Eugene Volokh's Blog, page 264

[Eugene Volokh] Lower Court Decisions on Pseudonymity Are Chaotically Split

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. This Part explains how badly split lower court decisions are. (Recall that one of the main reasons the Court steps in to resolve lower court cases is to resolve inconsistencies that would lead to different results in similar cases throughout the country.)

[A.] This Court has not given lower courts guidance

This Court has never decided when pseudonymity should be allowed. When parties have requested this Court's permission to file a writ of certiorari pseudo­nym­ously, this Court has granted or denied that re­quest without explanation. See, e.g., Doe v. Mich. Att'y Grievance Comm'n, 519 U.S. 946 (1996) (denying); Foe v. Cuomo, 498 U.S. 892 (1990) (granting). This Court has sometimes reviewed pseudonymous cases (Roe v. Wade is a famous example), but in doing so it has never discussed in any detail when pseudonymity should be allowed.

This Court has recognized the common-law public right of access to judicial records, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597-99 (1978), and the First Amendment right to attend criminal trials, Richmond Newspapers, 448 U.S. at 580. But while those rights are connected to the public's right to know the names of parties in civil cases, see supra Part I.A, this Court's precedents do not set forth any meaningful guidance on when the interests favoring pseudonymity can overcome that right.

Nor do the Federal Rules of Civil Procedure give much guidance (except by mandating pseudonymity for minors, Rule 5.2(a)(3)). Many courts have inferred a presumption against pseudonymity from Rule 10(a) ("The title of the complaint must name all the parties") and Rule 17(a) ("An action must be prosecuted in the name of the real party in interest"). See, e.g., Doe v. Frank, 951 F.2d 320, 322 (11th Cir. 1992). But the Rules say nothing about when pseudonymity is nonetheless permissible. The lower court cases allowing pseudonymity in some situations have thus proceeded without either this Court's or the Rules' guidance.

[B.] The circuits are split into three groups on pseudonymity

The petition accurately summarizes the circuit split:

The Seventh Circuit allows pseudonymity in narrow circumstances, seemingly limited to situations where the litigant "is a minor, is at risk of physical harm, or faces improper retaliation (that is, private responses unjustified by the facts as determined in court)." Pet. 10a. Ten circuits apply different non-exhaustive, multifactor tests. See, e.g., United States v. Pil­cher, 950 F.3d 39, 42 (2d Cir. 2020) (ten factors); Femedeer, 227 F.3d at 1246 (10th Cir.) (four factors). The First Circuit rejects both a multifactor test and "sharp, categorial exceptions to the strong presumption against pseudonymity," and instead identifies "four general categories of exceptional cases in which party anonymity ordinarily will be warranted." Doe v. Mass. Inst. of Tech., 46 F.4th 61, 70-72 (1st Cir. 2022).

But beyond this formally visible circuit split, lower courts that adopt various multifactor tests disagree on how to interpret each factor, generally without acknowledging the disagreement.

[1.] Consider, for instance, a recurring question: Does risk of reputational, economic, or professional harm suffice to let a litigant proceed pseudonymously? Most courts generally say no: "That a plaintiff may suffer embarrassment or economic harm is not enough." Doe v. Megless, 654 F.3d 404, 408 (3d Cir. 2011); Volokh, supra, at 1420-23, 1457-60 (citing many cases that take this view).

But other courts do permit pseudonymity in some such cases. In one recent sexual assault lawsuit, for instance, the judge let the defendant proceed pseudonymously, reasoning, "[T]he court finds that the chance that [defendant] would suffer reputational harm is significant. The defendant is a partner of a well-known law firm in New York and an adjunct law school instructor." Doe v. Doe, No. 20-cv-5329, 2020 WL 6900002, *3 (E.D.N.Y. Nov. 24, 2020).

Likewise, in a lawsuit over an allegedly false credit report, the court let plaintiff proceed pseudonymously, because "[p]ublicly identifying Plaintiff risks impeding her future employment prospects by making the improperly disclosed information public knowledge." Innovative Enters., Inc., No. 20-cv-00107, at 4-5. Another court did the same in a libel lawsuit. Alexander v. Falk, No. 16-cv-02268, 2017 WL 3749573, *5 (D. Nev. Aug. 30, 2017). Some cases that discuss a party's mental health condition have likewise permitted pseudonymity on the theory that identifying the plaintiffs could lead to "severe" "economic and career consequences." Elson S Floyd Coll. of Med., 2021 WL 4197366, *2.

Some courts have also permitted pseudonymity for whistleblowers, out of a concern that being known as a whistleblower might create "a reasonably credible threat of some professional harm." SEB Inv. Mgmt. AB v. Symantec Corp., No. 18-cv-02902, 2021 WL 3487124, *2 (N.D. Cal. Aug. 9, 2021). One court has permitted pseudonymity to a doctor challenging her employer's report of "charge[s] of professional misconduct" to "the National Practitioner Data Bank." Doe v. Lieberman, No. 20-cv-02148, 2020 WL 13260569, *3 (D.D.C. Aug. 5, 2020). And one court permitted a defendant who was being accused of trade secret infringement to litigate pseudonymously. Ipsos MMA, Inc. v. Doe, No. 21-cv-08929, 2022 WL 451510, *2 (S.D.N.Y. Jan. 25, 2022).

[2.] Many of the multifactor tests list as one factor "whether the suit … challeng[es] the actions of the government or that of private parties." Sealed Plaintiff, 537 F.3d at 190. But which way does that factor cut?

Some courts conclude that pseudonymity is less available in suits against the government, because "there is a heightened public interest when an individual or entity files a suit against the government." In re Sealed Case, 971 F.3d 324, 329 (D.C. Cir. 2020); see also, e.g., Megless, 654 F.3d at 411. Others take the opposite view, concluding that pseudonymity is less available in suits against private parties, because "[w]hile such [pseudonymous] suits involve no injury to the Government's reputation, the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm." S. Methodist Univ. Ass'n of Women L. Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979); see also, e.g., Doe v. Skyline Autos., 375 F. Supp. 3d 401, 406 (S.D.N.Y. 2019); Doe v. Va. Polytechnic Inst. & State Univ., No. 19-cv-00249, 2020 WL 1287960, *4 (W.D. Va. Mar. 18, 2020); EW v. N.Y. Blood Ctr., 213 F.R.D. 108, 111 (E.D.N.Y. 2003).

[3.] What about actual or predicted future media interest in a case? Some courts, applying the "public's interest in the litigation" factor of the multifactor tests, say that "the public's interest" in the case "weigh[s] against" pseudonymity. See, e.g., Doe 1 v. United States, No. 24-cv-1071, 2024 WL 1885188, *4-5 (S.D.N.Y. Apr. 30, 2024), reconsideration denied, No. 24-cv-1071, 2024 WL 3738626 (S.D.N.Y. Aug. 8, 2024); Doe v. [Harvey] Weinstein, 484 F. Supp. 3d 90, 95, 97 (S.D.N.Y. 2020). Others downplay the significance of the factor. See, e.g., Fowler, 537 F. Supp. 3d at 528 n.38; Doe v. [Tupac] Shakur, 164 F.R.D. 359, 362 (S.D.N.Y. 1996). Others treat it as favoring pseudonymity, on the theory that such public interest and media attention would unduly harm plaintiff's privacy. See, e.g., M.J.R. v. United States, No. 23-cv-05821, 2023 WL 7563746, *2 (N.D. Cal. Nov. 14, 2023); Trooper 1 v. N.Y. State Police, No. 22-cv-893, 2022 WL 22869548, *4-5 (E.D.N.Y. June 9, 2022); Doe v. United Airlines, Inc., No. 17-cv-2825, 2018 WL 3997258, *2 (D. Nev. Aug. 21, 2018); Doe v. County of Milwaukee, No. 14-C-200, 2015 WL 5794750, *2 (E.D. Wis. Oct. 2, 2015). And all these cases involved a similar reason for pseudonymity: plaintiffs' privacy interest in concealing their identities as alleged sexual assault victims.

[4.] Consider another commonly cited factor, the age of the plaintiff. Under Rule 5.2, courts generally let minors sue pseudonymously. But what about young adults? Some courts conclude that the age factor counts only in favor of under-18-year-olds. See, Volokh, supra, at 1401 & n.232 (collecting cases). Others suggest the cutoff should be around age twenty. See id. at 1401 & n.233. Still others decline to draw any line. See id. at 1401 & n.231; Doe v. Sheely, 781 F. App'x 972, 973-74 (11th Cir. 2019) ("[C]ourts should be careful not to draw a bright line between a plaintiff one day shy of her eighteenth birthday and a plaintiff one day past it.").

[5.] As a result of the vagueness of the factors, lower courts sharply divide on particular applications of the factors, and how they are to be balanced. Consider arguments by plaintiffs who are claiming that universities had wrongly found them guilty of sexual assault. Some courts, even outside the Seventh Circuit, conclude that those plaintiffs have to sue under their own names (just like other plaintiffs who allege that they were wrongly accused of sexual assault). See, e.g., Doe v. Rider Univ., No. 16-cv-4882, 2018 WL 3756950, *5 (D.N.J. Aug. 7, 2018) (describing plaintiff's concerns as "little more than a fear of embarrassment or economic harm").

But most courts do allow pseudonymity, concluding, for instance, that "requiring Plaintiff to disclose his true identity could cause" "harm to his reputation and future prospects," which "weighs in favor of allowing Plaintiff to proceed pseudonymously." See, e.g., Doe v. Rollins Coll., No. 18-cv-1069-ORL-37, 2018 WL 11275374, *4 (M.D. Fla. Oct. 2, 2018); Volokh, supra, at 1423, 1441-48 (citing many cases coming down both ways). And the outcomes in these cases are not even uniform within the same circuit. Compare Doe v. Kenyon Coll., No. 20-cv-4972, 2020 WL 11885928, *1 (S.D. Ohio Sept. 24, 2020) (allowing pseudonymity), with Student Pid A54456680 v. Mich. State Univ., No. 20-cv-984, 2020 WL 12689852, *2 (W.D. Mich. Oct. 15, 2020) (denying pseudonymity).

Indeed, these Title IX cases split lopsidedly in favor of pseudonymity, see Volokh, supra, at 1441-48 (listing 84 cases where pseudonymity was allowed and 16 cases where pseudonymity was not allowed), though courts generally reject pseudonymity in other "harm to … reputation and future prospects" cases (see item 1 above). This is yet another inconsistency to which the vague multifactor tests have led.

[6.] Likewise, consider another recurring fact pattern, in which both litigants and the public should be able to expect consistency: lawsuits alleging that the plaintiff was sexually assaulted. Protection of privacy is a recurring factor in the multifactor tests. Volokh, supra, at 1405-14. And of course a person's having been sexually assaulted is usually seen as a highly private matter. Yet courts are sharply split on when adults who allege that they were sexually assaulted can sue under a pseudonym. See Volokh, supra, at 1430-37 (citing 67 cases where pseudonymity was allowed and 39 cases where pseudonymity was not allowed).

[7.] Courts are likewise divided when a person seeks to prevent disclosure of a mental illness or disorder. See Volokh, supra, at 1437-41 (listing 16 cases where pseudonymity was allowed and 28 cases where pseudonymity was not allowed, including cases that reach different results for the same mental condition).

[8.] Courts are divided on when pseudonymity is justified to prevent disclosure of a person's homosexuality or transgender status. See id. at 1406.

[9.] Courts are divided on whether preventing disclosure of a person's communicable disease, such as HIV, justifies pseudonymity. See id. at 1410.

[10.] And courts are divided on whether defendants accused of infringing copyright in pornographic works are entitled to pseudonymity. See id. at 1407 & nn.267-68.

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[Eugene Volokh] Hall-of-Famer Brett Favre's Defamation Lawsuit Against Hall-of-Famer Shannon Sharpe Thrown Out

From yesterday's Fifth Circuit decision in Favre v. Sharpe, by Judge Leslie Southwick, joined by Judge Kyle Duncan and Judge Jeremy Kernodle (E.D. Tex.):

Brett Favre … was named three times as the NFL's Most Valuable Player, had a Super Bowl victory, and was selected for the NFL Hall of Fame. Much more recently, his public image has been somewhat tarnished by his connection to individuals who were convicted for the misuse of government welfare funds and his alleged receipt of some of those funds….

In October 2021, the Mississippi State Auditor's Office determined more than $77 million in federal Temporary Assistance for Needy Families ("TANF") funds intended to help impoverished Mississippians were used for illegal purposes across the state. To date, six individuals have pled guilty to state and federal felony charges related to their involvement in this scandal. Favre has not been criminally charged. Mississippi's Department of Human Services ("MDHS") filed a civil suit in May 2022 against Favre and numerous persons, seeking to recover TANF funds that were unlawfully diverted between 2016 and 2019.

MDHS initially sought to recover $1.1 million in TANF funds Favre received from the non-profit Mississippi Community Education Center, Inc. ("MCEC") in 2017 and 2018 for speaking engagements that he never performed. Favre had repaid the funds prior to MDHS's suit. MDHS amended its complaint to recover $5 million in TANF funds Favre allegedly arranged to be used to fund the construction of a new USM volleyball facility. According to MDHS, Favre was unable to encourage sufficient donations for the facility's construction, so he turned to the non-profit MCEC to help secure the $5 million in funding. TANF funds were ultimately used on the project.

Local and national news outlets continued to cover developments in the welfare scandal and Favre's alleged involvement. During that time, two events occurred that gave rise to this lawsuit. The first was a September 13, 2022, article in an online news source called Mississippi Today. The article detailed the MDHS's recent filing of a civil suit against Favre. The article included text messages between Favre and one of the six individuals later convicted in the scandal, Nancy New, that discussed the construction funding of USM's volleyball facility and how it was likely the media would not determine the source of the funds. {New is the former president and CEO of the MCEC non-profit, which received and illegally disbursed TANF funds.}

According to the Mississippi Today article, these texts were proof that Favre worked with New to orchestrate MCEC's use of the $5 million in TANF funds for the volleyball facility. The article stated the separate $1.1 million was a way to receive more funds for the project. It also acknowledged Favre denied knowing the money received for the project came from the TANF program.

The other event underlying this suit occurred the day after the Mississippi Today article appeared online. The defendant, Shannon Sharpe, along with Skip Bayless, hosted a nationally broadcasted sports talk show called Undisputed. Sharpe also had an exceptional professional football career. He played 14 seasons in the NFL, was on three Super Bowl winning teams, and was inducted into the NFL Hall of Fame. The relevant segment opened with the moderator briefly summarizing the Mississippi Today article and then asking Sharpe for his thoughts about its impact on Favre's legacy. Sharpe and Bayless then engaged in an eleven-minute discussion about Favre, the welfare scandal, and MDHS's civil suit. The hosts provided colorful and derogatory views on the article, calling Favre "a sleazeball," "shady," "gross[ ]," and a "diva," and accusing Favre of "steal[ing]," "egregious" behavior, and "illegal activity."

Favre viewed three of Sharpe's statements as defamatory:

"The problem that I have with this situation, you've got to be a sorry mofo to steal from the lowest of the low"; "Brett Favre is taking from the underserved" in Mississippi; and Favre "stole money from people that really needed that money."

Favre sued for libel, but the district court agreed with Sharpe, concluding "Sharpe's comments were 'mere rhetorical hyperbole'"; the Fifth Circuit affirmed, on the related but different grounds that the comments were opinion based on disclosed fact:

"[S]trongly stated [opinions] … based on truthful established fact … are not actionable under the First Amendment." … Sharpe's statements—in response to facts widely reported in Mississippi news and specifically in the just-released Mississippi Today article—could not have been reasonably understood as declaring or implying a provable assertion of fact. His statements are better viewed as strongly stated opinions about the widely reported welfare scandal.

As for the supposed factual inaccuracies with which Favre takes issue, those inaccuracies were corrected during the segment. Bayless correctly stated that "as yet [Favre] has not been criminally charged," and he amended Sharpe's one inaccurate statement that Favre had not repaid the additional $1.1 million in TANF funds by acknowledging that Favre had repaid everything but the interest on $1.1 million. Sharpe also mentioned Favre's assertion that he did not know the source of the funds. Because Favre does not allege any remaining statements in the broadcast were false, there were no actual inaccuracies. Instead, the facts were fully disclosed to the listeners and contained no "clear falsity of fact."

It is understandable that Favre considers Sharpe's statements to be contemptuous. Nonetheless, the Undisputed program did not imply that Sharpe was relying on any undisclosed facts. He instead relied only on facts widely reported in Mississippi news and specifically in the just-released Mississippi Today article. Though there was no claim by Mississippi Today that Favre had committed a crime, there also was no implication from Sharpe's statements that he was relying on information from other sources when he said Favre "stole money" and took from the "underserved." At the time Sharpe made the statements, the facts on which he was relying were publicly known, and Sharpe had a right to characterize those publicly known facts caustically and unfairly. Sharpe's statements were his "strongly stated" opinions "based on truthful established fact[s]," and thus nonactionable.

Joseph Marshall Terry argued on behalf of Sharpe.

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[Josh Blackman] Today in Supreme Court History: September 17, 1787

9/17/1787: The Constitution is signed.

The Constitution

Happy Constitution Day!

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[Eugene Volokh] Tuesday Media Recommendations: Science Fiction and Fantasy Books

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

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[Josh Blackman] Alliance for Hippocratic Medicine On Remand

["But the Government switched positions before the Supreme Court."]

Last week I wrote about the Fifth Circuit's decision in United States v. Rahimi, on remand from the Supreme Court. The panel explained that the Supreme Court "modified" Bruen. Though the Supreme Court reversed the Fifth Circuit, in candor, the Fifth Circuit should not be faulted for faithfully applying the precedent that existed at the time.

Yesterday, the Fifth Circuit decided another case on remand from the Supreme Court: Alliance for Hippocratic Medicine v. FDA. The panel remanded the case back to the district court. I know this is another case that is scored as a reversal for the Fifth Circuit. But here the Solicitor General altered the government's position, so the Supreme Court resolved a different dispute than the one faced by the Fifth Circuit. Specifically, SG Prelogar made very specific representations in AHM, as well as in Moyle that federal conscience law would protect doctors. And with those concessions, the Court unanimously reversed. I wrote about Prelogar's switch in time that saved nine here.

Judge Ho wrote a concurrence which explained, in some detail, how the case changed on appeal.

First, Ho explained that the Fifth Circuit faithfully applied Supreme Court precedent to the case, as it existed at the time:

That's exactly what happened here. Both the district court and this court applied governing Court precedent to determine whether Plaintiffs have standing to bring this suit. We all agreed that they do. No member of this court disagreed—not on the motions panel, the merits panel, or the en banc court.

Second, Ho demonstrates that the Court's decision was premised on the Solicitor General's flipped position:

The Court reversed, but only because, "as the Government explains, federal conscience laws definitively protect doctors from being required to perform abortions or to provide other treatment that violates their consciences." Id. (emphasis added). There's a simple reason why our court—unlike the Supreme Court— was uncomfortable trusting federal conscience laws to protect doctors: The Government has taken precisely the opposite position on federal conscience laws in other cases and in other courts—including ours.

In the Fifth Circuit, and other courts, the government vigorously argued that conscience laws would not exempt doctors from offering abortion care:

In our court, the Government insisted that federal law "requires doctors to offer abortion care to individuals when that care is necessary stabilizing treatment for an emergency medical condition." Brief for Appellants, Texas v. Becerra, 2023 WL 3345254, *25 (5th Cir. 2023) (emphasis added). "When pregnant women come to a Medicare-funded hospital with an emergency medical condition, EMTALA obligates the treating physician to provide stabilizing treatment, including abortion care." Id. at *27 (emphasis added). "[P]ermitting physicians to refuse to provide care that they deemed 'medically or ethically inappropriate' directly conflicted with EMTALA's stabilization requirement." Id. at *26 (citing In re Baby K, 16 F.3d 590, 597 (4th Cir. 1994)).

But before the Supreme Court, SG Prelogar did a 180.

But the Government switched positions before the Supreme Court. It "disclaimed that reading of EMTALA." Alliance, 602 U.S. at 389 (emphasis added). It now believes that "EMTALA does not 'override an individual's doctor's conscience objections.'" Id. (emphasis added). It now agrees that "'[h]ospitals must accommodate doctors'" who have "conscience objections." Id. Moreover, a representation by the Solicitor General to the Supreme Court carries greater weight than a statement by Government counsel before the inferior courts.

You cannot fault a lower court for relying on the argument the government presented. The Fifth Circuit cannot anticipate how the Biden Administration would try to salvage the case before the Supreme Court. All of these lists of reversal rates truly fail to consider how the Fifth Circuit is treated on appeal.

Third, Judge Ho explains that the government also reversed its position in Moyle (which I discussed here):

So the Court reversed because the Government reversed.[FN1]

[FN1] The Government also reversed itself in Moyle v. United States, 603 U.S. _ (2024). In the district court, the Government insisted that EMTALA "requires a physician to offer an abortion." Reply Memorandum in Support of Motion for a Preliminary Injunction at 6, United States v. Idaho, 623 F. Supp. 3d 1096 (D. Idaho 2022) (No: 1:22-cv-00329). But the Government again switched positions before the Supreme Court. See Brief for the Respondent, Moyle v. United States, 2024 WL 1298046, *17 (2024) ("EMTALA's stabilization obligation is imposed on 'hospitals,' not on 'individual providers'") (quotations omitted).

Fourth, there is another ground to criticize the majority opinion. The Court failed to consider one theory of standing on which Judge Ho relied: aesthetic injury standing.

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

This argument truly made people lose their minds. But it was an argument in favor of jurisdiction, and it was grounded in fairly well-established environmental law.

Judge Ho explains that the AHM Court favorably cited several decisions about aesthetic injury in the context of environment law, but ignored the aesthetic injury argument.

Second, the Court also reaffirmed its longstanding directive to inferior courts to address novel questions of standing by analogizing the Court's precedents in other areas of the law—including environmental law.

Before the Court dismisses a case for lack of jurisdiction, it has the responsibility to at least consider all the grounds for standing expressed below. And this argument was simply ignored by Justice Kavanaugh's majority opinion, and Justice Thomas as well.

***

I know it is en vogue to criticize Judge Ho–I've lost count of the number of "profiles" about him by the media. But Judge Ho is one of the few members of the federal judiciary who is willing to point out where the Supreme Court errs. It is true he is an inferior court judge, but inferiority does not demand subordination. Lower court judges can, and should, identify Supreme Court precedents that have been eroded by more recent decisions. Lower court judges can, and should, identify where the Supreme Court has quietly eroded its own decisions. And lower court judges can, and should, point out when the Supreme Court failed to consider all of the claims that were properly presented, including jurisdictional arguments. These three responsibilities are especially apt when the Supreme Court purports to reverse a lower court, which in fact faithfully applied precedent as it existed at the time.

We're still not quite done with remands. Let's see what the Fifth Circuit panel does on remand in NetChoice v. Paxton. The Supreme Court's "facial" analysis in that decision left much to be desired.

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[Ilya Somin] Final Published Version of My Article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson"

[It is now available on SSRN. The article critiques the Supreme Court's decision in the Trump Section 3 disqualification case.]

The final published version of my article "A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson" (Cato Supreme Court Review) is now up on SSRN, and available for downloading. Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the majority ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy. And even the unanimity is undermined by four justices' rejection of key parts of the majority's reasoning.

Section 3 states that "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for "insurrection." Part III considers the question of whether the January 6 attack qualifies as an "insurrection," and—more briefly—whether Trump "engaged" in it. The answers to both questions are "yes," though the second is a closer call than the first.  Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court's effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

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[Ilya Somin] My New Schweizer Monat Article on "Open Borders" Immigration

[A Swiss publication invited me to write this article making the case for open borders.]

The Swiss publication Schweizer Monat invited me to write an article making the case for "open borders" immigration policy, which I was happy to do. It came out today. There are both English language and German versions. Here is an excerpt from the English version:

I was born in the Soviet Union in 1973. The life of most residents of that totalitarian state was one of poverty and oppression. Several of my relatives had been victims of the government's repressive policies. In ad­dition, as Jews they often felt the weight of the regime's institutionalized anti- Semitism. I was freed of all that because my parents and I were able to leave the USSR for the United States in 1979. I am, as a result, vastly better off than my peers who stayed in Russia. But virtually all of the difference between my life and theirs is the result of the differ­ence between American institutions and Russian ones, not any merit of mine. Had I remained in Russia, I would likely still be poor, and might well have become a victim of Vladimir Putin's repressive policies, or been caught up in his brutal war of aggression against Ukraine. My life is just one of many transformed for the better by migration. More people should have the same opportunity.

The idea of "open borders" migration may seem impossibly radical. Most people take it for granted that governments have the right to restrict immigration. But more careful consideration shows that an "open borders" policy is a natural outgrowth of liberal democratic ideals of liberty and equality. Moreover, immigration has enormously beneficial effects for natives, as well as immigrants themselves. There can be negative side-effects of migration. But most can be dealt with through "keyhole solutions" that do not require migration restrictions.

The rest of the article summarizes the moral and economic advantages of free migration, and addresses several standard objections. I cover these and related issues in much greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom. See also my recent post on "What Milton Friedman Got Wrong About Immigration and the Welfare State," which gives a more extensive critique of an objection of special interest to many libertarians and conservatives.

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[Jonathan H. Adler] A Last Ditch Attempt to Bring Kids Climate Case Back from the Dead

[The plaintiffs in Juliana v. United States are seeking Supreme Court intervention to revive their case against the federal government.]

When last we checked in on Juliana v. United States—the first "kids climate case"—the U.S. Court of Appeals for the Ninth Circuit had granted the Department of Justice's petition for a writ of mandamus and ordered the case dismissed. As I noted at the time, this order was unsurprising and quite warranted. That should have been the end of the matter—but it wasn't.

Last week, the Juliana plaintiffs filed a petition for a writ of mandamus with the U.S. Supreme Court seeking to vacate the Ninth Circuit's order and thereby revive the case for further proceedings in the district court..

The New York Times reported credulously on the filing, as if it had much legal merit or any realistic possibility of succeeding.

This kind of request to the Supreme Court is unusual, but the plaintiffs supported their position by arguing that the federal government had stymied the process with similar courtroom maneuvers over the years.

"Unusual" is quite the understatement, but it is true the plaintiffs "supported their position" with arguments—albeit arguments that are quite unlikely to prevail.

A better take can be found at at Legal Planet, where Professor Daniel Farber coldly observes "there is no chance that plaintiffs will get their writ from the Supreme Court." Farber explains:

First, even if the Ninth Circuit was wrong, granting mandamus is discretionary. From the perspective of at least six Justices, any procedural mistake by the Ninth Circuit was harmless error. I am certain that every member of the conservative majority, rightly or wrongly, views the plaintiffs' constitutional claim as  baseless. . . . From their point of view, the procedural question in Juliana is only whether the Ninth Circuit should have waited a little longer before doing the inevitable and killing the case.

Putting the issue of harmless error aside, there's a deeper reason why the plaintiffs will likely fail.  The district judge contemplates a lengthy trial about broad government policies, after which she would opine on their legality.  A recent Supreme Court case might illustrate why this is problematic.  The Supreme Court recently ruled that states didn't have standing to challenge a presidential policy on immigration enforcement.  Suppose that on remand, the trial judge proposed a lengthy public hearing broadly examining all aspects of the Biden Administration's immigration programs, which would be followed by a judicial thumbs up or thumbs down.  You can see why the Supreme Court might view this kind of wide-ranging hearing as raising separation of powers concerns.

The plaintiffs rely heavily on a case called Cheney that dealt with mandamus.  But there's another aspect of the Cheney case that the plaintiffs don't discuss: The Supreme Court chastised the lower court for slighting the serious separation of powers aspect of the case in denying mandamus.  I suspect that the Court will also think that putting an  immense swathe of government policy on trial also violates the separation of powers — especially in a case where they are  deeply skeptical of the underlying constitutional claim.

This is not the first time this case has been brought to the justices' attention, and there is no reason to believe that there is a single justice on the Court who believes the Ninth Circuit previously erred on being too quick to dismiss the plaintiffs' claims. To the contrary, on more than one occasion the justices signaled their displeasure with the Ninth Circuit's failure to rein in the district court. Given this background, to call the latest filing audacious would be an understatement.

From the start, the Juliana litigation embraced aspirational arguments that cut against the grain of contemporary constitutional jurisprudence (a point I develop in this symposium essay). It may have been a useful vehicle for raising awareness about the problem of climate change–it has certainly generated more than its share of favorable press coverage–but there was never much chance its claims would be embraced in the courts, the Supreme Court in particular. Indeed, the Juliana plaintiffs should be glad if the case ends with an unpublished Ninth Circuit order as opposed to a substantive repudiation from the Supreme Court.

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[Ilya Somin] Interview on the Eminent Domain Podcast

[Bobby Debelak, new host of this podcast, interviewed me about a variety of topics related to eminent domain and property rights.]

Today Bobby Debelak of the Eminent Domain Podcast posted his recent interview with me. We covered a range of topics related to eminent domain and constitutional property rights, including how I first became interested in property rights and eminent domain, The Grasping Hand (my book about Kelo v. City of New London and public use), how I represented the great urban development theorist Jane Jacobs (on whose behalf I wrote an amicus brief in Kelo), my more recent work on exclusionary zoning, and ways in which zoning, eminent domain and some other property rights issues cut across conventional ideological lines.

The audio of the interview is available here.

After a few months hiatus, this podcast has returned under new management, and I am grateful for the opportunity to be the first interviewee since Bobby took over as the new host of EDP, previously run by Clint Schumacher. This is Episode 130 of the podcast. Clint Schumacher interviewed me for it way back in Episode 4, around 2017.

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[Eugene Volokh] "Equity Training" Requirement for Public Employees Didn't Violate First Amendment, Even When …

[employees were required to "correctly" answer multiple choice questions based on the training content.]

From Henderson v. Springfield R-12 School Dist., decided Friday by Eighth Circuit Chief Judge Steven Colloton, joined by Judges James Loken and Jane Kelly:

During the 2020-21 school year, the school district required employees to attend a presentation entitled, "Fall District-Wide Equity Training." Attendees were paid for their time and received professional-development credit.

The school district provided in-person and virtual training. At the in-person training, school officials instructed the attendees on how to become "Anti-Racist educators, leaders and staff members." The district defined "anti-racism" as "the work of actively opposing racism by advocating for changes in political, economic, and social life." The presenters cautioned that actions like practicing color-blindness and remaining silent about racism perpetuated white supremacy.

The presenters stated, "We want to stress that we are not calling you as an individual a white supremacist. That being said, certain actions or statements … can support that structural system of white supremacy." The presenters also displayed an "Oppression Matrix" that categorized various social groups as a privileged, oppressed, or border group. For example, within the category of race, the matrix identified white people as a privileged social group, biracial people as a border group, and Asian, Latina/o, black, and native people as oppressed social groups. At the virtual training, the school district provided similar instruction.

Some employees were also required to complete online modules in which they watched videos, read articles, and answered multiple-choice questions relating to equity and diversity. For example, one question asked: "When you witness racism and xenophobia in the classroom, how should you respond?" Employees could select one of two options: (1) "Address the situation in private after it has passed"; or (2) "Address the situation the moment you realize it is happening." The module deemed the second option the correct answer. If the employee selected the first option, then a message appeared explaining why the choice was "incorrect." To complete the module, employees had to select the "correct" answer.

The training sessions were interactive. At the in-person training, attendees were asked to speak with one another about specific prompts related to the presentation's content. In the online training, participants were similarly required to speak with other virtual attendees. Both training sessions included an exercise called "Four Corners," in which attendees had to hold up a sign stating whether they agreed or disagreed with various prompts, such as "I believe my students or staff feel safe in Springfield" and "I believe [the school district] provides an engaging, relevant and collaborative learning and working environment.

At both training sessions, instructors displayed a slide entitled "Guiding Principles" in which one line read: "Be Professional—Or be Asked to Leave with No Credit." No attendee was asked to leave, denied pay, or refused credit because of his or her conduct during the sessions. No employee discipline resulted from these sessions.

Brooke Henderson attended the virtual training. Henderson is a Section 504 Process Coordinator. At the training, Henderson expressed her view that Kyle Rittenhouse acted in self-defense during a Black Lives Matter protest in 2020. The presenter responded that Henderson was "confused" and "wrong." Henderson alleges that after this dialogue with the presenter, she stopped speaking out of fear that she would be asked to leave for being unprofessional. She also alleges that during the "Four Corners" exercise, she responded that she agreed with some prompts solely because she feared that if she disagreed, she would be asked to leave without receiving credit or pay. Henderson also completed the virtual modules. She alleges that she selected answers with which she did not agree so that she would receive credit for the training.

Jennifer Lumley attended the in-person training. Lumley is a secretary. At the training, Lumley stated that she did not believe that all white people were racist, and that people of other races could be racist. She shared a personal anecdote about her niece-in-law, a black woman who married a white man, and how "some black people had told her she did not 'count' as black anymore." The presenter responded that black people could be prejudiced, but not racist. Lumley also stated that she did not believe that she was privileged because she grew up in a low-income household. The presenter responded that Lumley "was born into white privilege." Like Henderson, Lumley alleges that after this interaction, she stopped speaking because she feared that she would be asked to leave.

Plaintiffs sued, but the court concluded that their First Amendment rights weren't violated, because they were not punished for their speech or lack of speech:

The plaintiffs suggest … that they were punished because they were "shamed" and "forced to assume the pejorative white supremacist label for their 'white silence.'" They rely on Gralike v. Cook (8th Cir. 1999), aff'd by the Supreme Court (2001), where this court held unconstitutional a Missouri law requiring that state election ballots identify any candidates who opposed or refused to express a view on congressional term limits. We concluded that the law "threaten[ed] a penalty that is serious enough to compel candidates to speak—the potential political damage of the ballot labels." We explained that the labels were "phrased in such a way" that they were "likely to give (and we believe calculated to give) a negative impression not only of a labeled candidate's views on term limits, but also of his or her commitment and accountability to his or her constituents." The plaintiffs here argue that by associating silence and dissenting views with white supremacy during the training, the school district imposed a similar punishment.

We decline to adopt the plaintiffs' broad reading of Gralike. Unlike the State in Gralike, the school district's presenters did not assign an epithet to the plaintiffs akin to a label next to a person's name on an election ballot. Instead, they chose to "stress that we are not calling you as an individual a white supremacist," while explaining their view that "certain actions or statements … can support that structural system of white supremacy." Nor did the training program "threaten a penalty" comparable to the "political damage" inflicted on candidates who disfavored term limits or remained silent on the issue in Gralike. The plaintiffs were required to endure a two-hour training program that they and others thought was misguided and offensive. But they were not forced to wear an arm-band classifying them as white supremacists or to suffer any comparable penalty.

The plaintiffs also argue that the defendants indirectly discouraged them from remaining silent or voicing dissenting views, both during the training sessions and in their private lives…. The plaintiffs rely primarily on the presenters' guidance to "Be Professional—Or be Asked to Leave with No Credit." They also refer to statements by the presenters telling attendees to "speak [their] truth," "turn and talk" to nearby colleagues, and share thoughts with the group.

We conclude that the plaintiffs' fear of punishment was too speculative to support a cognizable injury under the First Amendment. While the presenters warned that unprofessional conduct during the session could result in an attendee receiving no credit, they never said that expressing opposing views or refusing to speak was "unprofessional." The plaintiffs' reliance on Speech First, Inc. v. Cartwright (11th Cir. 2022), is thus misplaced. In Cartwright, the court concluded that a university's policy on "bias-related incidents" objectively chilled speech in part because the team responsible for investigating these "incidents" could refer students for discipline, even if the team could not directly punish students. Critically, the university stated that the team would investigate, monitor, and refer students for discipline because of the students' speech. Here, the school district's presenters did not state or insinuate that an employee's silence or dissenting views would be considered "unprofessional" and a basis to deny credit for attendance at the training.

To the contrary, the evidence shows that when the plaintiffs and others expressed views different from those of the school district, they received pushback from the trainers on the substance, but they were not asked to leave, and they were not called unprofessional. Attendees other than the plaintiffs largely remained silent and exhibited "very low participation." Yet the plaintiffs cite no evidence that anyone was disciplined, denied pay, or refused credit after attending the training. Therefore, the plaintiffs' subjective fear that dissent or silence would be considered "unprofessional" and grounds for denial of credit was too speculative to establish an Article III injury.

The plaintiffs' alleged fear that they would be punished for failing to advocate for the school district's view of "anti-racism" in their personal lives was speculative. They cite the district's definition of "anti-racism" as "the work of actively opposing racism by advocating for changes in political, economic, and social life." They refer to a greeting at the outset of training that referred to "this significant work for our own personal and professional development." But there is no evidence that the presenters purported to dictate what employees could say or do on their own time outside of work. Nor did the trainers communicate that the plaintiffs would be penalized for making particular statements or keeping quiet in their private lives.

Of course, the same conclusions would hold true if the district's training had aligned more closely with the views of the plaintiffs. Suppose the district's "anti-racism" training had emphasized that "[o]ur Constitution is color-blind," Plessy v. Ferguson (1896) (Harlan, J., dissenting), that persons should "not be judged by the color of their skin but by the content of their character," Martin Luther King, Jr., I Have a Dream Speech (Aug. 28, 1963), and that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 (2007). But suppose that some employees believed that practicing color-blindness perpetuated white supremacy, and that society is stratified in accordance with the "Oppression Matrix." So long as these employees, like [plaintiffs], were not punished or threatened with punishment for remaining silent or expressing disagreement with the district's program, they could not establish an injury from required attendance at a two-hour color-blind anti-racism training session.

The court also held that requiring plaintiffs to answer online questions, indicating the "correct" answer according to the course content, wasn't an unconstitutional speech compulsion:

[I]n this type of training module, an employee's "selection of credited responses on an online multiple-choice question reflects at most a belief about how to identify the question's credited response." … [A]public employer can require employees to demonstrate as part of their official duties that they understand the employer's training materials. See Altman v. Minn. Dep't of Corr. 3 (8th Cir. 2001) ("[A] public employer may decide to train its employees, it may establish the parameters of that training, and it may require employees to participate."); cf. Janus v. AFSCME (2018) ("Of course, if the speech in question is part of an employee's official duties, the employer may insist that the employee deliver any lawful message."). But we are aware of no authority holding that simply requiring a public employee to demonstrate verbally an understanding of the employer's training materials inflicts an injury under the First Amendment, so we decline to construe Henderson's completion of the modules as an injury in fact.

But the court overturned the district court's conclusion "that the plaintiffs' claims were frivolous," which had led to a $300K award of attorney fees to the school district:

A prevailing defendant in an action under 42 U.S.C. § 1983 may recover attorney's fees from a plaintiff only in limited circumstances: when the claims were "frivolous, unreasonable, or groundless," or "the plaintiff continued to litigate after it clearly became so." …

The doctrines of compelled speech, chilled speech, and Article III standing are nuanced and often difficult to apply. The parties cite no apposite authority on how those doctrines apply to training of public employees—especially controversial training of the sort at issue here. Constitutional law in this area is unsettled and developing. The matter of an employee's standing to sue in this context is fairly described as an issue of first impression with room for plausible disagreement, although we ultimately agree with the district court's decision on that issue.

The district court expressed concern that the "political undertones" of the lawsuit "trivialized the important work of the federal judiciary." But plaintiffs long have pressed the limits of the case-or-controversy requirement in disputes relating to issues of the day. It is the judiciary's responsibility to reiterate the properly limited role of the courts in a democratic society, but a plaintiff's unsuccessful effort to push the boundaries does not warrant an award of fees without a stronger showing of frivolity than the defendants presented here….

Defendants are represented by Ransom A. Ellis, III, Tina Gardner Fowler, and Todd A. Johnson (Ellis & Ellis).

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