were told they were "wrong" and "confused" when they expressed opinions like "Kyle Rittenhouse acted in self-defense." The panel held that the plaintiffs' alleged self-censorship was based on fears that were too speculative to raise a First Amendment claim. And in state court news, the North Carolina Court of Appeals has struck a blow for freedom and good sense, undismissing a bevy of state constitutional claims against a Jacksonville, N.C. ordinance that bans food trucks in 96 percent of the city and makes operating them in the other 4 percent needlessly difficult. City council members have openly said the purpose of the ban is to benefit restaurants, which is just the kind of impermissible preferential treatment that the North Carolina Constitution forbids. Three cheers for a rule of law that protects the right to earn an honest living! To the merits! (This is an IJ case.)

For years, the Pasco County, Fla.'s sheriff's office used a glorified Excel spreadsheet—an "algorithm" based on entirely arbitrary inputs—to identify people they thought were likely to commit future crimes (many of them kids). Then they subjected their families to relentless harassment in the express hope of forcing them to move out of the county. Deputies conducted suspicionless "checks," confronting people at home, including at night, peering in windows and banging on doors. They confronted people at work and harassed colleagues and friends. Officers manufactured bogus criminal charges and blitzed people with unwarranted civil citations. It was evil. (So much so that the inventor of the "focused deterrence" theory that officers—wrongly—thought they were applying volunteered to serve as our expert witness and was brought to tears by what these officers were doing, routinely, to kids.) But this week, after three years of litigation, and on the literal eve of trial, Pasco County Sheriff Chris Nocco threw in the towel. The county agrees with us that they violated the Constitution and has entered into a court-enforceable promise never to do anything like that again. If it does—or if some other department tries this kind of "predictive policing" elsewhere—we will nuke them into the sun. Click here to learn more.

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.

[Eugene Volokh] Chief Judge Srinivasan's "Alternate Path" to Upholding the TikTok Divestiture Mandate Against First Amendment Challenge

Here are some excerpts from Chief Judge Srinivasan's opinion concurring in the judgment as to the First Amendment inquiry in Tiktok, Inc. v. Garland. First, Judge Srinivasan stresses the history of restrictions on foreign ownership of electronic communications media:

[C]oncerns about the prospect of foreign control over mass communications channels in the United States are of age-old vintage. In that respect, Congress's decision to condition TikTok's continued operation in the United States on severing Chinese control is not a historical outlier. Rather, it is in line with a historical pattern.

The first communications medium capable of reaching mass audiences in real time—radio—was subject to restrictions on foreign ownership and control from the very outset. The Radio Act of 1912 required radio operators engaged in interstate (or international) communications to obtain a license from the Secretary of Commerce and Labor, but Congress made licenses available only to U.S. citizens or companies. Congress then extended the restrictions to encompass foreign control (not just foreign ownership) in the Radio Act of 1927, prohibiting licensing of any company if it had a foreign officer or director or if one-fifth of its capital stock was in foreign hands.

Within a few years, the Communications Act of 1934 shored up the restrictions on foreign control. Section 310 of the law incorporated with little change the 1927 Act's foreign-control requirements, and also gave the newly created Federal Communications Commission (FCC) authority to withhold a license if a company is "directly or indirectly controlled" by a foreign-dominated parent company. In urging Congress to adopt the additional restrictions on foreign control, the Navy conveyed its concerns that foreign-controlled stations could "be employed in espionage work and in the dissemination of subversive propaganda." The FCC has described Section 310's original purpose as "protect[ing] the integrity of ship-to-shore and governmental communications" from foreign interference and "thwart[ing] the airing of foreign propaganda on broadcast stations."

Section 310 continues to restrict foreign control of radio licenses, including ones used for broadcast communication and wireless cellular services. And while that provision regulates wireless licenses, limitations on foreign control also exist for wired transmission lines under Section 214 of the same law.

When deciding whether to issue or revoke a Section 214 authorization, the FCC considers "the public convenience and necessity," including the implications for "national defense." In conducting that inquiry, the FCC assesses whether direct or indirect foreign ownership or control of a transmission line raises national-security or foreign-policy concerns…. Notably, the FCC in recent years has exercised its Section 214 authority to deny or revoke transmission authorizations in the case of U.S. entities subject to ultimate Chinese control…. This court has affirmed those FCC decisions….

To be sure, because communications media reaching mass audiences in real time "were not present in the founding era," the regulatory history naturally does not date back that far. But under the Supreme Court's decisions, regulatory history still matters so long as the relevant kind of "regulation followed" on the heels of the emergence of a new type of communication medium. In fact, it can matter for precisely the issue considered here: whether a First Amendment challenge should be examined under strict or intermediate scrutiny….

Judge Srinivasan also reasons that "foreign organizations operating abroad have no First Amendment rights," quoting Agency for Int'l Dev. v. All. for Open Soc'y Int'l Inc. (2020), and that "[t]o the extent the PRC or ByteDance might wish to adjust the content viewed by U.S. users of TikTok, those curation decisions would be made abroad." He acknowledges that TikTok Inc. is a U.S.-based subsidiary, and thus has First Amendment rights, but reasons that "To the extent those choices are TikTok Inc.'s own, the company could maintain the same editorial policies on a post-divestment version of the app."

He recognizes, though, that the divestment mandate potentially implicates the First Amendment rights of American TikTok content creators and consumers, who "face the prospect of the app becoming unavailable to them if a divestment does not occur within the window allowed by Congress, or of an app potentially altered in certain ways if a divestment were to take place." But he agrees with the panel majority that the concerns about the Chinese government "harvest[ing] abundant amounts of information about the 170 million U.S. app users and potentially even their contacts" and "direct[ing] the TikTok platform to covertly manipulate the content flowing to U.S. users" suffice to justify the divestment mandate.

In particular, he concludes that the law is subject to intermediate scrutiny. "The data-protection rationale is plainly content neutral, supporting the application of intermediate rather than strict scrutiny." And, though "Congress's interest in preventing the PRC's use of TikTok to engage in covert content manipulation is self-evidently connected to speech," it "does not raise heartland First Amendment concerns about content-based restrictions":

Congress's concern about the PRC's capacity to conduct covert content manipulation on the TikTok platform does not "discriminate based on the topic discussed or the idea or message expressed." Congress desires to prevent the PRC's secret curation of content flowing to U.S. users regardless of the topic, idea, or message conveyed.

To be sure, Congress would have concerns about the PRC covertly compelling ByteDance to flood the feeds of American users with pro-China propaganda. But Congress would also have concerns about the PRC sowing discord in the United States by promoting videos—perhaps even primarily truthful ones—about a hot-button issue having nothing to do with China. Indeed, because the concern is with the PRC's manipulation of the app to advance China's interests—not China's views—one can imagine situations in which it would even serve the PRC's interests to augment antiChina, pro-U.S. content. Suppose, for instance, the PRC determines that it is in its interest to stir an impression of elevated anti-China sentiment coming from the United States—say, to conjure a justification for actions China would like to take against the United States. That would qualify as covert content manipulation of the kind that concerned Congress and supports the Act's divestment mandate….

Those circumstances are far removed from Lamont v. Postmaster General (1965), on which petitioners heavily rely. Lamont concerned a law requiring anyone in the United States who desired to receive mail deemed by the Secretary of the Treasury to be "communist political propaganda" to affirmatively notify the Postal Service. The Supreme Court invalidated the statute, resting its decision "on the narrow ground that the addressee in order to receive his mail must request in writing that it be delivered." That obligation amounted to "an unconstitutional abridgement of the addressee's First Amendment rights," because "any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as 'communist political propaganda.'"

This case does not involve the "narrow ground" on which the Court rooted its decision in Lamont: an affirmative obligation to out oneself to the government in order to receive communications from a foreign country that are otherwise permitted to be here. Moreover, whereas this case, as explained, addresses what amounts to a speaker-based regulation without a content preference underpinning it, the law in Lamont drew a viewpoint-based distinction based on whether the government deemed mailed material "communist political propaganda." Finally, Lamont was not a case about covert content manipulation, the concern driving the Act's divestment mandate. In that regard, while counterspeech is an available response in the case of a publication designated as "communist political propaganda," counterspeech is elusive in response to covert (and thus presumably undetected) manipulation of a social media platform.

He closes thus:

While the court today decides that the Act's divestment mandate survives a First Amendment challenge, that is not without regard for the significant interests at stake on all sides. Some 170 million Americans use TikTok to create and view all sorts of free expression and engage with one another and the world. And yet, in part precisely because of the platform's expansive reach, Congress and multiple Presidents determined that divesting it from the PRC's control is essential to protect our national security.

To give effect to those competing interests, Congress chose divestment as a means of paring away the PRC's control—and thus containing the security threat—while maintaining the app and its algorithm for American users. But if no qualifying divestment occurs—including because of the PRC's or ByteDance's unwillingness—many Americans may lose access to an outlet for expression, a source of community, and even a means of income.

Congress judged it necessary to assume that risk given the grave national-security threats it perceived. And because the record reflects that Congress's decision was considered, consistent with longstanding regulatory practice, and devoid of an institutional aim to suppress particular messages or ideas, we are not in a position to set it aside.

The post Chief Judge Srinivasan's "Alternate Path" to Upholding the TikTok Divestiture Mandate Against First Amendment Challenge appeared first on Reason.com.

[Eugene Volokh] Protecting Speech Against Governments

If I had to identify one paragraph as the key to the majority opinion in TikTok v. Garland, I think it would be this:

In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC's ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. See NetChoice v. Moody (2024) (explaining that a state government "may not interfere with private actors' speech" because the First Amendment prevents "the government from tilting public debate in a preferred direction"). Here the Congress, as the Executive proposed, acted to end the PRC's ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment.

Agree or disagree with it, but it seems to me the heart of the argument.

The post Protecting Speech Against Governments appeared first on Reason.com.

[Eugene Volokh] TikTok Divestiture Requirement Doesn't Constitute a Taking of Private Property Under the Fifth Amendment

Besides challenging the law on First Amendment grounds, TikTok also raised a Takings Clause argument, but the D.C. Circuit panel unanimously rejected it:

TikTok claims the Act constitutes a per se regulatory taking in violation of the Fifth Amendment because it will render TikTok defunct in the United States. The Government counters that TikTok has assets that can be sold, and that the Act requires only divestiture, which need not be uncompensated. Although the Act will certainly have a substantial effect on the TikTok platform in the United States, regardless whether TikTok divests, the Act does not qualify as a per se regulatory taking.

The Supreme Court recognizes two situations in which regulatory action constitutes a per se taking: (1) where the government requires that an owner suffer a "physical invasion of [its] property," and (2) where a regulation "completely deprives an owner of all economically beneficial use of [its] property." TikTok's argument is of the second variety, but it does not demonstrate the complete deprivation such a claim requires.

Here the causal connection between the Act and the alleged diminution of value is attenuated because the Act authorizes a qualified divestiture before (or after) any  prohibitions take effect. That presents TikTok with a number of possibilities short of total economic deprivation. ByteDance might spin off its global TikTok business, for instance, or it might sell a U.S. subset of the business to a qualified buyer.

TikTok dismisses divestiture as impractical. One of the main impediments, however, appears to be export prohibitions that the PRC erected to make a forced divestiture more difficult if not impossible. But the PRC, not the divestiture offramp in the Act, is the source of TikTok's difficulty. TikTok would have us turn the Takings Clause into a means by which a foreign adversary nation may render unconstitutional legislation designed to counter the national security threats presented by that very nation.

In any event, TikTok has not been subjected to a complete deprivation of economic value. Beyond characterizing divestiture as impossible, TikTok does not dispute that it has assets that can be sold apart from the recommendation engine, including its codebase; large user base, brand value, and goodwill; and property owned by TikTok. In other words, TikTok has several economically beneficial options notwithstanding the PRC's export restriction.

The post TikTok Divestiture Requirement Doesn't Constitute a Taking of Private Property Under the Fifth Amendment appeared first on Reason.com.

[Eugene Volokh] No Bill of Attainder Problem with the Tiktok Divestiture Law

Besides challenging the law on First Amendment grounds, TikTok also claimed that it violated the Bill of Attainder Clause, because it singles out TikTok. The D.C. Circuit panel unanimously rejected that argument:

A law is a bill of attainder if it "(1) applies with specificity, and (2) imposes punishment." Because the Act applies with specificity, this claim turns on whether the Act can fairly be deemed a punishment. We conclude the Act is not a punishment under any of the three tests used to distinguish a permissible burden from an impermissible punishment….

[W]e have assumed without deciding that the clause applies to corporations but emphasized that differences between commercial entities and persons need to be considered. See, e.g., Kaspersky Lab, Inc. v. DHS (D.C. Cir. 2018) (assuming the Bill of Attainder Clause protects corporations but emphasizing the differences between corporations and "living, breathing human beings"); BellSouth Corp. v. FCC (D.C. Cir. 1998) (assuming the clause protects corporations but recognizing the importance of understanding "its effect on flesh-and-blood people"). We take the same approach here.

To determine whether a law constitutes a punishment, we analyze:

whether the challenged statute falls within the historical meaning of legislative punishment [the historical test]; whether the statute, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes [the functional test]; and whether the legislative record evinces a congressional intent to punish [the motivational test].

The Act clearly is not a bill of attainder judged by any of these tests.

TikTok contends the Act satisfies the historical test because it bars TikTok from its chosen business. TikTok reasons the prohibitions of the Act are close analogs to two categories of legislative action historically regarded as bills of attainder: confiscation of property and legislative bars to participation in a specific employment or profession. According to TikTok, the Act effectively requires TikTok to relinquish its property or see it rendered useless, and it precludes TikTok from continuing to participate in a legitimate business enterprise.

As already explained, however, the Act requires a divestiture — that is, a sale, not a confiscation — as a condition of continuing to operate in the United States. See BellSouth (explaining that although "structural separation is hardly costless, neither does it remotely approach the disabilities that have traditionally marked forbidden attainders"); see also Kaspersky Lab, Inc. (comparing a law requiring the Government to remove from its  systems a Russia-based company's software to the business regulations in the BellSouth cases). Nor is the divestiture requirement analogous to a legislative bar on someone's participation in a specific employment or profession. See Kaspersky Lab, Inc. (rejecting a similar analogy in part "because human beings and corporate entities are so dissimilar").

The closer historical analog to the Act is a line-of-business restriction, which does not come within the historical meaning of a legislative punishment…. [A] "statute that leaves open perpetually the possibility of [overcoming a legislative restriction] does not fall within the historical meaning of forbidden legislative punishment." The qualified divestiture exemption does just that …: TikTok can execute a divestiture and return to the U.S. market at any time without running afoul of the law.

The Act also passes muster under the functional test. For purposes of this analysis, the "question is not whether a burden is proportionate to the objective, but rather whether the burden is so disproportionate that it belies any purported nonpunitive goals." Considering our conclusion that the Act passes heightened scrutiny for purposes of the First Amendment, it obviously satisfies the functional inquiry here: The Act furthers the Government's nonpunitive objective of limiting the PRC's ability to threaten U.S. national security through data collection and covert manipulation of information. The  Government's solution to those threats "has the earmarks of a rather conventional response to a security risk: remove the risk."

In other words, the Government's attempt to address the risks posed by TikTok reflects a forward-looking prophylactic, not a backward-looking punitive, purpose. That
is sufficient to satisfy the functional analysis….

The so-called motivational test, for its part, hardly merits discussion. "Given the obvious restraints on the usefulness of legislative history," congressional intent to punish is difficult to establish. Indeed, the motivational test is not "determinative in the absence of unmistakable evidence of punitive intent." TikTok does not come close to satisfying that requirement. We therefore conclude the Act does not violate the Bill of Attainder Clause under any of the relevant tests.

The post No Bill of Attainder Problem with the Tiktok Divestiture Law appeared first on Reason.com.

[Eugene Volokh] TikTok Divestiture Mandate Doesn't Violate the First Amendment

So the D.C. Circuit just held in TikTok v. Garland, written by Judge Douglas Ginsburg, and joined by Judge Neomi Rao. Some key excerpts from the panel majority:

To summarize our First Amendment analysis: The Government has provided two national security justifications for the Act. We assumed without deciding the Act is subject to strict scrutiny and we now uphold the TikTok-specific portions of the Act under each justification. This conclusion is supported by ample evidence that the Act is the least restrictive means of advancing the Government's compelling national security interests….

[T]he Government offers two national security justifications for the Act: to counter (1) the PRC's efforts to collect data of and about persons in the United States, and (2) the risk of the PRC covertly manipulating content on TikTok. Each constitutes an independently compelling national security interest.

In reaching that conclusion, we follow the Supreme Court in affording great weight to the Government's "evaluation of the facts" because the Act "implicates sensitive and weighty interests of national security and foreign affairs." At the same time, of course, we "do not defer to the Government's reading of the First Amendment." We simply recognize the comparatively limited competence of courts at "collecting evidence and drawing factual inferences in this area." With regard to national security issues, the political branches may — and often must — base their actions on their "informed judgment," which "affects what we may reasonably insist on from the Government." …

We … reject TikTok's argument that the Government's data-related concerns are speculative. The Government "need not wait for a risk to materialize" before acting; its national security decisions often must be "based on informed judgment." Here the Government has drawn reasonable inferences based upon the evidence it has. That evidence includes attempts by the PRC to collect data on U.S. persons by leveraging Chinese-company investments and partnerships with U.S. organizations. It also includes the recent disclosure by former TikTok employees that TikTok employees "share U.S. user data on PRC-based internal communications systems that China-based ByteDance employees can access," and that the ByteDance subsidiary responsible for operating the platform in the United States "approved sending U.S. data to China several times." In short, the Government's concerns are well founded, not speculative….

Preventing covert content manipulation by an adversary nation also serves a compelling governmental interest. The petitioners object for two reasons, neither of which persuades. First, TikTok incorrectly frames the Government's justification as suppressing propaganda and misinformation. The Government's justification in fact concerns the risk of the PRC covertly manipulating content on the platform. For that
reason, again, the Act is directed only at control of TikTok by a foreign adversary nation.

At points, TikTok also suggests the Government does not have a legitimate interest in countering covert content manipulation by the PRC. To the extent that is TikTok's argument, it is profoundly mistaken. "At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." When a government — domestic or foreign — "stifles speech on account of its message … [it] contravenes this essential right" and may "manipulate the public debate through coercion rather than persuasion."

In this case, a foreign government threatens to distort free speech on an important medium of communication. Using its hybrid commercial strategy, the PRC has positioned itself to manipulate public discourse on TikTok in order to serve its own ends. The PRC's ability to do so is at odds with free speech fundamentals. Indeed, the First Amendment precludes a domestic government from exercising comparable control over a social media company in the United States. Here the Congress, as the Executive proposed, acted to end the PRC's ability to control TikTok. Understood in that way, the Act actually vindicates the values that undergird the First Amendment….

Rather than attempting itself to influence the content that appears on a substantial medium of communication, the Government has acted solely to prevent a foreign adversary from doing so. As our concurring colleague explains, this approach follows the Government's well-established practice of placing restrictions on foreign ownership or control where it could have national security implications….

TikTok contends the Government's content-manipulation rationale is speculative and based upon factual errors. TikTok fails, however, to grapple fully with the Government's submissions. On the one hand, the Government acknowledges that it lacks specific intelligence that shows the PRC has in the past or is now coercing TikTok into manipulating content in the United States. On the other hand, the Government is aware "that ByteDance and TikTok Global have taken action in response to PRC demands to censor content outside of China." The Government concludes that ByteDance and its TikTok entities "have a demonstrated history of manipulating the content on their platforms, including at the direction of the PRC." Notably, TikTok never squarely denies that it has ever manipulated content on the TikTok platform at the direction of the PRC. Its silence on this point is striking given that "the Intelligence Community's concern is grounded in the actions ByteDance and TikTok have already taken overseas." It may be that the PRC has not yet done so in the United States or, as the Government suggests, the Government's lack of evidence to that effect may simply reflect limitations on its ability to monitor TikTok.

In any event, the Government reasonably predicts that TikTok "would try to comply if the PRC asked for specific actions to be taken to manipulate content for censorship, propaganda, or other malign purposes" in the United States. That conclusion rests on more than mere speculation. It is the Government's "informed judgment" to which we give great weight in this context, even in the absence of "concrete evidence" on the likelihood of PRC-directed censorship of TikTok in the United States….

TikTok does not present any truly material dispute of fact [relevant to the analysis]. Consider, for example, TikTok's claim that data anonymization under TikTok's proposed [alternative to the statutory divestiture mandate, called the NSA (National Security Agreement)] would effectively mitigate the Government's concerns. The Government does not dispute that TikTok's proposal provides for data anonymization; rather, it deems this protection vulnerable to circumvention and therefore insufficient to resolve the Government's data-related concerns. That is a dispute of judgment not of fact.

A similar point applies to the parties' disagreement regarding the feasibility of Oracle reviewing TikTok's source code for the Government. TikTok's declarant says Oracle could apply methods consistent with industry standards to streamline that review and points out that TikTok's proposed NSA would require Oracle to conduct its initial review in 180 days. The Government does not disagree; rather, it doubts the adequacy of Oracle's review of the source code — notwithstanding "Oracle's considerable resources" — based upon extensive technical conversations with Oracle. Moreover, even after "assuming every line of Source Code could be monitored and verified," the Government still concluded that "the PRC could exert malign influence" through commercial features of the platform that would not be identified through a review of the code. TikTok's disagreement with the Government boils down to a dispute about the sufficiency of Oracle's review to mitigate threats posed by the PRC, which is a matter of judgment, not of fact….

To qualify as a less restrictive alternative [that would render the divestiture mandate unconstitutional], the proposed NSA must "accomplish the Government's goals equally or almost equally effectively." As already stated, the Government has offered considerable evidence that the NSA would not resolve its national security concerns. Divestiture, by contrast, clearly accomplishes both goals more effectively than would the proposed NSA.

It has the added virtue of doing so with greater sensitivity to First Amendment concerns by narrowly mandating an end to foreign adversary control. The proposed NSA, by contrast, contemplates an oversight role for the U.S. Government that includes what TikTok calls a "kill switch remedy" and the Government characterizes as "temporary stop" authority over the platform. Entangling the U.S. government in the daily operations of a major communications platform would raise its own set of First Amendment questions. Indeed, it could be characterized as placing U.S. government "officials astride the flow of [communications]," the very arrangement excoriated in Lamont v. Postmaster General (1965). Divestiture poses no such difficulty….

The petitioners suggest a variety of other options that the Government also found inadequate. These include disclosure or reporting requirements, the Government using speech of its own to counter any alleged foreign propaganda, limiting TikTok's collection of location and contact data, and extending the ban of TikTok on government devices to government employees' personal devices. None would "accomplish the Government's goals equally or almost equally effectively."

The first two suggestions obviously fall short. As the Government points out, covert manipulation of content is not a type of harm that can be remedied by disclosure. The idea that the Government can simply use speech of its own to counter the risk of content manipulation by the PRC is likewise naïve. Moreover, the petitioners' attempt to frame the use of Government speech as a means of countering "alleged foreign propaganda" is beside the point. It is the "secret manipulation of the content" on TikTok — not foreign propaganda — that "poses a grave threat to national security." No amount of Government speech can mitigate that threat nearly as effectively as divestiture.

The petitioners' other proposals are similarly flawed. Creators' contention that the Government "could simply ban TikTok from collecting … location and contact data" fundamentally misapprehends the Government's datacollection concerns, which are not limited to two types of data….

The majority closes with:

We recognize that this decision has significant implications for TikTok and its users. Unless TikTok executes a qualified divestiture by January 19, 2025 — or the President grants a 90-day extension based upon progress towards a qualified divestiture, § 2(a)(3) — its platform will effectively be unavailable in the United States, at least for a time. Consequently, TikTok's millions of users will need to find alternative media of communication. That burden is attributable to the PRC's hybrid commercial threat to U.S. national security, not to the U.S. Government, which engaged with TikTok through a multi-year process in an effort to find an alternative solution.

The First Amendment exists to protect free speech in the United States. Here the Government acted solely to protect that freedom from a foreign adversary nation and to limit that adversary's ability to gather data on people in the United States.

Chief Judge Srinivasan concurs in part and in the judgment, with a separate opinion:

I fully join all aspects of the court's opinion today other than Part II.B, which rejects TikTok's First Amendment challenge. As to that challenge, I agree with my colleagues that the Act does not violate the First Amendment. But I reach that conclusion via an alternate path. My colleagues do not decide whether the Act should be subjected to the strictest First Amendment scrutiny or instead the lesser standard of intermediate scrutiny because, in their view, the Act satisfies strict scrutiny regardless. I see no need to decide whether the Act can survive strict scrutiny, because, in my view, the Act need only satisfy intermediate scrutiny, which it does. I would thus answer the question my colleagues leave open while leaving open the question they answer.

Two features of the Act support applying intermediate rather than strict scrutiny to resolve TikTok's First Amendment challenge. First, in step with longstanding restrictions on foreign control of mass communications channels, the activity centrally addressed by the Act's divestment mandate is that of a foreign nation rather than a domestic speaker—indeed, not just a foreign nation but a designated foreign adversary.

Second, the Act mandates divestment of that foreign adversary's control over TikTok for reasons lying outside the First Amendment's heartland: one reason that is wholly unrelated to speech, and another that, while connected to speech, does not target communication of any specific message, viewpoint, or content.

In those circumstances, the Act's divestment mandate need not be the least restrictive means of achieving its national-security objectives, as strict scrutiny would require. Rather, it is enough if, per intermediate scrutiny, the divestment mandate is not substantially broader than necessary to meet those goals. The Act meets that standard.

[Note that I originally posted just the link to the opinion and a few short excerpts; I then added more excerpts as I read through the opinion.]

The post TikTok Divestiture Mandate Doesn't Violate the First Amendment appeared first on Reason.com.

[Eugene Volokh] Plaintiff "Spraypainted a Picture of an Ejaculating Penis and the Slur 'Fag' on the Sidewalk Leading up to the Jewish Resource Center"

From Wednesday's opinion by Judge Susan K. DeClercq (E.D. Mich.) in Druskinis v. StopAntisemitism:

In 2023, John Druskinis was a student-athlete on the University of Michigan's ice hockey team. That August, he spraypainted a picture of an ejaculating penis and the slur "fag" on the sidewalk leading up to the Jewish Resource Center in Ann Arbor. As a result, he was kicked off the hockey team, and he later publicly apologized for his actions.

Soon after, StopAntisemitism, a watchdog organization that "exposes" people it views as engaging in antisemitic behavior, caught wind of the story. It posted on X.com (formerly Twitter) about what happened but got an important detail wrong: it reported that Druskinis had spraypainted onto the Jewish Resource Center not a penis or a homophobic slur, but swastikas.

Druskinis says that StopAntisemitism purposely and maliciously turned his life into a living hell through its false reporting. He therefore sued StopAntisemitism and its executive director, Liora Reznichenko (collectively "StopAntisemitism") for defamation, false-light invasion of privacy, tortious interference with business relations, and intentional infliction of emotional distress.

The court allowed Druskinis' defamation claim to go forward as to the swastika allegation:

StopAntisemitism effectively admits that, as a matter of literal fact, it was wrong about what Druskinis spraypainted that day. Even so, it argues that this error is irrelevant because it got the gist of the story right—that is, because its reporting was "substantially true."

Courts do not hold media defendants to a standard of literal and absolute accuracy in every detail of their reporting. Rather, a plaintiff may only pursue a defamation claim regarding statements that are "materially" false. Therefore, if the "gist" or "sting" of the article is true, the plaintiff cannot prevail.

The parties spill a lot of ink over whether it is "substantially true" that Druskinis spraypainted swastikas. But these arguments are premature at the motion-to-dismiss stage, as neither party has had the chance to flesh out the facts during discovery. What's more, the jury may ultimately have to resolve these arguments because under Michigan law, substantial truth (or material falsity—they are two sides of the same coin) is normally a question of fact. Of course, StopAntisemitism may argue at summary judgment that no reasonable jury could find its reporting materially different than what actually happened. But again, that is not a question for this Court to address at this stage….

But the court rejected Druskinis's claims as to other statements by defendants, which simply referred to his conduct as "antisemitic":

[L]abeling Druskinis's conduct as antisemitic is a protected opinion because such a claim is not "provable as false." Whatever biases or prejudices Druskinis may hold in his heart are not verifiable by the Court—or anyone else, for that matter. Nor does StopAntisemitism's opinion on antisemitism imply as an objective fact that Druskinis spraypainted swastikas….

Druskinis attempts to link all of StopAntisemitism's opinions to the presence of a swastika, effectively arguing that the term "antisemitic" should be read to mean "swastika" each time it is used. But this goes too far. The "antisemitism activity" to which StopAntisemitism refers could just as easily be the incident as a whole—namely, that spraypainting anything negative on the sidewalk leading up to the Jewish Resource Center is antisemitic. At the very least, reasonable people could disagree on that characterization. For instance, the Jewish Resource Center stated that although the vandalism "was offensive and disrespectful," it "did not include any overt anti-semitic symbols (like swastikas)." But nothing prohibits StopAntisemitism from expressing its own contrary opinion that the conduct was antisemitic. And there is no way for a judge or jury to definitively resolve that disagreement. There is no objective, underlying truth to root out, no way to prove that this opinion is false. At bottom, StopAntisemitism was free to interpret Druskinis's actions as antisemitic—swastikas or not. Accordingly, the defamation claim must be dismissed as to any opinions calling Druskinis's conduct antisemitic.

The court rejected Druskinis's false light invasion of privacy claim:

A false-light claim requires that the "publicity must lift the curtain of privacy on a subject matter that a reasonable man of ordinary sensibilities would find offensive and objectionable: supersensitiveness is not protected." Here, Druskinis's claim fails for a reason immediately clear from the name of the cause of action: there must be an invasion of a plaintiff's privacy, and no such thing happened here. See Cetera v. Mileto (Mich. Ct. App. 2022) (dismissing false-light claim because the speech at issue related to public, not private lives of plaintiffs). Indisputably, Druskinis acted in public, so StopAntisemitism's reporting lifted no "curtain" on his private life. That is true regardless of whether StopAntisemitism got all the details about the incident right. See Cetera (recognizing that postings about public matters, "even if false and unreasonable," did not implicate plaintiff's privacy).

The court rejected Druskinis's interference with business relations claim:

Druskinis says that he was stripped of his volunteer position as a youth hockey coach and that he was denied opportunities to transfer to other college hockey teams, with one team deciding not to sign him after StopAntisemitism's post, when it otherwise would have.

To state a claim for tortious interference with business relations, plaintiffs must allege: (1) a valid business relationship or expectancy; (2) the defendant's knowledge of the relationship or expectancy; (3) the defendant's intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resulting damage to the plaintiff.

Here, the tortious-interference claim is too attenuated to survive. First, it is unclear whether Druskinis had a valid business expectancy because he does not allege whether he stood to gain financially from the prospect of transferring to play at another school. True enough, Druskinis says that "at least one college team [decided] against entering into contracts" with him, but he fails to explain whether those contracts would have provided him with a scholarship, stipend, or other monetary benefit. For the same reason, his volunteer position with a youth hockey program does not count as a business relationship. Druskinis responds that losing the volunteer position could entail a monetary loss because such positions often lead to business relationships in the future. But simply arguing that a relationship might lead to a business opportunity later is not concrete enough…. "The expectancy must be a reasonable likelihood or probability, not mere wishful thinking." …

Druskinis also fails to adequately allege StopAntisemitism's knowledge of these specific relationships or expectancies. Druskinis claims that it is "common knowledge that college athletes often transfer to play at other schools, and that they frequently try out for and are selected to play on professional sports teams," and so StopAntisemitism "needed no further information to know that those options were reasonably available to Druskinis." However, courts have required more than just knowledge of generalized business dealings, instead requiring knowledge of a specific business expectancy or relationship….

And the court rejected Druskinis's intentional infliction of emotional distress claim:

When a plaintiff's IIED claim is premised on the same statements as a defamation claim, the IIED claim is subject to the same First Amendment limitations as the defamation claim. The First Amendment may serve as a defense to IIED when the speech at issue touches on a matter of public concern. Snyder v. Phelps (2011). Here, StopAntisemitism's speech clearly touches on a matter of public, not private, concern. The prevalence of antisemitism is a matter of political and social concern to the community, and the vandalism of the Jewish Resource Center's sidewalk is of legitimate news interest. Druskinis's own allegations establish as much, describing how the story was picked up by numerous media outlets and spread like wildfire on the internet. For this reason, StopAntisemitism's speech is entitled to "special protection" under the First Amendment as related to the IIED claim, and so the claim must be dismissed.

{Note that this "special protection" does not necessarily extend to StopAntisemitism's allegedly false speech about the swastikas, which is why Druskinis's defamation claim may proceed. However, that protection does extend to bar the IIED claim because such a claim requires passing upon the "outrageousness" of the speech at issue. This is a problem because outrageousness "is a highly malleable standard with 'an inherent subjectiveness about it which would allow the jury to impose liability on the basis of the jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression.'" Snyder…. Thus, while liability may be imposed for "false" speech dealing with matters of public concern in certain circumstances, it may not be for "outrageous" speech dealing with the same.}

The post Plaintiff "Spraypainted a Picture of an Ejaculating Penis and the Slur 'Fag' on the Sidewalk Leading up to the Jewish Resource Center" appeared first on Reason.com.

[Paul Cassell] Boeing Plea Deal Rejected by Judge O'Connor

Today Judge Reed O'Connor rejected a proposed plea bargain between federal prosecutors and Boeing. The deal would have resolved Boeing's criminal liability for its crime of lying to the FAA about the safety of the Boeing 737 MAX—lies that led directly and proximately to two crashes killing 346 people. The victims' families objected to the deal, and Judge O'Connor agreed with them. He concluded the provisions in the proposed resolution concerning a corporate monitor of Boeing were not in the public interest. According, Judge O'Connor rejected the proposed plea. He gave the parties (Boeing and DOJ) thirty days to advise the court as to how they want to proceed now—via a trial or (as seems more likely) a new plea deal.

I've blogged about the Boeing case a number of times before. (See earlier posts here, here, here, and here.) For the last several years, I have represented families who lost loved ones in the two crashes of Boeing 737 MAX aircraft. The families want Boeing held fully accountable for the harms caused by its federal conspiracy crime of defrauding the FAA about the safety of the 737 MAX and made subject to an independent corporate monitor to ensure that no other plane will crash because of concealed safety issues. In July, DOJ and Boeing negotiated a sweetheart plea deal that did not meet these objectives. And so, in October, I argued before Judge Reed O'Connor (N.D. Texas) that he should reject the proposed plea agreement.

Today, Judge O'Connor agreed with the families and used his authority to reject the proposed plea deal. He gave two reasons.

First, Judge O'Connor was concerned about a DEI provision in the proposed plea. He concluded that, based on DOJ's current policies, race would be part of a selection process for a corporate monitor under the plea: "[A] fair reading of the Executive Order's text, the history of DOJ's diversity-and-inclusion requirement, and the parties' DEI policies—taken in totality—requires the Government to prioritize, among other things, race as part of the corporate monitor-selection process in furtherance of the goal to turn the federal workforce into 'a model for diversity.'"

Judge O'Connor further concluded that, "[i]n a case of this magnitude, it is in the utmost interest of justice that the public is confident this monitor selection is done based solely on competency. The parties' DEI efforts only serve to undermine this confidence in the Government and Boeing's ethics and anti-fraud efforts. Accordingly, the diversity-and-inclusion provision renders the plea agreement against the public interest."

Even more significant was Judge O'Connor's broader concern about structure of the corporate monitor. Judge O'Connor also rejected "the plea agreement because its compliance-monitor provisions erroneously marginalize the Court." Under federal sentencing law, a judge must impose a sentence that "promotes respect for the law." Both DOJ and Boeing had agreed that a corporate monitor was needed as part of the sentence. But the plea deal essentially made the corporate monitor an internal matter between DOJ and Boeing—improperly excluding a judicial role. As Judge O'Connor explained:

The plea agreement's process for selecting the anti-fraud monitor, including prohibiting the Court from considering violations of the monitor's anti-fraud recommendations, improperly marginalizes the Court. The Government has monitored Boeing for three years now. It is not clear what all Boeing has done to breach the Deferred Prosecution Agreement ("DPA"). The victims assert the "Government was forced to find that Boeing violated [the DPA] after the door fell off the Alaska airplane." Boeing hints that it may have legitimate arguments in opposition to the Government's determination of breach. Regardless, taken as true that Boeing breached the DPA, it is fair to say the Government's attempt to ensure compliance has failed.

At this point, the public interest requires the Court to step in. Marginalizing the Court in the selection and monitoring of the independent monitor as the plea agreement does undermines public confidence in Boeing's probation, fails to promote respect for the law, and is therefore not in the public interest. Accordingly, the Court cannot accept the plea agreement.

In referring to the plea's provision "prohibiting the Court from considering violations of the monitor's anti-fraud recommendations," Judge O'Connor adopted a key part of the arguments I made for the victims' families. A provision in the proposed plea allowed Boeing to exempt itself from even having to follow the monitoring provisions. Specifically, Boeing's "compliance obligations" under the plea were not actually made "conditions of probation." Here's the critical language in the proposed plea (paragraph 25(f) (emphasis added)):

A condition of probation shall be that the Defendant retain an Independent
Compliance Monitor, as provided in Paragraph 7(j). However, the condition of
probation is limited to the retention of the Independent Compliance Monitor—not
oversight of the Independent Compliance Monitor or the Company's compliance
with the Independent Compliance Monitor's recommendations. Rather, the
Independent Compliance Monitor will report to and be overseen by the Offices.
The Independent Compliance Monitor's selection process, mandate, duties, review,
and certification as described in Paragraphs 29-37 and Attachment D, and the
Defendant's compliance obligations as described in Paragraphs 7(k), 8, and 9 and
Attachment C, are not conditions of probation.

I explained the problems at greater length in my objection for the victim's families at pp. 37-38 of my brief for the families. This language basically gave Boeing (quite literally) a get-out-of-jail free card:

By statute and Guidelines, a court is permitted to impose conditions of probation on a corporation that pleads guilty to an offense. See 18 U.S.C. § 3563; see also U.S.S.G. § 8D1.1. In addition to standard conditions, the Court may impose any other conditions that the court believes "are reasonably related to the nature and circumstances of the offense or the history and characteristics of the organization…." U.S.S.G. §8D1.3(c). Against this backdrop, it is hard to understand why the parties are proposing in their plea agreement a non-standard provision setting out "compliance obligations" for Boeing and then specifically indicating that these purported "obligations" are "not conditions of probation." Are the "obligations" really "obligations"? This non-standard language seems rife with complicated interpretation issues.

As the families understand these provisions, if Boeing willfully decides to ignore the monitor's recommendations, nothing can be done about it. The "breach" provision in the plea agreement ties back into conditions that are "conditions of probation." Proposed Plea Agreement ¶ 38. Because Boeing's "compliance obligations" are not conditions of probation, the standard enforcement mechanisms for breach are unavailable.

Judge O'Connor's emphatic rejection of the plea deal is an important victory of the families in this case and, more broadly, crime victims' interests in the criminal justice process. Gone are the days when federal prosecutors and high-powered defense attorneys could just cook up backroom deals and expect judges to just blindly approve them. Victims can object—and when victims have good reasons for opposing plea deals, judges can and will reject them as against the public interest.

In this case, Judge O'Connor has correctly recognized that the pending agreement was a cozy deal between the Government and Boeing that failed to focus on the overriding concerns: holding Boeing accountable for its deadly crime and ensuring that nothing like this happens in the future. This order should lead to a significant renegotiation of the plea deal to directly reflect the 346 deaths Boeing criminally caused and put in place proper monitoring of Boeing to ensure that it never again criminally conceals safety issues with its aircraft. As the victims' families have told me, a main goal here is: no third crash. A judicially appointed monitor—responsible to the court—is critical to achieving that goal.

The post Boeing Plea Deal Rejected by Judge O'Connor appeared first on Reason.com.

[Eugene Volokh] Sealing Decision in Sexual Assault Lawsuit Against Fox News and Ed Henry

From Judge Abrams' opinion Monday in Eckhart v. Fox News Network, LLC (S.D.N.Y.):

Defendants Fox News Network, LLC and Ed Henry filed motions for summary judgment in this action. Plaintiff Jennifer Eckhart and both Defendants then filed letters requesting leave to seal or redact certain portions of Defendants' motion papers, including (1) information that named or identified third-party women who allegedly had sexual or romantic relationships with Henry, (2) a full declaration submitted by one such woman, "Jane Doe 1," (3) identifying information of third-party Fox News employees who were involved in complaints and internal investigations, (4) email addresses and phone numbers of non-parties, (5) Fox News' confidential business information, including Henry's compensation and the size of certain business expenditures, (6) sexually explicit messages between Eckhart and Henry, and (7) sexually explicit photographs sent by Eckhart to Henry. The parties generally agreed that the first five categories of information should be sealed or redacted, but dispute whether the latter two should as well.

For the reasons that follow, the Court grants the motions to seal or redact these materials except (2) the full declaration of Jane Doe 1 and (6) the explicit messages between Eckhart and Henry. While the (7) explicit photographs will remain sealed, the Court will unseal the verbal descriptions of the photographs provided in Defendants' motions….

Eckhart accuses Henry of sexual harassment, sexual assault, sex trafficking, and rape. She alleges that the two met while employed at Fox News, at which point Henry pursued her, sent her unsolicited and inappropriate text messages, and manipulated her into having a sexual and often violent relationship with him. In one central incident in February 2017, Eckhart says that Henry lured her to a hotel room under the guise of giving her career advice but proceeded to handcuff and rape her. Eckhart also alleges that Fox News, their employer, knew of and facilitated Henry's misconduct by failing to discipline Henry after other employees submitted complaints against him and by retaliating against Eckhart when she sought to hold Henry and Fox News accountable for their conduct. Defendants contest these allegations against them.

The parties have now completed discovery and both Defendants have filed motions for summary judgment. Henry's motion principally argues that Eckhart consented to the disputed sexual activity.  Fox News' motion asserts that it did not know about or condone Henry's alleged harassment and that it did not fire Eckhart for retaliatory purposes….

[I.] Identifying Information of Third-Party Women

The Court first grants the sealing request as to the names and identifying information of third-party women who were romantically or sexually involved with Henry. To be sure, this information is contained within judicial documents, since these materials were submitted to the Court in support of a motion for summary judgment. But the presumption of public access is minimal here, as the parties have proposed "narrowly tailored" redactions that conceal only the women's names and other identifying information, neither of which will "directly affect [the] adjudication" of Eckhart's claims. Moreover, there is a substantial countervailing interest in maintaining the privacy of these women, who are all "third parties" and have chosen not to make public their relationships with Henry….

[II.] Declaration of Jane Doe 1

Less convincing is the parties' argument that the full declaration of one of these women—Jane Doe 1—should remain entirely sealed. In the declaration, Jane Doe 1 details the romantic and sexual relationship she had with Henry over the course of several years. According to the parties, Jane Doe 1 is the same "Jane Doe 1" in Eckhart's operative complaint, who allegedly had an extramarital affair with Henry when both worked at Fox News.

As above, this declaration is a judicial document, since Fox News submitted it in connection with its motion for summary judgment. The declaration, moreover, is entitled to a relatively strong presumption of access, since the parties rely on it in disputing whether Henry had a history of abusive behavior towards women. And unlike the names of the various women, the details of Jane Doe 1's relationship with Henry—and whether it was consensual or coerced—are therefore relevant to the merits of this action. The privacy interest in those details is considerably weaker as well, since many of those details were already disclosed to the public in Eckhart's complaint, as well as in Fox News' Rule 56.1 statement.

The Court thus concludes that Jane Doe 1's declaration may not remain sealed in full. While the parties may propose redactions to conceal her name and other identifying information, the Court will unseal the remainder of her declaration.

[III.] Identifying Information of Fox News Employees

The Court also grants the parties' sealing request as to the names and other identifying information of third-party Fox News employees who were involved in complaints and internal investigations against Henry. Like the identifying information of the third-party women who had relations with Henry, the identifying information of these employees has a weak presumption of access, as their specific identities are not particularly relevant to the merits of the case. The parties have also proposed narrow redactions to conceal only that identifying information. Accordingly, the privacy interests of these individuals outweigh the presumption of access, and their identifying information may remain redacted.

[IV.] Contact Information of Non-Parties

Similarly, the personal email addresses and phone numbers of various non-parties are entitled to continued sealing. There is only a weak presumption of public access for irrelevant information of that sort, and courts routinely permit such redactions in order to protect the privacy of non-parties.

[V.] Fox News' Confidential Business Information

The Court also agrees with the parties that some of Fox News' confidential business information—specifically the amount it paid for Henry's compensation and the amount it spent on a proprietary graphics package—should remain redacted. Courts have generally permitted sealing of proprietary financial information, at least when the exact "dollar figures" have little "bearing on the merits." Here, the parties propose redacting the dollar figure of Henry's compensation while still making public the percentage that his compensation was reduced, which is relevant to Eckhart's assertion that Fox News disciplined him over another sexual affair.

The parties also propose redacting the dollar amount that Fox spent on the proprietary graphics package while making public the fact that Eckhart published that proprietary information on social media, which is relevant to Fox News' defense that she was not fired for retaliatory reasons. In other words, the parties propose to make public the salient information—Henry's reduction in compensation and Eckhart's unauthorized disclosure—while keeping sealed the sensitive but irrelevant dollar figures. The weak presumption of access to that information is thus outweighed by the interest in keeping confidential "business information that might harm a litigant's competitive standing."

[VI.] Explicit Text Messages

Unlike the first five categories of information, the parties dispute whether the explicit messages between Eckhart and Henry should remain sealed. Defendants argue that Eckhart and Henry's messages are highly relevant to the merits, because they support Defendants' argument that Eckhart and Henry's relationship was consensual and not rape or harassment. Defendants also point out that Eckhart quoted from portions of her text exchange with Henry in the operative complaint and alleged that those excerpts established that Henry had harassed her. Eckhart, meanwhile, maintains that "none of these materials" are relevant to the merits at this stage and were filed only to "harass[ ]" her.

The Court agrees with Defendants that the text messages may not remain sealed. They were submitted in support of Defendants' motions and enjoy a presumption of public access. That presumption is particularly strong here given that the texts are relevant to the merits of the summary judgment motions, which center on whether Eckhart and Henry's relationship was consensual. Indeed, the text messages in dispute were sent within the relevant time period and explicitly discuss events at the heart of this case, including the February 2017 incident in which Henry allegedly raped Eckhart. Even if the texts do not conclusively establish consent or coercion, they still provide context about the nature of Eckhart and Henry's relationship, which will be front and center when the Court adjudicates Defendants' motions for summary judgment. See People v. Jovanovic (N.Y. App. Div. 1999) ("[E]-mail messages that the complainant had shown an interest in participating in sadomasochism with [the defendant] [are] clearly central to whether she consented to the charged kidnapping and sexual abuse."). In fact, Eckhart herself quoted extensively from Henry's messages in her complaint, which confirms that the substance and tenor of their communications bear on the merits of her claims. While Eckhart surely has a privacy interest in her texts, that interest is overcome by the weighty presumption in favor of public access here.

[VII.] Explicit Photographs

Finally, the Court concludes that the presumption of public access is outweighed for the explicit photographs, which depict Eckart (and potentially others) either nude or partially nude.1 Given the substantial privacy interests at play, courts routinely grant sealing requests for nude or sexual photographs, even of adults. Those privacy concerns are especially high here, as the disputed photographs depict not only nudity but also overtly sexual if not pornographic content. Moreover, the sealing of the photographs will be "narrowly tailored," as the Court will still make public the verbal descriptions of the photographs that Defendants included in their motion papers. Thus, while the photographs are certainly relevant to the merits of the instant motions, this is an unusual case where the weighty presumption of access is overcome….

The post Sealing Decision in Sexual Assault Lawsuit Against Fox News and Ed Henry appeared first on Reason.com.

[Eugene Volokh] Constitutional Protections for Economic Liberty in North Carolina: The Fruits of Their Own Labor Clause and Beyond

I've long been interested in how state courts sometimes provide protection for economic liberty under state constitutions, beyond what the federal constitution would offer. I've seen this particularly in North Carolina, under the state constitution's Fruits of Their Own Labor Clause. Here's the latest example, from Tuesday's Proctor v. City of Jacksonville, in an opinion by Judge Griffin, joined by Judges Tyson and Collins:

This case arises out of tension between business owners in Jacksonville and the City …. In 2014, the City passed the Unified Development Ordinance of the City of Jacksonville ("the UDO"). The UDO provides numerous zoning maps which dictate the areas where a food truck may operate and numerous regulations which provide the conditions food trucks and private-property owners must meet before operating on private property[, including that] …

Any Food vendor shall be at least 250 feet from any other parcel containing: 1) a food vendor, 2) a low density, medium density, high density residential or downtown residential zoning district, and or 3) a restaurant; …

Plaintiffs allege the location restrictions prevent food truck operators from conducting business in approximately ninety-six percent of property located in Jacksonville. Because of these restrictions, Plaintiffs contend their rights to engage in safe and lawful occupations are severely infringed….

The Fruits of Their Labor clause provides: "We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness."

Our Supreme Court has recognized substantive economic protections under the Fruits of Their Labor Clause prevent the State and consequently its political subdivisions from creating and enforcing regulations that impede "legitimate and innocuous vocations by which men earn their daily bread." State v. Ballance (N.C. 1949) (holding a licensing scheme for photographers violated the Fruits of Their Labor Clause); see also Roller v. Allen (N.C. 1957) (holding a licensing scheme for ceramic tile installers violated the Fruits of Their Labor Clause).

The Law of the Land clause, on the other hand, provides: "No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land." This provision, analogous to the Fourteenth Amendment's Due Process Clause, "serves to limit the [S]tate's police power to actions which have a real or substantial relation to the public health, morals, order, safety or general welfare." Poor Richard's, Inc. v. Stone (N.C. 1988).

Thus, both the Fruits of Their Own Labor clause and the Law of the Land clause protect citizens' constitutional right to earn a living from arbitrary regulations. See id. ("These constitutional protections have been consistently interpreted to permit the [S]tate, through the exercise of its police power, to regulate economic enterprises provided the regulation is rationally related to a proper governmental purpose.")….

"[A] single standard determines whether [an] ordinance passes constitutional muster imposed by both section 1 and the 'law of the land' clause of section 19: the ordinance must be rationally related to a substantial government purpose."  "[T]o survive constitutional scrutiny under this provision, the challenged state action 'must be reasonably necessary to promote the accomplishment of a public good, or to prevent the infliction of a public harm.'"  "This test involves a "twofold" inquiry: '(1) is there a proper governmental purpose for the statute, and (2) are the means chosen to effect that purpose reasonable?'" Kinsley v. Ace Speedway Racing, Ltd. (2024) (quoting Poor Richard's).

Plaintiffs allege the City and its officials enacted the UDO, and the challenged provisions therein, "to protect brick-and-mortar restaurants from competition." In support of this contention, Plaintiffs point to the UDO's enactment history. Plaintiffs allege the UDO initially provided for a less restrictive scheme which would have allowed food trucks to operate within a larger area of Jacksonville. However, the UDO was redrafted because "in the restaurant owners' view, the original overlay map did not sufficiently insulate them from competition." As a result of this pressure, "the City Council considered allowing food trucks only if they did not operate within 250 feet of, among other things, any other parcel with a restaurant." This consideration ultimately became the codified version of the UDO.

As entities who are engaged in the same business should be subject to the same restrictions, an allegation that the government enacted a regulation solely to benefit a subset of businesses at the expense of another subset within the same line of business, here food purveyors, is sufficient to meet prong one [of the Poor Richard's test]. Thus, taking Plaintiffs' allegations as true, we hold they sufficiently pled an unlawful and improper governmental purpose for the UDO. Accordingly, as the first prong of Poor Richard's test for a colorable constitutional claim under Article I, sections 1 and 19 is met, we do not reach the second question of whether the means chosen to affect that purpose are reasonable. Rather, we reverse the trial court's order dismissing Plaintiffs' claims under the Fruits of Their Own Labor clause and the Law of the Land clause.

The court also held that plaintiffs sufficiently stated a claim under the North Carolina Constitution's Equal Protection Clause:

Under the Equal Protection clause of Article I, section 19, when a party challenges a government regulation that classifies businesses and then treats those businesses differently on the basis of said classification, we apply a twofold test, asking: "(1) [is it] based on differences between the business to be regulated and other businesses and (2) [are] these differences [ ] rationally related to the purpose of the legislation[?]" If the answers to both questions are yes, then the classification is permitted….

Plaintiffs, as food truck owners, allege "[f]ood trucks are engaged in the same business as, or are similarly situated to, other businesses offering food and drink for sale to the general public, including brick-and-mortar restaurants, which are not subject to the 250-foot proximity ban." Plaintiff Gonzalez alleges that she and her company "are engaged in the same property use as, or are similarly situated to, property owners who host businesses offering food and drink for sale to the general public, including brick-and-mortar restaurants, but are not subject to the 250-foot proximity bans." To exemplify their contention that the UDO provides for different regulations based on arbitrary distinctions and are imposed to further unlawful economic protectionism of restaurants, Plaintiffs also allege "[t]he 250-foot proximity bans do not apply to other businesses offering food and drink for sale to the general public, such as restaurants with indoor and/or outdoor seating, drive-through restaurants, specialty-eating establishments, produce stands, bars, taverns, clubs, convenience or drug stores, gas stations, bed and breakfasts, or museums."

To this point, the regulations do not prevent food trucks from parking or giving food away on eligible property, they only prevent food trucks from "selling food while they are there." Another consequence of the UDO's classifications is that "[a] specialty-eating establishment like a bakery, a coffee shop, or an ice cream shop could open on Eligible Property next door to a restaurant, residential property, or a food truck … , but a food truck offering the very same baked goods, coffee, or ice cream could not." Plaintiffs' Complaint contains numerous other factual allegations explaining how the UDO's classifications allow for businesses engaged in substantially the same business as Plaintiffs, namely selling food and drink, to set up shop in areas that food trucks may not.

Despite the alleged similarities between Plaintiffs and other businesses, Plaintiffs' assert that "[t]he 250-foot proximity bans do not draw the classification between food trucks and all other businesses offering food and drink for sale to the general public, including brick-and-mortar restaurants, based on any legitimate distinguishing feature of food trucks or the property owners who would host them."

These allegations, taken as true, are sufficient to satisfy the first part of the test–the UDO's harsher restrictions on food trucks are not based on any differences between Plaintiffs' businesses, subject to those restrictions, and other business which are not. See Cheek v. City of Charlotte (N.C. 1968) ("The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations."). Moreover, Plaintiffs' two allegations that the regulation (1) is "solely to further the unconstitutional purpose of protecting brick-and-mortar restaurants from competition[,]" and (2) classifies "without substantially or reasonably furthering any constitutionally legitimate, permissible, or substantial government purpose[,]" are sufficient to satisfy the second prong of the test. See Roller v. Allen (N.C. 1957) (striking down a licensing scheme because, in part, "[t]he [a]ct in question here has as its main and controlling purpose not health, not safety, not morals, not welfare, but a tight control of tile contracting in perpetuity by those already in the business"). Taken as true, Plaintiffs sufficiently allege the UDO's differential classifications are not rationally related to the purpose of the ordinance nor are they based on a permissible purpose.

These allegations essentially allege that, despite being in the same business, Plaintiffs and their respective businesses are "subject to different restrictions [and] are treated differently under the same conditions." … [T]he [constitutional] test requires the trial court to engage in a more nuanced analysis than just addressing whether it can envision "reasonably conceivably rational bases." However, the ultimate inquiry does lie in ascertaining whether the government's distinctions are drawn based on actual differences between businesses and whether that distinction is rationally related to the promotion of a permissible government interest. Nonetheless, taking their allegations as true, which we are required to do, Plaintiffs sufficiently alleged facts to survive Defendants' Rule 12(b)(6) motion for their Equal Protection claim….

The court also held that the trial court erred in failing to apply commercial speech protections to the sign restrictions in the ordinance, and remanded so the trial court could indeed apply them. And it allowed plaintiffs to go forward with their claim that the fees imposed under the ordinance exceeded what was authorized by state statute.

Nicole Jo Moss (Cooper & Kirk, PLLC) and Robert Belden and Justin Pearson (Institute for Justice) represent plaintiffs.

The post Constitutional Protections for Economic Liberty in North Carolina: The Fruits of Their Own Labor Clause and Beyond appeared first on Reason.com.