Eugene Volokh's Blog, page 260

[Eugene Volokh] Fired College Security Chief's Libel Claim (Over Allegations That He Mistreated Black Alumnus) Can Go Forward

[The court concluded that the Director of Safety and Security at a small private college didn't qualify as a "public official or public figure" for purposes of the state's anti-SLAPP statute.]

From McMurtrie v. Sarfo, decided Sept. 12 by the Tennessee Court of Appeals (Judge John W. McClarty, joined by Judges Thomas R. Frierson, II and Kristi M. Davis:

Plaintiff-Appellee John McMurtrie ("Plaintiff") was formerly employed as the Director of Safety and Security for Maryville College, a private liberal arts college. The parties agree that the college is not a part of any government or governmental agency. Plaintiff's job was to oversee campus security and supervise the college's five security guards who worked in rotating shifts. Plaintiff is a former Pennsylvania state trooper and former FBI agent, but he had retired from those jobs before accepting the position at Maryville College in 2018. Neither Plaintiff nor the other security guards who worked under him were sworn law enforcement officers. They were not deputized officers of any city or county. They did not carry weapons and had no authority to seize or arrest anyone. They would call the Maryville Police Department for issues needing law enforcement. The college's streets are generally open to the public.

On July 9, 2021, Defendant-Appellant Ransford Sarfo, a 2010 graduate of Maryville College who lives out-of-state, was visiting campus in a rented Toyota Prius. As Plaintiff approached a sharp turn in front of Carnegie Hall on Circle Drive, he observed the Prius stopped in the middle of the roadway with its four-way emergency flashers activated. It was steadily raining and dark due to storm clouds overhead, and Plaintiff believed the car posed a hazard due to its position in the roadway and the low visibility. Plaintiff then observed an arm emerge from the driver's side window as if to wave him to go around, at which point Plaintiff pulled his vehicle around and stopped beside Sarfo's Prius, on the driver's side. Sarfo glanced at Plaintiff. Plaintiff lowered his passenger side front window to speak with Sarfo, who did not engage with him. Plaintiff then tapped his horn. Sarfo then lowered his own driver's side window. Still seated in his vehicle, Plaintiff asked Sarfo "why are you parked in my driveway?" Plaintiff maintains that he meant this as a joke.

Sarfo replied that he had stopped for a photograph because he used to live in Carnegie Hall and that, as an alum, he had a right to be there. Sarfo also advised Plaintiff that he was having trouble shifting the rented Prius out of park. Plaintiff told Sarfo that he still needed to move his car out of the middle of the road and could continue taking photographs from one of the several open parking spaces in front of Carnegie Hall. Sarfo asked Plaintiff to identify himself, so Plaintiff told him his name and title of Director of Safety and Security. Sarfo, uncomfortable and offended, advised Plaintiff that this would not be the end of the matter. Plaintiff then drove away. He observed Sarfo drive away, too. The entire interaction between the two men lasted approximately one minute. There is no evidence in the record to suggest that Plaintiff knew Sarfo was a person of color when he first approached him about the improperly parked car.

The next day, Sarfo wrote an email about his interaction with Plaintiff to Maryville College's President, Bryan Coker, and six other college officials. The subject line was "MC Alumni harassed on campus." The email stated, in part:

I was deeply troubled that [Plaintiff] did not ask why my hazard lights were on, but assumed that I did not belong on the campus. In my years at the College, I never heard a staff member refer to any part of the campus as their property to justify their reasoning for another person to leave. It is very disheartening that I came back to a place I call home and was told by a staff member that I was on their property and asked to leave. I AM HURT! I will be reaching out to every alumni committee that I know to share my experience yesterday. Dr. Gerald Gibson would be deeply troubled to hear that we have staff members who do not understand the true meaning of community. I felt bullied, unwelcomed, and mistreated on the very college campus that I lived for 4 years. This is not the Maryville College that I knew in 2010.

Sarfo's email signature included a work photo of himself. Then, Plaintiff received a letter from the college outlining Sarfo's complaints against him. On July 24, 2021, Sarfo contacted Maryville's local newspaper, The Daily Times, which is owned by Defendant-Appellant Adams Publishing Group, LLC ("the newspaper") about the encounter with Plaintiff. On July 26, 2021, Plaintiff met with the college's Human Resources Director. On July 29, 2021, Plaintiff, at the direction of Maryville College, had a Zoom meeting with the Human Resources Director and received a verbal warning for unprofessional conduct. At some point in the disciplinary process, Maryville College concluded that there was no racial animus between Plaintiff and Sarfo, but the college directed Plaintiff to attend two virtual training sessions: "Diversity and Inclusion in the Workplace – Unconscious Bias Awareness" and "Customer Service Excellence for Team Members." In the July 29 Zoom meeting, the college's officials told Plaintiff that President Coker was planning to respond to The Daily Times' request for comment.

On Sunday August 8, 2021, The Daily Times ran a front-page article with the headline, "'Must do better' Coker: MC needs to improve its inclusivity." The article began, "An incident last month in which a White security officer questioned a Black alumnus on the Maryville College campus has President Bryan Coker saying the school 'can – and must – do better, when it comes to creating and maintaining a welcoming, supportive, and inclusive environment for all.'" The article described the July 9, 2021 interaction between Sarfo and Plaintiff from Sarfo's point of view, which characterized it as an interrogation and "just horrible." The story also included Sarfo's accounts of racism he encountered on campus sixteen years earlier when he was a student there.

Two days later, on August 10, Maryville College terminated Plaintiff's employment. On August 11, local news station WBIR reported The Daily Times' story through a video posted on WBIR's website in which the news anchor related that Maryville College was "searching for a new director of campus safety and campus security. The school fired the former director, John McMurtrie, after an investigation into a discriminations [sic] case." On August 12, 2021, The Daily Times published another front-page article with a photo of Plaintiff and the headline, "Security director no longer with MC." In the second article, Sarfo was quoted saying that he was dissatisfied with how the college handled the situation and what he hoped the college would do going forward. The article stated that the college confirmed that Plaintiff was no longer employed there but declined to comment further. On August 13, WBIR posted on its website a more detailed article with the headline, "Maryville College leaders apologize after an alumnus says he was racially profiled."

Plaintiff sued the newspaper and Sarfo for defamation; both defendants sought to dismiss under the state anti-SLAPP statute, the Tennessee Public Participation Act:

The TPPA provides, in relevant part, that "[i]f a legal action is filed in response to a party's exercise of the right of free speech … that party may petition the court to dismiss the legal action."  The exercise of the right of free speech is defined as "a communication made in connection with a matter of public concern … that falls within the protection of the United States Constitution or the Tennessee Constitution." … If the petitioning party meets this initial burden, then "the court shall dismiss the legal action unless the responding party establishes a prima facie case for each essential element of the claim in the legal action."  Additionally, "Notwithstanding subsection (b), the court shall dismiss the legal action if the petitioning party establishes a valid defense to the claims in the legal action." …

"Matter of public concern" includes an issue related to:

(A) Health or safety;

(B) Environmental, economic, or community well-being;

(C) The government;

(D) A public official or public figure;

(E) A good, product, or service in the marketplace;

(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or

(G) Any other matter deemed by a court to involve a matter of public concern[.]

The defendants apparently focused just on the "public official or public figure" prong, and didn't argue that Sarfo's allegations were otherwise on "a matter of public concern." But the court concluded that a small private university's Director of Safety and Security doesn't qualify:

The record contains no evidence that Plaintiff was a sworn law enforcement officer on July 9, 2021 or at any point during his employment with the college. Nothing in the record could suggest that Plaintiff controlled the conduct of governmental affairs at any time relevant to this case. In his role as a security guard, Plaintiff was not a deputized officer of any city or county, did not carry weapons, and had no authority to seize or arrest anyone. Under these circumstances, we hold that Plaintiff is not a public official. {We are unpersuaded by the newspaper's passing suggestion that Maryville College should be deemed the "functional equivalent of any state institution" because it is "a high-quality educational institution with significant rankings on a national scale."}

And the court concluded that McMurtrie wasn't a limited-purpose public figure, because that status requires that McMurtrie have voluntarily injected himself into some controversy; it's not enough that he became the subject of this one, or that he allegedly acted the way he did towards Sarfo.

The court also concluded that the fair report privilege didn't immunize the newspaper's repetitions of Sarfo's allegations:

 "[T]he fair report privilege is an exception to the common law rule 'that a person who repeats the defamatory statements made by another is also liable for defamation.'" … [T]he fair report privilege is limited to only public proceedings or official actions of government that have been made public. The fair report privilege does not apply to the facts of this case because there was neither a public proceeding nor an official action of the government that had been made public….

Richard Everett Collins, II represents McMurtrie.

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[Paul Robinson] It's Time to Confront Failures of Justice (Part II)

[Serious crime and failures of justice aren't going away.]

This is the second in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the last post we introduced the largely overlooked problem of failures of justice—instances where guilty offenders escape punishment entirely or receive a clearly inadequate punishment. But perhaps focusing on instances of unpunished crime is unnecessary because the problem is solving itself? One common response to worries over crime and lack of punishment is that it reflects perennial fearmongering about an ever-diminishing crime problem. Aren't we enjoying historically low rates of crime? Are failures of justice really a pressing problem for policymakers if serious crime is continually shrinking? We consider this argument about crime rates in our book's first chapter.

[T]he truth is that America is not enjoying historically low rates of crime, and serious crimes such as murder, rape, and aggravated assault are on the rise again, especially in urban jurisdictions, after falling from their peak in the early 90s. If the graph showing crime rate trends is framed to start in the 1970s, 80s, or 90s, this may suggest that America is enjoying historically low crime rates.

But, in reality, those three decades represented America's abnormal highs in crime. If one looks at the broader historical record, it becomes clear that when compared to before the devastating crime wave starting in the late 1960s, our current crime rates are higher today. For example, comparing the FBI's crime data reported by the Library of Congress from 1960 with 2019 (the last year the Library of Congress chose to report these inconvenient statistics) shows that total offenses per 100,000 increased from 1,887 to 2,489, a 32% increase. Violent crime increased even more dramatically, as shown in the table below. Modern violent crime rates are well above double the 1960 benchmark, mainly due to the explosion in aggravated assault:

Year Total Offenses
per 100,000 Violent Murder Forcible Rape Robbery Aggravated Assault 1960 1,887.2 160.9 5.1 9.6 60.1 86.1 2019 2,489.3 379.4 5.4 42.6 81.6 250.2

This data does not even account for the recent surge in homicides since 2019 which saw the murder rate rise by nearly 30% from 2019 to 2020. Even the 2019 data understates the size of the problem as the murder-rate comparison is deceptive: enormous advances in emergency medical care since 1960 have dramatically improved the survivability of a shooting or aggravated assault. Victims now arrive at hospitals sooner due to better ambulance and helicopter response times, and most hospitals now have dedicated trauma centers skilled in treating severe wounds. For example, serious gunshot wounds treated in hospitals increased almost 50% between 2001 and 2011 even as the death rate decreased, causing the murder rate to drop from 5.6 to 4.7. Studies show that if 1960s medical technology prevailed today, the murder rate would be more than five times higher than it is. In 2020, 22,000 homicides took place in America. Without modern technologies, this number would be closer to 110,000. America is not in a period of historically low violent crime but rather a period of advanced emergency care saving many victims from death despite steady or increasing severe violence in many jurisdictions. Addressing failures of justice is more important now than ever as America is caught in a vicious cycle of rising severe violence and falling clearance rates.

It is worth noting that official crime statistics fail to tell the whole story due to non-reporting. Less than half of violent crime is even reported to police, a fact that can obscure trendlines. For example, while reported violent crime fell 2% between 2021 and 2022—a fact many journalists loudly touted to suggest worrying over crime was fearmongering—total violent crime incidents (including non-reported crimes) rose by around 40%. Violent crime in 2022 was almost 20% higher than the 2015-2019 average.

In addition to serious crime rates increasing or stagnating, clearance rates are also dismal and getting worse in many jurisdictions. National homicide clearance rates decreased from around 90% in 1960 to under 50% in 2020, and the true homicide clearance rate is even lower due to police declaring "solved" cases that never even lead to an arrest, much less a conviction. Despite advances in investigative technology, killers are escaping justice at increasingly high rates. Police departments are sitting on over 250,000 cold murder cases, and each year six to ten thousand get added to that number. If one added attempted murder cases (those aggravated assaults that would have led to death in the past), this number would be well over a million.

Clearance rates in many large cities have reached truly abysmal levels. In 2022, in cities with populations larger than a million, only about 8.4% of violent crime and 1.4% of property crimes even led to an arrest. The sheer scale of unpunished crime is deeply disturbing and unknown to most Americans. And contrary to the dismissive claims of some, it is not a problem that is solving itself. Our next post will consider the costs of these massive and routine failures of justice.

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[Josh Blackman] Today in Supreme Court History: September 24, 1755

9/24/1755: Chief Justice John Marshall's birthday.

Chief Justice John Marshall

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[Eugene Volokh] Tuesday Media Recommendations: Mystery and Detective Books

[Post your recommendations in the comments; other weeks, there'll be other posts for other genres and other formats.]

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[Jonathan H. Adler] Was the Federal Government's Defense of Race-Based Debt Relief for Farmers and Ranchers "Substantially Justified"?

[An interesting question divides a panel of the U.S. Court of Appeals for the Sixth Circuit. ]

Today, in Holman v. Vilsack, a panel of the U.S. Court of Appeals for the Sixth Circuit split over whether the federal government was "substantially justified" in defending race-based debt relief for "socially disadvantaged" farmers and ranchers und the American Rescue Plan Act. The question matters because prevailing plaintiffs are not entitled to attorneys fees where the federal government's position was "substantially justified."

Judge Stranch wrote the majority opinion, joined by Judge Davis. She summarized the case as follows:

This appeal concerns a litigant's petition for fees under the Equal Access to Justice Act (EAJA). Plaintiff Robert Holman successfully obtained a preliminary injunction freezing a debt-relief program that used racial categories to remedy prior discrimination against farmers and ranchers. Following additional proceedings, but before final judgment, Congress repealed the challenged program. Holman now seeks fees associated with the litigation. The district court denied that request because, in its view, Holman was not a "prevailing party" under the EAJA. We neither adopt nor definitively reject that conclusion. Instead, we find that the Government's position during the litigation was "substantially justified" within the EAJA's meaning.

As Judge Stranch explains, prevailing parties under the EAJA are not entitled to fees if "the position of the United States was substantially justified." While rejecting the federal government's argument that courts should presume the standard is satisfied where (as here) the government, the court concluded that the government was sufficiently justified in defending the program's race-based classifications, even though such programs are subject to strict scrutiny.

the Government provided evidence of intentional USDA discrimination against socially disadvantaged farmers and ranchers generally, and buttressed that evidence with specific examples of intentional discrimination against nearly every group included in the socially disadvantaged category. That is categorically distinct from the evidentiary presentation in Vitolo, which did "not identify specific incidents of past discrimination" and relied entirely on "general social disparities." Id. at 361-62. Nor is this a case in which the Government provided "absolutely no evidence of past discrimination" against most of the categories included in a race-conscious program. J.A. Croson Co., 488 U.S. at 506 (emphasis removed). The notion that the Government was clearly required, at the preliminary injunction stage, to provide specific examples of intentional discrimination against every category included in a race-conscious program is also difficult to square with the Supreme Court's instruction that narrow tailoring does not demand perfection. See Fisher, 570 U.S. at 312; Grutter, 539 U.S. at 339; accord J.A. Croson Co., 488 U.S. at 510 (holding that "evidence of a pattern of individual discriminatory acts can, if supported by appropriate statistical proof, lend support to a . . . government's determination that broader remedial relief is justified."). It was Holman's duty to make a clear showing of likely success on the merits, Skrmetti, 83 F.4th at 471—but here, "a reasonable person could think" that the Government's evidence supporting Section 1005's constitutionality sufficiently undermined Holman's required showing. Pierce, 487 U.S. at 566 n.2. As a result, the Government's position on this aspect of the litigation was substantially justified.

Judge Larsen dissented, rejecting the government's claim its position was "substantially justified" and ultimately concluding the plaintiffs were prevailing parties under the EAJA. Her dissent begins:

A "prevailing party" in a civil case against the United States is entitled to fees and costs unless the government's position was "substantially justified" or "special circumstances make an award unjust." So, to get fees and costs, Holman must show that he is a prevailing party. Even if he does, though, the government may avoid paying if it shows that its position was substantially justified or that special circumstances make an award unjust. The majority, rightly recognizing that the prevailing-party issue is difficult, instead concludes that the government's position was substantially justified. I cannot agree. I first explain that disagreement and then tackle the more difficult question of whether Holman is a prevailing party. I then address the special-circumstances question. I conclude that Holman is a prevailing party because the preliminary injunction in this case turned primarily on the likelihood of success on the merits and afforded enduring and material relief; the government's position was not substantially justified because it was flatly at odds with controlling caselaw; and no special circumstances make an award unjust. Holman is therefore entitled to fees and costs, so I respectfully dissent.

On the specific question of whether the government's arguments were substantially justified, Judge Larsen writes:

The government, of course, does not have a compelling interest in remedying past discrimination that never happened. And when a government program seeks to remedy past discrimination against a number of different groups, it bears the burden to demonstrate "past intentional discrimination against the many groups to whom it grants preferences." Id. (faulting the "schedule of racial preferences detailed in the government's regulation—preferences for Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners—[a]s not supported by any record evidence at all"). The majority concludes that the government provided evidence of USDA discrimination against "many specific groups" defined as "socially disadvantaged." Maj. Op. at 9 (emphasis added). But what about the others? The government referred to no evidence of past intentional discrimination by USDA against Native Hawaiian and Pacific Islander farmers and ranchers. And the government relied only on broad assertions and statistical disparities to show discrimination against American Indian, Asian, and Native Alaskan farmers and ranchers. We might assume that such discrimination happened, but that is not enough. See Vitolo, 999 F.3d at 362 ("[W]hen it comes to general social disparities, there are simply too many variables to support inferences of intentional discrimination."). The government cannot claim a compelling interest in remedying discrimination without first showing that the discrimination happened. Croson, 488 U.S. at 505. That is reason enough to conclude that its position was not substantially justified.

That is not to say, in this preliminary posture, that the government made no compelling-interest showing. I agree with the majority that the government cited evidence of past intentional discrimination against Black farmers and ranchers. But if the government is going to use racially exclusionary measures as a remedy, the government's policy must be narrowly tailored to that particular interest. And "a policy is not narrowly tailored if it is either overbroad or underinclusive in its use of racial classifications." Vitolo, 999 F.3d at 362. Here, the program extends debt relief to farmers and ranchers in groups never shown to have been discriminated against. Giving Native Hawaiian farmers and ranchers debt relief cannot remedy past discrimination against Black farmers and ranchers. The glaring "mismatch" between means and ends is far too much for strict scrutiny to bear. Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 143 S. Ct. 2141, 2168 (2023). There is no "reasonable basis in law and fact" to find this policy narrowly tailored. Pierce, 487 U.S. at 566 n.2.

The majority contends that the Government was not "clearly required, at the preliminary injunction stage, to provide specific examples of intentional discrimination against every category included in [its] race-conscious program." Maj. Op. at 11. The Supreme Court says otherwise. To justify a "resort to race-based government action," the government had to show that it was "remediating specific, identified instances of past discrimination that violated the Constitution or a statute." Students for Fair Admission, Inc., 143 S. Ct. at 2162 (emphasis added). And the preliminary posture of the litigation does not absolve the government of its burden. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 429–30 (2006). Absent at least some specific evidence of intentional discrimination against each racial group, the government cannot show a compelling remedial interest in benefitting that group. It has not shown there is anything to remedy. See Croson, 488 U.S. at 505–06. The government's position—that § 1005 should not be preliminarily enjoined—was not substantially justified because the government presented arguments "flatly at odds with the controlling case law." Griffith, 987 F.3d at 564 (quoting Taucher v. Brown-Hruska, 396 F.3d 1168, 1174 (D.C. Cir. 2005)) (cleaned up).

She concludes:

My best read of our cases is that Holman is entitled to fees and costs because he is a prevailing party, the government's position was not substantially justified, and no special circumstances make an award unjust. I therefore respectfully dissent.

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[Ilya Somin] My Chapter on "Land Use Regulation" For the Forthcoming Routledge Handbook on Classical Liberalism

[It provides an overview of several major issues in land-use policy.]

A draft of my chapter on "Land Use Regulation" for the forthcoming Routledge Handbook on Classical Liberalism (edited by Richard Epstein, Liya Palagashvili, and Mario Rizzo) is now available on SSRN. Here is the abstract:

Land use regulation is a major function of every government in the world. It raises many issues for classical liberalism. This chapter provides an overview of three of the most important areas of land-use policy: the use of eminent domain to forcibly take property for government-approved projects, regulations that restrict property owners' use of their land, and the relationship between property rights in land and migration restrictions.

Part I covers the use of eminent domain to take private property, and arguments for its limitation to genuinely "public" projects, as opposed to coerced transfers between private owners. Advocates of the latter argue they are needed to overcome "holdout" problems. But unconstrained use of eminent domain is a serious threat to property rights and hampers economic development.

Part II considers regulatory restrictions on land use that do not involve physical occupation of property. There is a longstanding debate about the value of such restrictions and whether the government should pay owners compensation. The most significant regulatory restrictions of this type in many nations are zoning rules restricting housing construction.

Finally, Part III provides a critical overview of property-rights rationales for restricting mobility, particularly in the form of international migration. Such theories justify severely constraining the liberty and property rights of both migrants and natives.

In addition to contributing to this volume on classical liberalism, I am also a contributor to Routledge Handbook of Libertarianism, edited by Jason Brennan, Bas van der Vossen, and David Schmidtz, and the Cambridge Handbook of Classical Liberal Thought, edited by M. Todd Henderson. Yet, I'm far from clear on what differentiates libertarianism and classical liberalism, or even if there really is a meaningful difference between the two. I explored that question in more detail in a previous post.

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[Jonathan H. Adler] Kannon Shanmugam on the Legitimacy of the Supreme Court

[A prominent appellate practitioner responds to recent attacks on the justices and the Court.]

Political attacks on the Supreme Court and individual justices are increasingly commonplace. Those who disagree with the court's rulings are not content with criticizing the Court's holdings, rationales, and reasoning. They increasingly target the Court itself, and question the integrity of the justices.

The Supreme Court bar, by and large, has been relatively quiet in the face of these criticisms. Last week, however, noted appellate practitioner Kannon Shanmugam delivered remarks at Duke Law School in defense of the Supreme Court's legitimacy. His remarks are notable, and have attracted attention (as in this WSJ editorial). [The whole speech is available here.]

Here is a taste:

I have been reluctant to give formal speeches about the law in general or the Supreme Court in particular. You see, I have always thought of myself as a practicing lawyer, not a pundit, and a country lawyer at that—the kid who improbably went from a trailer park in Kansas to a corner office on K Street. As a lawyer, my job is to play in the game; I leave the task of color commentary to others.

But today, I am breaking that habit to address the recent criticisms of the Supreme Court's legitimacy. I am doing so for a simple reason: because I revere the Supreme Court. I had the fortune of a lifetime to clerk at the Court for one of the greatest Justices of this generation or any other, Antonin Scalia. Since then, I have devoted my professional life to the Court, having spent the last 20 years arguing cases there. My wife and I even got engaged on the Court's front steps. And I firmly believe that, for all the challenges it faces, our Supreme Court is the finest high court in the world—a model for other countries to follow.

Perhaps for that reason, I have found the recent attacks on the Court to be dispiriting. At the risk of giving away the punch line to my remarks, I believe that the criticisms of the Court's legitimacy are unfounded. But more than that, I believe that attacks on the Court's legitimacy are dangerous—undermining public confidence in the Court and imperiling the rule of law. Finally, I believe that critics of the current Court would be better served engaging with the Court's work on the merits.

Now, I am aware that, in defending the Court, I will inevitably be subject to criticism myself: specifically, the criticism that I am kowtowing to the Court before which I practice. I hope that my track record refutes that criticism. I have never testified for or otherwise endorsed a Supreme Court nominee; in fact, with one exception for a longtime colleague, I have never signed a letter supporting a judicial nominee at any level. And I am at a stage of my career where I have little to gain personally from weighing in on these issues. But if I am criticized, so be it. I believe that those of us who practice regularly before the Court, and who thus have a unique familiarity with the Court and its work, should speak up when we believe the Court is being unfairly attacked.

As Shanmugam notes, attacks on the Court's legitimacy have potentially far reaching effects.

the greatest danger the attacks present is to the rule of law itself. The phrase "rule of law" has rather lost its meaning, with both sides in the political debate often using it simply as a shorthand for decisions with which they agree. But what the "rule of law" truly connotes is that we live in a society where all of us adhere to the law, including judicial decisions. Justice Breyer has frequently spoken about how remarkable it was that, when the Supreme Court effectively resolved the 2000 presidential election in Bush v. Gore, everyone immediately agreed to abide by it. And when I was first asked about whether the Supreme Court was "legitimate"—on a panel at NYU almost exactly two years ago—I expressed skepticism that there could ever come a time when elected officials or citizens would refuse to obey a Supreme Court decision.

But now, I am less confident. Over the last two years, we have seen the President criticizing the Court, in the wake of adverse decisions, in increasingly strident terms. I believe we are not so far from a President saying, in the manner of Andrew Jackson, "John Roberts has made his decision; now let him enforce it." And if you are unsure about that, ask yourself this question: if the Court ever has to resolve another presidential election, how confident are you that either side would simply acquiesce in the Court's decision?

And it's not just a question of presidential elections. One could imagine presidential defiance of Court decisions on a wide range of subjects. And it is perilous (and naive) to assume that any future defiance of a Court order would come from a progressive president resisting a conservative court.

The Court is hardly above criticism. Indeed, many of its decisions are quite deserving of criticism. Yet there is an important difference between saying the Court is wrong and claiming it is illegitimate.

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[Eugene Volokh] Court Allows Plaintiff to Proceed Pseudonymously, Without Disclosing Name to Defendant

[The court stresses, though, that "The complaint includes no claims brought solely on behalf of Plaintiff Doe," and "Based on the description of the claims, including when and where the alleged vandalism took place and photographs of the vandalism, it appears defendants could adequately defend themselves against the claims without knowing Plaintiff Doe's identity."]

From Magistrate Judge Alice Senechal's decision in N.D. Human Rights Coalition v. Patriot Front, which was handed down under seal early this year and was then released (with modest redactions) in response to my motion to unseal (I'm writing about this now to accompany my post on the recent decision denying the motion to dismiss in the case):

Plaintiffs move, ex parte, for leave for "Plaintiff Doe" to proceed under a pseudonym in order to protect [redacted] physical safety and personal privacy.

The North Dakota Human Rights Coalition, Immigrant Development Center, and Plaintiff Doe filed a complaint on September 1, 2023, against the group Patriot Front, Thomas Rousseau, Trevor Valescu, and ten John Does. Plaintiffs allege multiple claims under 42 U.S.C. §§ 1985, 1986 and 1981, and claims of conversion, trespass, trespass to chattel, and civil conspiracy. According to the complaint, on September 3 and September 5, 2022, persons affiliated with Patriot Front trespassed onto and vandalized the International Market Plaza in Fargo, North Dakota. The complaint describes the International Market Plaza as a large indoor community space filled with African, Middle Eastern, and Latin American immigrant-owned shops, restaurants, and grocery stores.

According to photos included in the complaint, the front of the market and multiple murals were defaced with spray-painted Patriot Front links in September of 2022….

Historically, courts have allowed the use of pseudonyms if identification of a party would pose a risk of retaliatory harm to them. Specific past incidents of violence or vandalism have been found to show a risk of retaliatory harm. Fear of retaliatory action can be sufficient to satisfy this factor. This factor also takes into consideration innocent non-parties' risk of retaliatory physical or mental harm.

Plaintiffs argue identification of Plaintiff Doe poses a risk of retaliatory physical or mental harm to [redacted] and [redacted] family and support this argument with various quotations from Patriot Front's website. Plaintiffs quote the website's statements arguing, "Patriot Front's mission is to force 'a hard reset on the nation we see today—a return to the traditions and virtues of our [European] forefathers' who 'left their European homes' … [and who] 'found a common cause and a common identity as Americans."' Plaintiffs also argue "Patriot Front believes that '[t]o be American is to be a descendant of conquerors…. This unique identity was given to us by our [European] ancestors, and this national spirit remains firmly rooted in our blood.'"

Additionally, Plaintiffs' complaint contains examples of Patriot Front's harassment and quotes from the group's website showing identification could pose a risk of retaliatory physical or mental harm to Plaintiff Doe. The complaint states, "According to Patriot Front's Manifesto, published on its website, the only people who are Americans are those 'of the founding stock of our [European] people,' and who 'share the common spirit that permeates throughout our [European] greater civilization, and the European diaspora.'"

Plaintiffs argue, "The Manifesto espouses white nationalist rhetoric and advocates for 'a generation of brave men to fearlessly rise to face all threats to their collective interests,' in order to 'urge our [European] people onward' as 'the true inheritors of America.'" The complaint also alleges, "The group's online propaganda includes phrases like 'Embrace violence,' 'Become war,' and 'Train with your friends. Fight your enemies.'" The complaint further alleges Patriot Front members have previously terrorized immigrant communities around the United States including in Fargo, with the most recent intimidation of the Fargo immigrant community taking place in July 2023, after "a man of unknown origin" killed a Fargo police officer.

According to the complaint, Plaintiff Doe is the Executive Director of the Immigrant Development Center, which owns the International Market Plaza building. Plaintiff Doe is a [redacted] Muslim, Somalian immigrant who came to the United States in 1997 and became a citizen in 2003. Plaintiff Doe alleges [redacted] is fearful of harassment and threats if [redacted] identity is disclosed to defendants. Also, according to the complaint, Plaintiff Doe is concerned retaliatory harm may be projected onto [redacted] who likely share [redacted] identities. The complaint alleges defendants have formally targeted individuals who share the same identities as Plaintiff Doe.

Based on the allegations and supporting evidence in plaintiffs' complaint and ex parte motion, plaintiffs have shown Plaintiff Doe's race, religion, and immigrant status demonstrate a likelihood that release of [redacted] identification would pose a risk of retaliatory physical or mental harm to Plaintiff Doe, [redacted] family, and [redacted] community….

Courts have considered whether a plaintiff is vulnerable based on their age. And, if a plaintiff is not a minor, courts generally weigh that against allowing the plaintiff proceeding pseudonymously. Although age is the most common consideration of vulnerability, it need not be the only consideration. In this case, the court looks to Plaintiff Doe's race, religion, and immigrant status as showing [redacted] particular vulnerability. Based on the plaintiffs' arguments and supporting evidence within the complaint and ex parte motion, and considering Plaintiff Doe's race, religion, and immigrant status, the court concludes plaintiffs have shown Plaintiff Doe is particularly vulnerable….

Most of the cases cited discuss a party's request to use a pseudonym in order to

protect the party's identity from the public. Here, Plaintiff Doe is requesting to use a pseudonym to protect [redacted] identity from the public but more importantly to protect [redacted] identity from defendants. Because defendants generally have a right to know who is bringing a case against them, this court must determine if Plaintiff Doe's request to use a pseudonym would unduly prejudice defendants. In determining if defendants would experience undue prejudice under these circumstances, this court looks to whether defendants would have difficulty pa1ticipating in the proceedings if Plaintiff Doe is allowed to continue to utilize a pseudonym.

The complaint includes no claims brought solely on behalf of Plaintiff Doe. The claims relate to the International Market Plaza and the community that utilizes that market space. Based on the description of the claims, including when and where the alleged vandalism took place and photographs of the vandalism, it appears defendants could adequately defend themselves against the claims without knowing Plaintiff Doe's identity. Further as plaintiffs suggest, if defendants later demonstrate their need to know Plaintiff Doe's identity, the court could consider entry of an appropriate protective order.

The court, however, required Doe to be identified to the court, because "[C]ourts tasked with resolving pseudonymity motions must be afforded the anonymous party's true name under seal" in order to properly check for any reasons to recuse.

Note that my motion sought to unseal the order allowing pseudonymity, and the plaintiff's motion seeking pseudonymity; I did not move to oppose the grant of pseudonymity itself.

The post appeared first on Reason.com.

[Ilya Somin] My New Dispatch Article on Updating Libertarianism

[Libertarian ideology remains generally sound. But I argue it could use a few updates.]

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Today, The Dispatch published my article on updating libertarian ideology. The piece was inspired, in part, by insightful articles on the same topic by Randy Barnett and Timothy Sandefur, though my take on the issue is significantly different from theirs. Here is an excerpt from my article:

In a recent essay, Georgetown Law professor and libertarian legal scholar Randy Barnett offered a provocative indictment of American libertarianism. The movement needs several updates, he argued, most notably regarding what he considers to be abuses of private power. Instead of evolving, libertarianism according to Barnett has been "frozen in amber since the 1970s."

The state of libertarian thought may seem of little importance to anyone but committed libertarians (some of whom disagreed thoughtfully with Barnett's piece). After all, libertarians are far from being a dominant force in either major political party. The Trump-era GOP has repudiated libertarian ideas it previously had some affinity for, such as promoting free trade and cutting entitlement spending. Democrats are far from libertarian as well. The idea—propounded by some conspiratorially minded people on both left and right—that libertarians secretly dominate American public policy is patently false.

Though I don't agree with most of Barnett's assessment, I do think he's right that libertarianism still needs some updates—just not the ones he proposes. Its traditional core remains valid, even more so than ever in some ways. Nevertheless, libertarianism needs a better theory of the tradeoffs between natural rights and utility; it needs better strategies to address large-scale public goods problems; and it needs to recognize that nationalism is the greatest threat to liberty in most parts of the world today.

The rest of the article outlines the three areas where updates are needed in greater detail. I also explain why I think the core of libertarianism remains sound, and why I differ with Randy Barnett's view that libertarian thought has been "frozen in amber since the 1970s." Libertarian thinkers have, in fact, made important advances since then. But there is room for further progress, particularly (though not exclusively) on the three issues I highlight.

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[Eugene Volokh] Federal and State Civil Claim Against Patriot Front for Alleged Vandalism of Fargo Market Can Go Forward

From N.D. Human Rights Coalition v. Patriot Front, decided Sept. 9 by Chief Judge Peter Welte (D.N.D.):

This case involves the vandalism of the Market [International Market Plaza in Downtown Fargo] in September 2022. As alleged, individuals affiliated with Patriot Front, which is alleged to be a "white supremacist group," trespassed onto the Market and spray-painted Patriot Front designs across the front of the Market's building. A few days later, Patriot Front members also vandalized the Market's street-facing wall….

An earlier order noted that "the complaint describes the International Market Plaza as a large indoor community space filled with African, Middle Eastern, and Latin American immigrant-owned shops, restaurants, and grocery stores."

The N.D. Human Rights Coalition and the Executive Director of the entity that owns the Market sued the Patriot Front and "Thomas Rousseau, who is alleged to be the National Director of the Patriot Front, and Trevor Valescu, who is alleged to be a member of the Patriot Front and the Network Director of the organization's Network 11, which supervises activities in North Dakota." The court allowed the case to go forward:

Under 42 U.S.C. § 1981, all persons within the jurisdiction of the United States shall have "the same right … to make and enforce contracts … as is enjoyed by white citizens." This includes "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." The elements of a § 1981 claim include (1) membership in a protected class, (2) discriminatory intent on the part of the defendant, (3) engagement in a protected activity, and (4) interference with that activity by the defendant….

Rousseau and Valescu argue that the Plaintiffs have not identified any specific contracts that were interfered with as a result of the vandalism. To be sure, the factual allegations identifying contracts in the complaint are thin, but the Plaintiffs do allege some deprivation of financial benefit in rental and lending contracts. Whether the Plaintiffs will be able to identify any specific contracts that the Defendants interfered with to survive summary judgment is certainly an open question. But at this stage of the litigation, the focus is on plausibility and whether there are sufficient factual allegations to support the claim. That standard is met as to this claim—the complaint plausibly alleges a § 1981 claim, and the motion to dismiss that claim is denied.

[Title 42 U.S.C.] § 1985(3) provides a civil remedy for private conspiracies to deprive others of legal rights. To state a § 1985(3) claim, the Plaintiffs must plausibly allege (1) a conspiracy of two or more persons; (2) for the purpose of depriving another of equal protection or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation of a legal right….

The Plaintiffs allege the impaired federal substantive right is the right to enjoy a place of public accommodation—the Market—without fear or intimidation on account of race, religion, or nationality…. "[A] racially motivated conspiracy to interfere with one's enjoyment of a place of public accommodation" is a viable [basis for a] § 1985(3) claim….

Accepting the factual allegations as true and reading the complaint in the light most favorable to the Plaintiffs, they have plausibly alleged a § 1985(3) claim. They allege a conspiracy among the Defendants to deprive the Plaintiffs of their civil rights, and they alleged acts in furtherance of the conspiracy, including the vandalism to the Market. They allege two predicate rights as the basis for the § 1985(3) claim—(1) the right to make and enforce contracts, and (2) the right to enjoy a public accommodation. Again, whether the Plaintiffs can ultimately prove their § 1985(3) claim is an open question to be resolved another day. At this point, they have plausibly alleged a § 1985(3) claim, and the motion to dismiss that claim is denied.

Under North Dakota law, conversion is "a tortious detention or destruction of personal property, or a wrongful exercise of dominion or control over the property inconsistent with or in defiance of the rights of the owners." Rousseau and Valescu specifically argue that the complaint fails to allege that either of them committed the tortious act. And their argument is correct—the complaint does not allege that Rousseau and/or Valescu engaged in a tortious detention, destruction, or control over the property at issue. So, conversion is not plausibly alleged as to Rousseau and Valescu, and the motion to dismiss the conversion claim is granted as to both of them.

The same analysis and result apply to the trespass to chattel claim. Trespass to chattel "requires dispossession of the property impairment of the condition, quality or value of the property, loss of use of the property, or other harm." "One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if he dispossesses the other of the chattel." There is no allegation that Rousseau and Valescu are the individuals who "impaired" the condition of the property or dispossessed the property from its rightful owner. So, the motion to dismiss the trespass to chattel claim is granted.

Next, civil trespass is a common law tort in North Dakota. The North Dakota Supreme Court has defined trespass as "an intentional harm where a person intentionally and without a consensual or other privilege enters land in possession of another or any part thereof or causes a thing or third person so to do." The complaint alleges that Rousseau and Valescu, through their leadership, coordination, and instruction, caused Patriot Front members to enter the IDC's property without consent, for the purpose of vandalizing the Market. That is sufficient to state a claim for civil trespass, and the motion to dismiss that claim is denied….

Civil conspiracy is:

a combination of two or more persons acting in concert to commit an unlawful act or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another and an overt act that results in damages.

Rousseau and Valescu did not move to dismiss this claim, and there are sufficient facts in the complaint to support a plausible civil conspiracy claim. So, the claim will survive dismissal.

Christina Elisabet Dierolf, Christine Y. Wong, and William Frentzen (Morrison Foerster, LLP), Jon M. Greenbaum (Justice Legal Strategies, PLLC), Timothy Q. Purdon (Robins Kaplan LLP), Anisa Sirur, and Arthur Ago represent plaintiffs.

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