Eugene Volokh's Blog, page 244

[Eugene Volokh] Journal of Free Speech Law: "Thinking the Unthinkable about the First Amendment," by Nicholas Lemann

The article is here; the Introduction:

On my bookshelf is a treasured relic of a bygone age, a full print edition of The Oxford English Dictionary (OED): twelve volumes plus five supplements, the last of them published in 1986. The OED puts the first use of journalism, "the occupation or profession of a journalist; journalistic writing; the public journals collectively," at 1833. Journalistic, "of or pertaining to journalists or journalism; connected or associated with journalism," arrived a few years earlier, in 1829. Reporter, "one who reports, debates, speeches, meetings, etc., especially for a newspaper; a person specially employed for this purpose," originated earlier still, in 1813. And interview, "to have an interview with a person; specifically on the part of a representative of the press," didn't appear until decades later, in 1869.

I served as dean of Columbia University's Graduate School of Journalism for ten years, from 2003 to 2013. During that time, I was privileged to attend dozens, or maybe even hundreds, of official journalism events: banquets, prize ceremonies, and so on. Almost invariably, the speakers would extol the First Amendment as a sacred constitutional enshrinement of our profession. Often one of them would observe that we are the only field of endeavor specifically mentioned in the Constitution, or assert that it was the framers' special intent to put the amendment that mentioned us first because it was so important to them.

But as we see from the OED, such sentiments are self-celebratory historical fantasies, because there were no journalists in 1791, when the First Amendment was ratified. At the Constitutional Convention, in 1787, the framers specifically declined to include a press freedom clause in the original document, which is why the First Amendment, along with the rest of the Bill of Rights, was added a few years later by Congress. In the original version of the Bill of Rights, the current First Amendment was actually the Third Amendment, in line behind two others that were dropped because they couldn't attract majority support.

If there were no journalists to celebrate, then what was the intention of the First Amendment's press clause? The most enduring contrarian view is still probably that of historian Leonard W. Levy (first published back in 1962), who believed that the words to pay attention to in the First Amendment are "Congress shall make no law"—meaning that the First Amendment was supposed to clear the way for the states to restrict freedom of the press if they wanted to. Levy also argued that even for the federal government, the First Amendment was meant only to forbid prior restraint, which is why the short-lived Sedition Act of 1798, which was practically enforceable only after publication, didn't contradict the First Amendment.

First Amendment scholar David A. Anderson, refuting Levy, argued that the First Amendment made national a principle that several states had already established. The original source of the language of the First Amendment, according to Anderson, was the Pennsylvania state constitution of 1776, which asserted that "the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore, the freedom of the press ought not to be restrained." Anderson next follows the First Amendment trail to the Virginia constitutional ratifying convention of 1788, which adopted language that he sees as having been taken from Pennsylvania's constitution: "That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated."

If one is searching for legal endorsement of the after-dinner speech version of the origin of the First Amendment, a good place to look would be a 1975 lecture by Justice Potter Stewart, called "Or of the Press," on the amendment's press clause. Stewart argued that the press clause should be understood as being aimed at the "organized" press, and is therefore conceptually distinct from both the speech clause and the rest of the Bill of Rights:

Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals: freedom of speech, freedom of worship, the right to counsel, the privilege against compulsory self-incrimination, to name a few. In contrast, the Free Press Clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection.

Stewart—who, for what it's worth, was chairman of the Yale Daily News as an undergraduate—understood this institutional protection the First Amendment afforded the press as a distinct and limited one. It was meant not to enable people who happened to be publishing their work through news organizations to say whatever they wanted, but to enable the public to have more access to public information, in cases where the presence of a journalist was required to maximize the flow of facts to a broad audience. He described the role of the journalist this way in a short concurrence to a 1980 decision in the case of Houchins v. KQED: "He is there to gather information to be passed on to others, and his mission is protected by the Constitution for very specific reasons."

Unlike Leonard Levy or David Anderson, Stewart made no claim to have gone through the contemporary historical materials underlying the drafting of the First Amendment, so what he said can't function as proof that the framers shared his institutional and informational understanding of the press clause. My own conjecture would be that, whatever it should mean now, back then the First Amendment probably envisioned "the press" as a method for printing and disseminating speech, not as an organized endeavor dedicated to gathering and publishing verified information about public affairs, because the latter activity didn't really exist yet. That is, originally the speech clause and the press clause would have referred to essentially the same thing, not to two distinct and separate activities, one citizen-empowering, the other profession-honoring.

Still, in the era of social media, it has become especially obvious that speech and press are not in fact the same thing. As Justice Stewart said, they should be conceived separately and legally treated separately. Considering this requires setting aside the fears many people, including my fellow journalists, have about the risks inherent in letting the law into journalism.

 

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[Eugene Volokh] Free Speech Unmuted Videos

Now that Jane Bambauer and I are up to a dozen videos in the series, I thought I'd pass along the whole list; if you find some of the titles interesting, please check them out. The videos were made starting this Spring, but they mostly talk about broad topics that aren't especially time-sensitive.

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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[Eugene Volokh] Free Speech Unmuted: Misinformation: Past, Present, and Future

You can see all our episodes (a dozen now) here.

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[Josh Blackman] Universities After October 7: The Role of Title VI

On October 15, I spoke on a panel at the NYU Federalist Society with Ken Marcus of the Brandeis Center. We discussed the role that Title VI plays on college campuses in the wake of October 7. It was a thoughtful and informative event, with no disruptions. Alas, at the very end, after the event concluded, several students started chanting "Free Palestine" as they exited the room. Whatever.

I am grateful to the NYU Chapter for hosting us.

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[Ilya Somin] More on "Invasion," the Alien Enemies Act, and the Political Question Doctrine

Cartoon depicting congressional debate over the Alien and Sedition Acts. (NA)

 

In a previous post, I argued that Donald Trump's plan to use the Alien Enemies Act of 1798 as a tool for peacetime mass deportation is illegal, but also noted that courts might nonetheless refuse to invalidate the plan, because they might (wrongly) conclude that the issue is a "political question" that judges are not allowed to consider. The Alien Enemies Act gives the president the power to detain and deport migrants when there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president can detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."

In a post at the Originalism Blog, Michael Ramsey—a leading scholar of constitutional foreign affairs law—largely agrees with my analysis. But he suggests the political question issue is more easily resolved than I thought:

I think the analysis can be more simple. The question, in my view, isn't whether there is an invasion (which indeed might be a political question, even under the original concept of political questions), but whether it—whatever it is—is "perpetrated … by any foreign nation or government." Since that's clearly not the case, for the reasons Professor Somin says, a court would simply be called on to enforce the statute as written, which is comfortably within the judicial power.

Focusing on the words "foreign nation or government" could indeed be an alternative way to reject the argument that the issue here is a political question. Prof. Ramsey is absolutely right about that. But I worry that, if courts rule that the definition of "invasion" is a political question, they could say the same thing about the issues of whether the perpetrator of supposed invasion qualifies as a "nation or government" and whether that entity was in fact the true perpetrator.

The political question doctrine is, as I have previously argued, an incoherent mess; Michael Ramsey is no fan of it either. But, precisely because of the doctrine's vagueness and incoherence, judges have a lot of discretion on how to apply it. A court wishing to use the doctrine to avoid the issues raised by the use of the Alien Enemies Act as a tool of peacetime deportation might well be able to find a way to do so. Such a ruling would be a grave error, but not one completely barred by current precedent.

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[Samuel Bray] Three Thoughts on the Stay Denial in West Virginia v. EPA

Today the Supreme Court denied the application for a stay in West Virginia v. EPA, a challenge to an EPA rule regulating power-plant emissions of carbon dioxide. You can read Amy Howe's summary for SCOTUSBlog here. There was one noted dissent from the denial (Justice Thomas), and one justice not participating (Justice Alito). Justice Kavanaugh wrote a statement respecting the denial of the stay, joined by Justice Gorsuch. The main point of the statement was to say that the challengers were likely to win on the merits, but no stay was needed because there was no irreparable injury, since "compliance work" would not need to start for another eight months. In the meantime, Justice Kavanaugh said, the lower court litigation was proceeding apace.

Three thoughts:

It is a good development that the Court is reaching the merits less often in emergency docket orders. As Justice Barrett previously noted, litigants use "the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument." (Shadow docket critics, time for Bayesian updating!) Avoiding the merits on a stay application fits with an emerging body of literature on stays, including Rachel Bayefsky, Administrative Stays: Power and Procedure , 97 NOTRE DAME L. REV. 1941 (2022); and Jill Wieber Lens, Stays of Injunctive Relief Pending Appeal: Why the Merits Should Not Matter , 43 FLA. ST. U. L. REV. 1319 (2016). Given that welcome trend, it is a little surprising to have a statement that reaches out to unnecessarily express a view of the merits—especially since Justice Kavanaugh's statement could have made the very same point about irreparable injury without expressing a merits prediction. The statement's reference to "compliance work" points to a very big question about compliance costs and irreparable injury that will come to the Court sooner rather than later. It may be that compliance costs for the EPA rule are massive and existential for the regulated entities—I have not followed the litigation in the D.C. Circuit and express no view on that. If so, they could count as irreparable injury (a ruinous choice in the style of Ex Parte Young). But the mere fact that compliance work is necessary is not enough to show irreparable injury for a stay or preliminary injunction. That, at least, is the traditional view: routine compliance costs do not count as irreparable injury. But over the last decade, the Fifth and Sixth Circuits have adopted a different position, creating a circuit split. Their position is emptying the irreparable injury requirement of any meaning in challenges to government regulation, and it is exacerbating the trend to collapse the four-factor preliminary injunction test into just the merits. I discuss this in The Purpose of the Preliminary Injunction . Here is an excerpt from that article on compliance costs:

On this instrumental account of the status quo, the court should be looking for dislocations of its remedial authority. In the Delaware Court of Chancery's words, "the purpose of a preliminary injunction is to preserve the status quo so that the court can hold a trial, make findings of fact, render conclusions of law, and issue a remedy." The preliminary injunction, Judge Stephanos Bibas aptly wrote, is "designed to protect the court's ability to see the case through."Judges are not engaged in a zero-tolerance prevention of all costs to the plaintiff. Prevention of all harm is, of course, not what avoiding irreparable injury means. But that conceptual slippage is easier if courts frame the question only in terms of protecting the plaintiff, and not also in terms of protecting the court.

That conceptual slippage is not hypothetical. The Fifth and Sixth Circuits have created a split with other circuits because they now count modest compliance costs as irreparable injury. In the Fifth Circuit, spurred on by the appellate court's instruction that "the key inquiry is 'not so much the magnitude but the irreparability,'" district courts have started regularly finding irreparable injury in the routine costs of complying with government regulations. Massage-therapy vocational schools said compliance would "impact the[ir] bottom line," even though the court admitted any such cost "hardly seems catastrophic" and its "magnitude . . . is debatable." Gun owners showed irreparable injury with compliance costs of "anywhere from $30 to $65." Adult website operators established irreparable injury with "ongoing, non-recoverable compliance costs" that were "more than de minimis"—"even," the district court said, where it "does not consider evidence of the costs credible." And when a district court found that an association of vocational schools had produced evidence of compliance costs that was "nebulous and conclusory," the Fifth Circuit reversed, systematically insisting that there was irreparable injury from every form of compliance costs asserted by the plaintiff, including inter alia record-keeping and staff training.

There is no good justification for this trend. Regardless of whether they are recoverable from the state, routine compliance costs should not count as irreparable injury, for they are just part of the ordinary friction of social life.Combined with heightened judicial polarization and forum-shopping, this lax approach to irreparable injury hamstrings the federal government's ability to act. Yet irreparable injury is vulnerable to this conceptual creep because of its plaintiff-focused framing. Irreparable injury does not encourage judicial humility; the status quo does.

         In re COVID-Related Restrictions on Religious Servs., 285 A.3d 1205, 1228 (Del. Ch. 2022).

         Delaware State Sportsmen's Ass'n, Inc. v. Delaware Dep't of Safety & Homeland Sec., No. 23-1633, 2024 WL 3406290, at *9 (3d Cir. July 15, 2024).

         See Rest. L. Ctr. v. United States Dep't of Lab., 66 F.4th 593, 597 (5th Cir. 2023) (noting that under Fifth Circuit precedent "the nonrecoverable costs of complying with a putatively invalid regulation typically constitute irreparable harm"); Commonwealth v. Biden, 57 F.4th 545, 556 (6th Cir. 2023) (rejecting the view of "some of our sister circuits . . . that compliance costs do not qualify as irreparable harm because they commonly result from new government regulation").

         Id. at 597 (quoting Texas v. EPA, 829 F.3d 405, 433-434 (5th Cir. 2016)). As recently as 2012, Fifth Circuit decisions would distinguish between magnitude and irreparability in order to make the exactly opposite and more sound point: large magnitude harms might not be irreparable. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012). The first use of the phrase was Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567, 575 (5th Cir. 1974), which made the reasonable but distinct point that a plaintiff's irreparable injury was not undercut by other, larger injuries in the world: "the irreparability of the threatened harm, which is preventable, is not diminished by comparison to the nationwide loss of trees caused by forest fires that the district court is powerless to prevent." Id. at 576.

         360 Degrees Educ., LLC v. U.S. Dep't of Educ., No. 4:24-CV-00508-P, 2024 WL 3092459, at *7 (N.D. Tex. June 21, 2024).

         Texas v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 700 F. Supp. 3d 556, 570 (S.D. Tex. 2023).

         Free Speech Coal., Inc. v. Colmenero, 689 F. Supp. 3d 373, 414 (W.D. Tex. 2023), aff'd in part, vacated in part sub nom. Free Speech Coal., Inc. v. Paxton, 95 F.4th 263 (5th Cir. 2024), cert. granted sub nom. Free Speech Coal. v. Paxton, No. 23-1122, 2024 WL 3259690 (U.S. July 2, 2024).

         Compare Career Colleges & Sch. of Texas v. United States Dep't of Educ., 681 F. Supp. 3d 647, 655-661 (W.D. Tex. 2023) (Pitman, J.) with 98 F.4th 220, 234-239 (5th Cir. 2024). One could be forgiven for thinking the Court is playing whack-a-mole with this Havens Realtysuffused approach. Cf. Food & Drug Admin. v. All. for Hippocratic Med., 144 S. Ct. 1540, 1564 (2024) ("The medical associations respond that under Havens Realty Corp. v. Coleman, standing exists when an organization diverts its resources in response to a defendant's actions. That is incorrect. Indeed, that theory would mean that all the organizations in America would have standing to challenge almost every federal policy that they dislike, provided they spend a single dollar opposing those policies." (citation omitted)). For an instance of a district court in the Sixth Circuit finding irreparable injury from ordinary expenditures to prepare for a rule, see Monticello Banking Co. v. Consumer Fin. Prot. Bureau, No. 6:23-CV-00148-KKC, 2023 WL 5983829, at *2-3 (E.D. Ky. Sept. 14, 2023).

         A. O. Smith Corp. v. F. T. C., 530 F.2d 515, 527 (3d Cir. 1976) ("Any time a corporation complies with a government regulation that requires corporation action, it spends money and loses profits; yet it could hardly be contended that proof of such an injury, alone, would satisfy the requisite for a preliminary injunction."); Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 115 (2d Cir. 2005) ("[O]rdinary compliance costs are typically insufficient to constitute irreparable harm."); Household Int'l, Inc. v. Eljer Indus., Inc., No. 13631, 1994 WL 469169, at *4 (Del. Ch. Aug. 12, 1994) (recognizing that some unrecoverable expenses are "hardly the type for which the injunction remedy was devised"); cf. Milan D. Smith, Jr., Only Where Justified: Toward Limits and Explanatory Requirements for Nationwide Injunctions, 95 Notre Dame L. Rev. 2013, 2034 (2020) (expressing skepticism of giving much weight to "[e]conomic harm only indirectly attributable to a challenged executive action").

       Cf. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (Holmes, J.) ("Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.").

       Cf. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1018 (10th Cir. 2004) (McConnell, J., concurring) ("Unless the district court self-consciously takes the nature of the injunction into account by applying a heightened standard [for injunctions that alter the status quo], the four factors likely will lead to an overconfident approach to preliminary relief."); E. Brooks, supra note 8(comparing irreparable injury with judicial consideration of ultimate options and concluding that "[m]aximizing option value is a more constraining objective").

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[Orin S. Kerr] You Can Now Pre-Order "The Digital Fourth Amendment"

I'm pleased to say that you can now pre-order my book, The Digital Fourth Amendment: Privacy and Policing in Our Online World. 

I've been a professor for almost twenty-five years, and I've written a bunch of casebooks and something like eighty law review articles.  But this is my first book for a general audience. Lawyers and law students will enjoy it, I hope, but I also aimed the book at non-lawyer readers who are interested in law, technology, and privacy.  And I was pleased to get the price down to something reasonable, as it lists for $35.

I'll blog some more about the book later, but for now I just wanted to post the link to pre-order it for anyone interested.

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[Eugene Volokh] Journal of Free Speech Law: "Free Speech on the Internet: The Crisis of Epistemic Authority," by Brian Leiter

The article is here; the introductory section:

Every society has mechanisms for inculcating in its citizens beliefs about the world, about what is supposedly true and known. These epistemological mechanisms include, most prominently, the mass media, the educational system, and the courts. Sometimes these social mechanisms inculcate true beliefs, sometimes false ones, and most often a mix. What the vast majority believe to be true about the world (sometimes even when it is not) is crucial for social peace and political stability, whether the society is democratic or not. In developed capitalist countries that are relatively free from political repression, like the United States, these social mechanisms have, until recently, operated in predictable ways. They insured that most people accepted the legitimacy of their socioeconomic system, that they acquiesced to the economic hierarchy in which they found themselves, that they accepted the official results of elections, and that they also acquired a range of true beliefs about the causal structure of the natural world, the regularities discovered by physics, chemistry, the medical sciences, and so on.

Although ruling elites throughout history have always aimed to inculcate moral and political beliefs in their subject populations conducive to their own continued rule, it has also been true, especially in the world after the scientific revolution, that the interests of ruling elites often depended on a correct understanding of the causal order of nature. One cannot extract wealth from nature, let alone take precautions against physical or biological catastrophe, unless one understands how the natural world actually works: what earthquakes do, how disease spreads, where fossil fuels are and how to extract them. This is, no doubt, why both authoritarian regimes (like the one in China) and neoliberal democratic regimes (like the one in the United States) invest so heavily in the physical and biological sciences.

In the half-century before the dominance of the internet in America (roughly from World War II until around 2000), the most prominent epistemological mechanisms in society generally helped ensure that a world of causal truths was the common currency of at least some parts of public policy and discourse in the relatively democratic societies. There were, of course, exceptions: the panic over fluoridation of water in the 1950s is the most obvious example, but it was also anomalous. Even false claims about race and gender (that were widespread in the traditional media until the 1960s and 1970s) were met with more resistance from the pre-internet media, especially from the 1960s onwards. The basic pattern, however, was clear: social mechanisms inculcated many true beliefs about how the natural world works, while performing much more unevenly where powerful social and economic interests were at stake.

The internet has upended this state of affairs: it is the epistemological catastrophe of our time, locking into place mechanisms that ensure that millions of people (perhaps hundreds of millions) will have false beliefs about the causal order of nature—about climate change, the effects of vaccines, the role of natural selection in the evolution of species, the biological facts about race—even when there is no controversy among experts. Indeed, a distinguishing and dangerous achievement of the internet era has been to discredit the idea of "expertise," the idea that if experts believe something to be the case, that is a reason for anyone else to believe it. Experts, in this parallel cyber world, are disguised partisans, conspirators, and pretenders to epistemic privilege, while the actual partisans and conspirators are supposed to be the purveyors of knowledge.

Legal philosopher Joseph Raz's analysis of the concept of "authority" is helpful in thinking about what we mean when appealing to the idea of "authority" in epistemic contexts: that is, contexts in which we want to know whom we should believe when we seek the truth. An epistemic authority, on this account, is someone who by instructing people about what they ought to believe makes it much more likely that those people will believe what is true (that is, they will believe what they ought to believe, ceteris paribus) than if they were left to their own devices to figure out for themselves what they are justified in believing.

Suppose, for example, I want to understand the "Hubble constant," which captures the rate of expansion of the universe. I could try reading various technical articles in scientific journals to figure out what I ought to believe about it. It is unlikely I could make good sense of this material, given my lack of background in the relevant mathematics and astrophysics. Alternatively, I could consult my University of Chicago colleague, astronomer Wendy Freedman, an eminent scientist who has done seminal work on the Hubble constant. I am confident Freedman is an epistemic authority about the Hubble constant and cosmology generally, vis-à-vis me; I am more likely to hold correct views about these matters by attending her lectures (for undergraduates no doubt) than if I tried to figure these matters out for myself.

Why am I confident that she is an epistemic authority? It is obviously not because I have undertaken an evaluation of her research and published results, something I am not competent to do (if I were, I would not need to consult an epistemic authority on this topic). I rely, rather, on the opinions of others we might call meta-epistemic authorities: that is, those who can provide reliable guidance as to who has epistemic authority on a subject. So, for example, in the case of Freedman, I am relying on the facts of her appointment as a university professor at a leading research university and her election to the National Academy of Sciences, as well as guidance from a philosopher of science with whom I have worked, and in whom I have particular confidence with regard to his meta-epistemic authority based on past experience.

Epistemic authority is always relative. Professor Freedman is an epistemic authority on the expansion of the universe vis-à-vis me, but would not have been vis-à-vis the Nobel laureate and cosmology expert Steven Weinberg, for example. Similarly, I am an epistemic authority on Raz's view of authority vis-à-vis my students and my colleagues, but not vis-à-vis Leslie Green, Raz's student who recently retired from Raz's chair at Oxford. Epistemic authority is relative both to what the purported authority knows and what the subjects of the authority would be able to know on their own. Epistemic authorities, in short, help their subjects believe what is true (or more likely to be true), and without that help, those subjects would be more likely to end up believing falsehoods or partial truths.

Here is the crucial epistemological point: almost everything we claim to know about the world generally—the world beyond our immediate perceptual experience—requires our reliance on epistemic authorities. This includes our beliefs about Newtonian mechanics (true with respect to midsize physical objects, false at the quantum level), evolution by natural selection (the central fact in modern biology, even though it may not be the most important evolutionary mechanism), climate change (humans are causing it), resurrection from the dead (it does not happen), or the Holocaust (it happened). Most education in the natural sciences, apart from some simple lab experiments students actually perform, is a matter of accepting what epistemic authorities report is the case about the nomic and causal structure of the world. The same is also true of most education about history and the empirical social sciences.

The most successful epistemic norm of modernity, the one that drove the scientific revolution—empiricism—demands that knowledge be grounded, at some (inferential) point, in sensory experience, but almost no one who believes in evolution by natural selection or the reality of the Holocaust has any sensory evidence in support of those beliefs. Hardly anyone has seen the perceptual evidence supporting the evolution of species through selection mechanisms, or the perceptual evidence of the gas chambers. Instead, most of us, including most experts, also rely on epistemic authorities: biologists and historians, for example. (The latter, of course, rely in part on testimony from witnesses to the events they describe.) The dependence on epistemic authority is not confined to ordinary persons: most trained engineers, for example, rely on epistemic authorities for their beliefs about the age of the universe, just as most lawyers rely on epistemic authorities for their beliefs about who wrote the U.S. Constitution and why.

But epistemic authority cannot be sustained by empiricist criteria alone. Salient anecdotal empirical evidence, the favorite tool of propagandists, appeals to ordinary faith in the senses, but is easily exploited given that most people understand neither the perils of induction nor the finer points of sampling and Bayesian inference. Sustaining epistemic authority depends, crucially, on social institutions that inculcate reliable second-order norms about whom to believe; that is, it depends on the existence of recognized meta-epistemic authorities. Pre-collegiate education and especially the media of mass communication have been essential, in the modern age of popular democracy, to promulgating and sustaining such norms.

Consider one of the most important newspapers in the United States, The New York Times, which, despite certain obvious ideological biases (in favor of America, in favor of capitalism), has served as a fairly good mediator of epistemic authority with respect to many topics. It has provided a bulwark against those who deny the reality of climate change or the human contribution to it; it has debunked those who think vaccinations cause autism; it gives no comfort to creationists and other religious zealots who would deny evolution; and it treats genuine epistemic authorities about the natural world—for example, members of the National Academy of Sciences—as epistemic authorities. Recognition of genuine epistemic authority cannot exist in a population absent epistemic mediators like The New York Times.

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[Eugene Volokh] N.Y. Court Opines on Use of AI by Experts

From Thursday's decision in In the Matter of Accounting by Weber, decided by Saratoga County (N.Y.) Surrogate's Court judge Jonathan G. Schopf; the expert was opining on damages in a financial dispute:

Use of Artificial Intelligence

Although the Court has found [proposed expert witness Charles Ranson's] testimony and opinion not credible [see below -EV]…, a portion of his testimony bears further and separate discussion as it relates to an emerging issue that trial courts are beginning to grapple with and for which it does not appear that a bright-line rule exists.

Specifically, the testimony revealed that Mr. Ranson relied on Microsoft Copilot, a large language model generative artificial intelligence chatbot, in cross-checking his calculations. Despite his reliance on artificial intelligence, Mr. Ranson could not recall what input or prompt he used to assist him with the Supplemental Damages Report. He also could not state what sources Copilot relied upon and could not explain any details about how Copilot works or how it arrives at a given output. There was no testimony on whether these Copilot calculations considered any fund fees or tax implications.

The Court has no objective understanding as to how Copilot works, and none was elicited as part of the testimony. To illustrate the concern with this, the Court entered the following prompt into Microsoft Copilot on its Unified Court System (UCS) issued computer: "Can you calculate the value of $250,000 invested in the Vanguard Balanced Index Fund from December 31, 2004 through January 31, 2021?" and it returned a value of $949,070.97—a number different than Mr. Ranson's. Upon running this same query on two (2) additional UCS computers, it returned values of $948,209.63 and a little more than $951,000.00, respectively. While these resulting variations are not large, the fact there are variations at all calls into question the reliability and accuracy of Copilot to generate evidence to be relied upon in a court proceeding.

Interestingly, when asked the following question: "are you accurate", Copilot generated the following answer: "I aim to be accurate within the data I've been trained on and the information I can find for you. That said, my accuracy is only as good as my sources so for critical matters, it's always wise to verify.

When asked "are you reliable", Copilot responded with: "[y]ou bet. When it comes to providing information and engaging in conversation, I do my best to be as reliable as possible. However, I'm also programmed to advise checking with experts for critical issues. Always good to have a second opinion!" When the follow-up question of "are your calculations reliable enough for use in court " was asked, Copilot responded with "[w]hen it comes to legal matters, any calculations or data need to meet strict standards. I can provide accurate info, but it should always be verified by experts and accompanied by professional evaluations before being used in court… "

It would seem that even Copilot itself self-checks and relies on human oversight and analysis. It is clear from these responses that the developers of the Copilot program recognize the need for its supervision by a trained human operator to verify the accuracy of the submitted information as well as the output.

Mr. Ranson was adamant in his testimony that the use of Copilot or other artificial intelligence tools, for drafting expert reports is generally accepted in the field of fiduciary services and represents the future of analysis of fiduciary decisions; however, he could not name any publications regarding its use or any other sources to confirm that it is a generally accepted methodology.

It has long been the law that New York State follows the Frye standard for scientific evidence and expert testimony, in that the same is required to be generally accepted in its relevant field (see Frye v. United States, 293 F. 1013 [D.C. Cir. 1923]).

The use of artificial intelligence is a rapidly growing reality across many industries. The mere fact that artificial intelligence has played a role, which continues to expand in our everyday lives, does not make the results generated by artificial intelligence admissible in Court. Recent decisions show that Courts have recognized that due process issues can arise when decisions are made by a software program, rather than by, or at the direction of, the analyst, especially in the use of cutting-edge technology (People v Wakefield, 175 AD3d 158 [3d Dept 2019]). The Court of Appeals has found that certain industry specific artificial intelligence technology is generally accepted (People v. Wakefield, 38 NY3d 367 [2022] [allowing artificial intelligence assisted software analysis of DNA in a criminal case]). However, Wakefield involved a full Frye hearing that included expert testimony that explained the mathematical formulas, the processes involved, and the peer-reviewed published articles in scientific journals. In the instant case, the record is devoid of any evidence as to the reliability of Microsoft Copilot in general, let alone as it relates to how it was applied here. Without more, the Court cannot blindly accept as accurate, calculations which are performed by artificial intelligence. As such, the Court makes the following findings with regard to the use of artificial intelligence in evidence sought to be admitted.

In reviewing cases and court practice rules from across the country, the Court finds that "Artificial Intelligence" ("A.I.") is properly defined as being any technology that uses machine learning, natural language processing, or any other computational mechanism to simulate human intelligence, including document generation, evidence creation or analysis, and legal research, and/or the capability of computer systems or algorithms to imitate intelligent human behavior. The Court further finds that A.I. can be either generative or assistive in nature. The Court defines "Generative Artificial Intelligence" or "Generative A.I." as artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples. A.I. assistive materials are any document or evidence prepared with the assistance of AI technologies, but not solely generated thereby.

In what may be an issue of first impression, at least in Surrogate's Court practice, this Court holds that due to the nature of the rapid evolution of artificial intelligence and its inherent reliability issues that prior to evidence being introduced which has been generated by an artificial intelligence product or system, counsel has an affirmative duty to disclose the use of artificial intelligence and the evidence sought to be admitted should properly be subject to a Frye hearing prior to its admission, the scope of which should be determined by the Court, either in a pre-trial hearing or at the time the evidence is offered.

Here are the court's other concerns about Ranson's testimony:

Objectant … relied upon Mr. Ranson in offering proof of damages due to the retention of the Cat Island Property. Mr. Ranson prepared a "Preliminary Expert Report of Charles W. Ranson" dated December 14, 2022 which was admitted into evidence over objection as Respondent's Exhibit "F1". Mid-hearing he also prepared what is referred to as a "Supplemental Damages Report" dated May 28, 2024 that was admitted into evidence over objection as Respondent's Exhibit "K".

The Court finds several aspects of Mr. Ranson's testimony and reports lacking. In addition to citing an outdated version of the Prudent Investor Act, Mr. Ranson admitted that he was not aware of—and thus did not consider—the differences between lost capital and lost profit damages calculations. The reports and testimony make clear that Mr. Ranson's damages analysis were also calculated from a start date of December 31, 2004, which as set forth above, is more than three (3) years too early.

Mr. Ranson's initial report contains deficiencies that were not rehabilitated by his testimony. For instance, in the table on page five (5) of the report, Mr. Ranson did not factor in expenses which must have been incurred by the Trust such as real estate taxes in years 2004 through 2013, 2016, 2017, and 2020. The report fails to factor in the effect of the COVID-19 pandemic on the rental income in 2020 and 2021. In his report, Mr. Ranson asserts vague references to the economic conditions of the island which were solely supported by reference to a hearsay conversation he had on the telephone with one Robin Brownrigg.

The report states that the Cat Island Property resulted in an accumulated net operating loss of $149,643.92. Coupled with the failure to account for real estate taxes, Mr. Ranson's report sets forth calculations encompass years that the property was not yet owned by the Trust (2004-2008). Another example of unreliability is that in Mr. Ranson's chart analysis of Asset Classes on page four (4) of his report, it appears that he failed to take into account the distributions to the Objectant in each year, which would naturally have an effect on the percentage of value assigned to the traditionally invested assets and cash. He refers to the property as being "illiquid", and while he does reference that the property sold in 2022 for $485,000.00 resulting in a reinvestment of the sales proceeds of $323,721.68, this reinvestment is not reflected in the chart on page four (4) in any discernable mathematical fashion other than as a footnote. The chart reflects a total year end market value on December 31, 2021 of $872,322.07 and a total year-to-date market value on April 30, 2022 of $843,727.27. If the Cat Island Property was sold and reinvested, either this value was not added into the chart or distributions to Objectant were not factored in, or perhaps there was some other unknown factor which would require speculation on part of the Court. The Court declines to engage in speculation as to what the year-to-date market value was on April 30, 2022, and instead finds Mr. Ranson's calculations contained within the initial report to be inherently unreliable.

Mr. Ranson makes the conclusion in his report that the "Trustee's decision to retain, and subsequent management of the Cat Island Property did not enable the Trustee to make appropriate present and future distributions to or for the benefit of the Beneficiary…." This is squarely refuted by the accounting itself which reveals that the Objectant was provided with direct distributions of cash as well as payments for his benefit in the sum of $1,116,668.23, leaving a principle balance of $857,471.43 on hand as of the conclusion of the accounting period. Indeed, at the time the hearing concluded on June 7, 2024, the Objectant was slated to receive a future non-discretionary distribution from the Trust of approximately $175,000.00 on July 10, 2024, when he attained the age of forty (40) . As such, all past  and, due to the timing of this hearing, even a future distribution was realized. Mr. Ranson's Supplemental Damages Report also failed to account for any tax deductions or write-offs that the trust benefited from relating to the Cat Island Property. Mr. Ranson also admits that he made certain assumptions of closing costs for the hypothetical sale of the Cat Island Property at its book value to arrive at the $250,000 starting figure.  Despite Mr. Ranson making assumptions regarding a hypothetical sale in 2004, it is troubling that his Supplemental Damages Report failed to account for the proceeds from the actual sale of the Cat Island Property for $485,000 in 2022.

Perhaps even more troubling is that Mr. Ranson further testified that he used a proxy investment account—the Vanguard Balanced Index Fund—to estimate the hypothetical investment performance of the hypothetical 2004 sales proceeds in his Supplemental Damages Report. This is despite Mr. Ranson testifying that the appropriate calculations would have required a full A.M.R. analysis, which he testified is the industry standard, and that this was not done because it was too costly, a statement that would normally end the Court's inquiry as to the reliability of an expert's analysis. In fact, Mr. Ranson testified that an industry compliant A.M.R. analysis would have required combing through the approximately two hundred sixteen (216 ) investment statements from the Trust's investment firm to obtain, at least in part, asset cost basis, dividends, interest, and compare with cash flow. The report also appears not to account for taxes or index fund management fees in its calculations; instead relying upon the raw percentage of fund value increase over the time-period.

Based on the uncontroverted evidence, the Court finds that Mr. Ranson's calculations and specifically those with regards to damages are inherently unreliable, are based on speculation, hypothetical market performance, and are unsupported or outright contradict by facts in the record.

In conclusion, Mr. Ranson's damages calculations cannot be credited as they are unreliable.  Whether or not he was retained and/or qualified as a damages expert in areas other than fiduciary duties, his testimony shows that he admittedly did not perform a full analysis of the problem, utilized an incorrect time period for damages, and failed to consider obvious elements into his calculations, all of which go against the weight and credibility of his opinion.

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer; see also this Ars Technica (Ashley Belanger) story.

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[Eugene Volokh] Global Free Speech Summit 2024, Today and Tomorrow (Vanderbilt + Virtual)

Should be a very interesting program; registration is free, and you can attend virtually. The event is put on by Vanderbilt's The Future of Free Speech program, which is in turn led by free speech scholar and historian Jacob Mchangama.

Speakers will include novelist Salman Rushdie (attending virtually), Iranian journalist and women's rights activist Masih Alinejad, Taiwan's first digital minister Audrey Tang, Hong Kong democracy activist Nathan Law, Washington Post columnist Rana Ayyub, former ACLU president Nadine Strossen, New York Times columnist David French, The Economist senior editor James Bennett, and PEN America CEO Suzanne Nossel, and many more.

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