Eugene Volokh's Blog, page 256

[Steven Calabresi] Waiving the Filibuster to Pass a National Abortion Bill is a Bad Idea

Vice President Kamala Harris has called for eliminating the filibuster to pass a national bill codifying abortion rights. Other top Democrats have called for abolishing the filibuster to pass a Supreme Court packing bill or voting rights legislation. Suspending the filibuster for your highest policy priorities, like guaranteeing abortion rights nationwide, is a very bad idea for four reasons.

First, if Kamala Harris and the Democrats abolish the filibuster on an issue as big as abortion rights for women, or to pack the Supreme Court, the Republicans will abolish the filibuster when they are next in power to ban public sector unions nationwide, to require school choice nationwide, to require tort reform nationwide, and to repack the Supreme Court. Democrats eliminated the filibuster of executive and judicial officers on the lower federal courts in 2013. As a direct result, when Republicans came to power and had a Senate majority in 2017, they eliminated the filibuster on Supreme Court nominees. This allowed the confirmations of Neil Gorsuch, by a vote of 54 to 45, of Brett Kavanaugh by a vote of 50 to 48, and of Amy Coney Barrett in October of a presidential election year by a vote of 52 to 48. What goes around comes around. Kamala Harris and the Democratic Party will rue the day they eliminated the filibuster to pass national abortion rights legislation or a Supreme Court packing bill.

This leads me to my second point, which is this: the one thing that we know for sure about the upcoming election on November 5th is that the presidential race and the races for control of both Houses of Congress are going to be incredibly close. If Democrats elect Harris by a small margin and win control of the two Houses of Congress by a small margin, they will not have a mandate to make a sweeping constitutional change in our system of government. Suspending the filibuster in the Senate would be a sweeping and probably permanent constitutional change in our system of government.

How would Democrats feel if a slim Republican majority in Congress and a Republican President elected by a slim margin required that voters in every state produce a driver's license or a passport in order to be eligible to vote in an election, or if a slim Republican trifecta banned mail in voting in every state because the secret ballot is compromised when people vote outside of polling booths, which it surely is?

To understand why keeping the filibuster is so important, consider my third point, which is this: One of the most important ways in which our Constitution and its system of checks and balances, which has traditionally included the filibuster, protects liberty and promotes economic growth is by creating certainty and predictability, which reduces the risk factor for investors. Few will want to start a business or try to invent a better mousetrap to make money in a country whose legal system might allow for the confiscation of that business or mousetrap income twenty years from now. Many authors will not write a controversial book or article or op-ed or give a speech if their country's legal system might allow them to be prosecuted for what they say twenty years from new.

The reason the United States has the highest GDP per capita of any of the G-20 nations is because our constitutional system of checks and balances, which has always included the filibuster in the Senate, makes investing in, and writing in, the United States very safe because the law is very certain and very predictable. (That's my view based on a good deal of study of comparative G-20 constitutional law.) In the United Kingdom's parliamentary system, which gives total power to the majority party in the House of Commons, the Conservative Party won a majority of 365 seats out of a total of 650 seats, which it used to accomplish Brexit from the European Union—a constitutional kind of change that would certainly have been filibustered in the U.S. Senate if such a question arose. Five years later, in 2024, the left-wing Labour Party won total power with a landslide majority of 411 seats. The U.K.'s constitutional system bubbles with uncertainty and unpredictability compared to the U.S.'s constitutional system of checks and balances, one of which is the Senate filibuster.

The net result is that the United States, in 2023, had a GDP per capita that is $73,637 according to the World Bank—the highest of the G-20 nations. The United Kingdom, in 2023, however, had a GDP per capita of only $54,126 because its constitutional system is so unpredictable and uncertain in the outcomes it generates. The average American generates $19,511 more wealth per year than does the average citizen of the U.K. This is because the risk factor for investment in the U.S. is so much lower than it is in the U.K.

China may have the second largest economy in the world because it has 1.4 billion people, but its GDP per capita in 2023 was only $22,135, which ranks it only 15th among the G-20 nations. This is because Chinese communism and dictatorship make life very uncertain and very unpredictable.

Fourth, the idea of a national rule on abortion is a bad idea because the United States is the third most populous nation, and the fourth largest, territorially, in the world. Moral opinions on abortion differ greatly from state to state. In Tim Walz's Minnesota, abortion is available through the ninth month of pregnancy—a law which many find to be appalling. In Texas, abortion is totally illegal with limited exceptions, which many also find appalling. The federal government of our vast, continental democracy should focus on national defense and the protection of free trade in interstate commerce. Health and morals matters should be left to the states, except for the protection of civil rights protected by the Equal Protection Clause of the Fourteenth Amendment and for the application of the Bill of Rights to the States through the Fourteenth Amendment.

Sadly, I predict that most states will legalize overly broad abortion rights by referenda including in the ten referenda on abortion, which will be held on November 5th of this year. Such referenda have passed even in very red states like Kansas and Ohio and such a referendum may even pass in Florida, which requires 60% of the vote, because the Republicans got ahead of the people of Florida by banning abortion after 6 weeks of pregnancy, as President Trump has correctly said. Many women do not even know if they are pregnant at that point, and, given that the fetus is only the size of a quarter of an inch or a pomegranate seed at that point in pregnancy, many have trouble thinking of such a small entity as being a human being.

The bottom line is that abortion is going to end up being legal in most states whether one likes that outcome or not. Women who really want an abortion will generally be able to cross a state line and get one. Abortion rights advocates should spend their time raising money to pay for travel expenses for poor women to cross state lines to get an abortion. They should not spend time and money forcing states like Mormon Utah or evangelical Christian Alabama to allow, on their own territory, what the people of those states deem to be the taking of a human life.

There are some sound constitutional reasons for keeping decisions on moral and religious matters at the State level, which is why the First Amendment forbade a national establishment of religion, which might have displaced the established Congregationalist Church in Connecticut, Massachusetts, and New Hampshire, in 1791. Come to think of it, Americans in those three New England states are very moralistic in 2024, and they are particularly eager to this day to impose their moral views on abortion on Mormons in Utah or fundamentalist Christians in Alabama who have very different moral views.

Religious belief, moral beliefs, tastes, preferences, and even the conditions of day-to-day life differ greatly among the 50 states, which means that a national rule will often make more people unhappy than leaving a matter to the states to decide. In the 1970's, President Jimmy Carter established a national speed limit of 55 miles per hour which made sense in New Jersey, our most population dense state, but which made no sense in Montana, which is 48th in population density. When President Ronald Reagan returned the power to set speed limits to the states in the 1980's, Montana abolished its speed limit for a while, replacing it with a rule that you should drive at a speed that is safe given the road conditions you are driving in. Happiness went up in Montana and it stayed the same in New Jersey. This is the genius of federalism.

Another reason for leaving policy-making power at the state level is that the states will compete with each other and will experiment to attract people and businesses, which is a good thing. Americans are abandoning high tax, high regulation blue states in droves to move to low tax and low regulation red states like Florida and Texas. Consider Elon Musk's decision to move Space Ex from California to Texas. Federalism and the competition among states is a good thing, which we should favor. We should not be imposing one-size fits all national rules on abortion, which is one of the many reasons why Dobbs v. Jackson Women's Health Organization (2022) was correctly decided.

Kamala Harris's proposal that we abolish the filibuster to establish a national abortion law is an unsound idea for four reasons: First, it will lead to Republicans following suit and abolishing the filibuster to pass laws that many Democrats will hate; second, the 2024 elections for the presidency and both Houses of Congress are likely to be very close, which means there will be no popular mandate for a constitutional change like abolishing the filibuster; third, the filibuster and the certainty and predictability it creates are a very good thing for liberty and economic growth; and fourth, a national law is the wrong approach for our transcontinental democracy, which is the third most populous nation on the earth, and which has many state and regional sub-cultures.

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[Eugene Volokh] Gender Equality Organization Leader Is Limited Public Figure for Purposes of Libel Lawsuit Over Her Performance

From Mason v. American Prospect, Inc., decided yesterday by Judge Loren L. AliKhan (D.D.C.):

Plaintiff Chataquoa Nicole Mason brings this action against Defendants The American Prospect ("TAP") and Julianne McShane. Dr. Mason alleges that TAP and Ms. McShane defamed her and tortiously interfered with her business relations when they published an article (written and reported by Ms. McShane) covering her tenure as President and Chief Executive Officer of the Institute for Women's Policy Research….

IWPR is a "national think tank" that "build[s] evidence to shape policies that grow women's power and influence, close inequality gaps, and improve the economic well-being of families." The organization was founded by Dr. Heidi Hartmann, who served as its long-time President and Chief Executive Officer. In 2019, IWPR's Board of Directors removed Dr. Hartmann from these roles because she was "abusing staff and otherwise creating a toxic work environment, engaging in racist behavior … and failing to adequately fundraise."

IWPR searched for a new President and Chief Executive Officer and hired Dr. Mason in fall 2019. Dr. Mason is an African American woman who holds a Ph.D. in Political Science, boasts "more than twenty years of research and advocacy experience focused on women's economic security," and has a "long track record of success in leadership positions." She entered her new role in a time of tumult, facing budget shortfalls, staff discontentment, and racism. Nevertheless, "she worked tirelessly to achieve major goals," like "dealing with the toxic work environment," raising sorely needed funds (including closing a budget shortfall of more than one million dollars), and increasing the public profile of the organization. Dr. Mason "participate[d] in public forums and networking events," "spearhead[ed] two major conferences," won an industry award, and "was named one of the World's Greatest Leaders by Fortune Magazine." …

At some point, Ms. McShane, a freelance reporter, began investigating Dr. Mason's leadership of IWPR…. In November 2022, TAP published the article, titled "A Women's Policy Giant Struggles Amid New Leadership," https://perma.cc/P9CY-3V3V. The article highlighted several of Dr. Mason's and IWPR's key accomplishments, including her recognition by Fortune magazine and IWPR's successful fundraising efforts. The article also includes the following statements relevant to Dr. Mason's claims:

"[W]ithin weeks after this reporter sent Mason and two executive board members separate lists of detailed questions based on the reporting in this story, a law firm [was] retained by the board to assist with an independent review of IWPR's workplace environment [and] began contacting former staffers for interviews, according to three sources." "[Dr.] Mason fired Childers last fall after seven years at the organization … [and] did not respond to a specific inquiry about why Childers was fired." "[R]ecords and interviews with former staffers suggest that Mason has struggled to ['get on a winning team' or 'follow through on projects and complete tasks'] during her nearly three years leading IWPR, instead contributing to a toxic work environment that led them to leave the organization." "[IWPR]'s turnover rate was 80 percent last year and is 72 percent [UPDATE: 78 percent] so far this year, according to the Prospect's analysis of staff departures. IWPR currently has only three full-time researchers on staff, compared to 14 who were on staff in the fall of 2020, according to a written record of a board meeting from that time." "[Dr.] Mason did not respond to a question from the Prospect about what she believes has caused the turnover [of employees]." "[Michelle Cueller Hawks] worked alone and struggled to get Mason's attention, even though Mason was her direct supervisor[.] When she and Mason did interact, it was often fraught …. [Cuellar] said Mason sometimes had what [other employees] considered unfair expectations that she sometimes expressed by screaming at staffers, or in other demeaning ways." "Former staffers say the high turnover has undermined the organization's capacity to conduct the research it once pioneered—and records of board meetings show Mason has admitted as much." "Representatives for the Kresge Foundation, the Children's Defense Fund, and the Women's Foundation of Florida declined requests for comment on the IWPR projects they funded." "Records of board meetings show that at least four current and one former board member have raised concerns about staffing and turnover and offered to intervene…. [B]oard member Joan Marsh … asked 'if the staffing challenges undermine[] the commitments made to our funders,' according to a written summary of the meeting." "None of IWPR's six research priority areas, including the Center for the Economics of Reproductive Health, currently have leaders…. IWPR was supposed to produce three original research reports using the initial Hewlett grant money … [b]ut none of those reports were released after the center's founding director left IWPR in March 2020." "IWPR's Student Parent Success Initiative … , [which] launched in 2010 with $1 million from the Bill and Melinda Gates Foundation, … has remained unstaffed since its last staffer, a research associate, left in February." "[The SPSI's] Student Parent Policy Working Group has seemingly disbanded." "IWPR received a $225,000 donation from Daniel Snyder, the owner of the Washington Commanders football team, according to notes from a board meeting."

… After publication, individuals associated with TAP and anonymous sources from the article "contacted IWPR's Board, funders, and other key stakeholders to disparage Dr. Mason." IWPR employees also began to "question[] Dr. Mason's leadership … due to the controversy." In January 2023, roughly two months after the article's publication, IWPR's Board fired Dr. Mason.

Since then, Dr. Mason has been unable to find employment. In addition to incurring expenses to rehabilitate her reputation, she "has also suffered severe emotional distress" as a result of the article's publication.

Mason sued for defamation and a related tort, and the court granted the defendants' motion to dismiss. It found that some of the statements were substantially true or opinion, but "that the article's statements about the turnover rate and lack of staffing were sufficiently false and defamatory" to be potentially actionable if the proper mental state were shown.

But the court also held that, even as to those statements, Mason was a "limited public figure" and thus had to prove "actual malice"—i.e., knowing or reckless falsehood—which she could not do:

In the defamation context, "[t]he applicable fault standard 'turns upon whether the plaintiff is a public or a private figure.'" Private figures may recover if the defendant is negligent. But public figures must meet the more demanding "actual malice" standard of liability—meaning they acted "with knowledge that [the relevant statement] was false or with reckless disregard of whether it was false or not." … Public figures "have voluntarily exposed themselves to increased risk of injury from defamatory falsehood" and boast increased access to media to "counteract false statements." …

There are three types of plaintiffs who must establish actual malice in a defamation suit:

(1) a public official; (2) an individual who "achieve[s] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts," referred to as a general-purpose public figure; and (3) "[m]ore commonly, an individual [who] voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues," i.e., a limited-purpose public figure.

… A limited-purpose public figure takes on a central role in a particular public controversy, "either by virtue of their own voluntary actions or involuntarily" through her involvement in the controversy at hand….. [T]here is an ongoing public controversy related to gender equity and women's roles in the workforce, that Dr. Mason assumed a prominent role in that controversy, and that the challenged statements (and article as a whole) relate to her role in the controversy….

Gender equity in the workplace qualifies [as an existing public controversy]. The judicially noticeable articles demonstrate widespread news coverage on this topic, and such issues clearly impact the day-to-day lives of many individuals who are "not direct participants" in the ongoing debate…

A plaintiff voluntarily becomes a limited-purpose public figure when she "achieve[s] a special prominence in the debate" and "tr[ies] to influence the outcome or could … have an impact on its resolution." Greater access to media is an indicator of public figure status, as is regular and continuing public outreach.

Dr. Mason is a public figure in the controversy. She gained significant public prominence when she assumed the role of President and Chief Executive Officer of IWPR, a nonprofit that is actively involved in increasing gender equality in the workplace. Even before taking on this role, Dr. Mason had "more than twenty years of research and advocacy experience focused on women's economic security." And upon joining IWPR, she "substantially raised [the organization's] public profile," "participate[d] in public forums and networking events," and "spearhead[ed] two major conferences." She even won an industry award and "was named one of the World's Greatest Leaders by Fortune Magazine." By virtue of her role, experience, and activities, Dr. Mason was a prominent figure promoting gender equality in the workplace….

The statements "must be 'germane to the plaintiff's participation in the controversy.'" "This [approach] ensures that publishers cannot use an individual's prominence in one area of public life to justify publishing negligent falsehoods about an unrelated aspect of the plaintiff's life."

The allegedly defamatory statements at issue here are germane to the controversy. Many of Dr. Mason's qualms with the article relate to statements about her ability to lead IWPR and, in turn, the organization's ability to fulfill its goals to promote gender equity in the workplace. That is certainly germane to the broader controversy. Dr. Mason argues that the statements "concern IWPR's internal affairs" and "d[o] not involve any gender equity issues, i.e., issues involving disparate treatment of men and women." That misunderstands the test. "Statements, including those highlighting a plaintiff's 'talents, education, experience, and motives,' can be germane." The allegedly defamatory statements relate to Dr. Mason's experience and ability to effectively advocate on issues of gender equality. They are plainly germane….

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[Ilya Somin] Harris Scales Back Harmful Price Control Proposal

Vice President Kamala Harris. (Tom Williams/CQ Roll Call/Newscom)

 

Several weeks ago, in an article in The Hill, I outlined how both Donald Trump and Kamala Harris have put forward harmful economic policies that exploit widespread voter ignorance. One of the Harris policies I highlighted was a proposal for price controls on groceries.  It's therefore only fair that I acknowledge she has since scaled back that proposal.

As originally described, Harris' proposal seemed to be a plan for broad, nationwide controls on grocery prices. The new version put out by her policy team, is still bad, but much less so than before. Michael Strain of the conservative National Review (which is not generally sympathetic to Harris) has the details:

There has been a great deal of confusion around Vice President Harris's plans to combat "price gouging." Last month, her campaign announced that, if elected, the vice president would push for "the first-ever federal ban on price gouging on food and groceries — setting clear rules of the road to make clear that big corporations can't unfairly exploit consumers to run up excessive corporate profits on food and groceries…."

This vague language — along with mixed messages from her advisers and surrogates — led many analysts and commentators to conclude that Harris would use a recent bill from Elizabeth Warren as a template for her policy. Senator Warren's bill is extremely broad and would give enormous power to the Federal Trade Commission to regulate prices.

If enacted, Warren's bill would, of course, be a disaster for the economy. If federal bureaucrats took charge of grocery prices, shortages would occur….

Does Harris support Warren-style price controls? For weeks, we've been left to speculate.

Yesterday [Sept. 24], the vice president released a policy book that answers this question: She does not support Warren-style price controls.

From Harris's book:

"Vice President Harris and Governor Walz's proposal—like many of the laws already  on the books in 37 states—will go after nefarious price gouging  on essential   goods during emergencies or times of crisis. When an emergency strikes, the American people deserve to know the government can take on bad actors that take advantage of a crisis to excessively jack up prices."

The book makes two things clear: Harris would model her plan on existing state laws, not on Warren's bill. And her regulation would kick in only during emergencies….

To be clear, I don't think a federal price-gouging law is a good idea. Such laws at the state level are more defensible, but still questionable. Yes, cases of water became much more expensive in Texas following Hurricane Harvey. But if you were, say, a Colorado-based business that sold water, those higher prices for water in Texas meant that you wanted to stop selling water to folks in Colorado and to start selling it to folks in Texas. That $99-per-case price sent a signal to water sellers all across America that they should be sending more water to Texans than they normally do. The result: More water went to Texans, which was exactly what was needed following the hurricane.

But even though a federal price-gouging law isn't a good idea, it's not a terrible idea. It will likely have no real impact on consumers, producers, or economic activity.

I am less sanguine about Harris's scaled-down proposal than Strain is. What qualifies as an "emergency" or a "time of crisis" is far from clear. In recent years, presidents of both parties have abused "emergency" declarations to circumvent constraints on executive power in order to push through harmful policies, as with Trump's border wall funding diversion and Biden's student loan forgiveness program (eventually invalidated by the Supreme Court). When and if Harris tries to turn her new proposal into an actual bill, it will be important to keep an eye on whether and how the proposed law defines what counts as an "emergency."

In addition, as Strain points out, price controls are harmful even when there is an actual emergency. They tend to produce shortages of vital supplies precisely when those goods are most needed.

Nonetheless, it's worth noting that Harris's current price-control proposal is substantially narrower—and thus much less harmful—than the one originally floated in August.  By contrast, Trump hasn't scaled back his even more harmful plans on immigration and tariffs.

It's also worth reiterating that either the narrow or the broad version  of Harris's price controls would have to be enacted by Congress. By contrast, Trump could enact most of his most harmful ideas by unilateral executive action. As Trump himself recently put it,  "I don't need Congress [to impose tariffs]…. I'll have the right to impose them myself, if they don't." That is one of a number of factors making his agenda more dangerous than Harris's, even though the latter also has serious flaws.

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[Jonathan H. Adler] California Prohibits Legacy Preferences in College Admissions

In debates over whether universities should (or should be allowed to) consider race in admissions, it is often pointed out that many universities give preferences to the children of alumni and university donors. It is also fairly noted that such preferences may have racially disparate effects (particularly at institutions that were formerly segregated).

As a legal matter, however, race-based preferences more suspect than other admissions preferences. Under current 14th Amendment's Equal Protection Clause doctrine, the consideration of race by state institutions is inherently suspect (and this standard has been applied to private universities through federal law). Not so many other characteristics that may be used in university admissions processes—including relationships to alumni and benefactors.

Earlier today, California Governor Gavin Newsom signed a measure to prohibit legacy and donor preferences in college admissions throughout the state. Of note, the law will apply to both public and private universities, but does not impose meaningful penalties.

From a Politico report:

California's law, which will take effect Sept. 1, 2025, is the nation's fifth legacy admissions ban, but only the second that will apply to private colleges. . . .

Like other states, California won't financially penalize violators, but it will post the names of violators on the state Department of Justice's website.

California will also add to data reporting requirements that it implemented in 2022, when private colleges had to start sharing the percentage of admitted students who were related to donors and alumni. Schools that run afoul of the new law will also have to report more granular demographic information about their incoming classes to the state, including the race and income of enrolled students as well as their participation in athletics. . . .

Public universities in California won't be affected by the change. California State University does not consider legacy or donor ties, and the University of California system stopped doing so in 1998, two years after California voters banned race-conscious admissions through a statewide ballot measure.

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[Eugene Volokh] Criminal Conviction Based on "Only Women Can Be Mothers" and "'Transing' Kids Is Abuse and Homophobia" Signs, …

Last Wednesday's decision of a Pennsylvania appellate court in Commonwealth v. Balcom (by Judge Alice Beck Dubow, joined by Judges Deborah Kunselman & Carolyn Nichols) involved a dispute between neighbors. O'Donnell and Collier, a gay couple, lived with their sons "and their daughter, K.H., who is transgender"; Balcom lived next door, "and she and Victim's [O'Donnell's] family have had an acrimonious relationship for several years. Appellant's backyard abuts Victim's backyard, with a fence along the shared property line."

Mr. Collier was parking his car on the street near their home after picking up their sons when Appellant [Balcom], who was in her car, displayed a sign in the rear window of her car that said, "only women can be mothers." The next evening, Victim and his family returned home to find that Appellant had placed a large sign on the fence facing their back yard, and K.H.'s bedroom window, that said "'transing' kids is abuse and homophobia[.]" The sign was only visible from Victim's house or yard and to anyone walking their dogs in the adjacent alley if they "crane[d] their necks."

Victim filed a private criminal complaint against Appellant, in which he referenced the backyard sign and stated that Appellant had been "harassing [his family] for 2 years." Accordingly, the Commonwealth charged Appellant with Harassment, a summary offense.

The Magisterial District Court convicted Appellant and sentenced her to pay a fine of $200. Appellant appealed and proceeded pro se to a de novo bench trial in the Court of Common Pleas ….

Early in the trial, Appellant asked the court if she could object. The court responded "[n]o, you're not an attorney[,]" then reiterated, "[y]ou're not an attorney. You don't get to object[,]" but assured Appellant that the court would "give [her] the opportunity to present [her] side."

Victim then testified in accordance with the above facts, and also explained Appellant's history of making social media posts directed at his family. K.H.'s therapist, Susan Cherian, then testified about the effect that the sign had on K.H.

Appellant chose not to cross-examine Ms. Cherian but told the court that she had a "long list" of questions for Victim, including questions about his role in their conflict, and claimed that Victim had harassed her for years. The court instructed Appellant to "[f]orget the cross-examination, tell me your side of the story." During her testimony, Appellant admitted to posting the yard sign.

The same day, the court convicted Appellant and sentenced her to pay a fine of $200 and court costs.

The appellate court overturned the conviction on Confrontation Clause grounds:

"[T]he Sixth Amendment guarantees criminal defendants the right to confront and cross-examine adverse witnesses" to ensure a fair trial…. It is well-settled that a defendant has the right to confront witnesses through cross-examination, subject to reasonable limitations. The court erred when it prevented Appellant from cross-examining Victim, the Commonwealth's primary witness. If the trial court were concerned that Appellant's cross examination would become repetitive or focus on irrelevant topics, the trial court could impose reasonable limitations. Precluding Appellant, however, from engaging in any cross-examination of the Victim undisputedly violates Appellant's constitutional right to confront witnesses….

Furthermore, this error was not harmless because the Commonwealth's case rested on Victim's testimony, as he was the only fact witness, and the trial court's limitation prevented Appellant from challenging the veracity of his testimony. Accordingly, we are constrained to vacate Appellant's judgment of sentence and remand for a new trial….

The court didn't consider Balcom's claim that her speech didn't violate the First Amendment, and didn't qualify as harassment under Pennsylvania law; presumably those will be considered again on appeal if she is retried and convicted again.

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[Josh Blackman] Today in Supreme Court History: September 30, 1857

9/30/1857: Justice Benjamin Robbins Curtis resigns from the Supreme Court after Dred Scott v. Sandford (1857).

Justice Benjamin Robbins Curtis

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[Stephen Halbrook] Second Amendment Roundup: VanDerStok Tests Limits of Yet Another ATF Rule

On October 8, the Supreme Court will oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms "firearm" and "firearm frame or receiver."  This is the first of several posts in which I'd like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.

The Gun Control Act defines "firearm" as "(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon…."  18 U.S.C. § 921(a)(3).  An ATF regulation on the books from 1968 to 2022 defined a "frame or receiver" as "that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism" – in other words, to main part of the firearm to which the barrel and stock attach.

The Final Rule expanded "firearm" to include "a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive."  And it redefined "frame or receiver" to include "a partially complete, disassembled, or nonfunctional frame or receiver" that is "designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver."

The impetus for these new definitions is the political controversy over "ghost guns," a term used by the Administration and by gun-control advocates to refer to privately-made firearms fabricated from partially-machined raw material known as "80% receivers."  Fabrication of this precursor material into an actual receiver requires precise drilling, milling, and other machining of metal and polymer with common and uncommon tools to make an actual receiver.

Federal law requires persons engaged in the business of manufacturing or importing firearms to engrave them with serial numbers.  Private individuals have always been free to make their own firearms without such federal restrictions.  The new definitions have the effect of subjecting hobbyists to federal controls.

The Fifth Circuit held that ATF may not change the definition of "firearm" enacted by Congress and that its redefinition of "frame or receiver" failed to reflect the original, common understanding of that term.  It thus ruled the definitions to be beyond ATF's authority and arbitrary and capricious.

In the Supreme Court, the government begins its defense of the Rule by asserting that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes."  Not one of those italicized terms is even close to reality.

For a reality check, I refer you to the Amici Curiae Brief filed by Rick Vasquez, former Acting Chief of ATF Firearms Technology Branch, and by the Center for Human Liberty.

Vasquez served in the Marine Corps for 21 years during which he worked as a gunsmith at the precision weapons shop in Quantico, Virginia. He also served as a gunsmith and firearms instructor for the U.S. Department of State. Most notably, from 1999 to 2014, he served as a Firearms Enforcement Officer in ATF's Firearms Technology Branch (FTB), the division that determines whether partially-machined material that can later be manufactured into a firearm constitutes a "firearm" under the Gun Control Act.

In 2004, Vasquez was selected as the FTB's Assistant Branch Chief, and from 2008 to 2010, he held the Acting Chief and the Assistant Chief positions. He reviewed and approved hundreds of determinations of whether items were "firearms," the majority of which related to the manufacturing of receivers for AR-15 style firearms.

Quoting the government's brief in VanDerStok, Vasquez writes:

In reality, not just "anyone" with "basic tools" and "rudimentary skills" can take a parts kit and assemble a "fully functional firearm" at all, let alone in a "matter of minutes." Even assuming the hypothetical "anyone" had the tools needed to construct a firearm, they also need a level of skill, patience, and determination that eludes most non-experts.

The government focuses on the Polymer80 parts kit for a Glock-style semiautomatic pistol, but fails to explain the supposedly simple process. Vasquez provides a step-by-step summary of fabricating a functioning firearm from this parts kit. He notes: "On their first attempt, non-experts are frequently unable to even get their firearms to work after many hours of frustration. Many beginners don't know where to start."

The government also fails to discuss the complexity of building AR-15-style firearms from parts kits, which is a far more difficult task than building Glock-style handguns.  As Vasquez explains, "Machining the fire control cavity of a lower receiver in particular," a task necessary to complete an unfinished receiver, "is a painstaking process that demands precision and requires technical expertise with uncommon tools."

Not surprisingly, Vasquez's explanations are highly technical and may be difficult to understand by persons who are not firearm experts.  The illustrations in the brief are helpful.  I won't even try to define all of the terms he uses.  But that's why his brief is so significant.  The Supreme Court should not be misled by the government's unrealistic claim that anyone can make a functioning firearm from a kit in minutes.  The average person won't be able to make one at all.

Let's start with building a Glock-style handgun.  As to the tools needed, Vasquez relates, "most everyday citizens (to say nothing of a prototypical street criminal), do not have all of them on hand."  When California sued ATF in 2020 for not designating various "80-percent" parts kits as "firearms," the government stressed that tools such as end mills "are beyond the common household tools' that [California] repeatedly characterize as sufficient to complete this detailed work." California v. ATF, ECF No. 64, No. 20-cv-6761 (N.D. Cal. Jan. 11, 2021).

Austin Murphy, a California journalist, wrote an article "How easy is it to build a ghost gun?"  The Press Democrat (Nov. 12, 2021).  Vasquez quotes from the article in the various stages of the build to show it to be beyond the capabilities of non-experts without expensive, advanced tools.  In fact, Murphy enlisted the aid of a gun machinist with expert knowledge and tools to do most of the work.

Murphy said he "felt a twinge of panic as he read the instructions," prompting him to seek the aid of an expert with a serious workshop.  Vasquez writes that "even after turning the work over to experts three separate times—first to mill the frame, then to assemble the numerous parts, and finally to fix it when it jammed—it took the group more than seven hours to build a functioning firearm from a Polymer80 kit."

As Vasquez observes, "When the out-of-pocket cost of building a gun at home exceeds the cost of buying a new one, it bolsters the conclusion that homebuilding is an exercise mostly undertaken by hobbyists."  For gangbangers with no skills or tools, the black market or theft does the trick instead.

To show how "anyone" can make a Glock-style pistol in minutes, the government refers to a video in which a skilled firearm expert uses a jig, drill bits, Dremel high-speed grinding tool, files, and sandpaper to fabricate a frame from a Polymer80 kit.  That is followed by the installation of numerous intricate parts by use of roll pins.

It's not so easy.  As described by Vasquez, one must first place the frame precursor in a jig in order to drill six holes; "if these opposite side pin holes are not aligned to within a few thousands of an inch, the firearm cannot be assembled."  Next, one mills the top rail and then the barrel block, which is also difficult.

For those steps, Murphy enlisted a second firearm expert "to make sure I made no dumb, dangerous mistakes…."  Murphy tried to install the slide lock spring and locking lever by himself, but that was "slapstick—witness my dozen or so attempts to drop the itty-bity slide lock into its elusive groove."  Next came installation of the magazine release spring and button, combining the trigger assembly and dropping it into the frame, inserting the pins for the slide stop lever, and attaching the slide.  (In the video cited by the government, the slide was already assembled.)

As Vasquez relates, "the moment the builder tries to rack the slide is often the first time that the builder learns something went wrong with the milling process."  That happened to Murphy, who gave his malfunctioning pistol to his expert friend for a few more hours of troubleshooting.

Vasquez concludes the first part of the brief with the observation that "the central premise of the government's argument—that 'anyone' can build a fully functioning Glock-style handgun from a parts kit 'in a matter of minutes'—is simply wrong."

Part two of the brief describes the far more difficult process of building an AR-type firearm, which is why the government virtually neglects the subject.  To complete an AR lower receiver from a partly completed "blank" that one purchases, the area that houses the trigger mechanism and hammer must be milled out and holes must be drilled for the selector, trigger, and hammer pins.  As the government brief explained in California v. ATF, that requires "multiple drill bits strong enough to drill aluminum or polymer …, along with lubricants to reduce heat and prevent the drill bits from melting," as well as "specialized tools, such as end mills, [that] must be used to excavate the cavity to house the trigger and fire control mechanism." As Vasquez adds, one also needs a vise block, bench block, barrel rod, torque wrench, armorer's wrench, and more.

In response to California's argument that completing an AR-type receiver blank is just a "simple process," Daniel Hoffman, the then (and current) Chief of ATF's Firearm Technology Industry Services Branch (previously called the Firearms Technology Branch) explained how difficult it is.  Hoffman is a retired Army Infantry sergeant with nearly thirty years technical experience in complex weapon platforms.  He wrote:

I completed my first AR-type receiver in the fall of 2017, using a compatible AR-type fixture (e.g., a jig), a hand drill, and a drill press. The initial drilling of the fire control cavity took me approximately three hours.  However, the dimensions on the cavity were not to specification, and I needed another hour and a half to get the receiver into a functional state. Even at four and a half hours, and with my considerable experience with firearms, the completed receiver build quality was substandard, with the fire control cavity not being cut to exact specifications.

Once the lower receiver is fabricated, there are over 100 parts to assemble to make a functional AR firearm.  Expenses may cost anywhere from $500 to $3000, depending on the quality.  As Vasquez concludes, "even if one spent the time and money to gather all of the necessary tools, equipment, and parts, they would still need the knowledge and skill to assemble a working AR-type firearm."

In sum, the government hopes to stampede members of the Court into believing that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes."  The brief of former Acting Chief of ATF Firearms Technology Branch Rick Vasquez explodes that fantasy.

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[Josh Blackman] Today in Supreme Court History: September 29, 2005

9/29/2005: Chief Justice Roberts takes oath.

Chief Justice John Roberts

 

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[Josh Blackman] Today in Supreme Court History: September 28, 1787

9/28/1787: Confederation Congress adopts Constitution and sends it to the states.

The Constitution

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[Eugene Volokh] UNM Policy Used to Charge High Security Fees for Riley Gaines Talk Struck Down

From yesterday's decision by Judge David Herrera Urias in Leadership Institute v. Stokes (D.N.M.):

Kenna Fleig, one of TP-UNM's co-presidents, submitted an event request form indicating that TP-UNM expected around 100 attendees for an event that would last 3.5 hours. The form noted that [the speaker, Riley Gaines,] travels with her own security, and the students did not want to request additional security. A week later, TP-UNM received an email from UNM informing them that they were required to request and accept university security…. Defendant Stump of the UNM police department … provided the students an invoice that listed the cost of security for the event as $10,202.50….

[T]he quote of over $10,000 was for every officer UNM employed—thirty-three officers; nearly one for every three attendees the students expected. When TP-UNM asked why Defendant Stump intended to assign every officer to the Gaines event, and whether it was because of the speaker or the inviting organization, he responded that "it's all based on individual assessments," that they were looking at the "individual," and that "there is not a criteria [sic]."

He also told the students that if an organization were to screen the Barbie movie in a venue on campus, he likely would not require even a single officer because the UNM police were "not worried about the Barbie movie." He then said that security was "consistent" in how it assessed fees "to Turning Point" in the past. He described past TP-UNM events featuring other conservative speakers that generated protests at UNM. A few times during the meeting, he reiterated that UNM assesses security fees on a "case-by-case basis." …

Ms. Gaines visited the UNM campus on Wednesday, October 4, at 7:00 p.m. and spoke to a crowd of around 200 people until 9:00 p.m. The event was open to members of the public; the tickets were free. Fewer than ten protestors showed up after the event started and demonstrated outside the event room. The demonstration was peaceful and non-disruptive. No police action was taken or needed.

After Ms. Gaines' event, on October 9, 2023, Defendant Stump issued a final invoice to TP-UNM for the event totaling $5,384.75. According to the invoice, the university staffed twenty-seven officers at the event who charged for a total of 95.25 hours. Only four of the twenty-seven officers were stationed inside the event venue. Fifteen officers were stationed in other areas of the building or in nearby buildings; two officers roamed outdoor areas of campus on bike; three were stationed on a nearby rooftop; three were specifically designated as an "Arrest Team."

Forsyth County v. Nationalist Movement (1992) held that the government couldn't charge extra security fees for speech in traditional public fora (streets, sidewalks, and parks) based on the controversial nature of the speech, and it couldn't use vague security fee criteria that left room for such viewpoint discrimination. And the court in this case applied Forsyth County to public universities as well:

When a policy allows "appraisal of facts, the exercise of judgment, and the formation of an opinion by the licensing authority, the danger of censorship and of abridgment of our precious First Amendment freedoms is too great to be permitted[.]" Forsyth County.… Although the question in this case is closer than that in Forsyth, the Court nonetheless finds that Plaintiffs have demonstrated the security fee policy in this case is similar enough to render it overly broad. Although the policy lists criteria for officials to consider when assessing event security, such as venue size and location, the list ultimately leaves the decision of how much to charge for security up to the whim of university officials. For example, the policy does not explain a method for determining how much more security is required for a small venue as compared to a large one, or for a daytime event as compared to a nighttime event.

Significantly, the policy states that the "basic cost of security … will be charged to all groups" based on a schedule of charges that the UNM Police Department has on its website, but despite this, the department does not actually delineate the amount of this "basic cost of security." Though the security fee policy also states that the police department "regularly" updates the "schedule of charges based on the factors" and that "[t]he basic cost of security according to this schedule will be charged to all groups," there is no schedule of charges.

Additionally, the preamble to the policy indicates that university officials "may" assess security fees but does not provide guidance for when they may or may not assess these fees, which contributes to the problem of allowing university officials overly broad discretion. In sum, Plaintiffs have shown a substantial likelihood of success on the merits of their overbreadth claim because the security fee policy does not contain limiting language that includes "narrowly drawn, reasonable and definite standards[,]" and it does not include anything to prevent UNM administrators from exercising their discretion in a content-based manner….

Seems correct to me, especially since the vague standards allow discrimination not just based on content but also based on viewpoint. For a similar holding from another court, see Sonnier v. Crain (5th Cir. 2010).

Benjamin Isgur, Braden Boucek & Carter B. Harrison, IV (Southeastern Legal Foundation) represent plaintiffs.

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