Eugene Volokh's Blog, page 233

[Ilya Somin] Political Ignorance is an Even Worse Problem than I Thought

I've never been a big believer in the wisdom of voters. Indeed, I've devoted much of my academic career to writing about the dangers of widespread political ignorance, going all the way back to my first academic article. It was published in 1998, at a time when most experts tended to be relatively optimistic about voter competence. Since then, I published a book on the subject—Democracy and Political Ignorance – and many other articles exploring various dimensions of the problem, its implications for legal and political theory, and possible solutions.

In these works, I explained how most voters often don't know even basic facts about the political system and government policy, and those that know more (the "political fans"), often tend to evaluate political information in a highly biased way. I also argued that information shortcuts and "miracles of aggregation" largely fail to offset ignorance and bias, and sometimes even make thing worse. Moreover, this sad state of affairs is not the result of stupidity or lack of information, but of generally rational behavior on the part of most voters: a combination of "rational ignorance" (lack of incentive to seek out political information) and "rational irrationality" (lack of incentive to engage in unbiased evaluation).

Since the rise of Trump and similar politicians in other countries, academics and political commentators have become more aware of the dangers of public ignorance. I wish I could say my own take on the subject has been vindicated. But, in one crucial respect, the Trump era has shown I wasn't pessimistic enough.

Though I have long argued that voter ignorance and bias are serious dangers, and that information shortcuts are overrated, I also asserted that shortcuts actually work well in one important way: democratic electorates will punish politicians who cause great harm in clear and obvious ways. For example, I cited economist Amartya Sen's famous finding that mass famines never or almost never occur under democracies, while they are all too common under dictatorship. Even ignorant and biased voters will notice a famine is going on, blame incumbent politicians for it, and punish them at the ballot box. Knowing this, democratic political leaders have strong incentives to avoid famines and other obvious disasters. And they generally do just that, at least when they have the necessary knowledge and resources (disasters can still happen if avoiding them is difficult).

"Retrospective voting"—rewarding and punishing incumbents for things that happen on their watch—often works poorly in less extreme and less clearcut cases. As explained in Chapter 4 of my book, voters often reward or punish office-holders for things they didn't cause (most notably short-term economic trends; but also things like droughts and even sports-team victories), while ignoring some that they are in fact responsible for. But retrospective voting is a great mechanism for punishing politicians for obvious large-scale awfulness, one that works very well.

Or so I thought, along with many other scholars. But Trump proved me at least partially wrong. I was too optimistic.

Trump's effort to use force and fraud to overturn the 2020 election was exactly the sort of obvious and blatant awfulness that retrospective voting theory predicts the electorate should decisively repudiate. Peaceful transitions of power are fundamental to democracy, and Trump's 2020 activities struck at the very heart of this norm. Had he succeeded, it would have severely damaged the basic structure of our liberal democratic institutions. Yet a large majority of GOP voters renominated Trump again this year. And he has roughly an even chance to win the general election this year. If he goes on to lose, it will probably be by a very narrow margin, not the kind of overwhelming repudiation that would vindicate the theory.

Some people who would otherwise vote GOP are punishing Trump for his 2020 behavior by voting for Harris, or at least abstaining. Mike Pence and former GOP Rep. Liz Cheney are not alone. Thanks in part to these defectors, Trump is doing worse than a Republican nominee untainted by 2020 probably would be. But the number of such voters is much smaller than optimistic versions of retrospective voting theory would predict.

Ignorance and bias are playing a huge role in Trump's relative success. Polls consistently show that a third or more of Americans—including a large majority of Republicans—believe Trump's lies about the 2020 election, despite the overwhelming evidence against them, including numerous court decisions rejecting Trumpian claims of voter fraud (including some written by conservative judges appointed by Trump himself). Ignorance and partisan bias are great enough that many millions of GOP base voters reject fairly obvious facts here. If you believe the 2020 election was "stolen" from Trump, then his reaction may well seem justified, or at least excusable.

But this isn't the full story. If Trump only had the support of voters who actually believe his lies about the 2020 election, he could still have won the 2024 GOP nomination. But he would be losing the general election in a landslide of about 60-40 or even more. He remains competitive with Kamala Harris because there are many voters (probably around 10-15% or so of the electorate) who reject his take on 2020, but prioritize other issues, such as the economy or immigration.

Here, more conventional political ignorance is playing a role. Most polls that the economy is the highest priority for voters, including swing voters, and many are angry about the inflation and price increases that took place in 2021-23. Here, there is a fairly standard political ignorance story. Swing voters blame incumbent Democrats for the inflation and price increases, even though actually both parties supported the policies that caused them (primarily massive Covid-era spending). Even worse, they tend to think Trump will bring down prices, even though his agenda of massive tariff increases and immigration restrictions would predictably raise them.

It's not unusual for voters to misallocate blame for ordinary bad developments or to misunderstand the impact of policies. But, for a large bloc of swing voters, this relatively conventional ignorance about price increases and the policies that cause them is enough to outweigh concerns about what Trump did in 2020. Bad conventional retrospective voting forestalls beneficial retrospective voting against Trump's extraordinary 2020 awfulness and the danger failing to punish it poses to the constitutional system.

What is true of price increases also applies immigration. Increased immigration is actually beneficial, not harmful, and the best way to deal with disorder at the border is to make legal migration easier, not harder (as Trump proposes to do). But even if you're more of a border hawk, it's hard to show that problems caused by migration are as pressing as threats to the constitutional order. At the very least, GOP primary voters could have picked one of several available highly restrictionist candidates who weren't involved in Trump's efforts to overturn the election. The belief that immigration is not just a policy problem but an "invasion" amounting to a huge crisis, is itself heavily linked to ignorance.

One possible way to reconcile optimistic retrospective voting theory with recent developments is to say what happened in 2020-21 wasn't really that bad, because Trump's plan to overturn the election failed and the "guardrails" held; thus, we need not worry too much about it. It's not clear if any significant number of voters continue to support Trump because of these sorts of considerations. But, if they do, it's very bad reasoning. Libertarian political philosopher Michael Huemer explains:

Let me tell you how I view this [argument]. Say you're on a bus ride on a winding mountain road. You see the driver suddenly swing the wheel to the right, trying to send the bus over the cliff. Fortunately, the guard rail on the side of the road holds, and the bus bounces back onto the road. The bus driver does this repeatedly during the drive, but every time, the guard rail holds the bus back.

When you finally get off the bus, one of your fellow passengers declares that this was an excellent bus driver. He proposes hiring this driver to drive the same group to another city.

"What are you, out of your f—ing mind?" you reply. "He tried to drive us off a cliff!"

"Oh that," says the other passenger. "The guard rail held, so what's the big deal? Don't worry, this next drive won't go by a cliff. Since the rest of his driving performance was fine, we should hire him…"

Do I have to spell it out…? Driving off a cliff is not the only bad thing a bus driver can do. There is an indefinite number of disasters a crazy person can cause. Anyone who would try to drive a bus off a cliff can never be trusted with a bus, or indeed anything else, and if you think he's an acceptable driver, you're as crazy as he is.

I would add that a driver who tried to drive off a cliff once could do so again. And even a small chance of the guardrails failing is an enormous danger when the stakes are the future of constitutional democracy. Moreover, failing to punish politicians who seek to overturn elections by force and fraud incentivizes more such behavior. And some of those who attempt it in the future might be more successful than Trump was.

This isn't the first time large numbers of people failed to retrospectively penalize truly awful policies and candidates because of a combination of belief in lies and flawed ordinary retrospective voting. The  horrific calamity of World War I should have led Europeans to repudiate the expansionist nationalism that caused it. Some did. But many Germans actually doubled down on nationalism and imperialism because of the "stab in the back" myth that held that Germany only lost the war because of betrayal by Jews, leftists, and others.

Later, the combination of the stab-in-the-back myth and conventional retrospective voting against the Weimar Republic government that presided over the Great Depression helped bring the Nazis to power. In the US, the political consequences of the Depression were less bad. But ignorance did lead voters to embrace a range of harmful policies that actually made the crisis worse.

The Great Depression, at least, was a horrendous crisis that caused truly enormous suffering. Today's price increases and border problems pale by comparison. If even the latter can lead many voters to forego punishing truly awful political leaders, that means retrospective voting is much less effective than I and others gave it credit for.

Recent developments don't prove that retrospective voting is totally useless. Amartya Sen is, I think, still right about democracy and famines! Democracy is still better than dictatorship. But the threshold for reliable and accurate retrospective political punishment is higher than I and some others previously believed. A mass famine may be enough. But a blatant threat to the foundations of liberal democracy doesn't necessarily cut it.  All too many people are easily persuaded that the threat was actually justified, or that it is at least outweighed by relatively ordinary policy issues.

Voter ignorance and bias are far from limited to the right side of the political spectrum. I've previously written about left-wing examples (e.g.—here). But the Trump situation is the most dramatic proof that the problem is worse than even relative voter-knowledge pessimists—like me—previously thought.

The election could yet invalidate my new more pessimistic view. If, contrary to what polls indicate, Trump loses by a large margin, that would indicate he may be paying a higher political price for 2020 than I currently expect. But if he wins, or only loses narrowly, then the increased pessimism is warranted.

There is no easy way to "fix" political ignorance.  I assess a range of possible options in a recent article on "Top-Down and Bottom-Up Solutions to the Problem of Political Ignorance, and in my book Democracy and Political Ignorance. I believe the best approach is to make fewer decisions at the ballot box and more by "voting with your feet," where incentives to seek out information and use it wisely are better. But I admit that any effective approach will take time, and there may be no one fix that is sufficient by itself. We may need a combination of several strategies.

Be that as it may, recent developments strongly suggest the problem is even worse than I previously believed. That makes the need for solutions even more pressing.

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[Eugene Volokh] "Motion to Admit Drake's Live Mascot to the Preliminary Injunction Hearing"

From the motion, in Drake University v. Des Moines Community College Foundation:

On July 8, 2024, Drake filed a Motion for Preliminary Injunction requesting the Court temporarily enjoin Defendants' use of certain trademarks, namely a standalone "D" and dark blue/light blue/white color scheme in connection with post-secondary educational services ….

While the Drake Brand is comprised of several elements, of particular importance is Drake's live mascot, Griff II, who frequently appears in public on behalf of Drake wearing outfits featuring elements of the Drake Brand. While Griff II is represented pictorially in the record, his true effectiveness as an ambassador of the Drake Brand lies in his physical presence.

Drake's counsel has contacted the Clerk's Office regarding the Court's protocols for admitting animals to the Courthouse and has been informed that animals are permitted entry under certain circumstances.

While Griff II is a certified therapy dog, out of respect for the dignity and decorum of these proceedings and for the elimination of doubt, Drake seeks permission from the Court directly.

Motion denied, says Chief Judge Stephanie Rose (S.D. Iowa):

Plaintiff may present evidence to depict its mascot without the need for physical presence.

It's not Bring Your Dog to Court Day.

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[Josh Blackman] Today in Supreme Court History: November 3, 1845

11/3/1845: Chief Justice Edward Douglass White's birthday.

Chief Justice Edward Douglass White

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[Eugene Volokh] Free Speech Unmuted: Protests, Public Pressure Campaigns, Tort Law, and the First Amendment

You can also watch our past episodes:

Misinformation: Past, Present, and Future I Know It When I See It: Free Speech and Obscenity Laws Speech and Violence Emergency Podcast: The Supreme Court's Social Media Cases Internet Policy and Free Speech: A Conversation with Rep. Ro Khanna Free Speech, TikTok (and Bills of Attainder!), with Prof. Alan Rozenshtein The 1st Amendment on Campus with Berkeley Law Dean Erwin Chemerinsky Free Speech On Campus AI and Free Speech Free Speech, Government Persuasion, and Government Coercion Deplatformed: The Supreme Court Hears Social Media Oral Arguments Book Bans – or Are They?

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[Josh Blackman] Today in Supreme Court History: November 2, 2010

11/2/2010: Brown v. Entertainment Merchants Association argued.

Governor Jerry Brown

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[Eugene Volokh] Trump v. CBS Broadcasting Inc. Likely Going Nowhere

Yesterday's Complaint in this case essentially alleges that CBS's editing of the 60 Minutes Harris interview was "false, deceptive, or misleading," and thus a violation of Texas's consumer protection law. But states generally can't impose liability for misleading or even outright false political speech. To quote the Washington Court of Appeals in WASHLITE v. Fox News, where plaintiff unsuccessfully sued Fox for allegedly false statements about COVID,

[T]he Supreme Court in U.S. v. Alvarez (2012) disavowed the principle that false expressions in general receive a lesser degree of constitutional protections simply by virtue of being false. The court stated that its precedent restricting the value or protections afforded objectively false statements

all derive from cases discussing defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but neither was it determinative. The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection.

The court went on to explain that,

[w]ere the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition.

WASHLITE's allegations that the challenged statements are false and recklessly made simply cannot overcome the protections afforded speech on matters of public concern under the First Amendment, even in the face of the State's undoubtedly compelling interest in the public dissemination of accurate information regarding threats to public health.

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.

United States v. Stevens (2010).

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson (1989). Although WASHLITE pursues the meritorious goal of ensuring that the public receives accurate information about the COVID-19 pandemic, the challenged statements do not fall within the narrow exceptions to the First Amendment's protections. We affirm the trial court's conclusion that, however laudable WASHLITE's intent, its CPA claim is barred by the First Amendment.

The same logic applies here, I think. To be sure, as WASHLITE and Alvarez noted, there are some historically recognized exceptions to First Amendment protection for knowing falsehoods, such as for defamation, fraud, and perjury. But those are deliberately exceptions. Defamation is limited to knowing (or sometimes negligent) falsehoods that damage a particular person's reputation. Fraud is limited to statements that themselves request money or other tangibly valuable items. Perjury is limited to lies under oath in governmental proceedings. There is no general government power to punish political falsehoods outside these narrow exceptions.

In addition to the Alvarez plurality statements cited by the Washington court, note that five Justices and three dissenting Justices in Alvarez agreed that

[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech…. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law.

That's from Justice Breyer's two-Justice concurrence, but Justice Alito's three-Justice dissent took the same view, adding "The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth." I think this logic applies to media decisions about how to edit a political candidate's interview as well (again, outside the narrow exceptions noted above). And while some old decisions have upheld state laws focused on knowing falsehoods in election campaigns, post-Alvarez state and federal appellate cases have struck down even such specially targeted laws.

I should note that, when it comes to over-the-air broadcasting, the Court has left the Federal Communications Commission more latitude to restrict speech than the government has with regard to books, films, the Internet, and even cable television. Thus, the Court has upheld the Fairness Doctrine and the ban on broadcasting certain vulgarities. Lower courts have likewise allowed some policing by the FCC of alleged "distortion," see, e.g., Serafyn v. FCC (D.C. Cir. 1998). And the FCC has a specific "broadcast hoaxes rules" barring the publication of knowingly "false information concerning a crime or a catastrophe," if the information foreseeably "cause[s] substantial public harm."

But fortunately, in recent years the FCC has recognized the dangers of policing speech this way, whether in the service of trying to restrict disfavored views or supposed misinformation. The case involving the Washington Redskins is one example; the FCC there recognized that the Court's decision upholding the viewpoint-neutral restrictions on sex- and excretion-related vulgarities in Pacifica couldn't be extended to allegedly bigoted words, which would be punished precisely because of their supposed viewpoints. The FCC commissioners' statements quoted above support this as well, as does the FCC's 2020 decision related to the broadcast hoaxes rule:

[T]he Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press's assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications. Accordingly, the Commission has recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited."

On the Court, Justices Thomas and Ginsburg had also suggested that it was unsound to offer lesser First Amendment protection to broadcasting; I expect that, if the issue were to come before the Court today, Red Lion and Pacifica would at least be sharply limited and perhaps overruled altogether.

But in any event whatever the status of this special treatment of FCC regulation of over-the-air broadcasting, it has never been extended to allow state law to be used to restrict supposed political misinformation, including on broadcasting networks.

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[Eugene Volokh] Sixth Circuit Will Rehear En Banc Case Involving High School's Pronoun Policy

The order granting rehearing was just filed today, so the court will reconsider the case in the coming months. Here's an excerpt from the now-vacated panel majority opinion (Judge Jane Stranch, joined by Judge Stephanie Davis), which deals with school policies that "prohibit students from repeatedly and intentionally using non-preferred pronouns to refer to their classmates":

Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) … does not require school authorities to wait for a disturbance before regulating speech, nor does it "require certainty that disruption will occur." Even this limited preliminary injunction record contains evidence of the substantial disruption that repeated, intentional use of non-preferred pronouns to refer to transgender students can cause. The PDE parent-members themselves "understand[]" that use of non-preferred pronouns "will be considered 'insulting,' 'humiliating,' 'dehumanizing,' 'derogatory,' and 'unwanted' to those who want to go by different pronouns."

PDE also attached to its preliminary injunction motion an article containing a therapist's explanation that students who "have been misgendered all day" often become "traumatized," "humiliated," and "cry after school." This evidence dovetails with a study, cited by the district court, collecting literature on the "measurable psychological and physiological harms" that can be caused by use of non-preferred pronouns. And it supports the conclusion that transgender students experience the use of non-preferred pronouns as dehumanizing and that, as a result, the repeated use of such pronouns can have severely negative effects on children and young adults….

PDE … asserts that by preventing the use of non-preferred pronouns, the District's policies unconstitutionally discriminate based on viewpoint. Depending on the speech's forum, the government may sometimes enact content-based restrictions on speech, but "viewpoint discrimination"—that is, "regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction"—is typically "presumed impermissible." Rosenberger v. Rector (1995).

Although the Supreme Court has suggested that "it might well be appropriate to tolerate some targeted viewpoint discrimination in [the] unique setting" of public schools, our precedent requires that restrictions on student speech be consistent "with both the Tinker standard and Rosenberger's prohibition on viewpoint discrimination." As a result, a school may engage in content discrimination, which is "permissible if it preserves the purposes of" the forum (e.g., prohibiting disruption), but not "viewpoint discrimination, which is presumed impermissible when directed against speech otherwise within the forum's limitations" (e.g., prohibiting selected forms of disruption based on the ideology expressed).

Applying this standard in the public school context, we have explained "that a blanket ban on the use of `odious racial epithets' by 'proponents of all views' constitutes mere content-based regulation, while a ban on the use of racial slurs by one group of speakers but not 'those speakers' opponents' constitutes viewpoint-discrimination." Likewise, a dress code that bars all clothing exhibiting "symbols which 'cause[] disruption to the educational process'" is a permissible content-based regulation, whereas one banning certain "racially sensitive symbols and not others" is impermissible viewpoint discrimination, In other words, schools may permissibly enact and enforce blanket bans on particularly disruptive symbols or speech, but may not regulate speech as a means of silencing a particular viewpoint.

The challenged Policies here proscribe harassment, misconduct, and other disruptive speech across a variety of categories. That structure, and the District's position that students may communicate their belief that sex is immutable through means other than the use of non-preferred pronouns, indicate that the District is not attempting to prohibit any viewpoints. Nor is there any evidence, on this preliminary injunction record, that the District's enforcement of the Policies is different regarding gender identity as compared to any other protected characteristic….

And from Judge Alice Batchelder's dissent:

As I understand it, the plaintiffs' position—based on their scientific (biology, physiology, and genetics) and religious beliefs—is that biological gender is immutable, people are either male or female, and there is no such thing as "gender transition"; that is a made-up thing, imaginary or make believe, and a public school cannot force their children to pretend it is a real thing. Agree or disagree, but that is their position.

In that light, the speech at issue here concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering. The Olentangy Local School District's view—contrary to Parents Defending Education's—is that there is such a thing as gender transition; it is real, worthy of recognition and, in fact, worthy of protection in the public schools. Why else would the District require preferred pronouns, prohibit biological pronouns, or press the odd compromise of no pronouns at all? Therefore, the governmental authority (the District) has taken a clear position (viewpoint) in which all of its captive subjects (students) must affirm the existence of gender transition (either through words or silence), regardless of their own view. This is a viewpoint-based regulation of speech.

And in this light, it is also compelled speech—the students' only options begin from the District's viewpoint that gender transition is a real thing; from there the students must conform their own expression around that viewpoint. The Constitution prohibits this. See W. Va. State Bd. of Educ. v. Barnette (1943) ("If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in … matters of opinion or force citizens to confess by word or act their faith therein."); Tinker v. Des Moines Ind. Cmty. Sch. Dist. (1969) (schoolchildren do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate").

The majority proceeds from this premise as well, concluding that there is no compelled speech because students are not compelled to use preferred pronouns; they can comply by avoiding the use of otherwise ordinary and commonplace biological pronouns and by instead referring to these particular classmates by name only, using no pronouns at all. Obviously, this awkward adjustment (of using no pronouns) requires the speaker to recognize and accept that gender transition is a real thing and that it applies to these particular students.

The majority also concludes that there is no viewpoint problem here because the District has expressed no view about whether gender transition is good or bad, and the students remain free to discuss or debate it. That is like saying the school has taken no viewpoint on ghosts when it has students debate whether ghosts are good or evil. But the plaintiffs' point would be that there is no such thing as ghosts! And the school has no business forcing children to believe in ghosts. Again, whether you agree or disagree, PDE's position is that gender transition is fictitious, just like ghosts…. [And t]he lead Sixth Circuit case on viewpoint-based speech regulations confirms that a viewpoint-specific ban cannot survive regardless of whether it meets Tinker's substantial-disruption test.

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[Eugene Volokh] Are Punitive Damages Available in Publishers' Lawsuit Over Harassment Campaign by eBay Employees?

If you're in law school, take a Choice of Laws class (often called Conflicts of Laws); these issues come up in a huge range of cases, both involving state law and involving the law of foreign countries, and if you don't know the basics of choice of laws, you often won't even be able to know enough to do the necessary research. Here's how it plays out in a particularly lurid case, Steiner v. Ebay, Inc. (D. Mass.); an excerpt from today's decision by Judge Patti Saris (for more, see this post about the civil case and this one about the criminal prosecution):

In this extraordinary and troubling case, eBay, an e-commerce company, conducted a campaign to silence Ina and David Steiner, a married couple living in Natick, Massachusetts, through harassment, stalking, and threats. The Steiners own and operate a trade publication [EcommerceBytes] that published critical coverage of eBay. In response, as alleged, eBay's top executives and employees made online threats, signed the Steiners up for over fifty unwanted email subscriptions, and sent disturbing packages to their home, including fly larvae, spiders, a bloody pig mask, and a funeral wreath.

The planning for this illegal campaign originated in California, where much of the online activity also took place, but other actions, like the surveillance and vandalism of the Steiners' home, occurred in Massachusetts. As a result of the harassment campaign, seven individuals involved in the conspiracy were criminally charged and have since pleaded guilty. The Steiners filed this civil suit against multiple defendants, including eBay. Now, both eBay and the Steiners have moved for partial summary judgment on the issue of whether Massachusetts or California law will govern the question of punitive damages….

The parties agree that Massachusetts law governs questions of liability and compensatory damages but disagree on whether this Court should apply Massachusetts or California law to the issue of punitive damages for six of the Steiners' remaining claims against eBay. The parties and the Court also agree that California and Massachusetts law conflict: punitive damages are available under California law but not under Massachusetts law for the relevant causes of action. Compare Pine v. Rust (Mass. 1989) ("Punitive damages are not favored in Massachusetts, and we have long followed the principle that, absent statutory authorization, punitive damages may not be awarded."), with Haigler v. Donnelly (Cal. 1941) ("If … the action is one in tort, exemplary damages may be recovered upon a proper  showing  of  malice,  fraud  or  oppression ….")….

In an action based on diversity jurisdiction, this Court must apply the conflict of law rules of the forum state [here, Massachusetts]. Massachusetts courts employ a "functional choice of law approach." "Under the functional approach, the forum applies the substantive law of the state which has the more significant relationship to the transaction in litigation." To determine which state has the more significant relationship to the transaction, Massachusetts courts rely primarily on the Restatement (Second) of Conflict of Laws. For a tort claim, the Restatement provides the following factors: (1) where the injury occurred, (2) where the conduct causing the injury occurred, (3) where the parties are domiciled, reside, incorporated, or maintain their place of business, and (4) where the relationship, if any, between the parties is centered. "[T]here is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction… . [T]he  disposition  of … issues  must turn … on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented." …

In the context of punitive damages, "[m]any courts have held that the state of the injury and of the alleged wrongful conduct has a more significant relationship to the issue of punitive damages than does the state of plaintiff's domicile." This is because, as the Restatement suggests, if the purpose of the law "is to punish the tortfeasor and thus to deter others from following his example, there is better reason to say that the state where the conduct occurred is the state of dominant interest."

It is necessary to identify the state where the relevant events and conduct took place tort-by-tort. The significant contacts and conduct took place either in California or Massachusetts. The Steiners argue that all the wrongful conduct emanated from California, where eBay maintains its principal place of business and the defendants made key decisions regarding the harassment. Conversely, eBay asserts that a substantial amount of the conduct that caused injury occurred in Massachusetts—where the surveillance, stalking, and physical activities were carried out—making Massachusetts the more appropriate jurisdiction for punitive damages….

The Steiners' claims of trespass, false imprisonment, and Massachusetts Civil Rights Act violations are rooted in actions taken in Massachusetts, chiefly the physical surveillance and vandalism that exacerbated their fear for personal safety. The defendants traveled to Natick, Massachusetts, to vandalize the Steiners' fence, install a GPS tracker on their car, and "predatorily stalk and surveil" them. In addition to these actions, the Steiners claim the "incessant packages" that arrived at their home in Massachusetts forced them to remain confined to their home and threatened to silence their blog. In short, the most distressing conduct underlying the claims of trespass, false imprisonment, and Massachusetts Civil Rights Act violations occurred in Massachusetts.

The torts of intentional infliction of emotional distress and civil conspiracy present a closer question. The Steiners' distress stems not only from the conduct described above—being followed, surveilled, stalked, and tailed—but also from a broader range of concerted, online conduct. The defendants bombarded the Steiners with online threats, menacing deliveries, doxing, and unwanted email subscriptions. The defendants' online activity, including the online threats and ordering of threatening packages, originated from eBay's place of business in California. California is also the state where the defendants originally formed their plans to "intimidate, threaten to kill, torture, terrorize, stalk and silence" the Steiners. eBay's California campus allegedly served as the "security nerve center" where Baugh and his co-conspirators orchestrated their harassment campaign. From there, the defendants made plans to travel from California to Massachusetts, ordered threatening packages, subscribed the Steiners to unwanted emails, sent online threats, and, once law enforcement became involved, undertook efforts to cover up the investigation.

As a result, with respect to the claims for trespass, false imprisonment, and Massachusetts Civil Rights Act violations, Massachusetts contacts "predominate, as that state is the place of injury, the place of much of the relevant conduct, and the place where the relationship between [eBay] and the [Steiners] … is centered." However, with respect to the intentional infliction of emotional distress and civil conspiracy claims, California's countervailing interest in deterring such malicious and extreme conduct by its corporate domiciles prevails since the most significant of the unlawful conduct took place within its borders. Consequently, for these claims, the Steiners in this case rebut the general presumption that the law of the state where the injury occurs governs….

[As to the defamation claim,] Massachusetts law applies. Under § 150, "[w]hen a natural person claims that he has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state." …

Rules of defamation are designed to protect a person's interest in his reputation. When there has been publication in two or more states of an aggregate communication claimed to be defamatory, at least most issues involving the tort should be determined … by the local law of the state where the plaintiff has suffered the greatest injury by reason of his loss of reputation. This will usually be the state of the plaintiff's domicil if the matter complained of has there been published.

Here, the Steiners allege that the defendants defamed them by sending sexually charged pornography to their neighbors, making defamatory comments to third parties, posting ads on Craigslist that the Steiners were sexual swingers and inviting potential partners to their home, tweeting false statements, and creating fake "Persons of Interest" files on the Steiners.

Statements posted online have "a greater potential to spread," and here, the postings meant to solicit strangers to the Steiners' home were directed at Massachusetts. Further, defamatory mail was sent to the Steiners' neighbors, also in Massachusetts. Because the mail was sent to persons in Massachusetts and not to persons in California, the pornographic magazines in David Steiner's name were published only in Massachusetts.

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[Jonathan H. Adler] Divided D.C. Circuit Panel Refuses to Enjoin D.C. Magazine Cap

On Tuesday, in Hanson v. District of Columbia, a panel of the U.S. Court of Appeals for the D.C. Circuit divided over whether to grant an injunction against enforcement of D.C.'s magazine cap, which limits a magazine to ten bullets. Judge Millett and Senior Judge Ginsburg joined a per curiam opinion for the court. Judge Walker wrote a lengthy dissent.

Here is the introduction to the per curiam majority:

After the Supreme Court's landmark ruling in District of Columbia v. Heller, 554 U.S. 570 (2008), the District of Columbia revised its firearms laws to cap the capacity of firearm magazines at "10 rounds of ammunition." D.C. Code § 7-2506.01(b). Over a decade ago, applying the then-prevailing intermediate scrutiny standard of review, we held the magazine cap did not violate the right to bear arms secured by the Second Amendment to the Constitution of the United States, which provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." See Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1264 (D.C. Cir. 2011). Since then, the Supreme Court has rejected "means-end scrutiny in the Second Amendment context," in favor of asking whether a challenged restriction is consistent with "the Nation's historical tradition of firearm regulation." N.Y. State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 19, 24 (2022).

Seeing a new opening, the Appellants have charged once more unto the breach. They argue the District's magazine cap is unconstitutional under the test set forth in Bruen and moved the district court for a preliminary injunction to prohibit enforcement of the magazine cap. The district court denied the motion. Because the Appellants have failed to make the "clear showing" required for a preliminary injunction on this early and undeveloped record, Winter v. Nat. Res. Def. Council, 555 U.S. 7, 22 (2008), we affirm the denial of their motion.

Judge Walker's dissent opens with a simple syllogism.

In District of Columbia v. Heller, the Supreme Court held that the government cannot categorically ban an arm in common use for lawful purposes. Magazines holding more than ten rounds of ammunition are arms in common use for lawful purposes. Therefore, the government cannot ban them.

And here is how he concludes:

Mark Twain once told a story about an evening at church. He said that at first the sermon was so inspiring that he planned to put $400 into the collection plate: "I wanted to give that and borrow more to give." But then his opinion of the sermon tapered off: "My enthusiasm went down, down, down — $100 at a time, till finally when the plate came round I stole 10 cents out of it."

I agree with most of what the majority says in the first 18 pages of its clear, concise, and eloquent opinion. I agree that plus-ten magazines are likely "'Arms' within the meaning of the Second Amendment," "in common use" for the lawful purpose of "self-defense," and covered by "the Second Amendment's plain text." And I agree that a ban on plus-ten magazines is not analogous to regulations about the storage of gunpowder; or to restrictions on the time, place, and manner of carrying arms; or to state laws from the Prohibition Era directed at machine guns.

But then I part ways with the majority in two respects.

First, the majority reads Heller to leave open the question of whether the government can ever ban an arm in common use for lawful purposes. In contrast, I read Heller to answer that question. It held that "a complete prohibition of their use is invalid."

Second, even assuming that the validity of those bans is an open question, the majority gets the answer wrong. D.C. has failed to "demonstrate that [its] regulation is consistent with this Nation's historical tradition of firearm regulation."

The majority's contrary conclusion depends on two types of regulations. But neither of them is analogous. The first of them — a "handful" of laws enacted nearly a century after the Second Amendment's ratification in two outlier states and a territory — did not cover arms kept at home or carried while traveling; in addition, those laws are too little and too late to establish a historical tradition. As for the second purported analogue, it covered only "unusual" arms — not arms in common use for lawful purposes. So neither demonstrates a tradition of laws imposing a burden comparable to D.C.'s complete ban on commonly possessed plus-ten magazines.

Because D.C.'s law violates the right to keep and bear arms guaranteed by the Second Amendment, I would reverse the district court's decision and direct it to enter a permanent injunction.

I respectfully dissent.

Both opinions are lengthy, the dissent especially so (and it includes 233 footnotes).

The Court is likely to take another gun case in the near future, either concerning the sorts of weapons that may be prohibited or (as here) concerning limitations on magazine size. If the latter piques the Court's interest, perhaps this could be the vehicle—if not in this preliminary posture, than on the merits.

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[Orin S. Kerr] Fourth Circuit Votes to Rehear Its Geofence Warrant Case

I've blogged a lot about the recent geofence warrant cases in the Fourth Circuit and the Fifth Circuit, which reached opposite conclusions on whether access to geofence records is a search (and in the latter case, held all geofence warrants unconstitutional). Today the Fourth Circuit announced that will rehear its geofence warrant case, United States v. Chatrie, en banc.  Meanwhile, the Fifth Circuit's petition for rehearing is still pending.

While we're at it, it's interesting to ponder an aspect of modern Fourth Amendment litigation in play with these cases. Although the theoretical basis of the litigation is possible suppression of evidence—the defendants have filed motions to suppress—all the uncertainty about the law doesn't mean there's real uncertainty as to who will win. The reason is the good-faith exception to the exclusionary rule, which as a practical matter reserves suppression of evidence for particular violations—typically, ones that were clear ex ante.  The scope of the good-faith exception to the exclusionary rule is uncertain, but the exception is at its strongest when courts resolve novel issues of Fourth Amendment law.  Even with the panel ruling in Smith, the Fifth Circuit's remarkable decision saying that all geofence warrants are unconstitutional, the government won in the end on the good-faith exception.

This echoes a common pattern these days in caselaw on the Fourth Amendment and digital evidence. As a practical matter, litigation over novel questions of Fourth Amendment law provides opportunities for courts, if they want, to issue optional advisory opinions on the law going forward.  In some cases, courts they take the option and issue an opinion that has holdings to guide future courts.  But quite often, courts decline to hand down rulings on the law and say, well, whatever the constitution means, there's no remedy under the good-faith exception. This is what has happened in a bunch of the major cases I have blogged about here, such as the Second Circuit's ruling in United States v. Ganias, and the Fifth Circuit's ruling in United States v. Morton. Lots of discussion of critically important questions, and then, ultimately, no answer.

I would speculate that this might be one of the reasons that the Supreme Court has largely stayed away from Fourth Amendment law in the last few years.  The ever-broader good-faith exception leads to fewer merits rulings. I had a research assistant look into this, and the numbers checked out; there are fewer precedential merits rulings on Fourth Amendment law these days than in the past. And fewer merits rulings means fewer splits.  So no one knows what the law is, and new litigation on the most important issues often ends without a ruling on what the law is.  This is a big problem if you're interested in knowing what your rights are, but I take it to be a dynamic the Justices just haven't been all that worried about.

Anyway, fingers crossed that the Fourth Circuit and Fifth Circuit don't just resolve their cases on the good-faith exception in the end without reaching the merits.  And stay tuned for the en banc argument in the Fourth Circuit, and for a decision on whether the Fifth Circuit will grant rehearing, too.

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