Eugene Volokh's Blog, page 225

[Eugene Volokh] My Apologies for an Erroneous Post Faulting a N.Y. Times Article

I erroneously put it up before rechecking it, and fortunately caught the error quickly and deleted the post. The post basically faulted this New York Times article for characterizing the resignation of Laura Helmuth at the Scientific American as just "Editor Resigns After Calling Some Trump Supporters 'Fascists,'" without discussing the vulgar nature of the editor's posts. But the Times article did note the comments were "expletive-laden," and I realize that my criticism was misguided.

My apologies to the Times, the author of the article, and our readers. I'm just glad that I spotted the error relatively promptly (and wish I had spotted it more promptly).

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[Josh Blackman] Today in Supreme Court History: November 16, 1939

11/16/1939: Justice Pierce Butler dies.

Justice Pierce Butler

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

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

Nearly a decade ago, New Mexico all but eliminated civil forfeiture, ending the practice of taking people's stuff without convicting them of a crime. And then what happened? Did the state descend into lawlessness? On the contrary, crime rates were not impacted. So says a peer-reviewed study newly published in the Criminal Justice Review that used nine years of monthly data and compared against control states. Henceforth, policymakers can rest easy knowing that if they do the right thing and nuke civil forfeiture into the sun, the only thing they'll be doing is protecting civil rights.

California environmentalists sue the FAA and the National Park Service, disputing whether the agencies appropriately followed regulations promulgated by the Council on Environmental Quality. D.C. Circuit: Twist! The CEQ doesn't have the power to issue regulations—50 years of practice notwithstanding—because it was created by executive order, not by Congress. Puerto Rico shuts down most businesses in March 2020, exempting those selling "essential supplies." Wal-Mart, Costco, and others remain open and, allegedly, continue selling "non-essential supplies" such as, well, everything in the store. The gov't does nothing to stop them. A group of competing businesses who were shut down sue the big-box chains, claiming unfair competition. District court: Class certification denied, and there is no cause of action. First Circuit: Remanded back to Puerto Rican "state court." Dissent: I agree, but we should have granted Costco's motion to sever. American Airlines and JetBlue try to merge their services for flights in and out of Boston and NYC. But is this a "restraint of trade" under the Sherman Act? District court: After sitting through a month-long trial where I have to put up with biased "experts" and thousands of pages of evidence I'm going to say it is. First Circuit: And no clear error in applying the rule of reason. New York's State Ivory Law restricts the sale of ivory items and does so in ways that are more restrictive than the sales permitted under the federal Endangered Species Act. It also prohibits licensees from physically displaying for sale any ivory item that is not authorized for sale in New York. Antique dealers: The law is preempted by the Endangered Species Act, and the display restriction violates the First Amendment. Second Circuit: Having parsed the difference between the words "exemption" and "exception," we conclude that the law is not preempted. But its display restriction does violate the First Amendment. Dissent: The law absolutely is preempted. North Carolina requires federal-office candidates to disclose felony convictions on their ballot applications. Prospective candidate: This violates the Qualifications Clause and the First Amendment! Fourth Circuit: No. Checking a box marked "felony" doesn't impose an unconstitutional "qualification" for candidacy. Disclosing this simple, public fact isn't 1A-violating compelled speech either. (Oh, and how about a breather from five years of nonstop election challenges?) In 2023, disgraced former lawyer Alex Murdaugh was found guilty of murdering his wife and son following a high-profile trial. If that weren't enough, Murdaugh is also alleged to have stolen nearly two million dollars from his personal injury clients with the help of a bank CEO. During the banker's fraud trial, the judge removed a juror who privately expressed anxiety due to other jurors' "reactions to my decision." The banker was then convicted on all counts. Did removing the anxious juror violate the banker's rights under the Fifth and Sixth Amendments? Fourth Circuit: Sure did. The banker had the right to be present in the juror's interview, and there's a substantial possibility that removal was based on the juror's view of the case. Convictions vacated and remanded for a new trial. Allegation: After wearing MAGA hat and a Ted Cruz T-shirt, teen suffers years of intense bullying by students and staff at Austin, Tex. public schools. He sues the school district under Title VI for being deliberately indifferent to racial harassment. District court: He was bullied for his politics, not his race. Case dismissed. Fifth Circuit (en banc, by a vote of 9-9): Affirmed. Dissent: He was bullied for multiple reasons, and being white was one of them. Ohio man is arrested and booked after failing to appear for a court hearing. Following his intake screening, he's placed on an opioid-withdrawal protocol but not a Xanax-withdrawal protocol, despite his having identified Xanax as a drug for which he had a prescription. He goes into severe withdrawal, becomes delusional, and is eventually roughed up and restrained by jail officials. He sues jail officials for deliberate indifference. Sixth Circuit (unpublished): Qualified immunity for everyone. Sure, this guy said he took Xanax, but people say all sorts of things that may or may not be true. Dissent: This should have gone to a jury. Michigan woman, inebriated but calm and steady on her feet, sets out from home to locate her son at the site of a car crash less than a half mile away. Police officer, convinced that the woman was the driver, arrests her for disorderly conduct. She's acquitted at trial and sues the cop. Sixth Circuit: There was no probable cause for the arrest, but qualified immunity anyway. Concurrence: We shouldn't decide the probable-cause question; we should just skip straight to QI. In Indiana, it's illegal for physicians to treat gender dysphoria by altering a child's sex characteristics through medication or surgery. District court: Which likely violates, among other constitutional protections, the Equal Protection Clause. Preliminary injunction issued. Seventh Circuit (2-1): Nay. The law is subject only to rational-basis review, which it likely passes. (Ed. ::sigh:: let us take the liberty of proposing an amendment to page 15: it's almost certainly supposed to be "baring" breasts, guys, not "bearing" them.) When someone says "we had a 40-year business relationship but somehow never got around to writing it down in a contract," you might suspect that Jägermeister was involved in their decision-making process, which, in this Eighth Circuit case, is quite literally true. Allegation: In 2014, after prison staff ignored his declining health, Missouri inmate suffers multi-organ failure. He's placed in a medically-induced coma for a month and now requires dialysis three times a week. (Family members are willing to donate a kidney, but the warden refuses to allow it, saying, "He belongs to me.") He sues. Prison: Oh, but you had to file a grievance within 15 days of your initial medical emergency. And while we acknowledge you were in a coma, you had to file a late grievance when you were recapacitated. Eighth Circuit: Case undismissed. The prison's grievance policy did not allow any late filings. Allegation: Kansas man finds errors in his credit reports, leading to embarrassment and a lost job opportunity. He sues the US Dept. of Ed. and a Missouri credit agency under the FCRA after they fail to correct his info. USDE: Sovereign immunity! Missouri agency: Eleventh Amendment immunity! District court: Immunity for both. Tenth Circuit: SCOTUS just said that the FCRA waives sovereign immunity. As far as the agency, it ain't an arm of the state. Undismissed. Seeking to promote voting by mail, nonprofit starts sending partially completed vote-by-mail forms to Kansas voters. Seeking to curtail voter confusion and errors on forms, Kansas outlaws sending partially completed vote-by-mail forms. Nonprofit sues, alleging the restriction violates their First Amendment rights. Tenth Circuit: This is a content-based regulation of speech, but one of the increasing number of content-based regulations that we think escape strict scrutiny because it's pretty much harmless. (To this summarist, this seems more like a content-neutral time, manner, or place regulation, which would reach a similar result with less violence to the jurisprudence.) Without turning on their emergency lights, Brevard County, Fla. police follow car they think is stolen but is not. The 16-year-old driver stops, and officers—in violation of policy—get out of their cars with guns drawn. The teen drives on, and an officer shoots and kills him and also the 18-year-old backseat passenger. Plaintiffs: At no point was the officer in danger. The teen was trying to go around him, and indeed did. Shooting through the windshield was unconstitutional, and so was shooting through the driver-side window as the car went past. Eleventh Circuit: The officer might have reasonably believed he was in danger. (Video here.) In 2021, Project Veritas was suspended from Twitter. CNN reports that the suspension was for promoting misinformation. Project Veritas demands a retraction—the suspension was actually for doxxing. CNN says it's close enough, and Project Veritas sues for defamation. Eleventh Circuit: And there's enough here to get past a motion to dismiss. Concurrence: "If you stay on the bench long enough, you see a lot of things. Still, I never thought I'd see a major news organization downplaying the importance of telling the truth in its broadcasts. But that is what CNN has done in this case." And in en banc news, by a vote of 8-9, the Fifth Circuit will not reconsider its (unpublished) decision that a street preacher cannot challenge future enforcement of a Brandon, Miss. ordinance because he has been convicted of violating it in the past. (The ordinance bans public demonstrating near certain live events.) Dissentals: Heck, we can do better than this. And in cert denial news, we're sorry to say that the Supreme Court took a pass on Martinez v. High , in which a Clovis, Calif. officer disclosed a confidential domestic violence complaint to subject of the complaint, who then inflicted horrific sexual and physical abuse on the victim. According to the Ninth Circuit, a reasonable officer might not have known not to do that. Silver lining: The panel did clearly establish that officers should not do that.

New case! According to the Texas Tribune, there is a staggering shortage of social workers in the state. Indeed, 74 counties lack any licensed master social workers. And IJ clients Katherin Youniacutt and Tammy Thompson each want to become a licensed master social worker and have spent years meeting all of the state's education, exam, and practice requirements (and have earned glowing reviews from supervisors and colleagues). However, the legislature recently banned anyone with a conviction for felony assault from becoming a social worker, and Katherin and Tammy have such convictions — from the mid-2000's while still in the grip of addictions they have long since overcome. Fortunately, the Texas Constitution protects the right to earn an honest living free of unreasonable restrictions, which old and irrelevant convictions surely are. This week, Katherin and Tammy joined with IJ to file suit, asking for the courts to strike down the law and return to the previous status quo where the state's licensing board was free to consider evidence of rehabilitation. Click here to learn more.

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[Eugene Volokh] Experimenting with Threads, https://www.threads.net/@volokhc

If you use Threads, please let us know whether our feed (https://www.threads.net/@volokhc)  works for you.

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[Josh Blackman] Today in Supreme Court History: November 15, 1882

11/15/1882: Justice Felix Frankfurter's birthday.

Justice Felix Frankfurter

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[Josh Blackman] Day One Of #FedSoc2024

The first day of the 2024 Federalist Society National Lawyers Convention is in the can. And unfortunately, the Fifth Circuit could not stay this change of venue. After nearly four decades at the Mayflower, FedSoc moved about a mile down Connecticut Avenue to the Washington Hilton. Yes, the hotel where President Reagan was shot. Not exactly the best vibes. But I will still try to be objective. The verdict, from my perspective, is mostly negative, but there are some upsides.

I'll start with the downsides. The Mayflower is a classic hotel. Every ballroom was finely crafted with accents on the walls, and a welcoming ambiance. So much history was made in those rooms. The Washington Hilton feels like a hospital. It is cold, sterile, and soulless. The smaller conference rooms have low ceilings and obstructive columns in the middle. The cavernous ballroom has dreadful acoustics. It is nearly impossible to hear anything close to the stage (thankfully there were closed captions). I felt like I was attending someone else's conference. Moreover, the hotel rooms are dark and drab, and desperately in need of renovation. The wireless in the room is also painfully slow–I am on my hotspot at the moment. On a personal note, I have lifetime platinum status with Marriott Bonvoy, but am a mere plebeian with Hilton Honors.

But there are some plusses. FedSoc long ago outgrew the Mayflower. The hotel room blocks quickly sold out, which forced people to stay at nearby hotels. The conference rooms were not nearly big enough. It was difficult to find a seat for most panels, and the overflow rooms were packed. It could take nearly 20 minutes just to get lunch at the buffet. The Hilton has more than enough space to fit four concurrent panels. That simply cannot be done at the Mayflower.

Another plus is the lack of schlepping: the conference is at the same hotel as the annual dinner. That hasn't happened in about two decades. In the old days, everything would be held in the Mayflower. But since the 2000s, the conference would be at the Mayflower, and the dinner would be somewhere else–the Marriott Wardman (now defunct), the Omni Shoreham, and more recently Union Station. The former two hotels were a short cab ride from the Mayflower. The latter could take nearly an hour by cab. (FedSoc members tend not to take the Metro). And do not even remind me of the dreadful time we had to schlep to the Gaylord National Harbor. That took nearly two hours on the busses! But with the Hilton, we merely have to take an escalator to the annual dinner. It was a delight. I didn't need to go outside all day. (It was raining apparently). Plus, this ballroom can fit several hundred more people than Union Station.

It is true that more people can attend, but this leads to a massive drawback. The greatest feature of the National Convention is the networking. The panels are fun, to be sure. But the magic happened outside the sessions. I wrote an entire book chapter about how the constitutional challenge to Obamacare was hatched in the grand hallway of the Mayflower–the Mayflower Compact. That space worked so well because everyone had to congregate in a centralized location to get too and from the panels. There was no way ot avoid the hallway. That was a magical time. Alas, the Hilton has no such centralized place. The 2024 convention takes place on three levels. At any point, FedSoc members are scattered throughout the hotel. And we are no longer standing shoulder-to-shoulder. There is ample space between us–dare I say, social distancing! These positions are simply not conducive to spontaneous order. I can spend an entire day schmoozing and not see certain people that I want to see.

In some regards, the bigger conference space is perhaps emblematic of the bigger tent that FedSoc has become. As the group grows and grows, it becomes harder and harder to forge the sorts of personal relationships that were developed years ago. Sure, we can now fit a few hundred more people into the conference. But that increased head count makes the networking more diffused. It was much easier for me to pinhole Randy Barnett in a single hallway. But I didn't see my colleague at any point today. (We will have a book signing on Friday at 10:45–stop by!).

I understand that we will be stuck at the Hilton for the foreseeable future. I think we'll have to get used to it.

I'll close on a positive note. It was so refreshing to see Justices Breyer and Gorsuch speak at the Scalia dinner. They have such a good rapport, and they demonstrated through word and deed why protecting the Court is so important. I would hope that the American Constitution Society could host a similar gathering at their annual conference. The Court would be in a much better place than it was only a few years ago.

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[Ilya Somin] Thomas Berry (Cato Institute) on Trump's Recess Appointment Plan

President-elect Trump has demanded on X that Senate Republican leadership "must agree to Recess Appointments (in the Senate!), without which we will not be able to get people confirmed in a timely manner." In this post I'll explain the consequences of allowing recess appointments, why the Senate has not done so for over a decade, and why it would be unwise to allow recess appointments now.

First, here are the basics on congressional timelines. These days, each 2-year Congress comprises two 1-year sessions, running from January 3rd of one year to January 3rd of the next. But in the eighteenth and nineteenth centuries, sessions were much shorter than a year, and they had months-long gaps in between them when members of Congress traveled home.

The Constitution's Recess Appointments Clause was written to accommodate the delays that could occur in Senate confirmation back when travel between the Senate and the rest of the country took much longer. As Alexander Hamilton wrote in Federalist 67, the clause was adopted "as it would have been improper to oblige [the Senate] to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay."

The clause says, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Article II, section 2, clause 3. For decades, two questions were in doubt concerning this clause. What's "the Recess," and which vacancies "happen during the Recess"? The Supreme Court finally answered both questions in the 2014 case NLRB v. Noel Canning.

In Noel Canning, the Supreme Court held that any Senate adjournment of 10 days or more is "the Recess" and that vacancies which originally opened up before such an adjournment are still considered to have "happened" during that adjournment so long as they remain vacant during the adjournment. In my view, the Supreme Court got both of these questions wrong. There's convincing scholarship by Professor Michael Rappaport that "the Recess" meant only the one gap between Senate sessions and that only vacancies that arose during that gap were eligible to be filled by recess appointment. Justice Scalia argued for this position in a concurrence in the judgment, but this view only received four votes on the Noel Canning Court.

Whether it was rightly decided or not, Noel Canning is the law of the land, and it gives the Senate a seemingly easy tool to aid a President of the same party. If the Senate simply adjourns for 10 days, a sitting President could fill every single vacancy in the executive branch and judiciary unilaterally. (From time to time, some people have questioned whether recess appointments may be used to temporarily fill judicial seats, given that there is some tension between a time-limited recess appointment and the Constitution's command that federal judges "shall hold their Offices during good Behaviour." Nonetheless, judicial recess appointments have been made throughout the country's history.)

All recess appointments take immediate effect without Senate consent, and they last until the end of the next session of the Senate. So any recess appointments made in 2025 would last until January 3rd, 2027.

The Senate has not allowed any recess appointments in the decade since Noel Canning was decided, not even at times when the Senate majority and President were of the same party. Why not? One wrinkle is that under the Constitution, neither house may "adjourn for more than three days" without the consent of the other. Article I, section 5, clause 4. So it is only possible for the Senate to adjourn long enough to enable recess appointments when it has the consent of the House. But why hasn't it even happened when the Senate, House, and presidency have all been controlled by the same party?

One answer is that triggering recess appointments is an "all-or-nothing" move. The Senate can't give the President authority to fill just some offices. Thanks to Noel Canning's holding that vacancies arising before an adjournment are eligible for recess appointments, every vacancy across the government could be filled at once, no matter how long ago the vacancy arose. So a senator who might be comfortable with, say, a recess appointment of Marco Rubio but not a recess appointment of Matt Gaetz or RFK Jr. would have no way to limit President Trump to just the former but not the latter. Even when the Senate and President are of the same party, that's a lot of leverage for the Senate to give up. Vetting and voting on nominees is one of the most important Senate prerogatives. Thus far, Senate leadership has never been willing to abdicate that role for two years.

Additionally, triggering recess appointments isn't necessary to ensure the executive branch remains fully staffed. There's a statute for exactly that purpose: The Federal Vacancies Reform Act. This law allows the President to fill all vacant offices with acting officers on day 1. I've written about abuses of the Vacancies Act, but it has an important and legitimate purpose. It allows the government to function while permanent nominees are considered by the Senate. Although acting officers at the beginning of an administration have a 300-day time limit, the law generously tolls the time limit on acting service while the Senate considers a nomination. So effectively, the President just needs to make a nomination within 300 days, and then the ball is in the Senate's court.

Senators know that the President has the Vacancies Act at his disposal. The Act allows for positions to be filled immediately (just like recess appointments), so it is simply not the case that recess appointments are necessary to keep the government running. But several limitations in the Vacancies Act incentivize the President to make permanent nominations and to get them confirmed, and these limitations are why a President would naturally prefer recess appointments.

First, the Vacancies Act places limits on who may serve as an acting officer, which the Recess Appointments Clause does not. Unless the President wants to let the deputy to a position take over as that position's acting officer, he is limited to choosing another Senate-confirmed officer or someone who has served in the highest tier of the federal civil service in that department for at least 90 days. Since nearly all Senate-confirmed officers resign when the White House changes hands, Presidents at the start of an administration are typically limited to the latter category (most of whom are career, nonpartisan civil servants). So a recess appointment would allow the President to immediately fill an office with a more ideologically aligned appointee.

Second, the Vacancies Act generally forbids serving simultaneously as the nominee for a position and as the acting officer in that same position. The Supreme Court clarified in the 2017 case NLRB v. SW General that this prohibition applies to the vast majority of acting officers. The only exception is for acting officers who also happen to be serving as the deputy to the vacant position, and who have either been confirmed by the Senate to that deputy position or who have served in that deputy position for at least 90 days. (This is why Julie Su, the Senate-confirmed Deputy Secretary of Labor, could serve as the Acting Secretary of Labor while simultaneously being the nominee for permanent Secretary of Labor). This exception is unlikely to apply to anyone Trump wants to nominate (since all current deputies were appointed by Biden), so recess appointments would be the only way to immediately install the same person that he wants to nominate for the permanent job.

Finally, as noted, the Vacancies Act requires a permanent nomination be made within a certain time limit. Recess appointments come with no such requirement, so a President could make a recess appointment and fill a slot with his preferred choice for nearly two years without even making a permanent nomination.

Ever since Noel Canning, the Senate has held a pro forma session every three days like clockwork to ensure that Presidents could not make recess appointments, no matter which party was in power. The Senate as an institution has little to gain from breaking this practice, and much to lose. That is why I hope (and believe) that the Senate will not voluntarily write the President a blank check to fill all offices across the government without any Senate scrutiny and approval.

But there is one more wrinkle. In 2020, then-President Trump threatened to employ (but ultimately did not use) an obscure constitutional clause: "in Case of Disagreement between [both houses], with Respect to the Time of Adjournment, [the President] may adjourn them to such Time as he shall think proper." Article II, section 3. As far as I am aware, this clause has never been invoked by a President, so it is highly uncertain how it would operate in practice. (Four years ago, Hans von Spakovsky and John Malcolm also wrote that they believed "this provision never has been invoked.") Both the majority and concurring opinions in Noel Canning briefly mentioned this clause as a potential tool for the President to create a recess, but neither spelled out how this would be achieved (and since this clause was not at issue in the case, these discussions should be considered dicta).

One interpretation (which may be favored by President-elect Trump) is that this clause can be invoked whenever one house adopts a joint resolution to adjourn both houses and the other house does not agree to that joint resolution. (Ed Whelan writes that this is apparently the interpretation the administration would urge if it attempted this strategy).

But there is another, much narrower, interpretation that presents itself when this clause is considered in its full context. (I am not aware of any other arguments that have been made along these lines concerning this clause, but I have not done all the research necessary to be sure that it has not already been presented elsewhere.) The full text of Article II, section 3 is as follows ("He" refers to the President throughout):

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

This entire clause is one long sentence, but it is divided by semicolons into seemingly discrete (and connected) subclauses. If we read each subclause between semicolons as a single idea, we get this: "he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." Read this way, the President's power to adjourn both houses applies only when he has already used his extraordinary power to convene both houses. Under this interpretation, this power is only relevant if there is a disagreement about when to end (or when to bring back) such a special convening.

If the Senate is unwilling to adjourn for 10 days but President-elect Trump attempts to use this clause, we will be in uncharted waters. We would then almost certainly see litigation over the meaning of the "Time of Adjournment" clause for the very first time.

Thomas Berry is the director of the Cato Institute's Robert A. Levy Center for Constitutional Studies and Editor in Chief of the Cato Supreme Court Review.

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[Josh Blackman] More Photos From The 2008 FedSoc Party at Ted Olson's House

Yesterday I wrote about my memorable experience at the 2008 FedSoc student leadership conference at Ted Olson's house. I regret that I did not take a photograph of Ted that day. Fortunately, my friend and contemporary Steve Klein did. This photo catches the ambiance of the day, perfectly.

And Steve managed to take a group shot of the students. I'm in there, scratching my heads for reasons I cannot recall. Remember this was 2008, between my second and third year of law school. There was no Twitter and no blog. I was just getting ready to apply for clerkships–an experience I wrote about here.

More on the 2024 convention shortly.

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[Eugene Volokh] Thursday Open Thread

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[Eugene Volokh] Federal Threats / False Statements Indictment for "Hate Crime Hoax"

From Tuesday's press release by the U.S. Attorney's office in Colorado:

The United States Attorney's Office for the District of Colorado announces that Derrick Bernard Jr., 35, Ashely Blackcloud, 40, and Deanna West, 38, were indicted by a federal grand jury for maliciously conveying false information about a threat made by means of fire: a burning cross in front of a campaign sign defaced with a racial slur.

According to the indictment, the three defendants were charged for their alleged roles in a conspiracy to spread disinformation about the threat. The 2023 Colorado Springs mayoral run-off election involved Candidate 1, who was Black, and Candidate 2, who was white.  After the initial election but before the run-off, Bernard sent a message to the other defendants in which he explained he was "mobilizing my squad in defense. Black ops style big brother." He also sent messages referencing a desire to prevent "the klan" from gaining political control of the city. Bernard then worked with Blackcloud and West to stage, at an intersection in the City of Colorado Springs in the early hours of April 23, 2023, a cross burning in front of a campaign sign for Candidate 1 defaced with a racial slur. The three then allegedly spread false information about the event through an email from an anonymous source to various news and civic organizations.

From the indictment:

During the election, supporters of CANDIDATE 1 placed a campaign sign encouraging others to vote for CANDIDATE 1 in a grassy area on the northwest corner of the intersection of North Union Boulevard and East Fillmore Street, two of Colorado Springs's major traffic arteries. On or about April 23, 2023, between approximately 2:30 a.m. and 3:30 a.m. BERNARD, BLACKCLOUD, and WEST worked together to place a wooden cross in front of that campaign sign. Red spray paint, similar in kind to a can later found in the passenger compartment of BLACKCLOUD's car, was used to write the word "nigger" on the sign. The wooden cross was then set on fire….

[L]ater in the evening …, BLACKCLOUD and WEST worked together to send an email … to, among others, local broadcast news outlets. Attached to the email was the above photograph and the video[, which they themselves took]. Several news organizations published news stories on the cross burning.

The indictment also alleges other things the defendants did to further publicize the supposed "hate crime" that they themselves created.

All this, the prosecutors argue, constitutes a violation of 18 U.S.C. § 844(e) (as well as conspiracy to violate it):

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce,

willfully makes any threat,

or maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of fire or an explosive

shall be imprisoned for not more than 10 years or fined under this title, or both.

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