Eugene Volokh's Blog, page 219

[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.

The post Why the California Ban on "Disseminat[ing] Information" "Relating to a Sealed Arrest" Violates the First Amendment appeared first on Reason.com.

[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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[Eugene Volokh] "What Is Government Itself, but the Greatest of All Reflections of Human Nature?"

That's a famous line in Federalist No. 51, generally attributed to James Madison—but not quite. The line is actually, in context,

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The phrase is "reflections on human nature," and I take it that "reflection" there means—to quote the Oxford English Dictionary—

9. a. Something which brings discredit on (also upon) a person or thing.

… 1711 J. Addison Spectator No. 189. ¶7 It is one of the greatest Reflections upon Human Nature that Paternal Instinct should be a stronger Motive to Love than Filial Gratitude.
1749 H. Fielding Tom Jones VI. xvi. vii. 60, I will not hear my Niece abused. It is a Reflection on my Family.
1819 Times 2 July 2/2 The honourable member … asserted, that it was a sad reflection on the house, that the Lords had paid greater attention to the security and protection of the subject than they (the House of Commons) had done….

Webster's 1828 Dictionary likewise offers, as one decision of "reflection," "Censure; reproach cast," and gives as an example, "He died, and oh! may no reflection shed its pois'nous venom on the royal dead."

Madison isn't saying that government reflects human nature, in that the structure of government stems from human nature. (Maybe that's true, and maybe it's even what Madison believed, but it's not what Madison is talking about in that particular phrase.) First, that's not what "reflection on" generally means.

Second, if we read the sentences as, "It may be a reflection [of] human nature, that such devices should be necessary to control the abuses of government" followed by "But what is government itself, but the greatest of all reflections [of] human nature?," then it's not clear why he would use the "It may be/But" construction. That construction isn't generally used when one sets forth two neutral and related facts about life (separation of powers reflects human nature, and so does government).

Rather, Madison is saying, "Acknowledging the need for separation of powers does bring discredit on human nature (since if human nature weren't flawed, we wouldn't need separation of powers). But that's just a special case of the broader point that acknowledging the need for government itself brings discredit on human nature (since if human nature weren't flawed, we wouldn't need government)." Here the "It may be/But" construction makes sense: It may be that my proposal carries within it an implicit indictment of human nature, but the very existence of government carries within it that indictment.

Yet search for "the greatest of all reflections of human nature" (whether through the Internet generally, through books, or through law review articles), and you'll see plenty of references to the "of" version, e.g.,

Government and politics exist in a universe of real problems and real solutions. To quote James Madison, "What is government itself but the greatest of all reflections of human nature?"

Americans needed a new form of government based on this new acceptance of what people are really like. "But what is government," James Madison, the father of the Constitution, wrote in 1788, "but the greatest of all reflections of human nature?"

A. The Constitution Was Intended to Be a Reflection of Human Nature
In arguing for the ratification of the Constitution in The Federalist, Madison portrayed the plan of government as "the greatest of all reflections of human nature." The founding generation was both explicit and emphatic that the Constitution's success would turn on how well the charter got our personal basics correct.

Yet as Socrates rhetorically inquired, and the Framers dogmatically insisted, whence could a constitution derive if not from the self, "what is government itself but the greatest of all reflections of human nature?"

The "reflection of human nature" reading has had some sticking power. (Indeed, that's how I had recalled the phrase until I looked closely at it.) A few thoughts:

1. "What is government itself, but the greatest of all reflections of human nature?" is itself a plausible statement, indeed a not very controversial one. What's more, it sounds more familiar to the modern ear than the "reflections on" reading. (The old sense of "reflection" is still sometimes used, but it's pretty rare.) Many people thus naturally misread it, and don't check themselves when they do it.

The use of "free reign" for "free rein" offers a good analogy, I think: "Free rein" refers to an activity—riding horses—with which few modern people are closely familiar; "free reign" thus sounds more natural, and many people use it without realizing that "free rein" is the original. (Of course, the analogy is limited: "free rein" is an English phrase, which can legitimately change over time, though the change hasn't yet fully taken place, at least in edited writing. "Reflection on human nature" was a specific phrase of Madison's, and when it's attributed to Madison, it should be rendered accurately.)

2. The English of 200 years ago is generally accessible to us, but some locutions aren't quite what they seem at first glance. Such misleading terms aren't as common as they are in Shakespeare, which after all is 400 years old and not just 200. Still, there is some risk of such confusion, both with legal terms (e.g., "Suits at common law" in the Seventh Amendment) and even with lay terms, such as "reflections on."

3. When you see something suspicious, look it up, and look closely at the context. The phrase is, after all, "reflections on," not "reflections of"—a signal that there's something potentially odd here. Don't just assume that "reflections on" must be an old-fashioned way of saying "reflections of"; maybe it's an old-fashioned way of saying something else.

(I was reminded of this 2015 post last week, so I thought I'd take the liberty of passing it along again.)

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[Josh Blackman] Today in Supreme Court History: November 26, 1829

11/26/1829: Justice Bushrod Washington dies. He was President George Washington's nephew.

Justice Bushrod Washington

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[Eugene Volokh] Court Decision About Discovery in Libel Lawsuit Against Council on American-Islamic Relations Foundation

From today's order by Magistrate Judge David T. Schutz (D. Minn.) in Saroya v. CAIR Foundation, Inc.:

Plaintiff Lori Saroya … moves to compel discovery from Defendant CAIR Foundation, Inc. … and its affiliated regional non-profit organizations…. Because Saroya's allegations raise claims that define a broad scope of discovery, her motion to compel is granted with limited exceptions….

CAIR is a Muslim civil rights organization in Washington, D.C. that has twenty-six affiliates across the country, including CAIR Minnesota. Saroya worked as the Executive Director of CAIR Minnesota from 2007 until 2016. In 2016, Saroya joined CAIR as the National Chapter Development Director and a member of its Board of Directors. She resigned in 2018.

After her resignation, Saroya took to the internet accusing CAIR of various misconduct. Among other things, Saroya accused CAIR of discrimination, harassment, retaliation, union busting, financial mismanagement, lack of board oversight, board incompetence, creating a hostile work environment, negatively portraying Muslims, making mistakes on legal cases, receiving foreign funding, and withholding money it owed her. Neither party disputes that Saroya made these accusations.

In 2021, CAIR sued Saroya for defamation, defamation per se, tortious interference with business relationships, and breach of contract…. Saroya moved for partial judgement on the pleadings as to CAIR's claims of defamation, defamation per se, and tortious interference with business relationships. In relevant part, she argued the defamation claims were time barred, were based on non-actionable statements, and that CAIR had failed to identify the actionable statements with specificity.

The Court denied Saroya's motion, ordering CAIR to file an amended complaint to specifically identify the actionable defamatory statements at issue. The Court explained that "what is actionable and not actionable is not clear at all from the face of the complaint," and it directed CAIR to clarify which statements it believed were actionable, separating those out from statements of opinion or statements outside the statute of limitations. Instead of filing an amended complaint, however, CAIR voluntarily dismissed its case with prejudice.

On January 20, 2022—less than ten days after dismissal of the 2021 litigation— CAIR issued a press release titled: "Community Update on Cyberstalking by Lori Saroya, Ex-Staffer." It described "a situation that CAIR has been working to resolve for some time"—namely, Saroya's use of email and social media to "cyberstalk, smear, and undermine" the organization, its affiliates, and its members.

In relevant part, the press release described how Saroya began "attacking" CAIR through email and social media after her resignation. CAIR explained, "After enduring this obsessive and destructive cyberstalking for years, we decided to file a defamation lawsuit against [Saroya] in 2021 to expose the truth and protect our team in a court of law, where the truth matters." CAIR went on to state, "[Saroya] was not able to defeat our lawsuit" and "the judge overseeing the case ruled in our favor and denied [Saroya]'s motion to dismiss our lawsuit" CAIR asserted that even though it could have moved forward with the case, it decided to dismiss the matter in part because:

[T]he litigation had … allowed us to prove her conduct: working with Islamophobes, sending hundreds of anonymous emails in the middle of the night attacking our civil rights organization, harassing us and our supporters on social media, among many other things. She did not deny any of these claims in her response to our lawsuit, so we have already proven those facts….

Saroya claims CAIR's press release is false and defamatory and its issuance constitutes intentional infliction of emotional distress.

First, Saroya alleges CAIR falsely accused her of "cyberstalking" in three separate instances—once in the title, and twice in the body of text. She maintains that because "cyberstalking" is a crime under both federal and state law, the statements are statements of fact that are verifiably false.

Second, Saroya alleges CAIR falsely portrayed the judge's ruling on her motion to dismiss the 2021 litigation when it wrote, "[Saroya] was not able to defeat our lawsuit. A few weeks ago, the judge overseeing the case ruled in our favor and denied [Saroya's] motion to dismiss our lawsuit."  She argues the judge in the 2021 litigation did not "rule in CAIR's favor" because the judge identified deficiencies in the complaint but permitted CAIR to file an amended complaint to redress these deficiencies.

Third, Saroya alleges CAIR falsely characterized the outcome of the 2021 litigation when it wrote that the lawsuit "had already allowed us to prove her conduct" and that CAIR had "proven those facts." Saroya alleges this statement communicates that CAIR had proven its allegations against her, including that her accusations about CAIR—which were the issue in the 2021 litigation—were false and defamatory and that she harassed the organization's members. As Saroya's counsel argued at the hearing on this motion, these statements, read in the context of the entire press release, may be fairly understood to allege that CAIR had won its lawsuit against Saroya on the merits—that its allegations had been proven and that the court in fact found that Saroya had defamed CAIR, tortiously interfered with its business relations and engaged in the crime of cyberstalking.

Saroya alleges that issuance of the defamatory press release also constitutes extreme and outrageous conduct that passes the bounds of decency in a civilized community. She claims she has had to seek mental health treatment to cope with the severe effects of the press release, which no reasonable person should be expected to endure, and that CAIR's decision to issue the press release thus constitutes IIED [intentional infliction of emotional distress]….

Saroya now moves to compel discovery related to the issuance of the press release and the merits of the 2021 litigation…. Because Saroya's claims are based on CAIR's press release concerning the 2021 litigation, the scope of discovery in this case depends on that press release. Because Saroya alleges the press release falsely portrayed the merits and outcome of the 2021 litigation, the scope of discovery in turn depends on Saroya's allegedly defamatory allegations that were the heart of the 2021 litigation…. Saroya's burden of proving the falsity of CAIR's press release requires delving into the truth or falsity of Saroya's statements that gave rise to the 2021 litigation. In short, CAIR's press release has opened the door to litigating—and thus discovering—the merits of the 2021 litigation.

Discovery into the merits of the 2021 litigation encompasses the strength of CAIR's position in that lawsuit and the accuracy of Saroya's statements about CAIR. This is especially broad considering the posture of the prior lawsuit when it ended. Because it was not clear from the face of CAIR's complaint which precise statements it alleged constituted defamation or defamation per se, the scope of discovery as it relates to the veracity of CAIR's defamation claims is defined by the complaint that was never amended. Additionally, discovery into the strength of CAIR's non-defamation claims—that is, whether Saroya tortiously interfered with business relationships or breached her contract—is also appropriate in this action. It gets worse….

The nature of the parties' relationship with one another is relevant to the issue of malice, which in turn is relevant to the issue of intent. Thus, the entirety of the parties' history is once again within the heart of discovery….

CAIR … argues [among other things] that discovery is disproportional to the extent it bears on Saroya's accusation that CAIR received foreign funding because it is public knowledge that CAIR has received foreign funding. In support of its argument, CAIR refers to a page on its own website titled "Dispelling Rumors about CAIR," where CAIR acknowledges it previously received foreign financial support. Yet the thrust of CAIR's allegations against Saroya in the 2021 complaint is that Saroya falsely implied CAIR received funding from foreign governments and terrorists when she stated CAIR accepted "international funding through their Washington Trust Foundation." CAIR points to no public admission that it received funding from terrorists or that it received funding through the Washington Trust Foundation. Discovery into these matters is proportionate to the needs of the case….

Communications about Saroya, the press release, and the 2021 litigation are well within the scope of discovery because they bear directly on Saroya's claims and CAIR's defense of absence of malice….

Documents relating to Saroya's statements against CAIR as alleged in the 2021 complaint are likewise well within the scope of the discovery because CAIR's press release directly raised the merits of the 2021 litigation. CAIR alleged Saroya falsely accused the organization of withholding funds, gender and religious discrimination, sexual harassment, workplace hostility, retaliation, union busting, financial mismanagement, improper management, legal misconduct, receipt of foreign funding, and use of attorneys to suppress and silence employees. Whether these accusations were true bears directly on whether CAIR falsely stated the 2021 litigation had allowed it "to prove Saroya's conduct." …

The identity of civil, criminal, and administrative proceedings against CAIR are generally within the scope of the discovery, except to the extent they seek information about employees…. In the 2021 complaint, CAIR alleged Saroya defamed it when she accused CAIR of civil and criminal misconduct. Discovery on legal and administrative proceedings is relevant to the truth of Saroya's allegedly defamatory statements, and to the merits of the 2021 lawsuit, but only to the extent the requests relate to CAIR itself rather than individual employees….

In addition to the substance of the discovery requests, Saroya's request also raises an issue of how broadly CAIR is defined for the purposes of responding to the requests. Saroya proposes a broad definition of "CAIR" that includes the CAIR Foundation, Inc. as well as its affiliates. CAIR argues that "CAIR" should be defined narrowly to apply only to CAIR Foundation, Inc. The appropriate definition of "CAIR" is shaped by the requests in each category….

For more, see the full opinion.

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[Eugene Volokh] Lawfare Podcast Episde on "AI Regulation and Free Speech: Navigating the Government's Tightrope"

I participated in it at a Georgetown conference several weeks ago, together with Profs. Alan Rozenshtein (Minnesota), Chinny Sharma (Fordham), and Paul Ohm (Georgetown); you can hear it here.

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[Zachary Price] Constitutional Symmetry

I'm grateful to Eugene and the other Volokh Conspiracy bloggers for hosting these guests posts on my new book, Constitutional Symmetry: Judging in a Divided Republic.

As readers may have noticed, the United States is closely divided over politics, and each political coalition advances a distinct constitutional vision that largely aligns with its political objectives.

Conservatives interpret the Constitution to protect religion, limit gun control, and obstruct federal administrative governance while allowing state-level regulation of moral questions like abortion. Progressives see a mirror-image constitution that advances social justice, confers broad federal power, and allows flexible administrative regulation while limiting state and local police authority and guaranteeing sexual and reproductive autonomy. As national politics have grown divided and polarized, achieving partisan goals through federal legislation has grown more difficult, so the two parties have dreamed, in effect, of capturing the courts and implementing their vision through constitutional interpretation instead.

This dynamic is not new and has existed at other times in the past, but it is perilous. It treats a document that should be source of shared commitments and stable ground rules as a vehicle for extending political conflict.

The book urges judges and justices to resist this constitutional polarization. It also offers them a specific means of doing so: judges should favor, when possible, constitutional understandings that are not politically one-sided but instead operate symmetrically, meaning that they offer valuable protections to interests on opposite sides of key current divides.

What would favoring such symmetry mean concretely? The First Amendment principle of content (or viewpoint) neutrality provides a good example. By protecting all speakers, no matter what they are saying, this understanding of expressive freedom ensures that those disappointed by the result in one case may equally benefit from the decision's rationale in future cases. The anti-commandeering doctrine from the federalism context provides another good example. By shielding state and local officials from compelled administration of federal laws, this doctrine equally protects "blue" states during a Republican presidential administration and "red" states during a Democratic one.

By contrast, the Court's decisions recognizing an individual right to bear arms are paradigmatic examples of asymmetry: they effectively constitutionalize one side of the fraught political and social divide over gun control.

These decisions' asymmetry does not necessarily mean that they are wrong. I do not argue that symmetric understandings should always prevail; my argument is instead that judges and justices should prefer symmetric understandings whenever their primary interpretive commitments allow them to do so. The Second Amendment example, however, does illustrate why this orientation is valuable. Whether or not decisions like Heller and Bruen are legally sound, they are costly: they alienate roughly half the country from the constitutional law that govern us all.

In subsequent posts, I will discuss theoretical justifications for this preference. Indeed, I will argue that it is already an inchoate feature of constitutional interpretation. I will also discuss concrete positions that this orientation should lead judges to favor. Among other things, the book argues that symmetry supports disfavoring religion-specific theories of civil liberty, limiting the major questions doctrine in administrative law, and allowing limited and indirect forms of race-consciousness in governmental decision-making. At the same time, it defends the post-Dobbs approach to substantive due process as potential symmetric, highlighting parental rights as a key example, and it likewise defends the Court's combined decisions allowing political gerrymanders and rejecting the independent state legislature theory.

To set the stage for those posts, let me just elaborate briefly here on the political context to which symmetry responds.

Over roughly the last half century, American politics have come to be organized around close competition between two ideologically cohesive parties that compete nationally at near parity. As a result, legislative gridlock and bare-knuckle maneuvering have become the norm within Congress, and during periods of divided government the two political branches have frequently been at loggerheads. At the same time, judicial appointments have become increasingly political. According to an important recent study, the period since 2010 is the first time in American history when all Supreme Court justices appointed by presidents from one party are identifiably distinct from those appointed by presidents in the opposite camp.

This is a bad combination. On the one hand, the intensity of our political conflicts makes credibly settling legal disputes and enforcing constitutional ground rules more important than ever. On the other hand, those same political forces have undermined the courts' standing as comparatively neutral and trustworthy arbiters of those very sorts of conflicts. As recent events including the January 6 riot and other instances of election denial show, the risk that some charged constitutional conflict will spin out of control is no longer entirely hypothetical.

Did the election this month alter this picture? Probably not.

I appreciate that some Volokh readers are happily drinking liberal tears at the moment and dreaming of perpetual dominance. But the pattern in recent decades has been for each side to overreach when it gains power, provoking a backlash that delivers power back the other way. This time might be different, but I wouldn't bet the house on it. Donald Trump just barely won 50 percent of the popular vote and (in an election with comparatively low turnout, especially in Democratic-leaning areas) he appears to have won the popular vote by a smaller number of voters than either George W. Bush in 2004 or Joe Biden in 2020, to say nothing of Barack Obama in 2008 and 2012—and none of those elections ended the era of polarization and partisanship.

In any event, despite the GOP's electoral victory, the country remains closely divided, and President Trump himself is a divisive figure, to put it mildly. Roughly half the country will soon feel quite alienated from its government (just as Republicans did during the previous four years), and the Supreme Court—having stymied key Biden initiatives, kept Donald Trump on the ballot, and immunized him against some attempted prosecutions—is widely perceived as aligned with the GOP's agenda. The stage is thus set for constitutional law to remain a vector of division instead of the unifying source of stability that the moment calls for.

The good news is that many judges seem to appreciate this dilemma. Judges worthy of the name do not want to be remembered as result-driven partisans; they take seriously their responsibility to act as impartial stewards of the law. Some have even worried aloud about the challenges of navigating a polarized environment.

Judges, though, need better tools for managing these challenges. In a happy alignment of constitutional virtue and judicial self-interest, a preference for symmetry can provide just that, as I will explain in subsequent posts.

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[Eugene Volokh] Zachary Price Guest-Blogging About His New Book, "Constitutional Symmetry: Judging in a Divided Republic"

I'm delighted to report that Prof. Zachary Price (UC Law San Francisco) will be guest-blogging this week about his new book. The publisher's summary:

Intense political disagreements over constitutional law and the Supreme Court have divided America. Constitutional Symmetry offers a fresh perspective by urging judges to make decisions that work 'symmetrically' across major partisan and ideological divides instead of favoring one partisan coalition over the other. Zachary S. Price argues this approach will aid the political process, align with the role morality of judging, and advance the framers' hopes for the Constitution. Chapters explore how this approach can encourage new solutions to fraught debates over free speech, religious liberty, separation of powers, federalism, affirmative action, gun rights, abortion, parental rights, and the law of democracy. Timely and innovative, this book is must-read for anyone seeking to understand the sources and implications of constitutional polarization in the contemporary United States.

And the jacket blurbs:

Constitutional Symmetry could be the most important book in constitutional theory in decades. Cutting across the now familiar categories of originalism, living constitutionalism, and pragmatism, Zach Price's book frames constitutional debate in a way that offers something to both sides of the spectrum—and thus charts a path out of the polarized antagonism that now engulfs the courts. —Michael W. McConnell, Richard & Frances Mallery Professor, Stanford Law School

Constitutional law is different from politics, but should the one take account of the other? In this brilliant, challenging, and wide-ranging book, Zachary Price answers with a resounding Yes. The polarization now gripping our nation cannot be ignored, and Price argues that the Supreme Court should mitigate its effects, not worsen them. Anyone interested in a fair and neutral judiciary should read this book. —Richard M. Re, Professor of Law, University of Virginia School of Law

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[Eugene Volokh] Justice Department's Office of Legal Counsel Concludes: Constitution Prohibits Continued Federal Prosecution of President-Elect

From Special Counsel Jack Smith's filing in U.S. v. Trump:

It has long been the position of the Department of Justice that the United States Constitution forbids the federal indictment and subsequent criminal prosecution of a sitting President. But the Department and the country have never faced the circumstance here, where a federal indictment against a private citizen has been returned by a grand jury and a criminal prosecution is already underway when the defendant is elected President.

Confronted with this unprecedented situation, the Special Counsel's Office consulted with the Department's Office of Legal Counsel (OLC), whose interpretation of constitutional questions such as those raised here is binding on Department prosecutors. After careful consideration, the Department has determined that OLC's prior opinions concerning the Constitution's prohibition on federal indictment and prosecution of a sitting President apply to this situation and that as a result this prosecution must be dismissed before the defendant is inaugurated.

That prohibition is categorical and does not turn on the gravity of the crimes charged, the strength of the Government's proof, or the merits of the prosecution, which the Government stands fully behind. Based on the Department's interpretation of the Constitution, the Government moves for dismissal without prejudice of the superseding indictment under Federal Rule of Criminal Procedure 48(a)….

[T]he defendant will be certified as President-elect on January 6, 2025, and inaugurated on January 20, 2025. This sets at odds two fundamental and compelling national interests: on the one hand, the Constitution's requirement that the President must not be unduly encumbered in fulfilling his weighty responsibilities, see Nixon v. Fitzgerald (1982) ("[t]he President occupies a unique position" and is "entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity"), and on the other hand, the Nation's commitment to the rule of law and the longstanding principle that "[n]o man in this country is so high that he is above the law," United States v. Lee (1882)….

OLC has twice before addressed the amenability to federal prosecution of a sitting President. The first relevant OLC opinion, drafted during Watergate in 1973, explored whether the Constitution's Impeachment Judgment Clause prohibits federal criminal prosecution of a sitting President before the exhaustion of the impeachment process and, if not, whether a sitting President is subject to criminal prosecution. OLC concluded that the Impeachment Judgment Clause did not preclude prosecution of a sitting President, but that a criminal prosecution of a sitting President would violate the separation of powers and "unduly interfere in a direct or formal sense with the conduct of the Presidency[.]"

In 2000, in the wake of the first presidential impeachment in more than a century, OLC issued a second opinion revisiting the question of whether a sitting President could be criminally charged, and again concluded that charging and prosecuting a sitting President would impermissibly threaten the constitutional separation of powers because it would harm the President's ability to fulfill his constitutional role. The 2000 OLC Opinion reasoned that doing so would risk imposing three burdens that would make it impossible for a President to effectively carry out his constitutional duties: (1) the burden of imprisonment, which would physically prevent the President from doing his work; (2) the burden of "public stigma and opprobrium," which could weaken the President's ability to "fulfill his constitutionally contemplated leadership role"; and (3) the mental and physical burdens associated with preparing a defense to a criminal prosecution, which "might severely hamper the President's performance of his official duties."

OLC concluded that, because a pending criminal prosecution would impair the President's ability to carry out these responsibilities to the detriment of the Nation, the constitutional interest in the President's unfettered performance of his duties must take precedence over the immediate enforcement of the criminal law against a sitting President. The 2000 OLC Opinion, moreover, adopted "a categorical rule against indictment or criminal prosecution" of a sitting President. While recognizing that "a particular criminal charge" might not impose all three burdens to the same degree, the Opinion deemed it "perilous" for the constitutional rule to turn on a case-by-case assessment.

Both the 1973 and 2000 OLC Opinions recognized the critical national interest in upholding the rule of law, and stated that the President is not above it. See 2000 OLC Opinion ("Both the [1973] OLC memorandum and the Solicitor General's brief [filed in the District of Maryland in connection with the prosecution of former Vice President Spiro Agnew] recognized that the President is not above the law, and that he is ultimately accountable for his misconduct that occurs before, during, and after his service to the country."); 1973 OLC Opinion ("The Framers of the Constitution made it abundantly clear that the President was intended to be a Chief Executive, responsible, subject to the law, and lacking the prerogatives and privileges of the King of England."). OLC explained that because a sitting President's immunity is "temporary," extending only so far as his term in office, it "would not subvert the important interest in maintaining the 'rule of law.'" 2000 OLC Opinion; see id. (stating that this form of immunity "would generally result in the delay, but not the forbearance, of any criminal trial").

OLC has previously considered the possibility that the harms to the presidency might be ameliorated by returning an indictment against a sitting President but holding subsequent proceedings in abeyance until his term expires. 2000 OLC Opinion ("We have thus separately reconsidered whether, if the constitutional immunity extended only to criminal prosecution and confinement but not indictment, the President's ability to perform his constitutional functions would be unduly burdened by the mere pendency of an indictment against which he would need to defend himself after leaving office."); 1973 OLC Opinion ("To be sure it is arguable that despite the foregoing analysis it would be possible to indict a President, but defer trial until he was out of office."). While the 1973 OLC Opinion did not reach any conclusion on this question, in 2000, after balancing the competing interests that would arise from a federal indictment brought against a sitting President, OLC concluded that "a sitting President is immune from indictment as well as from further criminal process" and that the Constitution would thus prohibit an indictment "even if all subsequent proceedings were postponed until after the President left office." But OLC recognized that the interest in avoiding a statute of limitations bar by securing an indictment during the presidency "is a legitimate one," and it noted the possibility that a court might equitably toll the statute of limitations to permit proceeding against the President once out of office.

Neither the 1973 nor the 2000 OLC Opinion addressed directly a federal indictment that has already been returned against a private citizen prior to his election as President. The Special Counsel's Office therefore sought OLC's guidance on whether this case must be dismissed, or whether the pending superseding indictment against the defendant could be held in abeyance until he is no longer immune from prosecution. OLC concluded that its 2000 Opinion's "categorical" prohibition on the federal indictment of a sitting President—even if the case were held in abeyance—applies to this situation, where a federal indictment was returned before the defendant takes office.

Accordingly, the Department's position is that the Constitution requires that this case be dismissed before the defendant is inaugurated. And although the Constitution requires dismissal in this context, consistent with the temporary nature of the immunity afforded a sitting President, it does not require dismissal with prejudice. Cf. 2000 OLC Opinion at 255 ("immunity from prosecution for a sitting President would not preclude such prosecution once the President's term is over or he is otherwise removed from office by resignation or impeachment"). This outcome is not based on the merits or strength of the case against the defendant….

{As with the 1973 and 2000 OLC Opinions, OLC's analysis addressed only the federal cases pending against the defendant.}

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