Eugene Volokh's Blog, page 23

[Eugene Volokh] Judge Barbara Lagoa (11th Cir.) Criticizes New York Times v. Sullivan

From Judge Lagoa's concurrence in Friday's Dershowitz v. CNN, Inc. (and see also Judge Charles Wilson's concurrence taking the opposite view):

In New York Times, Inc. v. Sullivan, the Court usurped control over [the] field of speech-related torts and invented "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Three years later, this same rule was extended to "public figures" in addition to public officials…. [In 1974,] the Court held for the first time that falsity and harm were not enough, and even private plaintiffs must show some sort of "fault," negligence at the least, to recover for defamation. And, even with that proof of culpable fault, damages were not presumed but had to be proven … [and] no plaintiff could recover punitive damages for defamation without showing Sullivan-style malice. With this series of cases … one generation of the Supreme Court succeeded in imposing federal constitutional limitations (seemingly untethered to the Constitution's original meaning) on all defamation claims brought by all manner of plaintiffs.

Justice White recognized the ill-fated trajectory of this line of cases after originally joining the majority in Sullivan…. Justice White elaborated on the central problem in Sullivan: A people who govern themselves, as the Founders intended us to do, are entitled to adequate information about their government and their representatives, and that essential flow of information warrants First Amendment protection; but protecting lies—by insulating those who spread them behind an iron barrier, to be breached only by a showing of actual malice—does nothing to support an informed populus and, instead, has the contrary effect of leaving lies uncorrected. … "Also, by leaving the lie uncorrected, the New York Times rule plainly leaves the public official without a remedy for the damage to his reputation. Yet the Court has observed that the individual's right to the protection of his own good name is a basic consideration of our constitutional system, reflecting our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty."

As the Court concluded in Gertz v. Robert Welch, Inc., "there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in 'uninhibited, robust, and wide-open' debate on public issues." But that is precisely Sullivan's effect. Under the actual-malice standard, the public's "only chance of being accurately informed is measured by the public [figure's] ability himself to counter the lie, unaided by the courts. That is a decidedly weak reed to depend on for the vindication of First Amendment interests." … "While the argument that public figures need less protection because they can command media attention to counter criticism may be true for some very prominent people, even then it is the rare case where the denial overtakes the original charge. Denials, retractions, and corrections are not 'hot' news, and rarely receive the prominence of the original story."

Quite the journey we have taken from Sullivan's attempt to protect the public's interest in being fully informed on matters of public import. But that, in fact, precisely identifies the error at the heart of Sullivan: In "federaliz[ing] major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States," the Court "made little effort to ground [its] holdings in the original meaning of the Constitution." …

What, then, does the original meaning of the First Amendment tell us about the propriety of an actual-malice standard? To understand the original meaning of the First Amendment is to understand law as those who ratified it did. Our starting place is, therefore, the natural law and our accompanying natural rights as they were understood pre-ratification. Natural rights are those that we possess innately as human beings; their existence does not depend on government endowment. See generally Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246, 268–80 (2017). As to expression, our Founders recognized a variety of natural rights, including (as relevant here) speaking, writing, and publishing. [Historical evidence omitted. -EV] The "liberty of the press," meaning the freedom to print information, fell within the scope of natural rights that pre-existed our Bill of Rights. Closely related to freedom of the press—distinct, according to some; overlapping according to others—was the freedom to publish, most closely encapsulating that which we now think of as "journalism." There is little doubt, then, that our Founding generation recognized the freedoms to think, speak, write, print, and share ideas as natural rights endowed in the people by their Creator, not their government.

With the natural right established, we turn to the limits the government was authorized to impose on speech. Those limits turn on two central inquiries: the scope of the natural right and the extent to which we, as a people, agreed to some restraint of the natural right in exchange for the benefits that nationhood offered. Enter here the concept of natural law, which, at the least, provides the understanding that, regardless of any government structure, one individual may not interfere with another's natural rights. See Campbell at 271; Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907, 922–30 (1993) ("[B]eing equally free, individuals did not have a right to infringe the equal rights of others, and, correctly understood, even self-preservation typically required individuals to cooperate—to avoid doing unto others what they would not have others do unto them." (citing John Locke, Two Treatises of Government). As James Wilson explained it in his 1790 Lectures on Law, as to avoiding injury and injustice under the natural law, each person may act "for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty." …

Jud Campbell has … explain[ed] that "whether inherently limited by natural law or qualified by an imagined social contract, retained natural rights were circumscribed by political authority to pursue the general welfare. Decisions about the public good, however, were left to the people and their representatives—not to judges—thus making natural rights more of a constitutional lodestar than a source of judicially enforceable law." Thus, the Founders simultaneously understood that freedom of speech was both a natural right not dependent on government creation, and also subject to certain limitations for the public good—so long as those limitations did not abridge the natural right as it existed in a system of natural law. And while the freedoms of speech and of the press were both viewed as natural rights, they were viewed as properly subject to different regulation, with recognition that written statements were "more extended" and "more strongly fixed," thus "posing a greater threat to public order."

We turn next to the contours of the natural right and the natural law, and the types of restriction that were viewed as consistent with those boundaries. The Founders widely believed that "opinions," as James Madison observed to his colleagues, "are not the objects of legislation." In other words, opinion, understood as non-volitional thought, was not subject to government regulation at the time of the Founding.

But the freedom of opinion raises another question: What forms an opinion? History confirms that the freedom to express opinions was, indeed, limited to honest statements and did not encompass dishonesty or deceit. For instance, even in the debates over the Sedition Act, a persistent and widespread consensus emerged that "well-intentioned statements of opinion, including criticisms of government, were constitutionally shielded."

Consistent with the notion that the natural right to free speech coexisted with a limitation forbidding injurious lies, "10 of the 14 States that had ratified the Constitution by 1792 had themselves provided constitutional guarantees for free expression, and 13 of the 14 nevertheless provided for the prosecution of libels." …

What do we take away from the original sources? As the Supreme Court observed in Roth, "[t]he protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people," but such assurance focused on the exchange of ideas in service of advancing truth and imposed no additional burdens to recovery based on the harmed party's station in society. In a 1774 letter to the inhabitants of Quebec, the Continental Congress expressed the following objective:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

This statement from the Continental Congress … supports a conclusion that "[a]ll ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests." Among those "excludable" expressions, we can only conclude, are those that patently do not serve "the advancement of truth."

Notably absent from the historical discussion is anything resembling a heightened requirement making it more difficult to prosecute libel or slander directed at an official (much less a "public figure") rather than a private citizen. On the contrary, the accepted consensus was that public officials could sue for libel "upon the same footing with a private individual" because "[t]he character of every man should be deemed equally sacred, and of consequence entitled to equal remedy." Tunis Wortman, A Treatise, Concerning Political Enquiry, and the Liberty of the Press (1800); accord St. George Tucker, View of the Constitution of the United States with Selected Writings (1803) ("[T]he judicial courts of the respective states are open to all persons alike, for the redress of injuries of this nature; there, no distinction is made between one individual and another; the farmer, and the man in authority, stand upon the same ground: both are equally entitled to redress for any false aspersion on their respective characters, nor is there any thing in our laws or constitution which abridges this right.").

From all this, I conclude, as Justice White did in Gertz, that "[s]cant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers." What the historical documents suggest is that, in its original context, the First Amendment was intended to protect free dissemination of ideas—all manner of ideas, particularly those out of fashion or disfavored—but not the dissemination of lies. See, e.g., 10 Benjamin Franklin Writings 38 (1907) ("If by the Liberty of the Press were understood merely the Liberty of discussing the Propriety of Public Measures and political opinions, let us have as much of it as you please: But if it means the Liberty of affronting, calumniating, and defaming one another, I, for my part, own myself willing to part with my Share of it when our Legislators shall please so to alter the Law, and shall cheerfully consent to exchange my Liberty of Abusing others for the Privilege of not being abus'd myself."); Frank Luther Mott, Jefferson and the Press 14 (1943) (explaining that Thomas Jefferson endorsed the language of the First Amendment as ratified only after suggesting that "[t]he people shall not be deprived of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty or reputation of others").

And we held onto that principle for the first two centuries of our national existence. Just a decade before Sullivan, the Supreme Court reiterated as much, explaining that "[l]ibelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase 'clear and present danger.'" But, as we know, this interpretation of the First Amendment, true to its original meaning, fell apart shortly thereafter….

As expressed by Justice White, Sullivan and its progeny represent "an ill-considered exercise of the power entrusted to [the] Court." The lasting effect of Sullivan, as anyone who ever turns on the news or opens a social media app knows well, is that media organizations can "cast false aspersions on public figures with near impunity," causing untold harm to public figures and the general public alike. Jettisoning the original meaning of the First Amendment—and centuries of common law faithful to that meaning—has left us in an untenable place, where by virtue of having achieved some bit of notoriety in the public sphere, defamation victims are left with scant chance at recourse for clear harms.

But until the Supreme Court reconsiders Sullivan, we are bound by it, and I therefore must concur.

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[Eugene Volokh] Judge Charles Wilson (11th Cir.) Defends New York Times v. Sullivan

From Judge Wilson's concurrence in Friday's Dershowitz v. CNN, Inc. (and see also Judge Barbara Lagoa's concurrence taking the opposite view):

 "Fidelity to precedent—the policy of stare decisis—is vital to the proper exercise of the judicial function." I believe that Sullivan reflects "the accumulated wisdom of judges who have previously tried to solve the same problem."

To be sure, our understanding of the First Amendment should be guided by its original meaning and heed common law traditions. But "ambiguous historical evidence" does not justify casting aside a unanimous Supreme Court decision and nearly sixty years of settled precedent. The "real-world consequences" and reliance interests at stake counsel us to pump the brakes before calling to overrule Sullivan….

Adherence to precedent is "a foundation stone of the rule of law." Stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion," and "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals." …

"The Framers of our Constitution understood that the doctrine of stare decisis is part of the 'judicial Power' and rooted in Article III of the Constitution." Alexander Hamilton wrote that to "avoid an arbitrary discretion in the courts, it is indispensable" that federal judges "should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Blackstone wrote that "it is an established rule to abide by former precedents," to "keep the scale of justice even and steady, and not liable to waver with every new judge's opinion."

Of course, Judges and even Justices, are fallible. And it is especially important for the Court to correct errors in constitutional rulings, which "Congress cannot override … by ordinary legislation." But even in constitutional cases, the Supreme Court "has always held that 'any departure'" from precedent "demands special justification." This is especially true when the constitutional protections recognized by the precedent have "become part of our national culture." …

In his concurring opinion in Ramos v. Louisiana, Justice Kavanaugh synthesized the Supreme Court's "varied and somewhat elastic stare decisis factors" into "three broad considerations" to determine what qualifies as a "special justification" or "strong grounds" to overrule a prior constitutional decision

First, the precedent must be "egregiously wrong as a matter of law." "A garden-variety error or disagreement does not suffice to overrule." The Court examines factors such as "the quality of the precedent's reasoning, consistency and coherence with other decisions, changed law, changed facts, and workability." Second, the Court considers whether "the prior decision caused significant negative jurisprudential or real-world consequences." This includes both "jurisprudential consequences," such as "workability, … consistency and coherence with other decisions," and "the precedent's real-world effects on the citizenry." Finally, the Court examines whether "overruling the prior decision unduly upset reliance interests." "This consideration focuses on the legitimate expectations of those who have reasonably relied on the precedent. In conducting that inquiry, the Court may examine a variety of reliance interests and the age of the precedent, among other factors." …

Judge Wilson concluded that Sullivan wasn't egregiously wrong:

Sullivan's "actual malice" requirement "has its counterpart in rules previously adopted by a number of state courts and extensively reviewed by scholars for generations." The rule is premised both on "common-law tradition" and "the unique character of the interest" it protects.

Sullivan was "widely perceived as essentially protective of press freedoms," and "has been repeatedly affirmed as the appropriate First Amendment standard applicable in libel actions brought by public officials and public figures." It "honored both the Court's previous recognition that 'libel' is not protected by the First Amendment and its concomitant obligation to determine the definitional contours of that category of unprotected speech." Lee Levine & Stephen Wermiel, What Would Justice Brennan Say to Justice Thomas?, 34 Commn's Law. 1, 2 (2019).

For decades after Sullivan, even as defamation plaintiffs petitioned the Court to limit or overrule the case, the Court refused. Matthew L. Schafer, In Defense: New York Times v. Sullivan, 82 La. L. Rev. 81, 84 & n.18 (2021). Although it faced some academic skepticism since the 1980s {e.g., Richard A. Epstein, Was New York Times v. Sullivan Wrong?, 53 U. Chi. L. Rev. 782 (1986)}, a "growing movement to engineer the overruling of Sullivan" has emerged in recent years, fueled by the idea that it represents an exercise of "judicial policymaking." See Samantha Barbas, New York Times v. Sullivan: Perspectives from History, 30 Geo Mason L. Rev. F. 1, 2 (2023)….

And experience tells us that "disputed history provides treacherous ground on which to build decisions written by judges who are not expert at history." See also, e.g., Schafer ("The freedom of the press that Thomas and Gorsuch espouse [in recent opinions criticizing Sullivan] is not an originalist one; it is a monarchist's one, predating the Founding and purporting to import into the First Amendment today common law rules long ago rejected by the Founders and early courts. This approach, however, violates Thomas's own instruction that what matters for the purposes of an originalist inquiry is the 'founding era understanding.' Indeed, Thomas's view ignores that there was a Revolution, and that no small complaint of that Revolution was England's abuses of prosecutions of early American printers. It also ignores everything that happened between 1789 and 1868 when the Fourteenth Amendment made the First Amendment applicable as against the States. Thomas's failure to deal with this history draws into question his supposed commitment to it."); Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J.L. & Liberty 44, 54–55 (2019) (recognizing the Seditious Conspiracy Act provides "some originalist basis to impose a higher bar for libel suits filed by government officials").

History's flaws are especially apparent when confronting the law of libel in the United States, which "is not now, nor ever was, tidy." Schafer. "The founding generation and the Congresses of the Reconstruction were not of one mind when it came to the common law of libel or the effect, if any, the First and Fourteenth Amendments had on it." "We know very little of the precise intentions of the framers and ratifiers of the speech and press clauses of the first amendment" when it comes to defamation actions. Ollman v. Evans (D.C. Cir. 1984) (Bork, J., concurring). "But we do know that they gave into our keeping the value of preserving free expression and, in particular, the preservation of political expression, which is commonly conceded to be the value at the core of those clauses."

The Founders rejected early attempts to "transplant the English rule of libels on government to American soil." And "the restricted rules of the English law in respect of the freedom of the press in force when the Constitution was adopted were never accepted by the American colonists." Rather, "[o]ne of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press." Henry Schofield, Freedom of the Press in the United States, 9 Proc. Am. Soc. Soc'y 67, 76 (1914).

Conflicting history aside, "[i]t is ironic that an approach so utterly dependent on tradition is so indifferent to our precedents." The Supreme Court's First Amendment jurisprudence "is one of continual development, as the Constitution's general command that 'Congress shall make no law … abridging the freedom of speech, or of the press,' has been applied to new circumstances requiring different adaptations of prior principles and precedents." Sullivan is part of a "judicial tradition of a continuing evolution of doctrine to serve the central purpose of the first amendment."

The consistent, guiding principle since the Founding and throughout our country's history is that the First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society." … Playing a key role in the marketplace, the "press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they were selected to serve." "Suppression of the right of the press to praise or criticize governmental agents … muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."

What was true in 1791, 1868, and 1964 remains true today: a libel law regime that allows public figures and officials to silence "speech that matters," absent complete accuracy, "dampens the vigor and limits the variety of public debate" and is "inconsistent with the First and Fourteenth Amendments."

Judge Wilson went on to argue that Sullivan has not "caused significant negative jurisprudential or real-world consequences":

Looking first to jurisprudential consequences, such as consistency and workability, Sullivan's actual-malice rule allows courts to "expeditiously weed out unmeritorious defamation suits" while "preserv[ing] First Amendment freedoms and giv[ing] reporters, commentators, bloggers, and tweeters (among others) the breathing room they need to pursue the truth."

A return to the common-law defense that "the alleged libel was true in all its factual particulars," rather than malice, would be nearly unworkable. The "difficulties of separating fact from fiction convinced the Court in New York Times, Butts, Gertz, and similar cases to limit liability to instances where some degree of culpability is present in order to eliminate the risk of undue self-censorship and the suppression of truthful material." And hinging liability for public criticism on a judge or jury's determination of what is true deviates from the "marketplace of ideas" the First Amendment protects—where truth depends on an idea's competition with other ideas, not a government censor. Jane E. Kirtley, Uncommon Law: The Past, Present and Future of Libel Law in a Time of "Fake News" and "Enemies of the American People", 2020 U. Chi. L.F. 117, 123 (2020).

As far as "real-world effects on the citizenry," Sullivan allowed the public and the press to criticize public officials and public figures, and contribute to vital national dialogue without fear of unwarranted retaliation. Over the last sixty years, Sullivan's "actual malice" requirement has consistently "ensure[d] that debate on public issues remains uninhibited, robust, and wide-open," while balancing the individual's interest in his reputation….

[As to] the concern about injuries to an individual's reputation …[,] "The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical" of public officials or public figures. And plaintiffs who cannot show "actual malice" may suffer some unwarranted reputational harm which cannot "easily be repaired by counterspeech." … [P]ublic figures "have a more realistic opportunity to counteract false statements than private individuals normally enjoy," and perhaps even more so with new technology creating new "channels of effective communication."

The "real world" consequences of stripping away Sullivan's protections in our current media climate would do the opposite of "preserve an uninhibited marketplace of ideas," and "muzzle[ ] one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free."

And Judge Wilson also concluded that Sullivan has produced important "reliance interests":

Sullivan has "become part of the fabric of American law" and been "woven into a long line of federal and state cases." Roy S. Gutterman, Actually … A Renewed Stand for The First Amendment Actual Malice Defense, 68 Syracuse L. Rev. 579, 580, 602 (2018). Its "recognition that libel law could violate the First Amendment was the critical step that made possible all the Court's subsequent defamation decisions and the many restrictions later imposed on libel law by state judges and legislatures." David A. Anderson, The Promises of New York Times v. Sullivan, 20 Roger Williams U. L. Rev. 1, 23 (2015).

The "evenhanded, predictable, and consistent development of legal principles" and "reliance on judicial decisions" is "particularly important in the area of free speech for precisely the same reason that the actual malice standard is itself necessary." First Amendment freedoms "are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." "Uncertainty as to the scope of the constitutional protection can only dissuade protected speech—the more elusive the standard, the less protection it affords."

Overruling Sullivan would be especially disruptive because the case defines "the central meaning of the First Amendment" and influenced "virtually all of the Supreme Court's subsequent First Amendment jurisprudence." Wermiel. Casting the decision aside in favor of varied, plaintiff-friendly state libel laws would "create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable." …

Out of respect for unanimous Supreme Court precedent, and the press freedoms that played a critical role in securing the civil rights many in this country hold dear, judges should reconsider their calls for the Supreme Court to overrule Sullivan. "For it is hard to overstate the value, in a country like ours, of stability in the law."

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[Ilya Somin] Help Workers by Breaking Down Barriers to Labor Mobility

[Labor Day is a great time to remember that we can make workers vastly better off by empowering more of them to vote with their feet, both within countries and through international migration.]

Each Labor Day since  2021, I have written posts explaining how breaking down barriers to labor mobility can help many millions of workers around the world. The main points everything  last year's post are just as relevant today. So I am reprinting it with some updates and modifications, many of them related to the awful deterioration in immigration policy over the last year:

Today is Labor Day. As usual, there is much discussion of what can be done to help workers. But few focus on the one type of reform that is likely to help more poor and disadvantaged workers than virtually anything else: increasing labor mobility. In the United States and around the world, far too many workers are trapped in places where it is difficult or impossible for them to ever escape poverty. They could vastly improve their lot if allowed to "vote with their feet" by moving to locations where there are better job opportunities. That would also be an enormous boon to the rest of society.

Internationally, the biggest barriers condemning millions to lives of poverty and oppression are immigration restrictions. Economists estimate that eliminating legal barriers to migration throughout the world would roughly double world GDP - in other words, making the world twice as productive as it is now. A person who has the misfortune of being born in Cuba or Venezuela, Zimbabwe or Afghanistan, is likely condemned to lifelong poverty, no matter how talented or hardworking he or she may be. If they are allowed to move to a freer society with better economic institutions, they can almost immediately double or triple their income and productivity. And that doesn't consider the possibility of improving job skills, which is also likely to be more feasible in their new home than in their country of origin.

The vast new wealth created by breaking down migration barriers would obviously benefit migrants themselves. But it also creates enormous advantages for receiving-country natives, as well. They benefit from cheaper and better products, increased innovation, and the establishment of new businesses (which immigrants create at higher rates than natives). Immigrants also contribute disproportionately to scientific and medical innovation, including vaccines and other medical treatments that have already saved millions of lives around the world.

The Trump Administration's massive assault on immigration of virtually every kind will predictably harm both  migrants and native-born Americans, condemning hundreds of thousands of the former to a lifetime of poverty and oppression, and denying the latter the growth and innovation immigration facilitates.

Similar, though somewhat less extreme, barriers to labor mobility also harm workers within the United States. Exclusionary zoning prevents many millions of Americans - particularly the poor and working class - from moving to areas where they could find better job opportunities and thereby increase their wages and standard of living. Occupational licensing further exacerbates the problem, by making it difficult for workers in many industries to move from one state to another.

Breaking down barriers to labor mobility is an oft-ignored common interest of poor minorities (most of whom are Democrats), and the increasingly Republican white working class. Both groups could benefit from increased opportunity to move to places where there are more and better jobs and educational opportunities available.

As with lowering immigration restrictions, breaking down domestic barriers to labor mobility would create enormous benefits for society as a whole, as well as the migrants themselves. Economists estimate that cutting back on exclusionary zoning would greatly increase economic growth. Like international migrants, domestic ones can be more productive and innovative if given the opportunity to move to places where they can make better use of their talents.

Many proposals to help workers have a zero-sum quality. They involve attempts to forcibly redistribute wealth from employers, investors, consumers, or some combination of all three. Given that virtually all workers are also consumers, and many also have investments (e.g. - through their retirement accounts), zero-sum policies that help them in one capacity often harm them in another. Breaking down barriers to labor mobility, by contrast, is a positive-sum game that creates massive benefits for both workers and society as a whole; it similarly benefits both migrants and natives.

The same is true of breaking down barriers to the mobility of goods. Tariffs and other trade restrictions harm many more workers than they benefit, by increasing prices (which disproportionately hurt lower-income workers), and increasing the cost of inputs used by domestic industries (leading to lower employment levels and wages). The Tax Foundation estimates that, if they remain in place, the Trump's unconstitutional new IEEPA tariffs will impose $1.8 trillion in new taxes on Americans over the next decade, reduce GDP growth by 0.7% per year, and reduce income by 1.1% in 2026 alone.  The actual effects may be even larger, as these estimates do not fully consider the effects of retaliation by trading partners and reduction in consumer choice.

Some on the left point out that, if investors are allowed to move capital freely, workers should be equally free to move, as well. It is indeed true that, thanks to government policies restricting labor mobility,  investment capital is generally more mobile than labor. It is also true that the restrictions on labor mobility are deeply unjust. In many cases, they trap people in poverty simply because of arbitrary circumstances of birth, much as racial segregation and feudalism once did. The inequality between labor and capital, and the parallels with segregation and feudalism should lead progressives to put a higher priority on increasing labor mobility.

At the same time, it is worth recognizing that investors and employers, as a class, are likely to benefit from increased labor mobility, too. Increased productivity and innovation create new investment opportunities. The biggest enemies of both workers and capitalists are not each other, but the combination of nativists and NIMBYs who erect barriers to freedom of movement, thereby needlessly impoverishing labor and capital alike. Despite conventional wisdom to the contrary, even current homeowners often have much to gain from curbing exclusionary zoning policies that block the construction of housing needed by workers seeking to move to the region.

On the right, conservatives who value meritocracy and reject racial and ethnic preferences, would do well to recognize that few policies are so anti-meritocratic as barriers to mobility. The case for ending them also has much in common with the case for color-blind government policies, more generally. A number of other conservative values also reinforce the case for curbing both domestic NIMBYism and immigration restrictions. Right-wingers would also do well to recognize that most workers benefit from free trade, and are harmed by protectionism.

There are those who argue against increasing labor mobility, either on the grounds that existing communities have an inherent right to exclude newcomers, or because allowing them to come would have various negative side-effects. I address these types of arguments here, and in much greater detail in Chapters 5 and 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom. As I explain in those earlier publications, nearly all such objections are wrong, overblown, or can be ameliorated by "keyhole solutions" that are less draconian than exclusion. In addition, the vast new wealth created by breaking down barriers to mobility can itself be used to help address any potential negative effects. In the book, I also push back against claims that mobility should be restricted for the benefit of those "left behind" in migrants' communities of origin.

In recent years, there has been important progress on and reducing exclusionary zoning. Several states have also enacted occupational licensing reform, which facilitates freedom of movement between states. But there is much room for further improvement on  these fronts.  And when it comes to international migration, we are in a period of horrific regression. That must be reversed as soon as possible.

Workers of the world, unite to demand more freedom of movement!

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[Josh Blackman] Today in Supreme Court History: September 1, 1823

9/1/1823: Justice Smith Thompson takes judicial oath.

Justice Smith Thompson

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Ilya Somin] New Jersey Town Drops Plan to Condemn a Church to Build a Park and Pickleball Courts

[The mayor abandoned the plan after it aroused strong political resistance and threats of litigation. ]

Christ Episcopal Church, Toms River, NJ.

 

I have previously written about how the town of Toms River, New Jersey, planned to use eminent domain to condemn the Christ Episcopal Church and build a park and pickleball courts on the spot. The plan seems to have been motivated by a desire to prevent the church from building a homeless shelter on part of its property. In late July, the mayor postponed a scheduled vote on the plan, after it met with widespread opposition, and leading public interest firms specializing in property rights issues (such as the Institute for Justice and the Pacific Legal Foundation) offered to represent the Church in potential legal challenges to the taking. The Becket Fund for Religious Liberty offered to help bring a case under the RLUIPA statute.  I outlined some possible grounds for such a challenge here.

Last week, the mayor announced that the plan is being abandoned completely:

His announcement came during the New Jersey town's council meeting's public comment time when a speaker asked him to stop the seizure. He responded that a poll he commissioned showed that "it's pretty clear that the public does not support the eminent domain. We thought the church would be a willing seller and we're not moving forward with the eminent domain of the church."

He said the poll, which he noted had an error rate of plus or minus five, showed that "somewhere in the neighborhood" 60% of the town opposed his plan. (Rodrick had told Episcopal News Service in May that, if the plan had to be put to a vote, he expected 85% of township voters would support it.)

Following the mayor's reversal, the council entered an executive session to seek legal advice on whether it could decide to let the proposed ordinance die, as action on it had not been advertised as legally required. Despite some conflicting opinions from township attorneys, council members unanimously passed a resolution saying they would no longer try to acquire Christ Church's property by eminent domain….

The resolution apparently leaves open the possibility that a new resolution could be brought on the other five lots Rodrick also wants to take for parkland along the Toms River. Those lots are not adjacent to the church.

I think this happy outcome is a small, but notable example of how litigation can be combined with political action to strengthen protection for property rights and religious freedom. I am not sure whether the public opposition or the threat of a lawsuit was more important in forcing the local government to reconsider. But probably it was some combination of both. Seizing a church because it wanted to help the homeless doesn't look good; and if you are a local government trying to get away with a dubious use of eminent domain, IJ and PLF are probably the people you least want to see arrayed against you in court! I commend them for their outreach here.

I have long argued that a dual strategy combining litigation and political action is the right approach to strengthening protection for constitutional property rights, and many other important rights, as well. This incident doesn't, by itself, prove me right. But it's a case in point.

The post New Jersey Town Drops Plan to Condemn a Church to Build a Park and Pickleball Courts appeared first on Reason.com.

[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

The post Sunday Open Thread appeared first on Reason.com.

[Josh Blackman] Grand Jury Nullification in the District of Columbia?

[Grand jurors in the District of Columbia thrice refuse to indict a defendant for felony assault of a federal officer. And it happened again and again.]

Last week, the U.S. Attorney for the District of Columbia sought to indict Sydney Reid on felony charges of assaulting an FBI agent, in violation of 18 U.S.C. § 111.

Here are some of the allegations in the criminal complaint:

4.ERO Officer Vincent Liang gave instructions to REID to step back and allow them to complete the transfer of the two suspects. REID continued to move closer to the officers and continued to record the arrest. Officer Laing reiterated to REID that she could not get any closer. REID got in Officer Laing's face, and he could smell alcohol coming off REID's breath. After multiple commands to step back, REID tried to go around Officer Laing by going up the side steps and attempted to get in between the FBI Agents and the second suspect being transferred into their custody.

5.As REID was trying to get behind Officer Lang and impede the transfer of the second suspect by inserting herself between the second suspect and the agents, Officer Lang pushed REID against the wall and told her to stop. REID continued to struggle and fight with Officer Lang. Agent Bates came to Office Lang's assistance in trying to control REID. REID was flailing her arms and kicking and had to be pinned against a cement wall.

6.During the struggle, REID forcefully pushed Agent Bates's hand against the cement wall. This caused lacerations on the back side of Agent Bates's left hand as depicted below.

A federal magistrate found that there was probable cause to support the charge. Yet, on three occasions, a grand jury in the District of Columbia declined to indict. Instead, the U.S. Attorney filed an information for a misdemeanor violation of Section 111. A writer at MSNBC suggests that the grand jury's refusal to indict may be due to a weak cases being brought by the U.S. Attorney.

Since the failed indictment for Reid, there have been two more grand juries that failed to return a true bill.

It is possible that these juries are carefully attuned to the gradation between felonies and misdemeanors. May I suggest another possibility? Federal grand juries in the District of Columbia, made up (almost) entirely of critics of President Trump, are engaging in nullification of the Trump Administration's law federal enforcement efforts. I imagine this sort of active resistance will increase as more federal officers are fanned throughout the District of Columbia. The Capital likely seems something like this to D.C. residents:

Historically, at least, the concept of jury nullification was viewed as a popular check against tyrannical governments. I imagine an average D.C. resident who can take time off from work to serve extended periods of federal grand jury duty may see himself in that fashion.

During the Jack Smith saga, Trump argued that he could not possibly get a fair jury pool in the District of Columbia. I wonder if the same is true for cases brought by the Trump Administration?

The post Grand Jury Nullification in the District of Columbia? appeared first on Reason.com.

[Eugene Volokh] When Can Lawyers Be Punished for "Undignified or Discourteous" Criticism of Judges?

["Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division."]

From Kansas Supreme Court Justice Caleb Stegall's concurrence in the judgment yesterday in In the Matter of Suzanne Valdez:

Back in 2021 at the height of the COVID-19 pandemic, the respondent Suzanne Valdez, a publicly elected official—the Douglas County District Attorney—made some intemperate comments about the chief judge of the district. Now, years later, after countless news stories, public outcry, lawyers hired, weeks and months of investigations and hearings, and a subsequent election for Douglas County District Attorney at which the respondent was unseated in part because of these charges—here we are. Was it worth it? No, it was not….

From [the panel decision], we can easily deduce that none of Valdez' comments were proven to be untrue or made with reckless disregard as to their truth. This includes the two comments found to be "undignified or discourteous." Now, given my personal experience with Chief Judge McCabria, I find the entire litany of allegations leveled at him by Valdez to be silly at best and scurrilous at worst—but this is entirely beside the point. Can we really say that truthful statements (or statements that cannot be proven untrue) can still be unethical if they are discourteous? If a judge acts in an undignified manner, is commenting on his or her behavior unethical? See In re Clark (Kan. 2022) (Stegall, J., concurring) ("[The judge's] behavior was embarrassing, foolish, and grossly immoral ….").

I have said it before, but it bears repeating—the practice of law is not a finishing school for debutants preparing for their first dance. "'There's no crying in baseball!' So intoned Tom Hanks' character in the film A League of Their Own…. It is a message the Kansas bar and bench—and our Disciplinary Administrator's office—should consider." … "[I]t does the judicial branch no favors to present publicly with a collective glass chin." … Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division.

This is not, however, what is most important about today's case. There is much more at stake—the beating heart of our democratic process—unconstrained political speech. There is a disturbing trend in our body politic to turn "ethics" into a political widow maker—a recently dislodged calcium deposit stalking the arterial system of our campaigns, elections, and government—threatening a blockage at any time. The rallying cry of, "You can't say that!" accompanied by looming threats of punishment is a kind of atherosclerosis—a narrowing of our political arteries—that I cannot countenance.

For it cannot pass our notice that this entire process was aimed squarely at punishing political speech. Even after (perhaps especially after) Valdez was acquitted by the panel of the most serious charges (and now, finally, is absolved of all guilt by this court), we cannot turn a blind eye to the reality that this attorney disciplinary process played a starring role in an important public election in Douglas County. Without question it impacted the outcome—if perhaps not the ultimate victor. At a minimum, it affected the point spread, as Valdez received only 9% of the vote in the Democratic primary.

Today, the majority finds that Valdez did not violate our ethics rules on what amounts to a technicality. That is, the majority has decided Valdez' comments were not made in the context of an actual legal or other adjudicative proceeding and therefore were not "degrading to a tribunal." I find this reasoning to be a pedantic bit of couper les cheveux en quatre [i.e., hair-splitting]—the distinction drawn is overly fine. I agree with Justice Rosen's dissent that certainly the subject matter of the spat between Valdez and Chief Judge McCabria concerned the "tribunal" of the Douglas County District Court. The issue, after all, was how and when trials were to be conducted during the pandemic. So while I concur in the outcome reached by the majority—that Valdez violated none of our Rules of Professional Conduct—my reasoning differs dramatically.

To put my conclusion bluntly, I would find that KRPC 3.5(d) and KRPC 8.2(a) do not apply to political speech. And while I will discuss First Amendment law below, I ground my decision not in a constitutional prohibition, but rather squarely in this court's discretionary power to make substantive policy when enforcing our Rules. That is, I would expressly limit the application of KRPC 3.5(d) and KRPC 8.2(a) not because the First Amendment requires this—though it may—but because such a policy is necessary to vindicate the free speech values that undergird and inform both the First Amendment and the functioning of our democratic system of self-government.

Let's begin our discussion with a cautionary tale.

The modern record is replete with current politician/lawyers who are critical of the judiciary in "discourteous" ways. Politicians from both sides of the political aisle (who also happen to be lawyers subject to state ethics codes) routinely criticize both judges and their opinions. These range from relatively mild critiques to the more provocative. See Myers & Fox, Utah Sen. Mike Lee introduces bill to stop district court judges from "usurping" Pres. Trump, ABC4 (Mar. 28, 2025) (quoting Senator Lee as saying: " 'America's government cannot function if the legitimate orders of our Commander in Chief can be overridden at the whim of a single district court judge.' "); Goldsberry, Tom Cotton calls upon Supreme Court to "rein in rogue federal judges," Washington Examiner (Apr. 21, 2025) (quoting Senator Cotton as saying: " 'This far-left Obama judge in Maryland is now demanding the president somehow sit down with a foreign leader and come to terms to return an MS-13 wife beater.' "); Blanchet, Adam Schiff Issues Stark Warning For Supreme Court On Trump's "Bogus" Immunity Claim, HuffPost (Mar. 18, 2024) (quoting Senator Schiff as saying: "It would be a terrible decision … it would also just further discredit this partisan and reactionary court."); Robinson, Why Did Texas Sen. Ted Cruz Criticize Judge Sonia Sotomayor During Senate Hearing on Universal Injunctions?, Texas Lawyer (Feb. 25, 2020) (quoting Senator Cruz referring to a Justice Sotomayor dissent as " 'an arsonist complaining about the noise from the fire trucks' "); Crawford, Alito Winces as Obama Slams Supreme Court Ruling, CBS News (Jan. 28, 2010) (describing President Obama's critique of Citizens United v. F.E.C. (2010), in his State of the Union Address).

So back in 2020 when Senate Minority Leader Chuck Schumer gave a fiery speech on the steps of the U.S. Supreme Court expressing his view of the Court revisiting Roe v. Wade (1973), his rhetoric was unrestrained. Senator Schumer called out two justices in particular, stating "Justice Kavanaugh and Justice Gorsuch, you have unleashed a whirlwind, and you will pay the price." And these comments resulted in a complaint filed with the New York Attorney Grievance Committee. The complaint argued that Senator Schumer had violated Rule 8.4 of the Rules of Professional Conduct for the New York State Unified Court System, which prohibits engaging in conduct that is prejudicial to the administration of justice.

But commentators on both the left and the right nevertheless expressed doubt that such rhetoric merited going after Senator Schumer's license to practice law. For its part, the New York Attorney Grievance Committee declined to take any action against Senator Schumer, stating that

[w]hile these comments were certainly concerning, the Attorney Grievance Committee (AGC) is cautious about disciplining attorneys, whether local attorneys or public officials, for comments that may be protected by the First Amendment. In addition, the AGC is mindful not to wade into political controversies that would result in an endless onslaught of retaliatory complaints by opposing parties.

Senator Schumer later apologized and wryly observed: "I'm from Brooklyn. We speak in strong language."

Though Senator Schumer escaped reprisal, examples abound of lesser-known lawyers who find themselves in hot ethical water for speaking "Brooklynese." For example, a Florida attorney agreed to settle his disciplinary case with a public reprimand after calling a judge an "evil, unfair witch" in his blog. And one can understand why the attorney chose to settle his case after one sees how other disciplinary cases can go in similar circumstances. See, e.g., Cleveland Metro. Bar Assn. v. Morton (Ohio 2021) (attorney suspended for one year for failing to act with "dignity and civility" following accusations that judges apply "politics, not law" in deciding tax valuation cases); In re Marshall (N.M. 2023) (attorney was indefinitely suspended after accusing a judge of intentionally failing to disclose a previous relationship with a party and ignoring the law in order to "fix" the case); Matter of Dinhofer (N.Y. App. Div. 1999) (attorney suspended for three months for comments during a telephone conference such as "[t]his is blatantly corrupt. You are sticking it to me every way you can.").

Contrary to what some think, judicial sensitivity to criticisms and discourtesies does not enhance respect for the judiciary—it undermines it. "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion." Indeed, because "it is a prized American privilege to speak one's mind"—even when not in "perfect good taste"—any "enforced silence … in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." …

The caselaw suggests that while there may be a judicial awareness of the need to tread carefully around the intersection of speech and ethics, some courts feel hamstrung by the language of most ethics codes which spring from the model rules promulgated by the American Bar Association (ABA). The situation is exacerbated by the infusion of subjectivity into the actual text of the rules. How one understands words and concepts like "discourteous" are so conditioned by personal values, upbringing, culture, socio-economic status, and the like, as to be virtually impossible to enforce in an objective and even-handed way. These are the hallmarks of a legal milieu that will inexorably lead to arbitrary enforcement decisions, double standards, and punishments meted out to unpopular people and opinions.

Moreover, the ABA has in recent years forfeited its reputation as a neutral player in the realm of attorney ethics. We owe its conception of "discourteous" behavior no deference. I am reminded of the recent kerfuffle created by the ABA a few years ago when it attempted to bully states into adopting a revised version of its Model Rule 8.4(g), which would have made it unethical to engage in speech judged to be "harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The ABA made it clear that among the conduct prohibited by this change was "harmful verbal … conduct that manifests bias or prejudice towards others" and reached so far as to sweep up speech occurring in "social activities" if they were somehow related to the practice of law.

This spawned a widespread outcry across the legal profession as commentators sounded the alarm—the ABA was trying to regulate lawyer speech at an unprecedented level…. Ironically, Valdez was regarded as an expert on attorney ethics at the time and presented numerous CLEs on the very topic at hand—threats to free speech coming in the form of ethical rules. In them, she warned of the constitutional implications of the proposed rule, observing that it potentially "targets religious beliefs and expression by attorneys, … punish[es] attorneys for membership in disfavored groups, … [and] may raise substantial free speech concerns if applied to statements made by attorneys in connection with their practice of law.

While not directly relevant to today's case, this episode illuminates a powerful anti-speech movement within the bar—and an overweening desire among establishment attorneys to police the thought and speech lives of their fellow lawyers. As the institution constitutionally charged with setting ethics policy in Kansas, this court has already wisely rejected such a path.

While black letter First Amendment law may permit the kind of punishment sought by the ODA and proposed by the panel in this case, this is far from certain. I take no position on this question in today's case because even if Valdez' speech had no formal constitutional protection, we must still evaluate whether—as a matter of Kansas policy—punishing such speech is wise or desirable….

Protecting "public confidence in the legal system" does not require dogmatic silence by attorneys working in that system—especially when attorneys are bringing attention to perceived problems and inequities. The practice of law, by nature, is adversarial. Punishing attorneys for voicing their criticisms serves to undermine the rule of law rather than bolster it and creates the impression that "judges can dish but they can't take." "The First Amendment is not abridged for the benefit of the Brotherhood of the Robe." …

[The] gap between the kinds of speech restrictions allowed by courts conducting a strict constitutional review and the values courts are inclined to protect has not gone unnoticed. "The difference between free speech values and First Amendment doctrine is particularly pronounced when it comes to lawyers because of the considerable leeway the Court has offered to states in the regulation of attorney speech." If we must choose, long experience and prudence counsel that when setting speech policy for lawyers in Kansas, the values undergirding the First Amendment must control even over its black letter application. So when we exercise our constitutional discretion to limn the boundaries of attorney ethics in Kansas, we must not hyperregulate the very First Amendment protections that attorneys and judges are sworn to uphold simply because an attorney's own speech is at issue.

Without a clear statement on these principles from this court, I fear the continuing chill on attorney speech in Kansas by the well-meaning but aggressive action of the ODA to take up the cause of bruised judicial feelings and punish all manner of "discourtesies." To which I can only say, "Stop it!" Kansas judges are not so delicate. We will not wilt in the face of lawyer criticism—or even an uncouth comment or name-calling. We retain the traditional tools of regulating our courtrooms through contempt or Rule 11 proceedings.

And most importantly, public trust in the legitimacy of the rule of law can only be harmed by a defensive posture reminiscent of petty gangsters and warlords surrounded by enforcers. In a mature democracy, fragility in leadership sows only distrust. We can and should do better.

To very briefly summarize the long fact discussion from the much narrower majority opinion, in Nov. 2020, the Chief Judge arranged certain plans for holding jury trials during COVID, and said that he had "consulted with all of the stakeholders." D.A. Valdez responded with a press release saying,

The District Attorney's Office was not consulted and is undoubtedly a stakeholder. Importantly, had I or my office been consulted by the District Court, we would have shared our concerns about trials during the COVID pandemic, as well as trying high level felony cases at the Douglas County Fairgrounds in a makeshift courthouse where security is not guaranteed.

She then sent a text message to the Chief Judge:

You should be ashamed of yourself.
We were Told, not consulted.
The only reason you commented is because I am a Hispanic female I [sic]a position of power.
I will she (sic) the light of truth
I will shine the light of truth
I will shine the light of truth on everything

She issued another press release saying,

Chief Judge McCabria did not ask for my advice or for my input regarding the April jury trial plan. To suggest that he and I met personally or consulted about the jury trial plan, or that he invited or asked for my or my office's input is simply false. It is disappointing that Chief Judge McCabria has misrepresented my communication with him about the legitimate public safety concerns I have about trying serious high level felony jury trials at the Fairgrounds. Unfortunately, this is yet another example of how an outspoken and honest woman is mischaracterized as untruthful by a male in power.

And she posted the second press release on her own Facebook page and the D.A.'s office Facebook page, together with this:

Women of the world-be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I! [Fist bump emoji and strong arm emoji followed the statement]

This led to a bar investigation of Valdez, and the bar hearing panel recommended formally censuring her on the grounds that her statements violated Kansas Rule of Professional Conduct 3.5(d), "A lawyer shall not … engage in undignified or discourteous conduct degrading to a tribunal":

Respondent engaged in undignified or discourteous conduct degrading to Judge McCabria and the legal system when she publicly called Judge McCabria's credibility into question in her second press release. In addition, Respondent's Facebook post about an "insecure man" was clearly directed at Judge McCabria. Respondent's comments about Judge McCabria were not made in the course of a zealous attorney making a point to a judge about a factual finding or ruling. Rather, they were personal comments that would be inappropriate even during a closed-door meeting with a judge. In this case, the undignified and discourteous comments were made public, published in a newspaper, and placed on social media. Respondent exhibited a reckless disregard for the negative impact her comments would have on others and the judicial system.

The majority (Chief Justice Marla Luckert, Justices Dan Biles and Melissa Taylor Standridge, and Senior Judge Meryl Wilson) concluded that Rule 3.5(d)'s reference to "tribunal" meant that the Rule only "prohibit[s] a lawyer from engaging in undignified or discourteous conduct degrading to a court or other arbiter when the court or other arbiter is acting in an adjudicative capacity." Because Valdez's criticisms were aimed at the Chief Judge's administrative actions, they were not covered by the rule. (Justice Eric Rosen and Senior Judge Nancy E. Parrish dissented, arguing that Rule 3.5(d) does apply to "undignified or discourteous" criticism of a court's "administrative decisions.")

Stephen Angermayer (Angermayer Law, L.L.C.) argued on Valdez's behalf, as did Valdez herself. Thanks to Lance Kinzer for the pointer.

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[Eugene Volokh] No Carry Permit Because Applicant's E-Mails to Government Cast Doubt on His "Ability to Engage in Coherent and Rational Thinking"

An excerpt from the long opinion earlier this week in In re Application for a Permit to Carry a Handgun by R.R., by N.J. Appellate Division Judges Joseph Marczyk and James Paganelli:

Detective Berry … testified regarding various emails petitioner sent to the Sayreville clerk referring to the "Blood of Christ" and an affidavit submitted by petitioner to Sayreville regarding "[o]ne's [e]ntire [z]ygote/[p]ellucid [m]embrane as the [s]ingular '[h]istorical & [p]resent, [r]eligious & [s]cientific, [n]ative & [c]ustomary, [t]ruth & [m]atter of [f]act' [p]roving [o]ne's [p]ersonal, [p]rivate, and [c]onfidential [p]roperty/[p]aramount [e]quity '[f]ound' within [o]ne's [o]riginal [b]iological /DNA [b]irthday '[c]ake' a.k.a. [o]ne's '[b]aggage and [e]ffects' a.k.a. [o]ne's [p]lacenta." Detective Berry testified he did not understand what petitioner was discussing, and the communications were "kind of rambling" and had nothing to do with petitioner's tax issues.

Detective Berry further testified regarding: petitioner's referencing credit as a "figment of the imagination," ballot harvesting schemes, the banking system being owned by the "cult," a Wisconsin election being rigged by dictators in Syria and Korea, a governor's handling of a teacher shortage, and references to a conservative song writer. Detective Berry stated that in his "training and experience," he never saw "an individual correspond with a government body" in this manner and that petitioner was "not really addressing any specific issue."

In one email, petitioner noted the SPD Chief was married and named his wife and his children. Detective Berry testified it appeared petitioner "cut and paste[d]" this information from the Chief's biography on the SPD's website. Detective Berry referenced this communication in his denial letter. He testified "the way that [petitioner] was interacting regarding his permit [application]" caused him concern, as petitioner "was demanding answers" and "wasn't letting the investigative process play out." He also testified petitioner's references to the Chief's family caused him concern.

Detective Berry conceded on cross-examination that Sayreville never told petitioner to stop sending emails. He also acknowledged petitioner was previously approved for a firearms purchaser identification card and had obtained permits to purchase a handgun as recently as 2022. He also testified there was no evidence petitioner had threatened anyone with violence or had any documented mental health issues.

Petitioner testified he is a retired electrician and has owned firearms since 1980. When asked why he sent the numerous emails and documents to Sayreville, petitioner stated they were intended "[t]o notice" Sayreville of "correcting the record," and that his references to the blood of Christ referred to his "religious and spiritual belief[s]."

Petitioner's counsel objected to petitioner having to "explain his religious beliefs." The court overruled the objection. The following colloquy took place between the prosecutor and petitioner:

Q: Why did you reference the blood of Christ in that --

A: Okay. My belief and according to our government bill of rights, I have the right to whatever religion I want. In my case it's Catholicism …. I've gone through all the teachings of the Catholic church.

And in the Catholic church it says that Jesus Christ died on the cross for our sins, which he gave blood….

… [B]y doing so, by God giving his son, that all mankind is relieved of sin.

… Sin is all debt. Any debt…. [A]ll sin is done away with.

Q: … So you put that into a document that you intended to persuade all these people that were copied on it and it's directed to. What was the purpose in trying to persuade those people? What were you trying to do?

A: Correct the record.

Q: Correct the record about what? That you overpaid your taxes? ….

A: Overage. To clarify the overage….

Q: Where in this document does it talk about overage and the amounts of money that you went over? And outside of using it to discuss zygotes, placentas, birthday cakes, DNA, where does it say in here the amounts that you … overpaid … and how it could be accounted for? Where does it say that? ….

A: By the affidavit that I sent.

Q: Can you point out to us where in this document you discuss the overage?

A: Not this document, but the [ten] before it.

Q: Then what was the purpose of this document? … Talking about zygotes and things of that nature? Placentas and DNA and birthday cake and the blood of Christ.

A: It was to educate people … in general, along with filing it into the court record ….

Q: Educate people how in terms of your issue that you had? ….

A: To inform these people … of the case … for presenting that document to the court ….

Q: And you think that somehow writing dozens of pages about zygotes and placentas and the blood of Christ would have somehow furthered your cause in terms of getting your money back[?]

A: It's my religious belief and the ultimate aim is that God, through his son ….

Q: Okay. I'm not asking you about your religious beliefs. I'm asking you how … did this address the specific issue that you had? ….

Q: What does a zygote have to do with your tax issue?

A: It has to do with the blood of Christ and the soul and my religious belief, which you're protesting against it when I applied it.

Q: I'm not protesting anything against your religious belief. I'm asking you how you apply your religious beliefs …. How does this document further your argument?

A: This document relates to the affidavit which relates to the zygote which God ….

… My interpretation of God, the Bible, and Jesus Christ and the transactions they acquired through Pontius Pilate rubbing his hands of the authority that he had over Jesus Christ ….

Two people, hopefully married, sleep together. Each one supplies 23 chromosomes each. When the chromosomes meet, this is an event that may start life. Until God comes along and breathes the breath of life or the soul into the zygote or the chromosomes, it becomes a zygotes and attaches to the womb. Am I correct? …

So eventually, … this zygote becomes a baby, a child with a soul. And in the case with Jesus Christ, same thing happened. God gave his son to take away all the sins of humanity, including debt. Debt is a sin.

Q: Okay. You look at this document and … [w]ere you trying to get out of the foreclosure, or were you trying to get your money back with this document?

A: No, we were addressing the issue of … [o]verage…. We were trying to get the end result of what was owed and not owed, okay? And this was an education, along with filing it in the court … to correct the record….

Q: I mean, I guess … I don't understand your response ….

A: It's commonsense…. Commonsense and religion.

Petitioner was questioned about a July 29, 2023 fitness for firearms psychiatric evaluation conducted by Jeffrey Ilardi, M.D., a licensed psychiatrist. He noted that Dr. Ilardi performed a psychiatric evaluation and opined petitioner was "very stable, reliable, intelligent and pleasant." Dr. Ilardi further noted petitioner was "psychiatrically cleared," and he was an "appropriate" candidate for a "concealed carry permit." …

The State argued it was:

not here because [petitioner] was exercising his rights … to express himself in this way…. The issue is whether giving him a permit to carry would be contrary to the public's safety, health and welfare.

If you go through these documents, … they make little or no sense without any context. And even when [petitioner] was … trying to give context, it didn't make sense in terms of what he was trying to get across to [Sayreville]. It's easy to see how people reviewing his permit application would think that he had some mental health stability issues….

And … looking at [the email discussing] … zygotes and placentas and birthday cake …, it makes no sense … in terms of what he was trying to get across. And it speaks … to his … mental stability.

And I understand that he has a permit to purchase and he's got a firearms ID card. But there's a difference when someone has a gun in their house to protect themselves and … going out and interacting with the public, with members of the government, with people that he had disputes with.

We affirm substantially for the reasons expressed by the trial court…. The trial court deemed petitioner's email correspondence with Sayreville "concerning," "incomprehensible[,] and incoherent." {We observe petitioner's emails also contained references to: the "Use of the Period After the 'S' in Harry S. Truman's Name"; excerpts from Charles Dickens' novel David Copperfield; the Encyclical of Pope Leo XIII on Capital and Labor; and an article noting the "[t]he CIA ha[d] been taken over by [the] NSA. Basically, everything created by the UK Royals/Crown/Rothschilds was now null [and] void."} It was unconvinced based on those communications—coupled with petitioner's testimony—that petitioner "could formulate the kind of rational thinking expected of individuals permitted to publicly carry firearms." It further held petitioner's "ability to engage in coherent and rational[ ] thinking" had "lessened or been compromised to the extent that his ability to publicly carry a firearm is rightfully a health and safety concern for both [petitioner] and the public."

We conclude the court appropriately analyzed petitioner's communications and testimony, and it did not err in finding that granting petitioner's application was not in the best interest of the public health, safety, and welfare under N.J.S.A. 2C:58-3(c)(5)….

Although petitioner presented a report from Dr. Ilardi, who opined petitioner was "psychiatrically stable" and "an appropriate candidate" for a concealed carry permit, the court was not compelled to follow the conclusions of petitioner's expert…. Despite Dr. Ilardi's conclusions, the court observed the illogical, convoluted emails—containing references to irrelevant historical, biological, and literary topics—together with petitioner's testimony, demonstrated petitioner was unable to "engage in coherent and rational[ ] thinking." These emails were not addressed in Dr. Ilardi's report….

Assistant Prosecutor Nancy A. Hulett represents the government.

The post No Carry Permit Because Applicant's E-Mails to Government Cast Doubt on His "Ability to Engage in Coherent and Rational Thinking" appeared first on Reason.com.