Eugene Volokh's Blog, page 263

[Josh Blackman] Man Indicted For Threatening To Lynch "Corrupt" Justice Thomas And His "Insurrectionist" Wife

[There are consequences to the rhetoric about the Court from high ranking officials.]

Yesterday the Department of Justice indicted Panos Anastasiou for making threats against "Supreme Court Justices 1-6." Threats were also made against "Family Members 1 and 2" of "Supreme Court Justices 1 and 2." The indictment doesn't name who the six Justices and their family members are, but it isn't hard to figure things out. The motion to seek a detention hearing lists the specific messages that the defendant submitted through the Supreme Court's website. I will reproduce theme here, as relayed by DOJ.

January 4, 2024: "I'd like to see [Former President 1 and Supreme Court Justice 1] hanging together from an Oak tree. I'd gladly provide the rope and pull the handle."

May 10, 2024: "Subject: N***** [Supreme Court Justice 1]", "I'd like to see you have a real lynching and I'll donate the tree and pull the lever… you worthless piece of n***** shit."1

May 16, 2024: "I would have had NO reservations about walking up to [Supreme Court Justice 2] and not asking him to take it down but to put a BULLET in this mother fuckers head."

May 17, 2024: "I'm going to call and urge my fellow Vietnam veterans… to drive by the [Supreme Court Justice 2]'s house with their AR15's and when fucking [Supreme Court Justice 2] and his fucking PIECE OF SHIT CUNT WIFE are HOME spray the home of these disrespectful mother fuckers with hundreds of rounds… hopefully killing these SCUMBAG COCKSUCKERS. Hopefully N***** [Supreme Court Justice 1] and his white trailer trash n***** loving insurrectionist wife are visiting."

June 18, 2024: "I don't want to see these two corrupt mother fuckers assassinated… I'd like to see them TORTURED worse than Kim Jung Un would torture his own family. You know, like putting electrodes up their ass and on their balls, needles under their finger nails, pulling their teeth with pliers, etc etc. Make these SCUMBAGS beg for their lives."

July 1, 2024: "ASSASSINATING THESE COCKSUCKERS IS THE ONLY PANACEA… that includes the CONVICTED CRIMINAL, [Former President 1]. Again as an AMERICAN and to defend the constitution and democracy I want the assassinations by any ENTITY of the government or even a PATRIOTIC AMERICAN to commence. And PLEASE start with the assassination of the N***** and HERMAPHRODITE. As a Vietnam veteran and if I had the means and way I'd assassinate them myself. These fuckers are NOT ABOVE THE LAW."

July 3, 2024: "WE NEED MASS ASSASSINATIONS. If you're corrupt you're corrupt… don't give us this official and unofficial bullshit. You mother fuckers are UNELECTED and Americans have no trust in you. The internet is abuzz with Americans clamoring for your ASSASSINATIONS. We need to assassinate you fuckers and put your heads on a pike and use them as soccer balls. I want to be the first to kick [Supreme Court Justice 6] head down Pennsylvania Ave. You don't want to ask me what I'd like to do to the N***** and [Supreme Court Justice 2]."

July 5, 2024: "We should make [Supreme Court Justices 1-6] be AFRAID very AFRAID to leave their home and fear for their lives everyday."

Justice 1 is Justice Thomas. Family member 1 is Ginni Thomas.

Justice 2 is Justice Alito. Family member 2 is Martha Ann Alito.

And I am just going to guess that Justices 3 through 6 include Chief Justice Roberts, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. I'm not sure for certain who Justice 6 is, and why the defendant wants to kick his or her head down Pennsylvania Avenue.

I am grateful that the defendant was apprehended, but these threatening messages began nearly eight months ago. Far be it from me to question law enforcement, but it seems in recent times that the government has failed to act upon threats until guns were in the vicinity of public officials. Do would-be assassins get one free shot at a Justice's ear? Are they allowed to hide for twelve hours in a bush outside the Justice's home? We know the Kavanaugh assassin was able to take a stroll past the Justice's house. I'm glad DOJ finally got around to indicting him! In the meantime, Justice Barrett needs to explain to her children why she has a bullet-proof vest.

Let me make a broader point. There is a common theme in the defendant's rants: the Justices are corrupt, they are in cahoots with President Trump, and Ginni Thomas is an insurrectionist. Where could the defendant possibly have heard such messages? Surely, one could find these comments in the dregs of social media. But these slanders are also issued repeatedly by leading Democratic lawmakers. Indeed, the entire basis of President Biden's "Court Reform" plan is that the Justices are "corrupt" and cannot be trusted. There are consequences to the rhetoric about the Court from high ranking officials.

I wish more people in positions of power would defend the Court. I praise in the highest terms a recent speech that Kannon Shanmugam delivered at Duke, as reported by the Wall Street Journal. Kannon points out how public officials use language that is similar to Panos Anastasiou's, minus the racial slurs. Kannon offers some examples:

… the attacks have been accompanied by unusually toxic rhetoric. Consider statements like these:

• "The extreme far-right, MAGA majority on the United States Supreme Court is totally out of control."

• "This activist, extremist MAGA court faces a legitimacy crisis."

• "The problem is not that the Supreme Court is just conservative. The problem is that it is corrupt."

• "We must restore justice and balance to the rogue, radical Supreme Court."

• "The Supreme Court is a cesspool of corruption devastating our communities."

These statements do not come from random people; all of them come from members of Congress. And it does not take much imagination to realize what the rhetoric elsewhere looks like.

And Kannon expressly ties this sort of rhetoric with the assassination attempt against Justice Kavanaugh:

As observers across the political spectrum noted in the immediate aftermath of the attempted assassination of former President Trump, the rhetoric in American public life, on both sides, has more generally become overheated; indeed, we practicing lawyers (myself included) sometimes cross the line, too. But I believe that the attacks on the Court's legitimacy, and the accompanying rhetoric, are having two deeply concerning effects. First, as the two distinguished recent leaders of this school's Bolch Judicial Institute, David Levi and Paul Grimm, have recently warned, attacks on the legitimacy of the courts are contributing to the threat of violence against judges in general. And the same can be said with regard to the Supreme Court in particular. Most obviously, a man has been charged with the attempted assassination of Justice Kavanaugh after allegedly turning up at his home with a gun and other weapons. (The man has pleaded not guilty and is awaiting trial.) Others have recently been charged with or detained for making threats against the Chief Justice and Justice Barrett. It is impossible to draw a direct link between the attacks on the Court's legitimacy and any of these recent alleged crimes. But when even members of Congress are threatening that Justices will "pay the price" and "won't know what hit them" if they issue decisions reaching certain outcomes, it is not unreasonable to conclude that the rhetoric around the Court's legitimacy risks adding to the problem.

Kannon is exactly right. As we are told over and over again, words have consequences.

And I only wish more members of the Supreme Court bar would be so vocal in speaking out on this issue. They make a lot of money off of the Court. Certainly their firms, and clients, would appreciate even a modest defense of the Justices.

The same charge goes to the Department of Justice. I'm looking right at you Attorney General Garland. You are quite fond of criticizing former-President Trump, whom your special counsel is trying to convict, but criticism should also be targeted at your boss. Ditto for Solicitor General Prelogar, who should spend a little less time sitting with Vanity Fair, and spend more time explaining why her boss's proposal would be so destructive for the Court. One wonders if any other Attorney General would ever approve of such a puff piece about the Solicitor General.

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[Eugene Volokh] California Litigants Must Ask for Pseudonymity, Rather Than Just Filing Under a Pseudonym

From L.A. Superior Court Judge Frank Tavelman's order last Friday in Roe v. Smith:

Plaintiffs have not adhered to the proper procedure for proceeding anonymously. Before a party can proceed anonymously, they must move the Court for permission to do so. This procedure is addressed in Department of Fair Employment and Housing v. Superior Court of Santa Clara County (2022) 82 Cal.App.5th 105 (hereinafter DFEH). There the Court observed the following:

Procedurally, because a hearing is required, a party who wants to proceed anonymously will file the initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed that way. If the request is granted, the initial pleading can remain. If pseudonym use is denied, the pleading must be amended to state the party's true name.

Here, no motion was made to proceed anonymously, and no hearing was ever conducted on Plaintiff's right to do so. This procedural posture is important because it places the burden on the party seeking to proceed anonymously to demonstrate an overriding interest. Plaintiff's failure to move for permission to proceed anonymously has essentially improperly shifted this burden to First Amendment and Defendants. Plaintiffs have never demonstrated to the Court that they can overcome the presumption of openness provided by CRC Rule 2.550(c)….

Seems quite correct to me; the binding California Court of Appeal precedent in DFEH already made it clear, but trial court decisions such as this are important reminders of it as well.

Note that I'm involved in this case as lawyer for the First Amendment Coalition, which moved to depseudonymize the plaintiffs (who are suing for libel); for more on the arguments against libel plaintiffs suing pseudonymously, see this post. The court denied our motion without prejudice to our making the same arguments later, because it concluded that plaintiff needs to move for pseudonymity first, and we can then argue against that motion. Thanks to Benjamin Diamond Wofford, who just graduated from Stanford Law School and who worked on this case.

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[Eugene Volokh] No Pseudonymity for Plaintiff Challenging Suspension Under Title IX

[So holds the Eleventh Circuit, upholding the district court's decision—but the court's standard of review suggests that the exact oppose district court decision might have been upheld, too.]

Yesterday's Eleventh Circuit decision in Doe v. Florida Gulf Coast Univ. Bd. of Trustees (by Eleventh Circuit Judges Robert Luck, Andrew Brasher, and Nancy Abudu) involved a plaintiff who was suing under Title IX, challenging the University's decision to suspend him for allegedly having sex with his ex-girlfriend "when she was too intoxicated to consent." Plaintiff sought to proceed under a pseudonym—quite routine in such cases. But the district court said no, and the Eleventh Circuit held that the district court's decision wasn't an abuse of discretion:

We have laid out several considerations relevant to determining whether a district court should allow a litigant to proceed anonymously[:] … "whether the party seeking anonymity (1) is challenging government activity; (2) would be compelled, absent anonymity, to disclose information of utmost intimacy; or (3) would be compelled, absent anonymity, to admit an intent to engage in illegal conduct and thus risk criminal prosecution." "The 'information of utmost intimacy' standard" generally relates to topics like "abortion" as well as "prayer and personal religious beliefs." "On the other hand, courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" … We have [also] considered, for example, [4] whether "the party seeking anonymity is a minor," [5] whether the person "faces a real threat of physical harm absent anonymity," and [6] whether the movant would face "social stigma" if forced to proceed under the movant's true name.

The appellate court held that the district court didn't abuse its discretion as to the utmost intimacy and stigma factors:

As to Doe and Roe's sexual history, and any accompanying information related to Roe's potential infection, we have recognized that "courts have often denied the protection of anonymity in cases where plaintiffs allege sexual assault, even when revealing the plaintiff's identity may cause her to 'suffer some personal embarrassment.'" And here, Doe contends that his complaint and supporting materials reveal—at most, in his view—consensual encounters, so the district court did not make a clear error in judgment when finding this information did not warrant granting the motion.

We also can't say that the district court abused its discretion in determining that the information about Roe did not compel granting anonymity. [This seems to refer to her "potential [sexually transmitted] infection, mental health and medication … [and] alcohol and drug use." -EV] The information related to her is similar to the information Doe relies on as to himself, which we've already determined did not require granting the motion. And we've never held that medical information alone establishes grounds for anonymity…. "[T]he fact that a case involves a medical issue is not a sufficient reason for allowing the use of a fictitious name, even though many people are understandably secretive about their medical problems." …

Next, to the extent Doe argues that information about his alcohol and drug use is of the utmost intimacy, that position finds no support in our precedent, and this information isn't anything like what we have previously held falls into this category.

Doe also hasn't demonstrated the district court abused its discretion when it found that any alleged social stigma Doe will face didn't outweigh the presumption that his proceeding should be a public one. Put simply, he does not cite any evidence of these harms, and instead only asserts in briefing that they are "near[ly] certain[ ]" to occur.

And the court likewise held the district court didn't abuse its discretion as to factors 1, 3, and 4:

[T]he district court did not abuse its discretion in concluding that, even though Doe's lawsuit was against a public entity (the University), this did not necessarily weigh in favor of anonymity….

We also see no error in how the district court addressed Doe's concerns over an alleged fear of prosecution …. The district court found that any statute of limitations related to Doe's drug and alcohol use had already run by the time of its order, and Doe doesn't challenge that determination…. And as it relates to his sexual harassment determination, Doe's lawsuit will not force him to admit an intent to engage in illegal conduct. To the contrary, Doe alleges that the University reached the wrong result because it violated his constitutional rights and refused to follow its established procedures for handling sexual harassment allegations.

Doe tries to rely on his "age and status" as a college student to support his argument that his motion should have been granted. Our precedent has considered "whether the plaintiffs were minors." But Doe is not a minor, and he wasn't a minor at any time relevant to this lawsuit. So this, like Doe's other arguments, does not demonstrate the district court abused its discretion. We are satisfied that the district court adequately considered the totality of the circumstances and made a determination well within the zone of choices available to it.

Doe ends by cautioning that affirming the district court would "likely result in no Title IX litigant being able to proceed anonymously," citing a case from the First Circuit he believes supports reversal here. But we agree with the First Circuit "that the confidentiality of a Title IX disciplinary proceeding may sometimes—but not always—furnish grounds for finding an exceptional case warranting pseudonymity." As shown here, the district courts in our circuit are more than capable of balancing plaintiffs' privacy interests against the constitutional right to access judicial proceedings and exercising their broad discretion to grant anonymity in appropriate cases.

So here's the problem, as I see it: Because the Eleventh Circuit reviewed the district court's decision for "abuse of discretion," and held only that "Doe … hasn't demonstrated the district court abused its discretion," this gives virtually no guidance on how district courts actually should exercise their discretion. A court could have reached the opposite result on the same facts, and it too likely wouldn't have been seen as abusing its discretion. (This might be why the Eleventh Circuit released this case as a nonbinding memorandum, rather than a binding precedent—it actually decides very little that could be binding on future district courts.)

Indeed, the great majority of courts considering such Title IX wrongful discipline cases have allowed pseudonymity (see pp. 1441-48 of The Law of Pseudonymous Litigation), often on facts very close to these. Among district courts in the Eleventh Circuit, the split in the cases I found in my 2022 research was 3 to 3. So it just looks like the plaintiff had the bad luck to come before a public-access-friendly judge rather than a privacy-friendly judge. I'm not sure what the right rule is in cases such as this; but luck of the draw seems like a poor solution.

Sacha Dyson and Kevin M. Sullivan (Bush Graziano Rice & Hearing) represent the university.

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[Eugene Volokh] "Discard [Library] Books … That Reflect Gender, Family, Ethnic, or Racial Bias"

[Professional librarian sources seem split on viewpoint-based book removals: some firmly call for viewpoint neutrality, while others say that books should be evaluated for "biased viewpoints."]

[1.] Next week, the entire en banc Fifth Circuit will be hearing Little v. Llano County, a case involving allegations of viewpoint-based book removals in a public library. As I've noted before, the Supreme Court has never resolved whether such removals are unconstitutional. Pico v. Bd. of Ed. (1982), which considered the matter as to public school libraries, split 4-4 on the subject, with the ninth Justice, Justice White, expressly declining to resolve the substantive question. (The Pico Justices generally agreed that schools could remove some material as age-inappropriate because of its vulgar or sexual content; the debate was about viewpoint-based removals.)

U.S. v. American Library Ass'n (2003), which dealt with the related question of Internet filtering in public libraries generally, was also a splintered decision, and didn't resolve the broader question, either. A 1995 Fifth Circuit panel decision had generally precluded such viewpoint-based removals, but the Fifth Circuit en banc court will need to consider whether that decision should stand: Rehearing by the full en banc court is the normal way that federal appellate courts reconsider whether three-judge panel decisions should be overruled.

I'm not sure what the answer here should be. I tentatively think a public school is entitled to decide which viewpoints to promote through its own library: School authorities can decide that their library will be a place where they provide books they recommend as particularly interesting/useful/enlightening/etc., essentially as supplements to the school curriculum (over which the school has broad authority). The process of selecting library books is part of the government's own judgment about what views it wishes to promote. And the ability to reconsider selection decisions—including in response to pressure from the public, which is to say from the ultimate governors of the public schools—should go with the ability to make those decisions in the first place. To be sure, some such decisions may be foolish or narrow-minded, but they're not unconstitutional.

But this doesn't necessarily resolve the question of how librarians should administer non-school public libraries, which aren't the adjunct to any sort of school curriculum. Libraries are much more about giving more options to readers, rather than about teaching particular skills and attitudes to students. The case for viewpoint neutrality is therefore stronger there—though not, I think, open and shut. (Note also that even the challengers in this case leave open the possibility that courts shouldn't scrutinize book acquisition decisions to decide whether they are viewpoint-based, but only book removal decisions. See Appellees' En Banc Brief at 43-44 & n.13, 50.)

In any case, that's the big picture; here, I want to talk about a particular twist in the dispute, which can be particularly well seen in a friend-of-the-court brief filed by the Freedom to Read Foundation, the Texas Library Association, and American Library Association. The passage, and the sources it cites, refer to the necessity to remove books on some criteria—this is called "weeding," and some sources suggest that each year a public library would generally weed out 5% of its stock—and discuss which criteria are proper:

There are various methods for weeding library collections. One is the "CREW" method, which stands for "Continuous Review, Evaluation, and Weeding." CREW contains six general guidelines under the acronym "MUSTIE":

Misleading: factually inaccurate

Ugly: beyond mending or rebinding

Superseded by a new edition or by a much better book on the subject

Trivial: of no discernible literary or scientific merit

Irrelevant to the needs and interests of the library's community

Elsewhere: the material is easily obtainable from another library.[26]

When weeding, the goal is "to maintain a collection that is free from outdated, obsolete, shabby, or no longer useful items."[27]

Weeding is not the removal of books that, in the view of government officials, contain "inappropriate" ideas or viewpoints. Professional librarian practice is crystal-clear: "While weeding is essential to the collection development process, it should not be used as a deselection tool for controversial materials."[28]

[26] Lester Asheim, Not Censorship But Selection, Am. Libr. Ass'n, www.ala.org/advocacy/intfreedom/NotCe... (last visited Sept. 10, 2024); see also Rebecca Vnuk, The Weeding Handbook: A Shelf-By-Shelf Guide 6 (2d ed. 2022) (describing MUSTIE method).

[27] Jeanette Larson, CREW: A Weeding Manual for Modern Libraries at 11, Tex. State Libr. & Archives Comm'n (2012), at 11, https://www.tsl/texas.gov/sites/defau... (last visited Sept. 10, 2024).

[28] Collection Maintenance, supra note 23 (emphasis added) [Collection Maintenance & Weeding, Am. Libr. Ass'n, https://www.ala.org/tools/challengesu... (last visited Sept. 10, 2024).

But here's the twist: As the government defendants earlier briefing makes clear, both The Weeding Handbook (note 26) and A Weeding Manual (note 27) expressly contemplate "removal of books that, in the view of government officials, contain 'inappropriate' ideas or viewpoints." Here are some passages from A Weeding Manual (emphasis added):

For all items, consider the following problem categories and related issues:

Poor Content: … Material that contains biased, racist, or sexist terminology or views …

Juvenile Fiction … Consider discarding older fiction especially when it has not circulated in the past two or three years. Also look for books that contain stereotyping, including stereotypical images and views of people with disabilities and the elderly, or gender and racial biases.

323 (Immigration & Citizenship) … Weed biased or unbalanced and inflammatory items.

330 (Economics) … Weed career guides with gender, racial, or ethnic bias.

390 (Customs, Etiquette & Folklore) … Discard books that lack clear color pictures. Holiday-specific books may only circulate once or twice a year. Discard books that are MUSTIE or that reflect gender, family, ethnic, or racial bias.

398 (Folklore) … Weed based on the quality of the retelling, especially if racial or ethnic bias is present.

709 (Art History) … While information may not become dated, watch for cultural, racial, and gender biases.

740 (Drawing & Decorative Arts) … Discard books on crafts that are no longer popular (macramé) or that feature gender bias.

793-796 (Games and Sports) … Watch for gender and racial bias in sports and athletics.

800 (Literature) … Watch for collections that feature gender or nationality bias and outdated interests and sensitivities.

E (Easy Readers/Picture Books) … Weed books that reflect racial and gender bias.

JF (Juvenile Fiction) … Evaluate closely for outdated styles, artwork, and mores, or biased viewpoints.

Some of these criteria, to be sure, may be defended on various grounds, including that books that contain what to appear outdated viewpoints are just not going to be as useful or interesting to new generations of readers. But that still involves viewpoint-based decisionmaking (as opposed to using viewpoint-neutral criteria such as whether the book has in fact been checked out in the last few years).

The Weeding Handbook, published by the American Library Association itself, likewise calls for some viewpoint-based removal decisions:

It is … imperative to view materials through the lens of diversity and inclusion. Outdated or misrepresentational material needs to be removed on a regular basis. The Washington Office of Superintendent of Public Instruction has a very thorough tool for screening for biased content available online, … Washington Model Resource: Screening for Biased Content in Instructional Materials. [That tool is focused on classroom materials, but the Weeding Handbook is suggesting that it be adapted to library materials as well. -EV]

Carefully evaluate books on Black history, women's issues, and gender for language and bias…. Are materials free of stereotypes and assumptions?

[Quoting one librarian favorably:] "Removing the Dr. Seuss books that are purposefully no longer published due to their racist content is absolutely acceptable because it's an act of basic collection maintenance. It is our professional duty to make those carefully chosen decisions to ensure our collections are up-to-date and suitable for the communities we serve…. Librarians who claim to be antiracist need to remove these books…."

Libraries would do well to remember the first 'M' in MUSTIE: Misleading. CREW goes even further to define that "material that contains biased, racist, or sexist terminology or views" should be weeded.

[Quoting another librarian favorably:] "… This … highlights a new and much needed discussion in weeding principles: the weeding out of harmful materials with racist cultural stereotypes." "My philosophy is indeed to let it go when it comes to racially offensive material."

And this seems to represent broader attitudes among many librarians. A 2021 School Library Journal report notes, without criticism, that 47.3% of public library respondents (and 65.1% of school library respondents) included in "criteria for weeding" "inappropriate content (e.g., racist, biased, etc.). The California Department of Education Weeding the School Library publication (to be sure, it's focused on school libraries) expressly noted that "Books containing racial, cultural or sexual stereotyping" should be weeded as "misleading."

To be sure, there are other documents from the ALA that seem to take a much more pro-viewpoint-neutrality view, e.g., this statement (originally adopted in 1973) from "Evaluating Library Collections: An Interpretation of the Library Bill of Rights":

The collection-development process is not to be used as a means to remove materials … because the materials may be viewed as controversial or objectionable. Doing so violates the principles of intellectual freedom and is in opposition to the Library Bill of Rights.

Some resources may contain views, opinions, and concepts that were popular or widely held at one time but are now considered outdated, offensive, or harmful. Content creators may also come to be considered offensive or controversial. These resources should be subject to evaluation in accordance with collection-development and collection-maintenance policies. The evaluation criteria and process may vary depending on the type of library. While weeding is essential to the collection-development process, the controversial nature of an item or its creator should not be the sole reason to remove any item from a library's collection. Rather than removing these resources, libraries should consider ways to educate users and create context for how those views, opinions, and concepts have changed over time.

Failure to select resources merely because they may be potentially controversial is censorship, as is withdrawing resources for the same reason.

The American Library Association opposes censorship from any source, including library workers, faculty, administration, trustees, and elected officials. Libraries have a profound responsibility to encourage and support intellectual freedom by making it possible for the user to choose freely from a variety of offerings.

And when I talked to librarians about this earlier this year, many of them also endorsed the viewpoint-neutrality approach. I also asked Deborah Caldwell-Stone, Director of the ALA Office for Intellectual Freedom / Freedom to Read Foundation, and she reaffirmed the viewpoint-neutrality position of the FFRF and ALA amicus brief, as well as of the Evaluating Library Collections statement quoting above. She added, "Citing to examples of weeding resources that are published by others or books that represent the view of a particular author should not be seen as an endorsement of every statement contained in those resources."

But I think it's hard to say, as the ALA Brief does, that there's a "crystal-clear" "[p]rofessional librarian practice" of viewpoint neutrality. Rather, it appears that there is a pretty major split among librarians and among those who discuss library weeding policy: Some view the weeding of certain views as legitimate and indeed recommend such weeding, while others insist on viewpoint-neutral criteria.

Who is right and who is wrong is a complicated question. But the debate shouldn't be seen, I think, as being between some solid professional norm of viewpoint-neutrality and conservative political departures from such a norm.

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[Josh Blackman] Today in Supreme Court History: September 19, 1907

9/19/1907: Justice Lewis Powell's birthday.

Justice Lewis Powell

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[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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[Eugene Volokh] Blocking Dissenters from School System's "StaffPride" Twitter Account May Have Violated First Amendment

From yesterday's opinion by Judge Paula Xinis (D. Md.) in Foldi v. Bd. of Ed. for Montgomery County:

Foldi and Mandel live in Montgomery County, Maryland. Foldi writes for a news magazine, The Spectator, and Mandel is a columnist for several national publications and has written extensively on education and parental rights. Id. In October 2022, the School Board announced the introduction of LGBTQIA+-themed books into the MCPS [Montgomery County Public Schools] curriculum. In response, several parents sought permission from MCPS for their children to "opt out" of any classroom instruction involving these books.

At first, it appeared that MCPS would permit this opt-out alternative. On March 22, 2023, MCPS confirmed that parents could choose to have their children read other material in lieu of the LGBTQIA+ books. But the next day, the School Board reversed course and informed parents that no such opt-out alternative would be available, nor would MCPS notify parents when classroom instruction would involve LGBTQIA+-themed materials….

The question of LGBTQIA+-inclusive reading materials became a hot button issue for MCPS. At a March 2023 School Board meeting for example, one parent vocally opposed the Board's refusal to provide an opt-out alternative to parents on behalf of their children. In response, Board Member Harris challenged the protestor, publicly announcing that the parent's position "is just telling that kid, 'here's another reason to hate another person.'"

Over the next few months, the debate over the propriety of the opt-out alternative intensified, and in advance of a June 6, 2023, School Board meeting, "scores of parents and community members" gathered in peaceful protest outside of the MCPS Carver Educational Services Center ("Carver Center"), where the meeting was being held. Also at the June 6th meeting, a female Muslim student attested to her discomfort with being made to read LGBTQIA+ books that ran contrary to her religious beliefs, to which Board Member Harris said she "felt kind of sorry" for the student, and opined about whether the student was "parroting [the] dogma" of her parents.

Predictably, these exchanges were the subject of ever-increasing media attention. Plaintiffs, in turn, planned to attend the next School Board meeting in person to oppose the use of LGBTQIA+-themed books and the denial of an opt-out alternative. Parents also planned to rally at the meeting to support an opt-out policy.

MCPS scheduled the next School Board meeting for June 27, 2023, and published the agenda a week in advance. The agenda made clear that the opt-out policy would be discussed during the open portion of the meeting. Because the School Board anticipated a healthy turnout for the meeting, it decided to limit the number of people who would be admitted into the physical meeting space. MCPS explained:

Because of the interest in the upcoming Board of Education meeting on Tuesday, June 27, the following safety measures will be implemented. Access to the Carver Educational Services Center building…will be limited to scheduled speakers and invited attendees. The parking lot on the east side of the building is the designated area for any large group gatherings. We remind you that all public Board of Education meetings can be viewed online at the district website, the MCPS-TV YouTube channel and on MCPS-TV.

On June 27, 2023, the open portion of the School Board meeting began at 3:38 p.m. and ended at 9:00 p.m. Only people who had signed up to attend the meeting and scheduled speakers were allowed into the Carver Center. However, people could observe the entirety of the meeting online. The School Board also provided a designated area for assembly on the Carver Center premises for anyone who was denied admission into the center itself.

Neither Foldi nor Mandel had signed up in advance to speak at the meeting, nor were they invited guests. So even though Foldi identified himself as a member of the press and asked to attend the meeting in person, he was turned away. Plaintiffs instead joined hundreds of parents and community members in the designated area to assemble and protest….

MCPS staff also engage in online discourse about LGBTQIA+ related issues through an "@MCPS-StaffPRIDE" X account (the "Pride Account"). The Pride Account, managed by the Pride Members, describes itself as "[a] safe, affirming professional & social network for MCPS staff who identify as part of the LGBTQIA+ community," that offers "[r]esources and reminders for MCPS schools & offices." The Pride Account shares LGBTQIA+-themed educational content, events, and announcements with the MCPS community. It is open to the public, allowing online readers to "reply," "like," "dislike," or "share" information posted to the account.

The Pride Account is also connected to MCPS via the MCPS website. The website includes a link to a "Staff Affinity Page," which, in turn, links to the Pride Account. Users can join the Pride Account only by emailing the Pride Members at their official MCPS email addresses. And such email addresses, MCPS makes clear, are to be used only for work related "[p]rofessional social media" activities. MCPS further advises that for professional social media activity and "[i]n alignment with recent court decisions, MCPS employees posting to social media in a professional capacity should not block users or delete comments on their own initiative."

From November 2022 to June 2023, Mandel, through her X account, publicly criticized MCPS' incorporation of LGBTQIA+ books into the curriculum without an opt-out alternative. Shortly before the June 27th School Board meeting, the Pride Members blocked Mandel from accessing the Pride Account. Mandel can no longer view posts from the account, nor can she share those posts with her commentary.

Plaintiffs sued, and the court generally concluded that "Plaintiffs have failed to make plausible a First Amendment violation arising from the limitation placed on in-person attendance at the June 27, 2023, School Board meeting." The School Board is entitled to impose such content-neutral restrictions (here, that "only those who signed up in advance or who were invited to speak would be let into the Carver Center"). "These criteria alone did not impose any content-based restrictions. In fact, the majority of in-person speakers at the meeting opposed the opt-out policy."

But the court concluded that the blocking of the plaintiffs from the social media account could give rise to a First Amendment claim:

… Plaintiffs plausibly aver that the Pride Members are state actors with actual authority to speak on behalf of MCPS on issues that matter to the LGBTQIA+ staff and community. First, the Pride Members, via the Pride Account, identified themselves with MCPS in several ways. They named the account "@MCPS_StaffPRIDE," and its managers, the Pride Members, are identified via MCPS emails. The Pride Account also describes itself as a "safe, affirming professional & social network for MCPS staff who identify as part of the LGBTQIA+ community," and touts as one of its main goals the provision of "[r]esources and reminders for MCPS schools & offices." Moreover, the Pride Account is linked via the MCPS website's Staff Affinity Page. Taking these facts in the light most favorable to Plaintiffs, the Pride Members have authority to speak on behalf of MCPS as to matters concerning the LGBTQIA+ staff and community.

The Complaint further makes plausible that the Pride Members exercised official authority to speak on behalf of MCPS about LGBTQIA+ issues generally and pertaining to the opt-out policy. In addition to conversations about the LGBTQIA+ curriculum, the platform also discussed gender-inclusive restroom signs at MCPS schools, and support for LGBTQIA+-inclusive school events. The Pride Account also included commentary relevant to the opt-out controversy. As pleaded, the Pride Members were not only cloaked with MCPS authority but exercised that authority when they blocked Mandel from the Pride Account….

The Pride Members argue that nonetheless immunity applies because the claimed constitutional violation had not been clearly established at the time that they denied Mandel access to the Pride Account. The Court is loath to credit an argument that flies in the face of binding precedent available to Defendants at the time. Davison v. Randall (4th Cir. 2019) stands for the proposition that public officials violate an individual's free speech right by blocking access to media accounts because of the individual's expressed viewpoints. Indeed, at the time, even MCPS acknowledged as much when it prohibited the blocking of user access to stay "[i]n alignment with recent court decisions." Because it appears well-settled that alleged viewpoint discrimination amounts to a clearly established First Amendment violation, the Pride Members are not entitled to qualified immunity.

The Court recognizes, of course, that discovery will add important factual context to the allegations. Accordingly, the Pride Members are free to reassert qualified immunity at the summary judgment stage….

Sounds right to me. The Supreme Court's Lindke v. Freed decision held that individual officeholders sometimes act in their private capacities when maintaining a social media page, and thus aren't constrained by the First Amendment in deciding whom to block from that page. But it left unaffected the lower court cases that have held that when government bodies maintain social media pages, they are indeed constrained by the First Amendment and may not block readers and commenters based on viewpoint.

The post Blocking Dissenters from School System's "StaffPride" Twitter Account May Have Violated First Amendment appeared first on Reason.com.

[Eugene Volokh] Standards of Appellate Review, Pseudonymous Litigation, and the Need for the Supreme Court to Step in

As I mentioned earlier this week, I thought I'd pass along portions of the friend-of-the-court brief that three other law professors and I (four of the very few academics who have written on the law of pseudonymous litigation) put together in support of a certiorari petition in Doe v. Trustees of Indiana Univ., which deals with when parties can litigate as John or Jane Does. This closing Part explains why the Supreme Court's review is especially important in light of how appellate courts review district court decisions in this area.

[III.] If this Court does not act, inconsistent pseudonymity determinations will continue

The inconsistency among district court decisions is unlikely to be solved by the circuit courts, particularly because the circuits review the trial court's conclusion only for abuse of discretion. See, e.g., MIT, 46 F.4th at 66 (1st Cir); Pilcher, 950 F.3d at 41-42 (2d Cir.); Megless, 654 F.3d at 407 (3d Cir.); Doe v. Sidar, 93 F.4th 241, 247-48 (4th Cir. 2024); Ford v. City of Huntsville, 242 F.3d 235, 241 (5th Cir. 2001); D.E. v. John Doe, 834 F.3d 723, 728 (6th Cir. 2016); Pet. 8a, 10a (7th Cir.); Cajune v. Indep. Sch. Dist. 194, 105 F.4th 1070, 1078 (8th Cir. 2024); Doe v. Kamehameha Sch., 596 F.3d 1036, 1046 (9th Cir. 2010); M.M. v. Zavaras, 139 F.3d 798, 804 (10th Cir. 1998); Frank, 951 F.2d at 323 (11th Cir.); In re Sealed Case, 931 F.3d at 96 (D.C. Cir.).

Because of the lack of de novo review in such cases, there is little opportunity for the "evolutionary process of common-law adjudication" that "give[s] meaning" to legal rules, Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 502 (1984). Instead of marking out two zones—where pseudonymity should be granted and when it should be denied—an abuse of discretion standard leads the Courts of Appeals to mark out three areas: (1) pseudonymity requests that any reasonable judge would grant; (2) pseudonymity requests that any reasonable judge would deny; and (3) pseudonymity requests on which reasonable judges could disagree.

Many pseudonymity determinations fall within that third category. See, e.g., Megless, 654 F.3d at 407 ("We will not interfere … unless there is a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.") (cleaned up); MIT, 46 F.4th at 70 (same); Cajune, 105 F.4th at 1078 (same). Under abuse of discretion review, circuit courts allow "'a zone of choice within which' the district court 'may go either way.'" In re Chiquita Brands Int'l, Inc., 965 F.3d 1238, 1246 (11th Cir. 2020). Yet future courts and litigants derive little value from a precedent saying, in effect, that a court may go either way. And that is especially so when that disagreement concerns the output of vaguely delineated standards that "are not the crown jewels of multifactor tests." Doe v. Pa. Dep't of Corr., No. 19-cv-01584, 2019 WL 5683437, *2 (M.D. Pa. Nov. 1, 2019).

This is thus not an area like, for instance, First Amendment or Fourth Amendment law, where the doctrine is likely to be clarified by appellate decisions that apply independent appellate review. See Bose, 466 U.S. at 499, 505 (concluding that independent appellate review in First Amendment cases lets courts set precedents that "confine the perimeters of any unprotected category within acceptably narrow limits"); Ornelas v. United States, 517 U.S. 690, 697-98 (1996) (concluding that "independent appellate review" of Fourth Amendment probable cause determinations means that "even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject"). Only a precedent from this Court providing some guidelines for decisions about whether to permit pseudonymity can potentially yield the clarity and consistency that this field requires.

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[Eugene Volokh] Court Upholds Ban on Knowing Falsehoods About Voting Mechanics and Voter Eligibility Aimed at Preventing Voting

Minnesota Voters Alliance v. Ellison, decided yesterday by Judge Nancy Brasel (D. Minn.), upheld this new Minnesota statute:

(a) No person may, within 60 days of an election, cause information to be transmitted by any means that the person:

intends to impede or prevent another person from exercising the right to vote; and knows to be materially false.

(b) The prohibition in this subdivision includes but is not limited to information regarding the time, place, or manner of holding an election; the qualifications for or restrictions on voter eligibility at an election; and threats to physical safety associated with casting a ballot.

An excerpt of the analysis:

MVA brings this suit because of the Election Law's intersection with another new law, the Re‐Enfranchisement Act, which restored voting rights to individuals with a felony conviction during any period when they are not incarcerated for the offense. Believing that the Re‐Enfranchisement Act violates the Minnesota Constitution, MVA brought a lawsuit in state court challenging that law as unconstitutional as well, arguing that the Minnesota Constitution "requires a Governor's pardon, full service of a felony sentence with concomitant discharge, or full restoration of 'civil rights' by legislative act, before those convicted of felonies can, constituent with the Constitution, register to vote and vote." The Minnesota Supreme Court dismissed the suit, determining that the plaintiffs lacked taxpayer standing. Thus, the Re‐Enfranchisement Act remains in place, including for the 2024 election cycle.

MVA intends to tell prospective voters in this cycle that "[f]elons still serving their sentences do not have a right to vote in Minnesota" and "felons who have not served their full sentences, or otherwise had their sentences discharged, cannot legally vote." Under the Re‐Enfranchisement Act, these statements are at least partially false, because a person serving a sentence but not incarcerated is able to vote under that statute….

The court concluded that the MVA wouldn't violate the law, if it has "a 'good‐faith belief' in the truthfulness of this statement"; and it rejected the MVA's concern that its beliefs may be incorrectly determined:

Underlying MVA's position is its concern that someone will incorrectly ascertain MVA's intent and file a complaint under the statute. MVA points to 281 Care
Committee v. Arneson (8th Cir. 2014), which invalidated a statute with a similar enforcement provision to the one at issue. Both enforcement provisions of the
Election Law allow anyone to file a complaint under the statute. However, 281 Care Committee was different. It involved "core" political speech—speech entitled to the highest protection under the First Amendment. Core political speech includes speech about political candidates and ballot questions. MVA's speech is not core political speech; it is speech about who is eligible to vote rather than who should be eligible to vote. It is also not speech about any issue or candidate on the ballot.

And the court concluded that the law is constitutional:

Minnesota undoubtably has a compelling interest in reducing misinformation aimed at preventing someone from voting. Burson v. Freeman (1992) ("[A] State has a compelling interest in protecting voters from confusion and undue influence" and "in ensuring that an individual's right to vote is not undermined by fraud in the election process."). The "includes but is not limited to" language could be construed as unlimiting, thus opening a universe of unconstitutional application. But no party dives into that universe. Indeed, MVA seems to concede that it believes the provision to be limited; it asserts that the provision makes the statute content‐based because it targets the speech listed in Subdivision 2(b). Nor does MVA point to any unconstitutional application of the statute that would be outside of the enumerated categories in Subdivision 2(b), but captured by the phrase "includes but not limited to." …

Subdivision 2, as the Court reads it, prohibits knowingly false speech about where, when, and whether someone can vote, with the intent to prevent someone from voting. It accordingly furthers Minnesota's compelling interest in protecting "the integrity and reliability of the electoral process."

Subdivision 2 is likewise narrowly tailored. It does not reach political speech about the contents of the ballot; it merely reaches speech about where, when, and who can vote. {Unlike many laws subjected to litigation over the past decade, it is not aimed at (nor does it cover) false information about a political candidate, the effect of ballot questions, political apparel inside a polling place on Election Day, or false claims about party endorsements. Subdivision 2 does not prohibit debate about a political question, even the political question of whether felons should be able to vote. A normative statement encouraging one policy or the other is not touched by the statute. It does not prohibit robust debate, including whether the Minnesota Constitution bars individuals with a felony conviction from voting while still on probation: indeed, such a debate occurred without interruption in Minnesota state courts.}

The law is limited to statements that a person knows to be materially false, and made with intent to prevent someone from voting. The statute is thus narrowly drawn to further Minnesota's interests. Confirming this analysis is the Supreme Court's pronouncement that states can undoubtably prohibit people from spreading misinformation "intended to mislead voters about voting requirements and procedures." Minnesota Voters Alliance v. Mansky (2018).

Defendants are represented by Jason Stover and Robert Yount of the Anoka County Attorney's Office and Allen Barr, Jennifer Olson, and Nathan Hartshorn of the Minnesota AG's Office.

The post Court Upholds Ban on Knowing Falsehoods About Voting Mechanics and Voter Eligibility Aimed at Preventing Voting appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: September 18, 1857

9/18/1857: Justice John Hessin Clarke's birthday.

Justice John Hessin Clarke

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