Eugene Volokh's Blog, page 218

[Eugene Volokh] No Defamation Liability for False Statement That Congressional Witness's Lawyer Was Partly Paid for by Trump PAC

From yesterday's opinion by Judge Paul Oetken (S.D.N.Y.) in Bobulinski v. Tarlov:

The following facts are drawn from the allegations in Plaintiffs' complaint, which are presumed true for the purpose of resolving Tarlov's motion to dismiss.

Anthony Bobulinski is a "successful businessman" and former "business partner" of Hunter Biden. Stefan Passantino is an attorney and founder of Elections LLC who represented Bobulinski in front of the United States House of Representatives Committee on Oversight and Accountability ("House Oversight Committee"). Jessica Tarlov is a commentator on Fox News and co-host of its popular television program, The Five.

Bobulinski worked with Hunter Biden in 2017, when Bobulinski served as the CEO of SinoHawk Holding, "a [Chinese] company designed to find investments in the United States." During the course of this business partnership, Bobulinski became "concerned" that Hunter Biden was allegedly misusing company funds and "profiting off of his father's name when [his father] was Vice President of the United States."

Bobulinski began "speaking publicly against the Biden family" in 2020. Since he "came forward" about the Bidens' alleged misconduct, Bobulinski has "spent over $500,000 of his own money on legal fees." And, according to Bobulinski, "[n]either President Trump, nor any persons or entities affiliated with President Trump, have ever paid" for Bobulinski's legal fees.

On March 20, 2024, Mr. Bobulinski appeared as a witness before the House Oversight Committee to testify about "the conduct he witnessed by Joseph Biden, Hunter Biden, and Biden Family business associates." Passantino represented Bobulinski for the appearance and attended the hearing with his client. Bobulinski paid Passantino directly both for this matter and "several years of previous representation."

During the hearing, Representative Jasmine Crockett said on the floor of the House:

Mr. Bobulinski, I know that you take exception to the fact that your credibility has been called into question over and over[.] [D]o you know who Elections LLC is? … I'd ask unanimous consent to enter into the record a document indicating that the law firm representing Tony Bobulinski was paid $10,000 as recently as January of this year by the Save America PAC, which you may recognize as Donald Trump's PAC.

Later that day, during Fox News's live taping of its nightly show, The Five, Tarlov commented on the House Oversight Committee hearing and said: "Ok, Tony Bobulinski's lawyers' fees have been paid by a Trump Super PAC. That's as recently as January."

In response to that statement, Plaintiffs sent Tarlov a letter "demand[ing] that Ms. Tarlov retract and apologize for her defamatory comments" about Bobulinski's legal fees. During the March 21st airing of The Five, Tarlov said:

I would like to clarify a comment I made yesterday during our discussion of Tony Bobulinski's appearance at the congressional hearing. During an exchange with my colleagues about the hearing, I said that Mr. Bobulinski's lawyer's fees have been paid for by a Trump Super PAC as recently as January. What was actually said at the hearing was that the law firm representing Mr. Bobulinski was paid by a Trump PAC. I have seen no indication that those payments were made in connection to Mr. Bobulinski's legal fees, and he denies that they were. Alright.

Bobulinski didn't find the follow-up statement to be adequate, and sued for defamation and a related tort. No liability, the court concluded, in part of the following grounds:

[N]ot every false statement is defamatory. Here, the allegation that Bobulinski's attorney's fees were paid by a Trump PAC is not defamatory because it does not tend to expose either Bobulinski or Passantino to "public contempt, hatred, ridicule, aversion or disgrace."

Bobulinski, a self-proclaimed "political moderate" , made several decisions, relevant here, when faced with witnessing alleged misdeeds of the sitting Vice President of the United States. First, Bobulinski came forward at a special press conference to tell his story and then immediately thereafter attended the final presidential debate as a personal guest of then-President Trump. Second, he retained an attorney who was a former Trump White House attorney and founder of a law firm that had previously taken payment from the Save America PAC. And third, Bobulinski agreed to appear before the House Oversight Committee's election-year impeachment inquiry hearing, entitled "Influence Peddling: Examining Joe Biden's Abuse of Public Office." For a political commentator to then make a statement (incorrectly) about Bobulinski's connection to a "Trump Super PAC" does not impact Bobulinski's reputation meaningfully more than any of these other decisions.

Nor is it untoward for a congressional witness to have his legal fees paid for by a third party. It is neither uncommon nor contrary to ethical rules for a third party to pay for someone's legal fees, so long as the client provides informed consent and the attorney's independence is not compromised. Accusing Bobulinski of accepting third-party payment hardly subjects him to public disgrace given how expensive it is to retain an attorney as qualified and experienced as Passantino.

Bobulinski contends that Tarlov's statement "subjected him to hatred, distrust, ridicule, contempt, and/or disgrace by a certain segment of America and the world which lives in an alternate reality." {It is not clear what, exactly, Plaintiffs mean by "liv[ing] in an alternate reality." If this moniker is shorthand for those who cannot discern fact from fiction, defamation law cannot coherently be built on the views of the average person who cannot tell truth from falsity.} But case law directs courts to look to a "reasonable" interpretation by the "average" listener, and the Court is not prepared to assume that the average American "lives in an alternate reality."

Further, the Second Circuit has held that allegedly defamatory statements are to be construed as they would "by the public to which they are addressed." Bobulinski has not alleged that an average viewer of The Five would be more likely than the average American to hear this comment connecting him to President Trump and hate, distrust, or ridicule him. Nor could he. However, regardless of whether the scope of this inquiry is the average intended listener or the average American more generally, Bobulinski fails to make the case that Tarlov's statement subjected him to public ridicule or contempt. Connecting Bobulinski to the former—and future—democratically elected President of the United States simply cannot be grounds for an average American's hatred, distrust, or ridicule.

Nor has Bobulinski adequately alleged defamation by implication. Bobulinski argues that the March 20th Statement "negatively impl[ied] that his testimony is bought and paid for." "Under a defamation-by-implication theory, [Plaintiff] 'must make a rigorous showing that' [the statement] 'as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference."

At the outset, the Complaint does not even specify what defamatory implication Plaintiffs believe Tarlov intended her viewers to draw, alleging only that her statement "caused … viewers[ ] not to trust or find credibility with Plaintiffs." Stating that a congressional witness's legal fees are paid by a PAC may imply nothing more than that the witness shares or sympathizes with the beliefs of that PAC. Tarlov might have said such a thing to emphasize the fact that Bobulinski was invited by House Republicans as a majority witness. Or she might have been pointing out that there are two sides to every story, and presenting only Bobulinski's side during the on-air discussion was not painting the full picture. But it is a "strained or artificial construction" to interpret Tarlov's statement as accusing Bobulinski of lying to Congress.

Further, even if one could reasonably interpret Tarlov's statement to suggest that Bobulinski perjured himself, Bobulinski has not met his burden of adequately alleging that Tarlov "intended or endorsed that inference." Plaintiffs state that Tarlov "intended and endorsed" the inference "in order to serve her personal political agenda, and the agenda of those with whom she associates politically." But beyond this conclusory statement, the only reason Plaintiffs provide is that Tarlov had previously "exhibited her malice for Plaintiffs," as evidenced by her February 21, 2024 comments on The Five: "Even Senate Republicans have not found Tony Bobulinski to be credible, so, he gives a great cable news interview. I understand it's very compelling for people who want to believe Joe Biden is actually Gotti, a mob boss." Tarlov's job is to be a political commentator on current events, so this kind of on-air comment does not reasonably indicate personal animus, but rather reflects Tarlov's observations on a high-profile political event.

Bobulinski also points to the fact that on March 20, 2024, Tarlov reposted a Daily Beast article with the headline "Trump's PAC Burned $230,000 a Day on Legal Bills in February." But again, Bobulinski is asking the Court to take too many inferential jumps to view this social media post about the Save America PAC as evidence that Tarlov intended for her audience to interpret her comments about Bobulinski's receipt of PAC money as an accusation of perjury….

Because the March 20th Statement was not directly or impliedly defamatory with respect to Bobulinski, Bobulinski fails to meet his burden on this element.

Passantino also sued, but his claim was rejected as well:

The March 20th Statement also does not subject Passantino to "public contempt, hatred, ridicule, aversion or disgrace." Passantino is "one of the leading political lawyers in the country" and previously served as Deputy White House Counsel for former President Trump. Thus, his name and professional reputation have been associated with Trump and affiliated political entities previously. Further, Passantino admits that it is "a true fact that the [Save America] PAC has paid Stefan Passantino's firm, Elections LLC, in the past …." Tarlov stating that Passantino once again accepted third-party payment from the same PAC from which he previously accepted third-party payment cannot reasonably be interpreted by the average listener (of The Five or more generally) as defamatory.

Defamation by implication fails here as well. Passantino argues that Tarlov's March 20th Statement "indicat[ed], in conspiracy-theory fashion, that Mr. Passantino was part of a scheme to present politically motivated and improperly paid-for tainted testimony in violation of his ethical duties." Yet this implication requires even more logical jumps than the one offered by Bobulinski. Here, the listener must interpret Tarlov's comment as insinuating that because a third party paid Bobulinski's legal fees, Bobulinski's (unnamed) lawyer ignored the governing ethical rules of his profession and coached Bobulinski to lie in front of Congress.

And even if this interpretation were reasonable, Passantino has failed to adequately allege that Tarlov "intended or endorsed" such an inference….

This seems consistent with cases such as Guilford Transp. Indus., Inc. v. Wilner, 760 A.2d 580 (D.C. 2000), and Lyons v. Globe Newspaper Co., 415 Mass. 258 (1993), which cite the Prosser & Keeton treatise for the view that "while a statement that a person is a Republican may very possibly arouse adverse feelings against him in the minds of many Democrats, and even diminish him in their esteem, it cannot be found in itself to be defamatory, since no reasonable person could consider that it reflects upon his character." And those cases themselves seem to represent the general rule. Falsely accusing someone of connection with groups that are sufficiently fringe and highly reviled, such as the KKK or the Communist Party—not just using "fascist" or "racist" or "Communist" as a general epithet to characterize a person's supposed ideological views, but asserting a specific factual link to the organization—may be defamatory. But falsely accusing someone of a connection to one of the major parties is not defamatory (even if the plaintiff could prove specific damages flowing from that accusation).

In some states, there might be liability under the false light tort, which allows claims for highly offensive false statements about people (especially knowingly false ones), even when they don't tend to damage reputation. See illustration 4 to Restatement (Second) of Torts § 652E:

A is a Democrat. B induces him to sign a petition nominating C for office. A discovers that C is a Republican and demands that B remove his name from the petition. B refuses to do so and continues public circulation of the petition, bearing A's name. B is subject to liability to A ….

But New York law generally doesn't recognize the false light tort (except for certain commercial uses that wouldn't be seen as applicable here); likely because of that, no false light claim was made by plaintiffs.

There's also more in the opinion, including an important holding that the New York anti-SLAPP statute's attorney fee shifting provision applies in federal court.

Brett Katz, Pat Philbin, Kyle West & Chase Harrington (Torridon Law) represent Tarlov.

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[Zachary Price] Symmetry in Equal Protection, Fundamental Rights, and the Law of Democracy

 

My last post offered examples of areas where symmetry could help guide future doctrinal development. This final post on my book addresses three of the most fraught areas of constitutional law:  equal protection, fundamental rights, and the law of democracy. In all these areas, as in the others I already addressed, highlighting symmetric possibilities makes clear that framing constitutional debates in maximally rivalrous terms is a choice; less polarizing options are available too.

Regarding equal protection, questions of group identity and legal equality are obviously a major point of ideological division in the contemporary United States. The conservative constitutional vision understands the Fourteenth Amendment's Equal Protection Clause to require a strict "colorblind" focus on individual characteristics rather than group identities. By contrast, the progressive vision interprets the same guarantee to allow, or perhaps even require, governmental privileging today of groups who suffered discrimination and disadvantage in the past.

Even as the divide between these perspectives has grown more acute in American society, the Supreme Court has aligned itself more squarely with the conservative vision. It thus held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA) in 2023 that racial preferences in higher education are unconstitutional.

The Court could mitigate this asymmetry in at least three ways going forward. One would be to restore what I call "Bakke with bite":  the Court could hold, much as it did in earlier cases such as Regents of the University of California v. Bakke and Grutter v. Bollinger, but with greater rigor, that public universities and other government programs may pursue "diversity" so long as they do so in an individualized rather than mechanical fashion. A second option, which I call "counter-majoritarian majoritarianism," would follow John Hart Ely in holding that majorities may discriminate against themselves by adopting preferences for historically disadvantaged minorities, but only if the majority in question genuinely dominates the institution or level of government at issue. Finally, a third option, which I call "consciousness without classification," would follow Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District #1 and allow governments to select criteria for benefits and programs with a view to their demographic effects, but only if the criteria themselves operate without regard to any individual's demographic characteristics.

As the book notes, all these options carry benefits and drawbacks, and none follows ineluctably from primary interpretive considerations of text, history, and precedent. Yet all at least have the virtue of greater symmetry as compared to either inflexible colorblindness or full-bore pursuit of group preferences, and while SFFA may militate against all these approaches, it does not entirely foreclose them.

On the question of fundamental rights, the book defends the method of rights identification advanced by the Supreme Court in Washington v. Glucksberg and applied more recently in the Dobbs decision overturning Roe v. Wade. Under this method, courts identify unenumerated fundamental rights by asking whether the right in question, defined at a relatively low level of generality, is "deeply rooted in this Nation's history and tradition and implicit in the concept of ordered liberty."

The majority opinion in Dobbs was ambiguous about whether this "history and tradition" inquiry applies on an evolving basis with reference to contemporary laws and practices or instead with a backward-looking focus on laws and practices in place when the Fifth or Fourteenth Amendment was adopted. In an important concurrence, however, Justice Kavanaugh (who was an essential fifth vote for the majority) emphasized that "the Constitution does not freeze the American people's rights in 1791 or 1868." If (but only if) the Glucksberg inquiry operates as Justice Kavanaugh proposed, then it is symmetric:  it grants both progressives and conservatives an equal opportunity to shape the Court's future jurisprudence by advocating measures in the political process that may eventually congeal into constitutionally protected rights.

Defending Glucksberg as symmetric may seem surprising given the polarization surrounding Dobbs and the abortion question. But honest application of Glucksberg, as understood by Justice Kavanaugh, could easily support recognition of rights favored by progressives in the future. It could even end up supporting a right to abortion if state laws continue trending in that direction.

Indeed, even now, Glucksberg arguably supports a right to abortion when a pregnancy seriously threatens the life or health of the mother. After all, even the most restrictive abortion laws typically include such exceptions, and that understanding accords with broader legal protections for bodily autonomy reflected in self-defense standards and the like.

In addition, at least one traditional area of unenumerated rights protection is itself strongly symmetric. For nearly a century, the Supreme Court has understood the Fourteenth Amendment to protect parental rights, meaning the authority of parents rather than the government to make basic choices regarding their children's upbringing. That right is effectively symmetric today because Republican "red" states and Democratic "blue" ones have threatened parental autonomy from diametrically opposite directions on questions such as treatment of gender dysphoric children.

The book also discusses the law of democracy in a last substantive chapter. Although symmetry has obvious relevance to constitutional questions relating to electoral procedures, applying the concept in this area is tricky because political divisions are dynamic and in some ways a product of the very rules that symmetric interpretation might aim to adjust.

Applying symmetry in this area, the book defends the Court's choice to leave political gerrymandering to the political process. By declining to impose federal constitutional limits on gerrymandering but also allowing states to regulate it if they so choose, the Court has allowed the relatively even nationwide contest between not only Democrats and Republicans but also proponents and opponents of gerrymandering to continue unfolding through the political process. Given districting's complex partisan effects and the technical challenges in regulating it, that result may be the best the Court can do in terms of symmetry. At the same time, the book argues that courts should be on guard against electoral rules that systematically disadvantage one coalition or the other. Such rules, if they genuinely have such effects, reflect precisely the sort of repressive tendency that symmetric interpretation seeks to limit.

The book (though relatively short!) offers greater detail on all these points; here, I have only sketched my conclusions in compressed form. Even if my claims about what positions are symmetric fail to persuade, my primary goal in the book is simply to show how reframing the debates in these terms could help break the logjam of our current constitutional partisanship.

In closing, let me note, as the book's conclusion also does, that we should not exaggerate the United States's challenges. Despite our bloody civil war and regular betrayals of our founding values, the U.S. Constitution has been remarkably successful:  political scientists often point to it as an international gold standard of regime stability and democratic continuity.

The country's very stability, however, may have led citizens to take its constitutional bedrock for granted. At any rate, political actors seem to presume that pushing aggressively for immediate victories poses no threat to the constitutional structure as a whole. Symmetric interpretation aims to forestall the risks such behavior creates by deflecting political conflicts, when possible, away from constitutional law and back into the political process.

Thanks again to Eugene and the Volokh Conspiracy bloggers for hosting these posts, and thanks to all of you for reading!

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[Zachary Price] Symmetry in Interpreting the First Amendment and the Structural Constitution

My earlier posts on my book Constitutional Symmetry explained the basic idea of favoring symmetry and summarized the practical and theoretical reasons for this approach. In addition to advancing this theoretical case for symmetry, the book includes chapters applying the theory to five contested areas of constitutional law:  speech, association, and religion; separation of powers and federalism; equal protection; guns and fundamental rights; and the law of democracy.

The chapters themselves are more illustrative than exhaustive. As I explain, they do not address every relevant case or holding in the areas they cover, and they omit entirely major areas of constitutional law. The chapters do aim, however, to demonstrate that comparatively symmetric approaches remain open in many areas as potential pathways of case law development, if the courts will only take them.

In these posts, I can only briefly sketch the book's argument, so I encourage readers to consult the relevant chapters for more detail. I designed the book so that the chapters are self-contained. You could read the introduction and the chapters on particular substantive areas without necessarily reading the rest.

With respect to the First Amendment, the book makes two main points. The first is that symmetry should support maintaining current doctrine's focus on requiring neutrality in laws regulating free expression.

Modern First Amendment doctrine requires content-neutrality (or sometimes viewpoint-neutrality) in expressive regulation. As I noted in my first post, this case law offers a paradigm case of symmetry. By preventing the government from taking sides, it equally protects speakers of all sorts, no matter where they fall on the ideological spectrum. For that reason, moreover, it gives all sides of our divided polity a stake in maintaining the crucial civil liberty of free expression. Those disappointed by the immediate result in one case should recognize that the principle being applied may equally benefit them (or speakers they care about) in future cases.

The justices seem to recognize the virtues of this orientation towards neutrality. Indeed, this area of doctrine has remained a striking point of consensus on the current Court, even as tolerance for competing points of view seems to have waned in the broader society. The justices seem to recognize that both sides of our divided polity may feel tempted to repress dissent within the spaces and institutions they control, and that courts can help interrupt the downward spiral of speech repression that such partisan dynamics could easily generate. Symmetry should encourage judges to maintain this focus notwithstanding recent scholarship questioning this orientation towards neutrality on various grounds.

The book's second main point regarding the First Amendment is that symmetry should also support protecting religious speakers and groups, when possible, through decisions rooted in expressive freedom and freedom of association rather than religious liberty per se.

The First Amendment, of course, singles out religion for special protection in the Free Exercise and Establishment Clauses, and revitalizing religious liberty has been a major project of the Roberts Court. But these decisions have often proved divisive and polarizing in the current climate.

Religious liberty today has this polarizing character because religion now is largely associated with conservatism. The association, to be sure, is not total. Some important denominations have a strong progressive bent and some religious groups, most notably African American churchgoers, identify strongly with the Democratic Party. On the whole, however, regular church attendance in the contemporary United States correlates with Republican Party affiliation, and affiliation with the Democratic party appears to be particularly strong within a growing group of Americans who "affirmatively embrace a distinctively secular worldview," as one recent study puts it.

These demographic patterns are comparatively recent; they did not exist even a couple decades ago. Yet they have made religion a major fault line in American politics, not to mention a major point of division between judges appointed by Democratic and Republican presidents. Religion-specific rulings are asymmetric in the current context because they extend protections to religious believers that, by definition, cannot equally protect those with a self-consciously secular outlook.

To avoid exacerbating these divisions, courts should rely instead, whenever possible, on broader protections for free expression and freedom of association. Doing so would blunt the critique that the Court is favoring groups on one side of contemporary divides over those on the other. Ironically, that approach might even place religious liberty on stronger footing in the long run. If, for example, the First Amendment equally protects religious and secular entrepreneurs from compelled expression of viewpoints they abhor—a point the Court took pains to emphasize in its recent, commendably symmetric decision in 303 Creative LLC v. Elenis—then perhaps each side will feel less need to impose its viewpoint on the other.

As concerns the structural constitution, symmetry should often be comparatively easy to apply. A defining feature of recent political polarization has been the absence of any consistent pattern of partisan control over federal institutions. Whereas in earlier eras one party or the other often dominated the presidency or Congress (or one or the other house), partisan control of the House, Senate, and presidency has flipped back and forth with no regular pattern in recent decades.

As a result, it should be easy to anticipate a given authority or constraint applying in politically opposite circumstances in the future and assess its validity accordingly. In practice, however, partisanship has often led partisans to seek immediate advantage instead even when doing so advances legal theories that could work to their detriment in the future. If nothing else, symmetric interpretation should encourage courts and other interpreters to self-consciously resist this impulse and take the long view instead.

Beyond this general recommendation, a preference for symmetry could help mollify concerns about some doctrines while sharpening the critique of some others. The book argues, for example, that the long-running debate over the President's power to fire or "remove" executive officers lacks clear partisan stakes at present. By contrast, recent developments in administrative law have been sharply asymmetric.

In its recent "major questions doctrine" decisions, for instance, the Court has given effect to conservative anxieties about administrative governance by requiring clear statutory support for any agency action that addresses a question of major societal importance. Given, however, that progressives generally hold a more assertive regulatory agenda, these decisions seem likely to limit progressive administrations more than conservative ones. Furthermore, even if some conservative or deregulatory policies could conceivably fall afoul of the doctrine, the Court's criteria for identifying "major questions" are subjective and amorphous. As a result, the Court's current conservative majority could easily end up applying the doctrine selectively in a manner that favors conservative policy goals in practice. That is not how a symmetric body of administrative law should operate.

Symmetry thus affords a powerful reason to favor some pathways over others in future cases regarding both the First Amendment and separation of powers. In my last post, I will argue that the same is true in the still more fraught areas of equal protection, fundamental rights, and the law of democracy.

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[Josh Blackman] Today in Supreme Court History: November 27, 1964

11/27/1964: WGCB carried a 15-minute broadcast by the Reverend Billy James Hargis as part of the "Christian Crusade" series. This broadcast gave rise to Red Lion Broadcasting Co. v. Federal Communications Commission (1969).

The Warren Court (1969)

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[Stephen Halbrook] Second Amendment Roundup: The Second Amendment Dialogue at Fed Soc's National Convention

"Applying the Text and History Methodology to Looming Second Amendment Battles After Rahimi" was the topic of a session on November 16 at the Federalist Society's 2024 National Lawyers Convention. You can listen to the remarks here.

The moderator was Sixth Circuit Judge Amul Thapar, author of the delightful book The People's Justice: Clarence Thomas and the Constitutional Stories that Define Him. The panel featured three leading voices in the Second Amendment space.

Speaker Mark W. Smith is a Senior Fellow at the Ave Maria School of Law and Host of the Four Boxes Diner Second Amendment Channel. (That refers to the four boxes of American liberty, the soap box, ballot box, jury box, and cartridge box.)

Smith focused on the text first-history second approach applied by the Supreme Court in Heller and elaborated in Bruen. As the Supreme Court has now taught in some detail in both Bruen and Rahimi, the historical work of understanding the Second Amendment involves examining laws that impacted the right to keep and bear arms historically and asking both "how" and "why" those laws limited the right. Then, as Rahimi makes clear, the question is whether the "principle" underlying those historical laws—the synthesis of "how" and "why" they regulated the right while remaining consistent with it—would, today, justify whatever modern firearm law is at issue in ongoing litigation.

The key question, as Justice Barrett mentioned in her concurrence in Rahimi, and about which Smith spoke at the conference, is what level of generality is the right one to draw these principles? Rahimi itself shows that error lies on either extreme—the Fifth Circuit drew its analogies too narrowly and required a "historical twin," while the government in Rahimi pushed for a rule that would swallow the Amendment whole in permitting the Government to bar firearm possession by anyone judged "irresponsible."

In talking about this problem, Smith suggested a way for courts and litigants to check their homework and make sure they have not drawn too broad of lessons from histories, by comparing them against what he called the "third rails" of the analogical process. (Touching the third rail on a railroad track will electrocute you.) A principle would touch a "third rail" if:

The principle is directly contrary to the founding era understanding of the text of the Second Amendment. The principle would violate Supreme Court precedent, such as Heller's holding that arms in common use are protected and may not be banned. The principle would be based on a concern for criminal misuse rather the rights of the law-abiding (recall the Scalia-Breyer debate in Heller). The principle would disregard the purpose of the Amendment to protect the right of self-defense and thwart tyranny, invasion, and criminality. The principle would permit restrictions on what were common firearms-related activities at the Founding. In other words, if the Founders engaged in a practice, courts should not endorse a principle that would let the government turn the Founders into felons.

David Thompson, who also presented, is a partner at Cooper & Kirk, which is conducting a large share of the Second Amendment litigation today. Thompson also spoke to the need to check historical principles for error in the level of generality at which they are drawn. He gave, as an example of a regulation with justifications that touch these "third rails," bans on arms in common use.

The D.C. Circuit recently blessed such a ban, and in the process invented the principle that arms "capable of unprecedented lethality" may be banned, regardless of their commonality.

As Thompson pointed out, such a historical principle touches just about every one of the "third rails" identified by Smith. It violates Supreme Court precedent. In Heller, Justice Scalia found such arguments to "border on the frivolous," and specifically held that firearms "in common use" cannot be banned (and Bruen reaffirmed that holding). In fact, the history of firearms development is the search for more lethality and accuracy. People want more effective tools with which to defend themselves. By treating lethality as a bad thing, the U.S. Court of Appeals for the D.C. Circuit derived a principle that focused on how criminals misuse firearms, not on how law-abiding citizens use them, which violates another "third rail." The Second Amendment, Thompson stated, allows us to live free, not as slaves. Heller teaches us to consider the desirable increased accuracy and lethality for law-abiding citizens, not for criminals. The D.C. handgun ban was based on criminal misuse and disregarded justifiable use by the law-abiding.
The nationwide popularity of the AR-15 rifle illustrates why the common use test is consistent with the true principles underlying the Second Amendment. With 44 million in circulation, it goes without saying that AR-15s are commonly possessed by law-abiding citizens for lawful purposes. Of course, the AR-15 is popular precisely because it is a useful tool for self-defense, which is one of the purposes underlying the Second Amendment as well as resisting tyranny. And, to state the obvious, the Founders owned and used a lot of "common" firearms that were also lethal, and they never once thought to do something so self-defeating as to ban the very tools that had freed them from British rule.

Professor William Merkel of the Charleston School of Law, the coauthor, with the late Richard Uviller, of the 2002 book The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent, provided a counterpoint to Smith and Thompson,  arguing that the Heller was wrongly decided and that the Second Amendment does not protect an individual right to arms at all.

The Federalist Society's National Lawyers Convention has included a segment on the Second Amendment for several years now, and this one did not disappoint. Hopefully the dialogue will continue.

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[Eugene Volokh] NRA v. Vullo Update: Second Circuit Weighs Reviving $100M+ Damages Claim

Readers of the blog may I recall that I was counsel of record for the NRA in the Supreme Court stage of NRA v. Vullo, and that the ACLU's David Cole presented oral argument before the Court. The Court unanimously held that the NRA stated a claim, and remanded the case to the Second Circuit as to qualified immunity; the Second Circuit held oral argument two weeks ago, and I thought some of you folks might be interested in what happened there. Bill Brewer (the NRA's lead lawyer on this) and his team and I therefore put together this quick post; I should note that my role here is an advocate and not as an impartial academic, but my sense was that our readers might still find this analysis interesting:

On Wednesday November 13, 2024, the Second Circuit held oral argument in National Rifle Association v. Vullo, No. 21-636, on the issue of qualified immunity. Commenced by the Brewer law firm on behalf of the National Rifle Association of America (NRA) in 2018, the Vullo lawsuit advances First Amendment claims against former New York Governor Andrew Cuomo and the state's former head financial regulator, Maria Vullo, over an alleged censorship scheme that coerced banks and insurers to blacklist the gun group.

Although some allegations in the lawsuit are disputed, Vullo never denied urging regulated firms to sever their services to the NRA, based explicitly on the NRA's pro-gun speech. In official regulatory guidance to the CEOs of entities she supervised, Vullo insisted that New York's banks and insurers owed "a commitment to society as a whole," which (in her view) disfavored letting gun-rights advocates have bank accounts or health insurance. Surprisingly, the Second Circuit seemed to countenance this reasoning in 2022, when it rejected the NRA's First Amendment claims—citing, among other things, a DEI-consulting whitepaper on corporate social responsibility.

We were joined by the American Civil Liberties Union (ACLU), as the NRA appealed this ruling to the United States Supreme Court for the NRA. In a rebuke from a unanimous Court, Justice Sonia Sotomayor revived the NRA's claims this past June, emphasizing decades of precedent that "[a] government official cannot coerce a private party to punish or suppress disfavored speech on her behalf." Moreover, the Court said, Vullo's alleged conduct struck at the heart of this prohibition. In light of the Court's guidance on the First Amendment merits of the NRA's allegations, Sotomayor added, the Second Circuit was free to reconsider the issue of qualified immunity, i.e., whether Vullo's alleged violations were such that the NRA should be able to sue her individually for damages.

The damages asserted in the case surpass $100 million—and Cuomo and Vullo could be on the hook for them (though, if damages are awarded, New York might indemnify them, depending on whether their conduct is deemed to be "intentional wrongdoing").

The Supreme Court's Vullo decision is already having a broad impact. In the recent election, Floridians voted on a measure to expand abortion rights (it ultimately failed to reach the required 60% threshold). In the run-up to the election, the General Counsel for the Florida Department of Public Health sent letters on the Department's letterhead to Florida TV stations, threatening enforcement action if the television stations continued showing advertisements in favor of abortion rights that he deemed to be a "sanitary nuisance" due to their supposed falsity. The proponents of the ballot measure sued, seeking a temporary restraining order. In a decision issued on October 17, District Judge Mark Walker relied on Vullo to hold that the General Counsel's enforcement threat violated the First Amendment, holding "[t]he present case bears all the hallmarks of unconstitutional coercion that the Supreme Court identified in … Vullo." This case illustrates that, while the immediate beneficiary of the Court's ruling was the NRA, the ruling will benefit advocates on all sides of the aisle, no matter their viewpoint.

On November 13, 2024, the Second Circuit held oral argument regarding the qualified immunity issue identified by the Supreme Court as potentially needing to be reconsidered in light of its ruling. At oral argument, Vullo's counsel emphasized portions of the appellate court's prior opinion, which looked unfavorably on the NRA's claims. But the Second Circuit panel appeared to rebuff that approach because, in its view, the earlier decision's framing of the relevant First Amendment issues was clearly rejected by the Supreme Court. Judge Denny Chin pressed Vullo's lawyer to distinguish the New York regulator's actions from those in Bantam Books—a 1963 precedent where the Court held that similar pressure tactics violated the First Amendment.

Vullo was represented at the Second Circuit oral argument by Will Havemann of Hogan Lovells, and the NRA was represented by Noel Francisco of Jones Day.

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[Josh Blackman] Part XVII: Voting Rights

Baker v. Carr (1962)

Shaw v. Reno (1993)

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[Zachary Price] Theoretical Reasons to Favor Symmetry

My last post on my new book Constitutional Symmetry discussed how a preference for symmetry would operate in practice. It also suggested that a preference for symmetry is already an inchoate feature of our law: it is a value embodied in contemporary interpretive practice, just not with sufficient clarity and rigor.

But if symmetry is already a part of interpretive practice, is this practice justified? In fact, as I mentioned, at least three sets of conventional theoretical considerations support a preference for symmetric constitutional understandings.

First, preferring symmetry accords with the character of our Constitution. We have what some scholars have called a "framework" constitution: for the most part, our constitution, unlike some others around the world, sketches the basic structure of our government without providing many details about its practical operation.

This open-ended character may be part of the reason why courts have assumed such importance in interpreting the U.S. Constitution. But it also supports exercising that interpretive function in a manner that respects disagreements instead of squelching them. Symmetry meets that goal: it orients interpretation toward maintaining the framework for continued political contestation rather than toward resolving immediate political fights.

Beyond its framework character, moreover, the framework our Constitution establishes has a particular orientation. Rather than take substantive choices off the table, the U.S. Constitution by and large prescribes democratic procedures for resolving any substantive policy conflicts that arise. There are exceptions, of course, but as John Hart Ely argued forty years ago in his classic Democracy and Distrust, this overall procedural orientation means that counter-majoritarian judicial rulings best accord with the Constitution's own character when they aid the political process rather than supplanting it.

During the period that Ely retrospectively theorized, the most important democratic distortions related to race and other oppressed identities, so the Supreme Court could best aid the political process by scrutinizing laws that disadvantaged those groups.

Today, problems of prejudice and disadvantage persist and counteracting them is an important function of constitutional law. But the most important distortion in the political process is different. It is no longer the systematic exclusion of some identifiable group from political participation, but instead the intensity of political conflict between rival political coalitions—and indeed between two coalitions that understand themselves in part to be defending key minority interests (such as racial and sexual minorities for Democrats and religious traditionalists for Republicans). Under contemporary conditions, therefore, political process theory should support efforts to mitigate constitutional partisanship by favoring symmetric understandings instead.

A second set of theoretical reasons to far symmetry relate to judicial role-morality, meaning the conventional moral expectations that attend judges' role in our society.

Judges are not supposed to be result-driven partisans; they are supposed to decide cases according to principles rather than preferences. But in the current environment judges' principles can be no less partisan than their specific case results. Indeed, the two rival constitutional visions I sketched in my initial post are essentially ready-made packages of positions that import key political goals into constitutional law. Because importing partisan preferences into constitutional law in this way is no less at odds with the judicial role than reaching result-driven results in particular cases, adherence to judges' proper social role should incline them toward symmetry instead.

This inference helps make sense of Herbert Wechsler's influential suggestion that constitutional law requires "neutral principles." For all his idea's influence, Wechsler offered no clear metric of neutrality, nor any theory of when interpretation should and should not prioritize neutrality over competing values. These oversights led him, notoriously, into the obtuse and self-undermining suggestion that Brown v. Board of Education failed to embody any neutral principle of constitutional law.

Symmetric interpretation sidesteps these problems. First of all, the form of neutrality it encourages is symmetry as between the most acute contemporary societal and ideological divisions, particularly those that divide the two major parties. Symmetry thus affords the metric of neutrality that Wechsler omitted. At the same time, however, because symmetry operates as a second-order preference rather than a hard-and-fast rule, judges need not pursue it when they believe the Constitution clearly dictates a different answer. Accordingly, some positions, like continued acceptance of de jure racial segregation in Wechsler's time, should fail even if they are symmetric with respect to some then-existing societal divisions.

Apart from political process theory and judicial role morality, originalism supports symmetric interpretation too. Indeed, a preference for symmetry should unite two otherwise divergent contemporary theories of originalism.

On the one hand, so-called new originalists recognize a zone of "construction" within which judges exercise a degree of judgment because literal "interpretation" of the Constitution fails to provide a determinate answer. Originalists in this camp argue that, in cases like these where the Constitution's original meaning is underdetermined, judges should follow the document's higher-level values and purposes instead; they should respect the Constitution's "spirit" when its "letter" runs out, as two scholars put it.

An opposing camp argues that such value-laden construction defeats the very purpose of originalism, which is to eliminate subjective judgments by binding judges instead to the Constitution's historical meaning. Originalists of this stripe argue advocate "original methods" originalism. They argue that judges should resolve constitutional ambiguities by applying interpretive methods that the Constitution's framers would themselves have anticipated.

Though opposed to each other, these competing strains of originalism should converge on symmetry. As concerns the Constitution's "spirit"—the higher-level values that properly animate the document—few concerns carried stronger importance for the framers than avoiding constitutional partisanship, or what the framers would have called "factionalism." Symmetric interpretation thus gives judges operating within the construction zone a concrete way to advance an animating framing-era concern about avoiding corrosive partisanship.

As for original methods originalists, they can find support for symmetry in framing-era interpretive practices. Contrary to the framers' hopes, acute partisanship emerged almost immediately as a defining feature of the early Republic, but the Supreme Court under Chief Justice Marshall responded by eschewing overt constitutional partisanship and instead favoring depolarizing understandings in important respects. One way in which it did so, moreover, was by imposing symmetric restraints on practices, such as prosecution for common law crimes or "constructive" treason, that threatened to generate corrosive cycles of political retribution. Marshall Court rulings thus support embracing symmetric interpretation as an original method of interpretation that even originalists skeptical of the "construction zone" can endorse.

In sum, at least three sets of widely accepted theoretical considerations—the Constitution's democratic orientation, judges' role morality, and constitutional originalism—all support favoring symmetric constitutional understandings when possible.

But if symmetric interpretation is theoretically justified on all these grounds, what positions would it encourage judges to favor? My last two posts will offer some examples.

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[Eugene Volokh] Why the California Ban on "Disseminat[ing] Information" "Relating to a Sealed Arrest" Violates the First Amendment

An excerpt from FIRE's memorandum filed last night:

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

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

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

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

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

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

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

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

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

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

I'll also blog about the state's argument in defense of the law, once that is filed.

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[Zachary Price] How Symmetry Works—and Why It Is Already Part of Our Law

As my last post explained, my new book, Constitutional Symmetry: Judging in a Divided Republic, argues that judges should favor, when possible, constitutional understandings that offer valuable protections on opposite sides of key current divides, instead of just one side. Our current divided and acrimonious politics have produced a perilous tendency to politicize constitutional law and advance wholly partisan visions of the Constitution's meaning. Symmetric interpretation aims to counteract that tendency.

As I also explained, favoring symmetry is not a hard and fast rule; it is instead a preference. That means judges should favor symmetry only insofar as their primary interpretive commitments allow. In that sense, it resembles other second-order values in interpretation such as judicial restraint. A judge committed to restraint will invalidate democratic choices only when the Constitution is clear, but determining when the Constitution is clear requires a theory of interpretation that restraint alone cannot provide.

Symmetry is the same: because symmetry cannot override clear constitutional requirements, judges will each have to decide when their primary interpretive commitments do and do not permit symmetric understandings. Furthermore, the Constitution itself is not symmetric with respect to all conceivable ideological divisions. It is not neutral, for example, between representative democracy and dictatorship, nor between racial equality and racist oppression.

Within the range of reasonable disagreement, however, symmetry is a value that judges with different primary interpretive theories—whether originalist, formalist, pragmatist, living constitutionalist, or what have you—can equally embrace. It could thus provide a needed point of convergence among judges with differing primary commitments.

The same could be true, of course, of other second-order values like restraint, but as compared to such other possibilities, symmetry is the most important point of orientation in our time. In principle, restraint could help depoliticize constitutional law by leaving more choices to ordinary politics, but that would be true only if restraint were applied across the board—that is, if it were applied symmetrically.

Consider, for example, the reaction to Dobbs v. Jackson Women's Health Organization, the decision overturning the constitutional right to abortion. In some sense, the decision reflected commendable restraint: it returned an important question to the political process. But Dobbs's restraint appeared highly selective, and thus polarizing, when juxtaposed with contemporaneous decisions on matters such as affirmative action and gun control that effectively constitutionalized conservative policy preferences.

Symmetry, then, is a second-order interpretive value that responds directly to the polarized politics surrounding constitutional law. Why, though, should judges embrace this value? What theoretical considerations could support it? As I will explain in my next post, multiple strands of contemporary interpretive theory do in fact justify a preference for symmetry.

But the first point in symmetry's favor is simply that it is already part of our law. At oral arguments (and in law school classes), judges and lawyers routinely probe the validity of legal principles by positing scenarios that reverse the politics of the case at hand. Thus, for example, in a recent case involving a praying public-school coach, several justices raised questions about a hypothetical coach who carried the Ukrainian flag or knelt during the national anthem to protest police violence. Similarly, in a case about a California law barring sale of meat produced inhumanely outside the state, justices posed questions about analogous laws forbidding sale of goods produced by undocumented immigrants or by workers without the right to opt out of unions. Questions like these presume that a constitutional principle is more likely to be valid if it works in parallel across ideologically disparate situations.

Reasoning along these lines has appeared in some recent opinions too. Justices have complained in dissents about majority opinions "weaponizing" constitutional principles or ignoring "the law's demand for evenhandedness." Majority opinions, too, have touted the cross-ideological or cross-partisan benefits of their rulings. These assertions again reflect an implicit assumption that principles with symmetric rather than one-sided benefits are preferrable.

All these features of contemporary interpretive practice support a preference for symmetry, but so, too, do multiple—and otherwise divergent—aspects of contemporary interpretive theory, including political process theory, judicial role morality, and originalism (indeed, multiple forms of originalism). I'll elaborate on all those points in my next post.

 

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