Eugene Volokh's Blog, page 235

[Orin S. Kerr] The Open Fields Doctrine and the Text of the Fourth Amendment

This essay in the print edition of Reason argues that courts should overturn the "open fields" doctrine of the Fourth Amendment:

In a decision issued at the dawn of Prohibition, the Supreme Court quietly gutted a freedom guaranteed in the Bill of Rights: the protection against unwarranted search and seizure. The 100th anniversary of that decision is a perfect time to kill the open fields doctrine.

In 1919, revenue agents spotted Charlie Hester selling a quart of moonshine outside his South Carolina home. When confronted, Hester and the buyer each dropped their jugs, which shattered but retained a portion of their contents. That allowed the agents to determine the jugs contained illegally distilled whiskey.

Hester challenged his arrest as a violation of the Fourth Amendment: The agents had hopped a fence and traipsed across a pasture, without a warrant, to get to him. In 1924, the Supreme Court sided with the government in Hester v. United States. Justice Oliver Wendell Holmes wrote for the majority that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields." Ostensibly, Holmes' open fields doctrine held that a person's home and the "curtilage"—the area immediately surrounding the home—receive full Fourth Amendment protection, while the rest of one's property does not.

Holmes' decision is less than three pages long, but the damage it's caused to personal liberty and the right to be free from government intrusion has been huge.

The proposal, as I understand it, would be to extend the curtilage protection to all land. Any entry onto a person's land would require a warrant under the Fourth Amendment.  The essay also argues that there should be state constitutional protections or statutory protections to have the same effect.

I want to focus on the Fourth Amendment part of the argument.  There seems to me a problem with eliminating the open fields doctrine: How do you square that with the Fourth Amendment's text?

The text of the Fourth Amendment text does not impose a ban on unreasonable searches in some general or abstract sense.  The language is more specific: the protection is against unreasonable searches and seizures of "their persons, houses, papers, and effects[.]"  To be protected by the Fourth Amendment, the thing searched has to be a person, house, paper, or effect.

The idea of the open fields doctrine is that an open field is not a person, not a house, not a paper, and not effects (which means movable personal property). Following the text, you don't get protection on the land itself—unless you have your person, house, paper, or effects there.

What about the "curtilage"?  The idea of curtilage is that there are some spaces so close to the house that they are functionally part of it, even if technically outside the house. You need to protect those spaces as a sort of penumbra around the house to fully protect the house. That prevents an officer from hanging out on your front porch all day, or walking right right up to your kitchen window and just staying there watching you inside. To protect the home, the law treats the area right around the home as the home. It gets called the "curtilage," a common law concept for the area right around the home that (in the old days) was treated as the home for some purposes.  See Jacob Giles, A New Law Dictionary (1732) (defining "curtilage" as a "Court, Yard, Backside, or Piece of Ground lying near and belonging to a Dwelling-house").

Some might object, textually, that using an emanations-and-penumbras-type argument to extend the "house" to the curtilage area technically outside the house is a bit of a stretch. Others might think it's textually fair, as "searching" a "house" shouldn't require physical entry inside it if outside space is used as an extension of it. Either way, I think it's challenging, at least if you take text seriously, to argue that any land a person owns fits within the categories of "persons, houses, papers, [or] effects" even if it's just an open field not near a house.

Of course, you can endorse or oppose the open fields doctrine as a matter of policy.  But at least for those focused on the text, it seems to me a pretty sound way to interpret the Fourth Amendment.

The post The Open Fields Doctrine and the Text of the Fourth Amendment appeared first on Reason.com.

[Eugene Volokh] Journal of Free Speech Law: My "The Future of Government Pressure on Social Media Platforms"

The article is here; the Introduction:

Throughout the mid-twentieth century, many commentators sharply criticized the perceived oligarchy of mass communications. "Freedom of the press," journalist A. J. Liebling famously said in 1960, "is guaranteed only to those who own one." For a while in the early 2000s, thanks to the "cheap speech" made possible by the internet, everyone seemed to own a printing press capable of producing and distributing thousands (sometimes millions) of copies of one's electronic leaflets. Many thought that the future of free speech was therefore one with broad freedom for speakers.

But now, we see it was too good to be true—for certain values of the variable "good." It turns out that, today, we're just borrowing printing presses: Facebook's, X's (formerly Twitter), YouTube's. Even those of us who have our own blogs rely on hosting services such as WordPress, GoDaddy, and the like. And while most of the time these services are happy to let us use them, some of the time they say no. This platform interest in restricting speech has surged in the last ten years, and it seems likely to grow further.

What to do about this is one of the main free speech questions likely to occupy courts and legislatures in at least the near future. It arises in various contexts. For instance, are state laws that ban viewpoint discrimination by private platforms wise and consistent with the First Amendment, Section 230 of Title 47 of the U.S. Code (which gives internet service providers and platforms certain immunities from state regulation), and the Dormant Commerce Clause (which limits state authority to regulate interstate transactions)? What should we think about calls for greater "responsibility" on the part of platforms and other intermediaries? And, especially important, when may the government encourage or pressure social media platforms and other intermediaries to restrict speech on their property?

We can expect greater and more organized government pressure of this sort. Some of the most important future free speech debates will be about whether courts and legislatures should step in to stop such pressure. The social media revolution has turned social media platforms into tremendously powerful political actors, capable of swaying close elections. But it has also made them relatively susceptible to pressure from foreign and domestic governments, advocacy groups, large commercial entities, and collaborations between these forces (for instance, when advocacy groups encourage both government action and advertiser boycotts).

It's difficult for the government to control debate in thousands of newspapers or on millions of user sites, whether it tries to exert control through the threat of regulation, through the threat of congressional investigation or condemnation, or just through noncoercive attempts at persuasion. And even were it an easier task, controlling each publisher would yield only limited benefits to the government.

Some publishers may also resist regulation out of conviction—especially because it is their own speech the government is trying to control—or a business interest in continuing to cover what their competitors have stopped covering. Publishers also often have a tradition of adversarial relations with the government, so when the government asks them to remove content (or not publish it in the first place) such requests are viewed skeptically by default.

But social media platforms are more tempting targets than traditional print publishers, and they and their heirs will likely continue to be so. From the mid-2010s until today, social media entities have been persuaded to implement a range of restrictions on supposed "hate speech," on supposed "misinformation" about medicine or elections, and even for a time on allegations that COVID-19 leaked from a Chinese government lab. Some of that persuasion (or perhaps pressure) has come from the U.S. federal government. The Supreme Court recently heard a case involving such government action, Murthy v. Missouri (2024), but dismissed it on procedural grounds.

Such government action may have substantial costs and benefits. I don't know with any confidence what, if anything, ought to be done about it. But I want to lay out some observations that I hope might help others to explore the matter.

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[Josh Blackman] Today in Supreme Court History: October 31, 1963

10/31/1963: Cleveland Police Detective patted down, and arrested John W. Terry.

The Warren Court (1962-1965)

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[Eugene Volokh] Court Declines to Dismiss One of the Libel Suits by Anthropologist Accused of Mishandling Human Remains from Project MOVE Bombing

From Judge Mia Roberts Perez's opinion Monday in Monge v. Univ. of Penn.:

Dr. Janet Monge, an anthropologist and former curator of Penn Museum, brings this action against several individuals and news outlets following statements they made concerning her work with human bone fragments recovered from the 1985 MOVE bombing in Philadelphia….

Hyperallergic Media ("Hyperallergic") is a New York corporation that operates an online arts and current events magazine. On October 31, 2021, Hyperallergic published an article titled "How the Possession of Human Remains Led to a Public Reckoning at the Penn Museum." …. Dr. Monge contends that the article "falsely blames [her] for a racially motivated investigation of the bone fragments" by stating that "Consuella [sic] did not consent to Monge's continued use of her daughter's remains for research. Even after those objections, Monge used Tree Africa's remains for teaching." …

"[C]ourts applying Pennsylvania law have found that even where the complained-of statements are literally true, if, when viewed in toto, the accurate statements create a false implication, the speaker may be liable for creating a defamatory implication." As such, "the literal accuracy of separate statements will not render a communication true where the implication of the communication as a whole was false." …

Dr. Monge alleges that she "sought to contact the MOVE family"—specifically, Katricia (Tree) Africa's mother, Consuewella Africa—for a DNA sample to assist in identifying the remains. "Despite multiple efforts to communicate with Consuella [sic] … Dr. Monge failed to retrieve a DNA sample from any of Katricia's relatives." Without a DNA sample, "Dr. Monge was forced to label the case 'cold' …."

Dr. Monge further alleges that, after attempting to contact the MOVE family, she used the bone fragment remains in her Coursera course to "compar[e] those fragments to other similar bone fragments and models for comparison and explain[] how forensic techniques could be used to determine the age of the remains." Thus, it is literally true that Dr. Monge did not obtain Consuewella Africa's consent to use the bone fragment remains for research, and Dr. Monge then used the bone fragment remains when teaching her Coursera course.

However, "[a] publisher is … liable for the implications of what he has said or written, not merely the specific, literal statements made." "The legal test to be applied is whether the challenged language could 'fairly and reasonably be construed' to imply the defamatory meaning alleged by a plaintiff." …

Dr. Monge alleges that she attempted to contact Consuewella Africa through a conduit, local writer Malcolm Burnley. She further alleges that Mr. Burnley did not have a meaningful conversation with Consuewella Africa. Thus, taking the allegations as true and drawing all reasonable inferences in Dr. Monge's favor, neither Dr. Monge nor Mr. Burnley discussed the bone fragment remains with Consuewella Africa. Notwithstanding this, the article can be read to imply that Dr. Monge did contact Consuewella Africa, and Ms. Africa affirmatively told Dr. Monge not to use the bone fragment remains in her research. See [Complaint] ("Even after those objections, Dr. Monge used Tree Africa's remains for teaching." (emphasis added)).

"[E]ven where a plausible innocent interpretation of the communication exists, if there is an alternative defamatory interpretation, it is for the jury to determine if the defamatory meaning was understood by the recipient." Because the Hyperallergic article can be reasonably construed to imply that Dr. Monge acted unprofessionally and potentially with a racist impetus, the fact that the challenged statements are largely true does not mandate dismissal of the defamation by implication claims against the Hyperallergic Media Defendants….

[T]he challenged statements imply the undisclosed fact that Consuewella Africa told Dr. Monge not to use the bone fragment remains for research when, according to the Second Amended Complaint, Dr. Monge did not discuss the bone fragment remains with Ms. Africa. Because the Hyperallergic article's opinions imply undisclosed facts that are untrue, the article is capable of a defamatory meaning….

My quick reaction: The result is likely right, but I don't think it fits well with a "defamation by implication" theory.

Rather, the alleged libel consists of two claims—that (1) the mother "did not consent to Monge's continued use of her daughter's remains for research" and that (2) the mother made "objections" and Monge proceeded despite those objections. Claim 1 is true (there was no consent), but claim 2, according to Monge, is not (there were no objections).

There's thus no need here for a discussion of whether "accurate statements create a false implication." Rather, it looks like the implication stems from the allegedly inaccurate statement about there being "objections," not from the accurate statement that Consuella did not consent.

Note that, in separate short opinions, the court also rejected Monge's claims against other defendants who only discussed the use of the remains (and expressed opinions based on that), and didn't make the "after those objections" statement.

The post Court Declines to Dismiss One of the Libel Suits by Anthropologist Accused of Mishandling Human Remains from Project MOVE Bombing appeared first on Reason.com.

[Eugene Volokh] Professor-v.-Professor Defamation Suit Can Go Forward, Based on Defendant's Statements to Students

From Porter v. Sergent, decided yesterday by Sixth Circuit Judge Raymond Kethledge, joined by Judges Richard Griffin and John Bush:

Professor David Porter sued his former employer, Berea College, for employment discrimination, retaliation, and breach of contract, and he sued his former colleague, Professor F. Tyler Sergent, for defamation, portrayal in a false light, and retaliation….

In describing the facts for purposes of summary judgment, we view the record in the light most favorable to Porter.

David Porter, a white male in his late 60s, was a tenured professor of psychology and general studies at Berea College from 2005 until September 2018. In March 2017, a younger female colleague, Wendy Williams, initiated a Title IX complaint against the then-chair of the psychology department, Wayne Messer, for allegedly creating a hostile-work environment for women. Two of Williams's female colleagues later joined the complaint. Porter served as Messer's advisor throughout the grievance proceedings. In September 2017, a disciplinary board found Messer guilty, and Berea's president, Lyle Roelofs, removed Messer as department chair. Soon afterward, in email exchanges with President Roelofs and Dean Chad Berry, and in an open letter to campus, Porter said that the proceedings against Messer had been flawed and unfair.

In February 2018, for one of his psychology courses, Porter created a survey to measure "community perceptions and attitudes about academic freedom, freedom of speech, and hostile work environments under civil rights law." The survey contained hypothetical scenarios based on Porter's observations of Messer's Title IX investigation. But the survey did not include any names, and its instructions disclaimed any "relationship between these scenarios and actual events, either here at Berea College or elsewhere." Porter shared the survey with a few of his colleagues, including Messer, who worried that it might be "highly inflammatory."

Porter later emailed the survey to all the students and faculty at Berea, which stirred controversy on campus. Williams posted on Facebook that she was "one of the not anonymous targets of [the] survey," and that the scenarios were a "biased portrayal" of her Title IX complaints. Dean Berry asked Porter to remove the survey from the internet, and Porter later sent a campus-wide email in which he apologized for the survey's flaws and for its negative impact on Berea's students and faculty.

On February 22, 2018, President Roelofs sent Porter a letter notifying him that Dean Berry had initiated disciplinary proceedings to seek Porter's dismissal. Attached to the letter was a "statement of grounds for dismissal," which asserted (among other things) that Porter's survey had harmed his students and colleagues. The letter itself cited a provision of Berea's Faculty Manual, which said faculty can be terminated for cause if they engage in "personal conduct which demonstrably hinders fulfillment of professional responsibilities." In the letter, Roelofs suspended Porter with pay and told him to stay off campus except to attend disciplinary hearings.

F. Tyler Sergent is a history professor at Berea, a faculty advisor to the Student Government Association (SGA), and Williams's husband. After Porter's suspension, the SGA voted to give Porter its annual Student Service Award. Sergent expressed his "vehement objection" to that decision in a series of emails to three students on the SGA Executive Committee and to another faculty advisor, Rachel Vagts. In the first email, Sergent said Porter should not receive the award because Porter had defended Messer's "racist, sexist, and homophobic comments" in the Title IX case. Sergent also accused Porter of making "sexist, disparaging remarks" about his female colleagues, and of falsely "disclosing personal medical records of one"—namely Sergent's wife, Williams. Sergent also said the students supporting Porter were "victims of manipulation by an unethical, unrepentant, academically dishonest person who is in process of rightly being fired from Berea College."

Vagts, the other faculty advisor, replied in agreement and copied Yabsira Ayele, another student on the SGA executive committee. But Ayele defended the SGA's decision, emailing the group that Porter was worthy of the award because of "his excellence in service to students." Sergent responded that he was "not inviting a debate with you or anyone else who would defend the unethical action of David Porter—they are indefensible." Ayele replied that he was entitled to his opinion; but Sergent responded that Ayele was not entitled to an opinion on this issue, and he warned Ayele "against burning bridges this early in your education, particularly for the wrong side of the cause." The SGA soon held a meeting and rescinded the award.

In April 2018, after a two-day hearing, a disciplinary committee led by Dean Berry recommended that Porter be terminated. President Roelofs later accepted the committee's recommendation and fired Porter. Thereafter Porter brought this suit, which the defendants removed from state court to federal. After discovery, the district court granted summary judgment in favor of the defendants. This appeal followed.

The court rejected Porter's discrimination, retaliation, and breach of contract claims against Berea College, but allowed his defamation claim against Sergent to proceed:

Porter claims that Sergent defamed him in emails to four student members of the SGA and to Sergent's co-advisor….

In some contexts, … Kentucky courts apply a "qualified privilege" of "common interest." That privilege applies when the message's recipients share a "corresponding interest" with the speaker. The privilege's purpose is to protect even defamatory per se statements when "the societal interest in the unrestricted flow of communication is greater than the private interest" against being defamed. When a qualified privilege attaches, "even 'false and defamatory statements will not give rise to a cause of action unless maliciously uttered.'"The privilege negates the presumption of injury for statements that are defamatory per se, and the burden shifts back to the plaintiff to prove that the statements were made with "malice," which means "malevolence or ill will." The privilege is "[n]ot an absolute defense," but its "protection can be lost through unreasonable actions amounting to abuse."

On April 8, 2018, Sergent sent an email to three student members of the SGA's Executive Committee and his fellow faculty advisor, Rachel Vagts, in which Sergent expressed his "vehement objection" to the SGA's decision to give Porter the service award, and asked the group to "share this with everyone else on the executive committee for tonight's meeting." In the email, Sergent objected to Porter's defense of Messer in the Title IX proceedings, accused Porter of making "sexist, disparaging remarks" about the female faculty members who had brought the Title IX complaint against Messer, and asserted that Porter had "disclos[ed] personal medical records of one"—referring to Sergent's wife, Williams. Sergent then listed what he called the "reasons for which Porter has been suspended and is in the process of being fired," including "academic dishonesty," "gross ethical violations," "incompetence," and "manipulation of students." Sergent added that the students who nominated Porter for the award were "victims of manipulation by an unethical, unrepentant, academically dishonest person who is in process of rightly being fired from Berea College." He concluded that the "SGA can and ought to do better."

Student Yabsira Ayele replied with a defense of the SGA's decision. Sergent responded, in relevant part:

I am not inviting a debate with you or anyone else who would defend the unethical action of David Porter—they are indefensible just like racism and any other of form discrimination—or any other faculty member who has caused harm to other members of our community. Rewarding those actions and the harm coming from them is not the Berean way. The administration has good reasons for suspension and the case will be adjudicated.

I gave my advice and detailed my reasons for that advice. I have no doubt that you believe you are doing what is right. But there are people giving you advice who know a great deal more about this situation than you do.

Sergent also warned, "you do not want to be among a group of student leaders on the wrong side of Berea's history. Therefore, I urge the SGA to heed our advice."

Ayele responded, "You are entitled to your opinions and I am entitled to mine." He wrote that he was "disappointed" with Sergent's position and added, "[t]o threaten me is unethical. I do not know the entire situation and you don't either." Sergent then replied, in relevant part:

Until you actually know something about the situation, there is no basis for debate or dialogue. I voiced my advice as part of my role as elected faculty advisor …. Clearly you have no interest in my advice or the advice of your other faculty advisor, both of whom know much more than you about a great many things directly related to this situation ….

One last bit of advice: I would caution you against burning bridges this early in your education, particularly for the wrong side of a cause.

Do not email me again regarding this issue.

Dr. Sergent

The parties agreed at summary judgment that these emails are defamatory per se, which the district court noted "makes good sense" because they tended to "prejudice" Porter in his role as a professor. We agree: Sergent's statements that Porter was "unethical," "academically dishonest," "incompetent," and guilty of "manipulation of students" bear directly on Porter's "unfitness" to perform his job.

Sergent argues these statements were either true or non-actionable opinion—asserting that his email simply restated Berea's grounds for dismissal, as attached to President Roelof's February 22, 2018 letter to Porter. But that letter nowhere called Porter "incompetent" or guilty of "manipulation of students." Nor has Sergent identified any Kentucky case that holds a similar statement to be non-actionable opinion….

The district court nonetheless held that the emails were protected by the common-interest privilege—because, the court said, Sergent shared with the email's recipients an interest in giving the SGA award to a deserving person. But the court seemed to overlook that the privilege is "[n]ot an absolute defense." For the privilege is negated if the speaker "abuse[d]" the privilege or acted with "malevolence or ill will." And whether a speaker has done so is a question of fact for the jury.

A jury could easily make those findings here. For example, given that Sergent's wife, Williams, was a party to the very proceedings in which Sergent said that Porter had made "sexist" (etc.) comments, a jury could reasonably find that Sergent's "vehement objection" to the SGA's decision was fueled by more than a concern that the best possible recipient be chosen for the Student Service Award. A jury could likewise find that Sergent's remarks toward Ayele—an undergraduate student—were abusive. Indeed, Sergent himself admitted that another colleague, Dr. Smith, had criticized Sergent's "improper behavior" and his "attempts to intimidate" Ayele.

Smith also questioned Sergent's "judgment and fitness to continue as the SGA faculty advisor," and said that Sergent was "clearly too close to the situation to be objective." Sergent also admitted that—when he saw Porter on the street about 18 months after the email exchange—Sergent had shouted, "F— you, Dave" without provocation. Viewing all this evidence in the light most favorable to Porter, especially, a jury could find all the facts necessary for Porter to prevail on his defamation claim. The district court erred in concluding otherwise.

We also observe, for purposes of remand, that surely not every shared interest is weighty enough to allow one person, as a matter of law, to say anything he likes in defamation of another. And the interest the court cited here—choosing the recipient of a student award—strikes us as questionable, at least as measured against the statements at issue here. We invite the court to revisit that determination (with the benefit of more focused briefing than we have here) on remand….

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[Jonathan H. Adler] On Punishing Speech vs. Punishing Conduct

Cornell University recently sanctioned students who were involved in a protest that disrupted a university job fair. At least fifteen students have been suspended, according to this report.

After the sanctions were announced, a student asked  "Why are you punishing students for free speech?" a student asked interim president Michael Kotlikoff after the sanctions were announced. No one is being punished for speech, he explained. Rather, some students are being punished for disruptive conduct. The distinction is important.

This week, Kotlikoff wrote an op-ed for the Cornell Daily Sun explaining the distinction and the reasons for the university's approach. After explaining university policies, he writes:

no one has been referred for their speech, and free expression remains fully protected at Cornell. But we must understand the difference between protected speech and speech or actions that are designed to suppress the speech and rights of others. Recent Sun letters similarly appear to confuse this issue. Shouting or writing "f*ck you Boeing" is free speech and fully protected; preventing Boeing from discussing jobs with students is not. Calling someone a "kapo" is offensive, but protected speech; breaking through a police line is not.

When I quickly tried to point out this distinction to my questioner, she responded that "Boeing kills babies." That is not a free speech argument, but rather one that asserts a moral justification for violating the rights of others; that assumes the right to decide what activities other students may pursue, what conversations they may have and with whom they may have them. Whatever their argument, whatever the grounds on which they see their actions as justified, we need to be cleareyed about what those actions are: not the assertion of the right of free speech, but the presumption of the right to suppress the speech of others. Jefferson, the flawed individual, but great political theorist and proponent of free speech, asked when arguing against censorship and for religious freedom: "Whose foot is to be the measure against which ours are all to be cut or stretched?" Indeed, who gets to decide which university activities are acceptable and which are not?

No student at Cornell has been punished for expressing their beliefs. Neither will any student be permitted, whatever their feelings of moral righteousness, to forcibly deny others the rights that are central to our mission at Cornell: the rights to freely speak, converse and learn, with whomever and about whatever they choose.

Universities should endeavor to provide broad protection for speech, including offensive or uncomfortable speech, but this does not require excusing or ignoring disruptive conduct. Indeed, a particularly ill-advised approach would be to water down protections for offensive speech while failing to meaningfully punish (and thereby discourage) disruptive and destructive conduct, such as defacing university property, interrupting classes, or disrupting university operations, such as a job fair. Unfortunately, some universities seem intent on making that mistake.

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[Paul Cassell] The Twentieth Anniversary of the Crime Victims' Rights Act

In 2004, the United States Congress passed, and the President signed into law, the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act (the "CVRA"), codified at 18 U.S.C. § 3771—effective October 30, 2004.  Today, twenty years later, it is interesting to read Senator Kyl's law review article about the CVRA, written shortly after the Act went into effect.  Along with Steven Twist and Stephen Higgins, Senator Kyl described the law as part of a "civil rights movement" designed to reform criminal justice culture:

The CVRA is the latest enactment in a forty-year civil rights movement. The victims' rights movement seeks to end the unjust treatment of crime victims by reforming the culture of the criminal justice system in the federal government and the states. Before the victims' movement gained momentum in the 1970s and 1980s, this country's criminal justice system had come to treat all crimes as acts committed only against the community, and consequently gave the direct victims of crime little, if any, recognition. Believing that crimes are committed against individuals just as much as they are against the community, the crime victims' rights movement has sought to guarantee rights to crime victims through the state and federal legislative process. The movement has secured federal and state statutory reforms and even state constitutional amendments to ensure that innocent victims of crime are respected by the justice system. These efforts have had only mixed success in securing enforceable rights for crime victims.

Sen. Jon Kyl et al., On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act,  9 Lewis & Clark L. Rev. 581 (2005).

Senator Kyl went on to ask: "Whether the CVRA has the power to change the legal culture in the United States will soon be known as the case law develops. A watchful Congress, indeed a watchful nation, will monitor the law as it unfolds."

Now, twenty years later, has the legal culture changed? As somone who has litigated CVRA cases all over the country, I believe in the federal system the legal culture has changed for the better. While problems still exist, crime victims are now able to assert rights in federal cases—and have asserted rights frequently.  For example, shortly after the Act's passage, in 2006, the Ninth Circuit observed that the CVRA sought to make crime victims "independent participants in the criminal justice process." Kenna v. U.S. District Court, 435 F.3d 1011(9th Cir. 2006). And in that case, the Ninth Circuit ordered a re-sentencing to allow a victim to make a victim impact statement at sentencing.

My recent efforts in the U.S. v. Boeing case illustrate how victims of federal crimes can use the CVRA, as I've blogged about earlier. While the final chapter in the Boeing case has yet to be written, it is notable that the victims' families have been able to file motions in that criminal case–successfully challenging the Justice Department's position that only the FAA was the "victim" of Boeing's false statements and gaining a ruling from the Fifth Circuit that their rights must enforced throughout the process.

Earlier today, the National Crime Victim Law Institute held a virtual symposium on the CVRA and its legacy.  The symposium will be posted shortly on NCVLI's website here. I was one of the participants.

The panelists were all asked what is the biggest challenge for victims' rights today. And we all answered that legal services for crime victims' remains the top goal for protecting victims' rights going forward. Hopefully access to crime victims' legal services will expand in the future, making crime victims' rights under the CVRA available to more victims in more cases as time marches on.

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[Paul Cassell] When Prosecutors "Take a Dive" — The Purported "Error" in the Glossip Case

Previously I blogged about the Glossip case before the Supreme Court, in posts found here, here, and here. This death penalty case involves a prosecutor confessing a purported "error" where, in fact, no error exists.

This past weekend, I published an op-ed in The Hill that reviews the problem of prosecutors "taking a dive" by confessing nonexistent errors. Here's the introduction:

Earlier this month, Amherst College Professor Austin Sarat criticized Supreme Court Justices Clarence Thomas and Samuel Alito for asking pointed questions about death row inmate Richard Glossip's claim that his 2004 murder conviction should be overturned. After all, Oklahoma's new attorney general, Gentner Drummond, supports Glossip's contention that the trial prosecutors withheld evidence.

This popular narrative, however, is a manufactured and bogus claim. The prosecutors never withheld evidence. The case's true lesson is about the emerging dangers of prosecutors confessing phantom "errors," and sometimes even throwing cases on purpose.

You can read the whole op-ed here. Kent Scheidegger has some interesting discussion of the issues over at the Crime and Consequences blog.

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[Jonathan H. Adler] Why Has the D.C. Circuit Made It More Difficult to Find Opinions?

The U.S. Court of Appeals for the D.C. Circuit recently "upgraded" the opinion archive on its website. It is aesthetically appealing, but it is actually a significant step backwards for public access to the court's opinions.

In "upgrading" the site, the D.C. Circuit apparently re-indexed its opinions, revising the URLs. What this means is that all previously posted hyperlinks to D.C. Circuit opinions are now dead. Clicking on them does not pull up the opinion. Instead the user is dropped off on the opinion archive landing page. This, by itself, would be but a small annoyance if one could then simply search for the opinion question. Therein lies the rub, for there is no longer an opinion search function. Whereas on the old site one could search opinions by party name or docket number, there is no search capability at all on the new page. (There is, however, a way to browse by month and year, if one knows when a case was decided, but that's it.)

With these changes, the D.C. Circuit's website has gone from one of the better circuit court websites, in terms of the accessibility of its opinions to the public, to one of the worst. I hope this change is only temporary, and a search function is restored, as not everyone has access to PACER or on-line databases, and slip opinion PDFs remain superior for many purposes to available no-cost versions accessible on other sites.

While I am on the subject on circuit court opinions, let me also suggest that other circuits take a page from the U.S. Court of Appeals for the Sixth Circuit and include at the front of slip opinions a) how participating judges voted, and b) page numbers for any separate opinions. This is extremely useful information to include at the front of an opinion and there is no reason for courts not to provide it.

The post Why Has the D.C. Circuit Made It More Difficult to Find Opinions? appeared first on Reason.com.

[Eugene Volokh] Book Review (by Prof. Jacob Mchangama): "Fearless Speech" Doesn't Take First Amendment History Seriously

I'm delighted to pass along this book review by Prof. Jacob Mchangama (Vanderbilt), who is the author of Free Speech: A History from Socrates to Social Media and other works on free speech; he is also the CEO of The Future of Free Speech and Senior Fellow at the Foundation for Individual Rights and Expression.

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Mary Anne Franks claims that her new book, Fearless Speech: Breaking Free from The First Amendment, "offers a different and bolder perspective on free speech that takes power, harm, and history seriously." In this post (adapted from a thread on X) I provide a brief critique of Franks' thesis and methodology.

Franks argues that "First Amendment norms have consistently exalted and elevated reckless speech that benefits the powerful at the expense of the vulnerable. This exploration peels back the rhetoric of free speech to expose how it has perpetuated and maintained a neo-Confederate ideology of white male supremacy."

Franks rightly points out that proponents of slavery and white supremacy systematically censored proponents of equality. But she conveniently omits that many of those whose voices were quashed were deeply committed to a universalist and principled conception of free speech. Take Frederick Douglass, who is entirely left out of the book. Douglass insisted that "the right of speech is a very precious one, especially to the oppressed" and that "[n]o right was deemed by the fathers of the Government more sacred than the right of speech." To Douglass, free speech was "the dread of tyrants" and critical to the abolitionist movement.

Douglass also famously argued, "A man's right to speak does not depend upon where he was born or upon his color. The simple quality of manhood is the solid basis of the right—and there let it rest forever."

In the South, which criminalized abolitionist speech, Douglass would have been tortured and executed for his "incitement." In the North, where anti-slavery speech was better protected, he became a sensation who moved hearts and minds. In reflecting on Douglass' 1841 speech in Nantucket, William Lloyd Garrison wrote, "I shall never forget his first speech at the convention — the extraordinary emotion it excited in my own mind—the powerful impression it created upon a crowded auditory, completely taken by surprise—the applause which followed from the beginning to the end of his felicitous remarks. I think I never hated slavery so intensely as at that moment."

In her book, Franks jumps from Whitney v. California (1927) to lynchings and KKK terror to the Brandenburg decision in 1969. She argues that SCOTUS upheld the conviction of Anita Whitney under the "bad tendency" test but moved to a "reckless speech" standard in order to overturn the conviction of a KKK leader who threatened "revengeance" against Blacks and Jews in Brandenburg v. Ohio (1969).

But along the way, she forgets to mention landmark cases often brought by civil rights activists expanding their right to speak and breathing new life into the First Amendment to the benefit of all Americans. In Herndon v. Lowry (1937), the U.S. Supreme Court overturned the Georgia Supreme Court's upheld conviction of an African American who possessed Communist publications In NAACP v Alabama (1958), the court ruled Alabama violated freedom of speech and assembly by attempting to access membership lists of the NAACP. In Garner v. Louisiana (1961), the court ruled that Louisiana could not convict peaceful sit-in protestors under state's "disturbing the peace" laws. Edwards v. South Carolina (1963) found that the Constitution forbids state officials from forcing a crowd to disperse when legally marching for civil rights at the state house. And New York Times v Sullivan (1964) overturned the Alabama Supreme Court's defamation decision against supporters of Martin Luther King, who placed an ad in the New York Times, limiting the ability of public officials to sue for defamation.

Franks also omits that Justice Thurgood Marshall—a civil rights icon and the first black Supreme Court Justice—voted to overturn Brandenburg's conviction and establish the Brandenburg test that protects hate speech. Was Marshall also duped by neo-confederate ideology?

Moreover, two of the ACLU lawyers working on the Brandenburg case were Allen Brown, who is Jewish, and Eleanor Holmes Norton, an African American woman who went on to become a D.C. delegate to Congress (as a Democrat, not a member of the KKK). In an interview with C-SPAN, Holmes Norton argued why standing up for the neutrality of speech was important during the civil rights era and why "sometimes I gotta defend people who would not defend me."

Franks briefly cites civil rights leader John Lewis on democracy but omits his famous quote about how the First Amendment protections—won by the Civil Rights movement in Supreme Court cases such as those above—bolstered the fight for racial equality: "Without freedom of speech and the right to dissent, the Civil Rights Movement would have been a bird without wings."

Franks devotes a section to Terminiello v. Chicago (1949), which overturned the conviction of a defrocked Catholic fundamentalist priest who engaged in antisemitic speech and riled up a hostile crowd. As has become fashionable among First Amendment detractors, she cites Justice Robert H. Jackson's dissent about how the decision risked turning the Constitution into a "suicide pact."

But she omits that the Terminiello decision was cited in Edwards v. South Carolina to protect the rights of 187 Black peaceful civil rights protestors arrested by the police in Columbia, SC, over a decade later. A perfect example of the rich dividends of principled free speech.

Franks also argues that "[t]he civil libertarian 'bad precedent' theory of censorship similarly relies on a depoliticized, ahistorical account of reality that erases acts of oppression by powerful groups in the past and assigns a false power to vulnerable groups in the present." But in fact, Justice Jackson's opinions, such as in Dennis v. United States (1951), justified the restriction of unpopular political groups like communists during the Red Scare. In that case, Jackson argued,

"Also, it is urged that since the conviction is for conspiracy to teach and advocate, and to organize the Communist Party to teach and advocate, the First Amendment is violated, because freedoms of speech and press protect teaching and advocacy regardless of what is taught or advocated. I have never thought that to be the law."

However, thoughtful Jackson's thinking—informed as it was by his time as Chief Prosecutor at the Nuremburg Trial—his "balanced" free speech theory has (so far) been discredited by the actual history of the US. Had Jackson's First Amendment theory been dominant, radical antiracist far-left groups that Franks may believe engage in "fearless speech" could well have been banned.

Franks argues that free speech protections should "look to the most exploited members of a community to guide our legal and social choices," citing Gandhi's words to consider "the poorest and weakest members of society."

But like Douglass, Gandhi did not see a contradiction between free speech and equality. Gandhi called freedom of opinion and association "the two lungs that are absolutely necessary for a man to breathe the oxygen of liberty." In his 1922 sedition trial, Gandhi passionately pleaded that we cannot legislate people into abandoning unpopular beliefs:

"Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence."

Gandhi's conception of the limits of free speech was far more protective than what followed under the First Amendment at the time.

Franks stresses that free speech is more important than the First Amendment. She rejects the viewpoint-neutral model and argues instead that democratic societies have a responsibility to decide what sort of speech should be protected and promoted. She writes:

"In place of abstract platitudes about the virtue or necessity of defending 'controversial' or 'unpopular' speech above all" the view of free speech presented in this book calls for rigorous investigation into the material facts and circumstances surrounding the speaker, the speech, and the impact on other people. This book emphasizes the distinction between what speech a democratic society should protect … and what speech a democratic society should promote …."

But it's not just First Amendment scholars and Supreme Court justices who have warned about the dangers of this subjective approach to determining good vs. bad speech. Nelson Mandela—who spent 26 years in prison—learned firsthand about the dangers of giving leaders this power:

"No single person, no body of opinion, no political or religious doctrine, no political party or government can claim to have a monopoly on truth. For that reason truth can be arrived at only through the untrammelled contest between and among competing opinions, in which as many viewpoints as possible are given a fair and equal hearing. It has therefore always been our contention that laws, mores, practices and prejudices that place constraints on freedom of expression are a disservice to society."

Lastly, Franks devotes a chapter to how the First Amendment harms women, called "Burning Women." Here's the crux of her argument: "[W]hen it comes to women's speech, the protection of the First Amendment is little more than hollow rhetoric …. By contrast, the First Amendment is always available to defend men's misogynist expression and sexual exploitation."

She begins the chapter with an in-depth discussion of the Amber Heard v. Johnny Depp defamation trial to show how the First Amendment has been used to silence women who speak out against abuse. The merits of that case aside, it seems counterproductive to include an entire section on a particular defamation case in which a jury resolved a dispute between two celebrities without mentioning the First Amendment's protection of the right to criticize public officials and prominent figures. See several recent cases here, here, here, and here where robust First Amendment protections prevented frivolous attempts by powerful figures to silence critics.

In fact, Franks also only cites New York Times v. Sullivan (1964) in reference to Florida Gov. Ron Destantis'—dangerous—desire to change defamation law. But there's no mention anywhere that this seminal decision protected the rights of civil rights activists to criticize public officials in the segregated Deep South, where all-white juries routinely sided with litigious white officials to silence dissent.

Also omitted is a discussion of how women have been some of the First Amendment's staunchest defenders. The Foundation for Individual Rights and Expression recently chronicled 42 women who argued for free speech protections in front of the Supreme Court. These champions helped pave the way for others. In 1919, women were arrested for burning an effigy of Woodrow Wilson outside of the White House demanding the right to vote. But in 2017, thousands of women marched in pussy hats shouting slogans against President Trump with First Amendment protection from the police.

Eleanor Roosevelt, the first Chairperson of the UN's Commission on Human Rights, was a formidable advocate for free expression. She argued against embedding hate speech restrictions in international human rights law, cautioning that such laws could be abused by authoritarian regimes to suppress dissent. Roosevelt foresaw the dangers of placing power in the hands of leaders to police expression, warning that criticism of public authorities might be unfairly labeled as "hate." This stance directly countered proposals from the Soviet Union and its allies, who sought global prohibitions on hate speech to shield their regimes from opposition.

One of the early champions of free speech and equality was a woman: the French playwright and protofeminist Olympe De Gouges. She was a pioneering voice in defense of women's rights, opposition to slavery, and the plea for freedom of expression. In her 1788 play The Slavery of the Blacks, De Gouges attacked the institution of slavery, and her Declaration of the Rights of Woman and the Female Citizen insisted that "woman has the right to mount the scaffold; she must equally have the right to mount the tribune." Ironically, she met her end at the guillotine, executed by the new rulers of Revolutionary France—figures who, once heavily censored under Throne and Altar, now persecuted their own opponents even more fiercely. All in the name of safeguarding liberty and equality.

Mary Anne Franks may offer what she calls a "different and bolder perspective on free speech," but her approach ultimately falls short in her stated goal of examining "power, harm, and history seriously." The First Amendment is not a foolproof guarantee against intolerance or injustice. However, it has repeatedly proven instrumental in advancing equality and restraining oppression—notably empowering civil rights activists, marginalized communities, and dissidents who transformed American society. Franks's critique overlooks these substantial achievements, casting the First Amendment as an enabler of injustice, when history shows it has often been a powerful tool for creating a more tolerant and just nation.

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Here is Prof. Franks' response to Prof. Mchangama's earlier Tweeted criticisms:

In all sincerity, I am delighted to finally see a critical take on my book by someone who has actually read it and which doesn't involve threats of violence, racial slurs, or comments about my shoes. So thank you, @JMchangama, for that!

That being said, the critique you offer is only interesting if I had in fact claimed that the First Amendment "only" protects the powerful. But I do not claim this. In fact, I note several cases & principles that are notable for protecting vulnerable & dissenting individuals.

But so many books about the First Amendment are essentially hagiographies—the cases you cite and the points you make are all very well-trodden ground in the civil libertarian orthodoxy. What is certainly true is that my book does not repeat that party line.

My book is a critique of First Amendment law. But it is not a condemnation of it. My thesis can be summed up this way: the First Amendment is neither necessary nor sufficient to protect free speech. The evidence of its limitations are all around us.

Members of Congress are conducting McCarthyesque hearings of university presidents. They're threatening researchers and harassing students. Republican politicians are banning books and censoring what can be said in classrooms.

Government officials are calling student protesters "monsters" that must be "slain." The Republican candidate for Vice-President openly declares that "professors are the enemy." Teachers, librarians, and school board members are being doxed and harassed.

Women who speak out about sexual violence are being subjected to ruinous lawsuits and coordinated online abuse campaigns. Black Lives Matters protesters are being surveilled, beaten, arrested, and sued.

The First Amendment may eventually be of some use in some of these cases some of the time. No one denies that. But it cannot be said that the First Amendment, right now, is truly allowing free speech to flourish—at least not for those challenging racial and gender injustice.

I understand that many people are satisfied with this status quo because they are confident that their right to free speech is protected. But I care about more than my own rights, or the rights of people like me. I care about everyone's.

And that's why the heart of the book—the part you don't mention—is focused on fearless speakers. In my view, it's not the law, or lawyers, who are the true heroes of free speech—it's the people who risk everything to speak truth to power even though the law fails them.

It is true that my book is a hard read for anyone who worships the First Amendment, or thinks that the United States is the best of all possible worlds for free speech. It's always hard to sit with criticism of something we've been taught since childhood to revere.

But for anyone who isn't afraid of thinking beyond the law, or thinks that there might be better and braver ways to think about free speech than what the ACLU or FIRE tells you to think, you might find my book worth reading.

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And here in turn is Prof. Mchangama's response:

Thanks, @ma_franks, for responding to my critique.

First off: I'm truly sorry that you have been subjected to threats and racist slurs for raising your voice. If "defenders" of free speech can't tolerate criticism of that concept, they're in the wrong business. I hope these comments are "mere" trolls and not serious threats against you.

That said, I am a little baffled by your reply. You mention many serious and considerable challenges to free speech right now — from book bans to attacks on free speech on college campuses to clamping down on the right to protest.

Most of us "First Amendment worshipers" agree that these are all bad developments, which is why civil society and legal defense organizations — including
@thefireorg — are playing an important role in fighting these infringements on our fundamental rights in the public discourse and in the courts.

You seem to imply here that the existence of these injustices proves that the First Amendment isn't working as intended. But history has shown us time and again that these challenges expand and enhance our First Amendment protections when free speech defenders fight back. That, to me, is a feature and not a bug of the U.S. system.

I do, however, agree that the First Amendment is not in and of itself a guarantee for tolerance and dissent. That's where parrhesia comes into play: A civic commitment to the tolerance of dissent. But note that the Athenians thought that freedom, democracy, and equality went hand in hand and did not limit parrhesia to the ones with "less power," as you seem to suggest.

You also argue that you care more about the rights of everyone instead of just your own rights or people like you. I hope you are not implying that your critics believe the opposite. But I am unclear how your approach — in advocating for a First Amendment jurisprudence that only protects "fearless speech" and defers to those with less power — is a legal system for "everyone" when, in reality, it seems ripe for abuse since those in power often change in a democracy. Many of history's worst censors have been absolutely convinced about the moral justifications of their intolerance.

If you wanted more support for your critique, you might also want to consider writing a history that is not narrowly partisan and outcome-specific when it comes to defining the heroes and villains.

I say this as someone who was not "taught since childhood to revere" the First Amendment (I'm Danish) but as a student of world history who believes that the U.S. system of robust protections for free speech is the best system out there to avoid the worst abuses of censorship for the most vulnerable and unpopular groups in society. That does not mean that it prevents ALL injustice, but I sincerely believe that things would be MUCH worse if, say, Justice Jackson's conception of free speech was the law of the land.

Again: thanks for your reply and for the opportunity to read your book.

The post Book Review (by Prof. Jacob Mchangama): "Fearless Speech" Doesn't Take First Amendment History Seriously appeared first on Reason.com.