Eugene Volokh's Blog, page 266

[Josh Blackman] Today in Supreme Court History: September 14, 1901

9/14/1901: President Theodore Roosevelt is inaugurated. He appointed three members to the Supreme Court: Justices Oliver Wendell Holmes, Rufus Day, and William Henry Moody.

President Roosevelt's Appointees to the Supreme Court

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[John Ross] Short Circuit: A Roundup of Recent Federal Court Decisions

[Eleven-person juries, noncustodial plaintiffs, and abdicated responsibilities. ]

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Fourth Circuit: Wildcard! Let's instead use a "non-exhaustive list of factors" combined with a brand-new level of "loosened," "quite different," and "more relaxed" constitutional scrutiny. Read the cert petition to learn why the Fourth Circuit's approach is decidedly not cricket and entrenches a circuit split on a question of nationwide importance.

Capitol police officer warns a Facebook friend to take down a video of himself in the Capitol on January 6. When the FBI becomes very interested in these conversations, the officer deletes the conversations. He's convicted of obstructing grand jury proceedings. Officer: But who could have foreseen that a grand jury would be empaneled? D.C. Circuit: Well, you, for one, especially since you posted on January 7 that every protestor who entered the Capitol should be federally charged. Section 2 of the Fourteenth Amendment mandates in plain English that if the right to vote is "in any way abridged" by a state for a sufficient number of its citizens then it proportionally loses seats in Congress. Since 1868 … no state has ever lost a seat in Congress because of Section 2. Voters group: Until now! Here's evidence that there's been vote denials in a number of states. Census Bureau: Um, that's not our problem. Voters: Oh yeah? Here's an APA lawsuit. D.C. Circuit: Too bad none of the voters have standing. Concurrence: "I concede that implementing the Reduction Clause might be difficult, but that is no excuse for the Judiciary Executive Branch to abdicate its responsibility to give effect to this important part of the Constitution." New York man is prosecuted for sending death threats to congresspersons and Fox News hosts. A jury of 11 convicts. Second Circuit: That's OK. A 12-person jury isn't a constitutional right. And no prejudice suffered: The threats were clearly real (e.g., "Laura Ingraham, I am going to personally kill you"), so the error was harmless. Dissent: Not OK. Twelve jurors are "fundamental" to criminal trials. A 12th could've tipped the balance or hung the jury, a real possibility given the jury spent days deliberating, couldn't reach a consensus on one charge, and sent out notes like, "Do we have to convict even if we think he is mentally ill?" If you're a massive corporation—like, say, Hertz—and you have enough dough to pay all your creditors but ask for bankruptcy protection anyway, don't be surprised if a court—like, say, the Third Circuit—doesn't allow you to cancel hundreds of millions of dollars in interest in an attempt to stiff your noteholders. Partial dissent: I think a different interest rate applies. Navy man returns home from deployment and tries to rent a Hanover, Md. apartment. Yikes! A tenant screening agency reports that he (1) has a criminal record and (2) might be a Mexican drug trafficker (his name is similar to a purported trafficker who was born seven years before he was). He's initially rejected but then approved two days later after explaining that (1) he does not have a criminal record. (2) does not come up, and the property manager testifies she doesn't really know what that part of the report meant and didn't rely on it. Fourth Circuit: He lacks standing to sue the tenant screening agency over (2). Twenty years after being convicted of (vehemently denied) cocaine possession, IJ client Erma Wilson learned that the Midland County, Tex. prosecutor on her case was moonlighting as a law clerk for the presiding judge, a flagrant violation of the constitutional right to a fair trial. Though she never served jail time, the conviction meant she's been unable to pursue a lifelong dream of becoming a nurse. Can she sue for money damages? Fifth Circuit (en banc): Nope, she's got to get her conviction overturned first. Dissent: There is a "deep and enduring" circuit split on this, and our circuit "has been on the wrong side of this fateful split for almost a quarter-century," unjustifiably cutting off access to federal court for federal constitutional violations. (This is an IJ case. Click here to learn more.) Jury: Plaquemines Parish, La. sheriff's deputy acted unreasonably and unconstitutionally when he arrested a man for calmly asking "why" when the deputy asked for his ID. Deputy: Qualified immunity, please. Fifth Circuit: No. It wasn't reasonable to think you had probable cause to arrest, and the jury was entitled to reject your qualified-immunity defense and to award punitive damages. Allegation: Motorist crashes his vehicle in Austin, Tex. after leading police on high-speed chase. Police tase him and pin him down; he tells them he can't breathe and that he has a heart condition. He dies. Did an officer who held him down for 90 seconds use excessive force? Fifth Circuit: That's for a jury to decide. Dissent: If the officer had shot the motorist dead during the chase, he'd have gotten qualified immunity. Makes no sense he could be liable just for holding him down. (NB: Two other officers were acquitted of criminal charges. And the incident was recorded by the "Live PD" reality show, leading to a state ban on law enforcement participating in such shows.) Allegation: University of Louisville psychiatrist is demoted and essentially fired in retaliation for expressing his views on how to treat gender dysphoria in children at a think tank panel discussion in D.C. Sixth Circuit: There may not be a prior case on all fours, but all reasonable university officials know they can't fire a professor because of his protected speech. No qualified immunity. Institutional investors have to vote in thousands of shareholder meetings annually. To assist them, Proxy Voting Advice Businesses (PVABs) research shareholder proposals and sell advice to these investors. Companies don't always like this advice, and in 2020 they convinced the SEC to impose a bunch of disclosure requirements on PVABs. Sounds to this humble First Amendment lawyer like a fascinating free speech case. But we're actually here because in 2022 the SEC rescinded the requirements. Sixth Circuit (over a dissent): And the way they did that was fine. Man FOIAs the TSA for sundry video footage and incident reports. By statute, the TSA has twenty days to determine whether to comply with the request. It blows the deadline. Man sues. After which the TSA formally denies his request. Agency: Sure, circuit precedent says that if we don't thumbs-up or thumbs-down within the twenty-day response deadline, FOIA requestors don't need to exhaust our internal agency-appeal process (on the theory that we've constructively denied their request by ignoring it). But since we gave this guy a thumbs down after he sued, that retroactively un-exhausts the suit he filed previously, which should be dismissed so that he can exhaust the agency-appeal process that wasn't available to him when he filed the suit. District court: That makes perfect sense. Ninth Circuit: Actually, that makes precisely zero sense, as both the Fourth and the D.C. Circuits have held. The case can proceed. In 2022, Arizona passed the "Save Women's Sports Act," which bans "students of the male sex" from competing in women's athletics. Two transgender girls who have been on puberty blockers since age 11 challenge the ban as applied to them. The district court grants a preliminary injunction, reasoning that there's no sound basis for excluding transgender students who have not undergone male puberty. Ninth Circuit: Which was not an unreasonable conclusion. Preliminary injunction affirmed. In which the City of Los Angeles's litigation choices earn it its second remand from the Ninth Circuit in this, the eleventh year of an excessive-fines challenge to the city's $63 late-payment fee for parking fines. Ninth Circuit (2020): "[I]n its brief to this court, the City of Los Angeles did not even bother addressing the constitutionality of its late fee." Remanded. District court (2020): The late-payment fee is a-okay. Ninth Circuit (2024): "We simply ask that the City provide some evidence that the penalty amount was actually tethered to the nature and extent of the harm caused by nonpayment" (italics and underlining very much in original). Remanded again. Dissent: It's $63. Allegation: Federal prisoner in California is attacked by his cellmate with a razor. Guards decline to move him to another cell, and his cellmate attacks again. An Eighth Amendment violation? District court: Could be! The Supreme Court has closed the courthouse door to nearly every constitutional claim against federal officers, but failing to protect against prisoner-on-prisoner violence is an exception. Ninth Circuit: We join three other circuits and hold that the officers don't enjoy a special right to interlocutory review here; that's a qualified immunity thing. Dissent: The Supreme Court has closed the courthouse door to these cases. In 2021, inmate in Honolulu federal prison is attacked by gang members with a lock in a sock, breaking his coccyx. The nurse who examines him tells him "to stop being a cry baby," and gives him only over-the-counter pain medicine. His injuries go undiagnosed for seven months, and in the meantime bone chips embed in the soft tissue around the break. Per oral argument this last February, he still has not received treatment. Ninth Circuit: The Supreme Court has closed the courthouse door to nearly every constitutional claim against federal officers, but deliberate indifference to an inmate's serious medical needs is an exception. Proceed! Dissent: So officials have to send inmates to the hospital every time they report extreme pain? That can't be right. Latest news from the world of Where Can I Take My Gun Based on kind-of Similar Laws from 1791/1868, Ninth Circuit edition: Banks? Cha-ching! Private property in general? Oh yeah. Bars? Um, no. Hospitals? First, do no harm. Parks? I'm [not] your Huckleberry. Your summarist appreciates when judges are sufficiently humble to recognize that there are "hard cases" where "both sides have tendered plausible constructions of a text," and also that the Ninth Circuit majority here credits the dissent with making some good points that "gives [the majority] pause." Beyond that, we can only agree that this is indeed a "pretty complicated" case, and we leave it to the reader to decide which side has the better view on how Congress intended indemnification and removal to work for malpractice suits against private doctors at federally supported health centers that are deemed to be employees of the Public Health Service. In 2013, Sacramento police officer receives two racist spam messages and texts them to a colleague, accompanied by the message, "Some rude racist just sent this!!" Six years later, the officer is now assistant chief of police for the city of Rancho Cordova and, in that capacity, forwards a complaint about the same colleague to internal affairs. The chagrined colleague digs up the texts and turns over the racist images but not the messages condemning the images. The chief is forced to resign. She later sues for First Amendment retaliation. Ninth Circuit: The speech wasn't on a matter of public concern, so no First Amendment problem. Dissent: We used to interpret public concern broadly and this is a weird case in which to tighten it up. Federal officers conducting a mock hostage standoff exercise at Florence, Colo. prison get frustrated with several prison employees who'd locked themselves in a small room and refused to come out. And even though the employees repeatedly call out the safety phrase that's meant to terminate the exercise, the officers shoot rubber bullets and pepper spray into the room, punch employees in their faces, etc. Tenth Circuit (April 2024): No QI (for now) for the official who allegedly planned and facilitate the exercise. Tenth Circuit (this week): And regarding the other officers, they were acting outside the scope of their employment, so plaintiffs' state-law tort claims can proceed against them individually (in federal court) without the federal gov't substituting itself as the defendant (which is the outcome plaintiffs sought). Oklahoma man shoots his intoxicated cousin dead after the cousin (allegedly) knocked his own girlfriend unconscious and then ran at the man "like a linebacker." The man is charged with three counts, including second-degree murder. He requests that the jury be instructed that he had no duty to retreat before using force in self-defense. Tenth Circuit: And that instruction should have been given; convictions reversed and remanded for a new trial. Colorado assistant principal expresses reservations about an upcoming high school production of The Laramie Project and offers to add a "Christian perspective" on the issue. He's immediately put on leave and then fired. Tenth Circuit: And he has plausibly alleged that he was discriminated against because of his religion. Is talk therapy "speech" within the meaning of the First Amendment? The Ninth Circuit has said no, and the Eleventh Circuit has said yes. This week, the Tenth Circuit weighs in, siding (over a dissent) with the Ninth Circuit. Last time a petition went up on this issue, three Justices indicated they'd have granted cert., so this is one to watch. And in en banc news, the First Circuit will not reconsider its decision concerning whether backpacks are categorically covered by the search incident to arrest exception. Six judges joining a statement concerning denial: This would be a really good issue for SCOTUS to address whenever it gets around to doing Fourth Amendment cases again. And in more en banc news, the Fifth Circuit will reconsider its decision that waiver-based remand orders are unappealable.

New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Ninth Circuit: Wildcard! If the gov't declares that it is regulating conduct and not speech, then everything's cricket. Read the cert petition to learn why the Ninth Circuit's approach conflicts with recent Supreme Court precedent and entrenches a circuit split on a question of nationwide importance.

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[Steven Collis] On the Missions of Academic Institutions

[As long as academic institutions place social justice goals ahead of truth seeking and knowledge creation, they will lose the respect of the public and will not live up to their potential.]

For my last post in this series related to my new book Habits of a Peacemaker: 10 Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I turn to the role of institutions of higher education. I spend much of Chapter 2 in Habits talking both about how humanity generates knowledge and how we should each responsibly seek after it. I offer practical tips for doing the latter so that we can have more productive discourse. In theory, at least, modern universities should be places that can help with that enterprise. Sadly, too often, they are not playing that role. Many Americans do not trust these institutions or the people in them. And at least part of the problem, in my view, is a lack of understanding by faculty and administrators of the heavy cost that comes from moving universities away from seeking for and disseminating truth.

In a recent event at the Bech-Loughlin First Amendment Center, Jonathan Rauch, Jonathan Haidt, and I engaged in a discussion with our audience about whether the missions of universities should be to pursue truth or to seek social justice. We also questioned whether that framing created a false dichotomy. As you might expect, the audience had mixed reactions. Different groups adopted each of the available views. Haidt, Rauch, and I then discussed the topic more in depth.

I return to it now to make a simple point. Universities must recognize the price that comes with deviating from a truth-seeking mission towards a social justice mission. That price is respect and credibility. And they will pay it whether they like it or not.

Of course, we must be clear on what we're talking about here. Private universities, especially, have every right to adopt whatever mission they see fit. And I take no position here on whether, in some instances, it might make sense for a university to choose to pursue some forms of justice as they define it. That said, those in our audience who felt that truth and social justice are not necessarily at odds with one another probably have the better argument. Truth often will lead to justice. It will also often lead to better dialogue and improvements in standards of living. This is especially true over the long term. So allowing institutions to engage in work that results in justice is not necessarily credibility destroying. Even pursuing social justice goals, by itself, is not inherently problematic.

The problem arises when institutions—universities, departments within them, or academic organizations—adopt some ideology or solution that most of its faculty or administrators believe is just, then shut down all debate, discussion, or scholarship that contradicts what they have adopted. This can happen in formal ways, such as when a college declares that it will pursue only a certain type of approach in its research. Or it can happen informally, often through faculty refusals to consider or be generous to views contrary to their preferred orthodoxy.

When a researcher makes a discovery that seems to undermine an institution's claimed social justice mission, and those in the field discourage its publication, others who learn of such acts cannot help but be skeptical of any research that institution later produces. When faculty always produce "research" that comes down on just one side of whatever culture war issue is most important to them, they cannot expect others to respect them as much as scholars. They can find esteem as advocates. They can earn recognition as activists. But people will struggle to see them as serious seekers of truth. This is both expected and unavoidable. Universities cannot enjoy the respect given to institutions dedicated solely to exploring and propagating truth while being something other than that. Too often, however, too many people at them are hoping to achieve just that.

To help check our biases, let's explore this from another angle. If a private religious university adopts a policy that it will not allow any research or statements by its faculty that undermine the reputation or mission of its sponsoring religious organization, the outcome is as predictable as day following night. Many academics at secular universities will be skeptical of what the religious university generates, especially on topics that seem to support the sponsoring religion's worldviews. Again, the religious university cannot avoid that result. It has a First Amendment right to focus on its mission and to adopt this very policy, but the price it pays for doing so is at least some credibility in the broader society. It may well want to pay that price, but it cannot avoid it.

The same is true for secular institutions who choose to pursue the social justice aims of the day at the expense of truth.

For public universities, where the First Amendment governs and academic freedom is arguably a right, an explicit adoption of some aim other than truth seeking is less common. But the problem still exists. In those settings, administrators and faculty are less explicit about silencing dissenting views. Instead, the problem occurs informally, in harder to detect ways. Faculty, for instance, enjoy a broad First Amendment right to choose their own members. But if, in doing so, they refuse to select faculty who dissent from the accepted orthodoxy, they create an environment so homogenous that, eventually, people outside the institutions start to notice. Credibility suffers. Other ways the problem arises is when dissenting faculty remain silent on key issues or forego lines of research because they know their colleagues might find them distasteful. All of that may be hard to detect, but it is still discoverable. The public notices, and respect for the institution as a place of knowledge creation and truth seeking will suffer.

The bottom line is this. Those who run our universities—faculty and administrators alike—cannot have it both ways. Americans' trust in higher education remains low. I am sure that, as with anything, there are multiple causes. But academics must come to understand that while truth and social justice are often not mutually exclusive, respect as a truth seeker and a relentless pursuit for social justice at the cost of truth are. If academics would like society generally to trust and respect them as creators of knowledge and seekers of truth, they would do well to ensure there is diversity in their ranks. If institutions would like more credibility in what they produce, they should avoid taking positions on the issues of the day or doing anything that would suppress certain types of research.

Until that understanding finds a home, institutions of higher education will not live up to their potential to help our society develop the skills of real learning and productive discourse we so desperately need.

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[Josh Blackman] Today in Supreme Court History: September 13, 1810

9/13/1810: Justice William Cushing died.

Justice William Cushing

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[Josh Blackman] Rahimi On Remand

["We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect."]

On September 12, the Fifth Circuit decided United States. v. Rahimi on remand from the Supreme Court. All-too-often, people think a Supreme Court decision is the end of the matter. But in reality, the lower court has to actually enter a judgment to carry the Supreme Court's ruling into effect.

Here is how the per curiam panel opinion describes Rahimi:

The Supreme Court, clarifying its Bruen test, reversed our judgment and held that § 922(g)(8) is facially constitutional. United States v. Rahimi, 602 U.S. ----, 144 S. Ct. 1889 (2024).

I agree. The Supreme Court did not faithfully apply Bruen. It changed the test! For all of the outrage about the Fifth Circuit's reversal rate, a lower court cannot be faulted for faithfully following precedent. Ditto for when the government changes its position on appeal, thus radically altering the dispute, which happened in the mifepristone cases.

The panel identified at least one important regard in which the Court "modified" the Bruen test:

We read the Court's analysis in Rahimi to have modified Bruen in at least one relevant respect. In Bruen, the Court instructed that surety laws provided no historical analogue for banning a person from having a gun, because surety laws only required "certain individuals to post bond before carrying weapons in public." 597 U.S. at 55. "These laws were not bans on public carry." Id.; see also id. at 59 (same). So any "reliance on [surety laws] [was] misplaced." Id. at 55. In Rahimi, the Court announced that surety laws "confirm" that covered individuals "may be disarmed." 602 U.S. at —-, 144 S. Ct. at 1901.

The panel is exactly right. In Bruen, Justice Thomas rejected the relevance of the surety laws. But in Rahimi, Chief Justice Roberts glommed together the surety laws (ex ante restriction) with felon disenfranchisement laws (ex post restriction) to support the disqualification for those subject to domestic violence restraining orders, but who were not convicted.

Judge Ho wrote a concurrence that makes this point explicit.

First, he explains that it is not the role of the lower courts to anticipate where the Supreme Court is likely headed:

The Supreme Court can adjust or amend its own precedents at its discretion. Inferior courts have no such luxury. The Supreme Court has repeatedly instructed us to follow its precedents, whether we agree with them or not—and whether we expect the Court itself to follow them or not. See, e.g., Rodriguez de Quijas v. Shearson/Am. Exp., 490 U.S. 477, 484 (1989); Agostini v. Felton, 521 U.S. 203, 237 (1997); State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); United States v. Hatter, 532 U.S. 557, 567 (2001).

Second, as we all know, only the Supreme Court can modify its own precedents. Indeed, the Fifth Circuit halted the Mississippi abortion law that was upheld in Dobbs:

So we'd be defying the Court's express command if we decided cases based on anticipated changes to its precedents. It's up to the Court to modify or overrule its own precedents, as it alone deems appropriate—and to reverse us when it does. See, e.g., Jackson Women's Health Org. v. Dobbs, 597 U.S. 215 (2022), rev'g 945 F.3d 265 (5th Cir. 2019).

Third, Judge Ho explains that the Fifth Circuit in Rahimi faithfully followed Bruen.

That's exactly what happened here. We faithfully applied the Court's decision in N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022). See United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023). No member of our court disagreed with our interpretation or application of Bruen. As one of our distinguished colleagues put it, our job is not to relitigate Bruen, but to "operat[e] in good faith" and "faithfully implement Bruen." United States v. Daniels, 77 F.4th 337, 357–58 (5th Cir. 2023) (Higginson, J., concurring).

But fourth, the SCOTUS majority modified Bruen:

The Court has now modified Bruen—as our decision today explains. See United States v. Rahimi, 602 U.S. _ (2024), rev'g 61 F.4th 443; ante, at 2 n.1.

Judge Ho also highlights a point I raised on the blog: why must a criminal defendant, seeking to dismiss an indictment, bring a facial challenge to the statute? This framework, I observed, seems inconsistent with the standard in United States v. Lopez:

I write separately to note a second alteration to Court precedent. In the past, the Court has held unconstitutional laws that punish people who don't belong in federal prison—even if the defendant himself does. See, e.g., United States v. Lopez, 514 U.S. 549 (1995); see also United States v. Kersee, 86 F.4th 1095, 1101–02 & n.2 (5th Cir. 2023) (Ho, J., concurring). That principle readily applies here—victims of domestic violence don't belong in prison. . . .

Well, consider what the Court did in Lopez. Like Rahimi, Lopez is a dangerous person. Lopez was paid to bring a gun to school "so that he . . . could deliver it after school to 'Jason,' who planned to use it in a 'gang war.'" United States v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993). But the Court nevertheless decided Lopez's Commerce Clause challenge—and held the Gun-Free School Zones Act unconstitutional—because it sweeps in those who don't belong in a federal prison. See 514 U.S. at 562 ("§ 922(q) has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.").

The same logic applies here.

And it is no answer to say that the Second Amendment requires a different standard than the Commerce Clause or the First Amendment.

As noted, Lopez involved a claim under the Commerce Clause, not the Second Amendment. But the Court has repeatedly instructed that "[t]he constitutional right to bear arms in public for self-defense is not 'a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.'" Bruen, 597 U.S. at 70 (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)). So our court dutifully decided Rahimi's claim.

Judge Ho concludes that the Court may have foreclosed Rahimi from raising this claim, but others may raise it in a future proceeding:

The Supreme Court has now decided Rahimi. The decision does not mention Lopez, and it does not allow Rahimi to litigate the sincere concerns expressed by various amici curiae, judges, scholars, and practitioners. It does acknowledge the "potential faults" with § 922(g)(8). 602 U.S. at _ n.2. But it concludes that any defects must be addressed in a future proceeding.

Rahimi is an unsatisfying decision that quietly modified a two-year old precedent. And everyone who joined that decision knows it. Justices Barrett and Kavanaugh were never fully happy with Bruen in the first place. Had it not been for the chaos caused by the Dobbs leak, I think the Thomas majority might have fractured. And Justice Gorsuch cannot hide behind the facial analysis. Only Justice Thomas was willing to stand up for the Second Amendment, even when it allowed a dangerous person like Mr. Rahimi to have a firearm.

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[Jonathan H. Adler] Sixth Circuit Denies Qualified Immunity for State University Officials Who Allegedly Violated Professor's First Amendment Rights

[Officials allegedly retaliated against a professor who expressed politically controversial statements about the best treatments for gender dysphoria among youth.]

In Josephson v. Ganzel, a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of sovereign immunity and qualified immunity to public university officials who allegedly took adverse employment actions against a professor who expressed skepticism about certain treatments for youth diagnosed with gender dysphoria.

Judge Mathis wrote for the panel, joined by Senior Judge Gilman and Judge Griffith. His opinion begins:

The First Amendment protects popular and unpopular speech alike. Allan Josephson worked as a professor of psychiatry at a public university's medical school. After developing an interest in the medical treatment of childhood gender dysphoria, he began publicly discussing his views on that topic. In October 2017, he expressed his thoughts on treating childhood gender dysphoria during a panel discussion sponsored by a conservative think tank. His commentary was unpopular with his coworkers and supervisors. Josephson believes that his superiors retaliated against him for the views he expressed during the panel discussion, ultimately culminating in the nonrenewal of his contract with the university after more than fifteen years of employment. So he sued the individuals that he says violated the First Amendment by retaliating against him.

The defendants argue that they are entitled to Eleventh Amendment immunity and qualified immunity. The district court disagreed, and so do we. For the reasons explained below, we affirm.

Dr. Josephson was a psychiatrist and a member of the faculty at the University of Louisville School of Medicine in the Department of Pediatrics. He participated in a panel sponsored by the Heritage Foundation on gender dysphoria in children. During this panel, he expressed his opinion that "gender dysphoria is a socio-cultural, psychological phenomenon that cannot be fully addressed with drugs and surgery. Thus, doctors and others should explore what causes this confusion and help the child learn how to meet this developmental challenge."

After word of his participation spread within the medical school, he was demoted and, later, his contract with the school was not renewed. Dr. Josephson then sued alleging a violation of his First Amendment rights.

The panel explains that the defendants' alleged contact clearly violated Dr. Josephson's First Amendment rights. Among other things, his remarks were on a matter of public concern in his personal capacity and did not disrupt or interfere with his ability to perform his duties.

On the matter of qualified immunity, Judge Mathis wrote:

Defendants argue that they are entitled to qualified immunity for two main reasons. First, they argue it was not clearly established that each Defendant's conduct, in isolation, was an adverse action sufficient to show retaliation against a professor because of his protected speech. Second, they argue it was not clearly established that the First Amendment protected statements like those Josephson made in October 2017.

Resolving Defendants' first argument is not complicated. Defendants argue that Josephson's rights were not clearly established because no court had specifically addressed whether isolated actions against a professor because of his speech were adverse actions. In other words, Defendants believe they can act as they choose until there is a case on all fours. We disagree. As we have explained, "we do not require an earlier decision that is 'directly on point.'" McElhaney v. Williams, 81 F.4th 550, 556–57 (6th Cir. 2023) (quoting Mullenix v. Luna, 577 U.S. 7, 12 (2015)). At the same time, "'existing precedent' must place the contours of the right 'beyond debate.'" Id. (quoting Mullenix, 577 U.S. at 12).

During the relevant period, it was beyond debate that "the First Amendment bar[red] retaliation for protected speech." Crawford-El v. Britton, 523 U.S. 574, 592 (1998). By the fall of 2017, both the Supreme Court and this court had held that, absent a disruption of government operations, a public university may not retaliate against a professor for speaking on issues of social or political concern. Pickering, 391 U.S. at 574; Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 682 (6th Cir. 2001). And we had established that a retaliatory "adverse action" is one that "would deter a person of ordinary firmness from continuing to engage in that conduct." Thaddeus-X, 175 F.3d at 394. We had further established that campaigns of harassment, when considered as a whole, may amount to adverse actions. See Fritz, 592 F.3d at 724; Thaddeus-X, 175 F.3d at 398; Bloch, 156 F.3d at 678. It was also established that legitimate threats "to the nature and existence of one's ongoing employment is of a similar character to the other recognized forms of adverse action—termination, refusal to hire, etc.—even if perpetrated by a third party who is not the employer." Fritz, 592 F.3d at 728. We have, moreover, "repeatedly held that '[a]n act taken in retaliation for the exercise of a constitutionally protected right is actionable under § 1983 even if the act, when taken for a different reason, would have been proper.'" Wenk v. O'Reilly, 783 F.3d 585, 595 (6th Cir. 2015) (alteration in original) (emphasis omitted) (quoting Bloch, 156 F.3d at 681–82). Thus, a reasonable university official during the relevant period would have understood that he could not lawfully terminate or threaten the economic livelihood of a professor because of his protected speech.

Defendants' second argument does not fare much better. That is because the protected nature of Josephson's speech was also clearly established. "To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent." District of Columbia v. Wesby, 583 U.S. 48, 63 (2018). The principle "must be settled law." Id. (internal quotation marks omitted). Settled law "means it is dictated by controlling authority or a robust consensus of cases of persuasive authority." Id. (internal quotation marks omitted).

In the First Amendment retaliation context, "we ask whether any reasonable official would have understood that [Josephson's] speech was protected, and thus that the official could not retaliate against him." McElhaney, 81 F.4th at 557. The answer: It is, and has been, clearly established that public employees have a right to speak "on a matter of public concern regarding issues outside of one's day-to-day job responsibilities, absent a showing that Pickering balancing favors the government's particular interest in promoting efficiency or public safety." Ashford, 89 F.4th at 975 (first citing Buddenberg v. Weisdack, 939 F.3d 732, 739–40 (6th Cir. 2019); then citing Westmoreland v. Sutherland, 662 F.3d 714, 718–19 (6th Cir. 2011)).

It can no doubt be difficult to determine if speech is public or private. See DeCrane, 12 F.4th at 599 ("[W]e have recognized that it can be 'challenging' to distinguish public from private speech." (citation omitted)). Even so, by 2012, "[w]e had held that employees speak as private citizens (not public employees) at least when they speak on their own initiative to those outside their chains of command and when their speech was not part of their official or de facto duties." Id. at 599–600 (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 542–43 (6th Cir. 2012)). "Would this 'firmly established' rule have 'immediately' alerted a reasonable person No. 23-5293 Josephson v. Ganzel, et al. Page 22 that" Josephson spoke in his private capacity? See id. at 600 (quoting Wesby, 583 U.S. at 64). We think so.

Defendants also argue that Josephson's Heritage Foundation panel remarks were a part of his official duties. Even if that were the case, it was clearly established that such speech is protected. See Meriwether, 992 F.3d at 505; Hardy, 260 F.3d at 680; Bonnell v. Lorenzo, 241 F.3d 800, 823 (6th Cir. 2001) ("[A] professor's rights to academic freedom and freedom of expression are paramount in the academic setting.").

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[Ilya Somin] Lessons of the Haitian Migrant Cat Scare

[Despite scaremongering to the contrary, Haitian immigrants don't eat cats, and have much lower crime rates than native-born Americans. There are some broader lessons to be learned from this epsode.]

(Felix Mizioznikov / Dreamstime.com)

Over the last few days, there has been an uproar over claims by nativists and immigration restrictionists that Haitian immigrants in Springfield, Ohio have been eating cats and other pets. Former President Donald Trump repeated those assertions in the recent presidential debate. As it turns out, the Ohio feline community can rest easy. Both local authorities in Springfield and Ohio's Republican governor say there is no evidence indicating that Haitian migrants in the area have eaten any cats or other pets. At the very least, if such things were happening routinely, we should have substantial evidence of it; and we don't.

More generally, as Cato Institute immigration policy expert Alex Nowrasteh documents, Haitian immigrants (both legal and illegal) actually have much lower crime rates than native-born Americans. And his data doesn't fully control for differences in age and sex; if it did, Haitian immigrants are likely to look even better, as recent immigrants tend to be younger and have a higher percentage of men than the general population (and young men have higher crime rates than other demographic groups). Other evidence shows they have a high rate of assimilation and income growth, which—despite mythology to the contrary —is actually true of recent immigrants, more generally.

There are some broader lessons to be learned from this sorry episode. First, it's important to look at aggregate data, rather than just focusing on a few individual incidents, that may be unrepresentative, even if they happened. As of 2022, there were over 730,000 Haitian immigrants in the United States, and the numbers have risen further since then, as a result of refugee flows generated by growing violence and economic crises in Haiti. With such a large group, it's almost inevitable there are going to be a few who commit terrible crimes. There may even be one or two who ate a cat at some point! But you can say the same thing about virtually any other large group, including native-born Americans, one of whom apparently really did recently kill and eat a cat. Before concluding that any group poses an unusually great risk, you have to look at aggregate data. By that standard, Haitian immigrants are actually less dangerous than native-born citizens.

Even if a group does have an unusually high crime rate, it will usually be wrong to discriminate against them based on racial or ethnic characteristics they have no control over. But at least in such cases we can plausibly argue there is a problem that might require a policy response. There is no such issue in the case of Haitians.

The cat-eating hysteria is  even worse than the usual scenario of nativists holding an entire immigrant group responsible for the unrepresentative actions of a few members. Here, it appears the accusation was just totally false. But it is still an example of the more general problem of focusing on dramatic stories rather than more systematic data.

Second, it is a mistake to judge migrants by the state of their countries of origin, assuming that if the latter is awful, that means the migrants will create similar awfulness in their new homes. Haiti is one of the poorest and most violent societies in the Western Hemisphere. But that's not because Haitians are, by nature, somehow inherently violent and lazy. Rather, it's because Haiti has terrible political institutions. Given the chance to live and work in a society with better institutions, Haitian migrants do well, as most have in the US.

Indeed, the history of the US is in large part a history of immigrants arriving from societies with terrible political institutions, and doing well here. If you think that immigration replicates the conditions of the migrants' countries of origin, then the United States should long since have descended into stagnation and tyranny. After all, the vast majority of modern Americans are descendants of migrants from poor and oppressive societies. Yet, far from causing degradation, they have contributed to making American the wealthiest, freest, and most powerful nation in the world.

For a more detailed look at arguments that immigration causes institutional degradation, I recommend Alex Nowrasteh and Benjamin Powell's book, Wretched Refuse: The Political Economy of Immigration and Institutions. I  consider some of these issues myself in Chapter 6 of my own book, Free to Move: Foot Voting, Migration, and Political Freedom.

 

 

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[Steven Collis] The First Amendment and the Social Media Dilemma

[Social media poses problems far more serious than misinformation campaigns, but solutions consistent with the First Amendment are not clear.]

We have heard much lately from folks like Jonathan Haidt and Jean Twenge regarding the harms of smartphones and social media. These include a rise in anxiety, suicidality, and depression among young people, especially girls. They also include addiction for most adults and an increased polarization of society generally. But many of the solutions offered for these problems are questionable under existing First Amendment doctrines. We need continued scholarly effort into finding solutions, and that requires fully understanding the problem. What follows is an excerpt from Chapter 2 of my book Habits of a Peacemaker, "Seek Real Learning," and it provides just a brief introduction into part of what all of us are up against in the smartphone and social media era:

When we encounter something that brings us stimulation, our brains release dopamine. The effect of dopamine is usually pleasure, euphoria, the thrill of anticipation, and the desire to want to pursue the stimulant. When we eat a sugary treat, or have sex, or drink alcohol, or take drugs, or do anything else that stimulates us, our brains create dopamine. As Stanford addiction researcher Doctor Anna Lembke explains, "The more dopamine a [particular stimulant] releases in the brain's reward pathway … , and the faster it releases dopamine, the more addictive the drug." And once our brains release dopamine, they immediately begin to rebalance themselves by reducing the amount of dopamine they are creating. This is why we often feel additional cravings for something after enjoying it. As soon as the effect of the dopamine wears off, we find ourselves in a dopamine deficit, which causes us to want to seek out another hit of dopamine.

This is an important component to addiction. We experience something, our brains release dopamine, we feel euphoric (high), we crash, then we seek it again. This process becomes even worse if what we are addicted to is easily available. Research has proven this again and again. From drugs, to digital addictions, to alcohol, to pornography—the easier we can access a high dopamine-producing substance, behavior, or content, the more likely we are to become addicted to it.

All of this relates to smartphones and social media and their interference with our ability to engage in real learning and to be peacemakers. Every time we see a notice—of a like, a text, a comment, some interesting piece of news, a million other things—our brains release a shot of dopamine. It feels good. So we look for the next one, and the next one, and the next one. Give anyone a smartphone, and within a short period of time, you will see them regularly grabbing and checking it. They are seeking, often subconsciously, that next hit of dopamine. So much so that many of us cannot go more than a few minutes without at least glancing at our phones to see if something is waiting for us. We see drivers do it at every red light. We see people do it during movies at the theater.…

The most important source of those hits, for the purposes of this book, are news and information that get us riled up about the hot topics of the day. Notices about something that has happened in the political landscape that interests us will trigger a dopamine release. If we have commented on a news story or someone's political post on social media, reactions to our comment will release dopamine.

Like rats in an experiment, we will continue to seek it out.

But unlike many addictive substances or practices, which must be done in private, smartphone use and reading and commenting on the news has yet to cause any social backlash. It is perfectly acceptable in our environment to pick up our phones and seek that latest dopamine hit, from a text, a like, an article, a video, a stock report. We can't do that with illicit drugs, but we do it all day long with our phones.

And it is in that milieu that every single one of us is operating. At a moment's notice, we can pick up a small device to keep our addictions going. As you will see, that destroys our ability to connect with others and engage in productive conversations with them. …

Every time you grab your smart phone, you should picture in your mind's eye teams of mathematicians, computer programmers, and psychologists whose entire job is to keep you hooked on that device. I do not mean that rhetorically. I am not using hyperbole. One of the major goals of many tech companies—the phone manufacturers … the app developers, the social media companies—is to keep you on your device for as long as possible. Their business model depends on keeping your attention.…

A sad irony is that if peacemakers become who they are based on their habits, technology companies are hoping to mold you into what they want you to become by forcing habits upon you.…

Long before smartphones, the gambling industry pioneered getting people addicted to gaming. Especially with computer-controlled games like slot machines, [says Professor Natasha Dow Schüll], their goal was to hook users, hold them with a series of expertly timed rewards (just enough wins or other dopamine-triggering events), until their interactions with the machine resulted in a "downward spiral … a continuous, rapid, responsive interaction with the machine, precluding pauses or spaces in which she might reflect or stop." In other words, the goal was for gamblers' play to become habitual, mindless.

Given how successful the gambling world was at snaring people, it is hardly surprising that other industries would want to follow the model. And they have. To give you a sense of what you're up against, consider what one mathematician … told researchers in Schüll's book Addicted by Design: "'Math is the sharp end of my spear,'" he said. He uses math to both hook people and catch them. "'Once you've hooked 'em in, you want to keep pulling money out of them until you have it all; the barb is in and you're yanking the hook.'" …

Picture rooms of mathematics geniuses and psychologists—not working to solve some disease or place human beings on the moon but focused solely on keeping you hooked.…

How does all of this relate to the ability to establish a habit of real learning that will allow you to be a peacemaker? One of the ways these various companies keep you addicted and keep triggering dopamine is through outrage.… In other words, fearful opinions, frightening news, stories of threats to you and your family—these create the same dopamine hits in our brains as much less nefarious things like "likes" to our photos. So, we return to them. We consume them more and more. In time, we come to see the world not as a complex system with equally complex problems in need of sophisticated solutions but as one in which threats and fools abound.…

Every time we pick up our phones … we need to remind ourselves what those teams of psychologists and mathematicians are doing. They are not trying to pass on real information. They are not interested in our learning anything or becoming better citizens or being peacemakers. Whether we like it or not, they are trying to manipulate us, from the moment we let our eyes fall upon any screen in our lives. They are a formidable opponent in our efforts to engage in real learning.

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[Josh Blackman] New Essay: Coping With a Court One Disagrees With

["The time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon."]

Randy Barnett and I have written a new essay, titled Coping With a Court One Disagrees With. This essay was inspired, in part, by a recent New York Times article that identified a "crisis" in teaching constitutional law. In our view, there is no crisis. But we can relate with professors who are having difficulty teaching decisions they disagree with. We've done it for the entirety of our careers. We suggests that our method of teaching may be useful for liberal and progressive professors who are having trouble coping with the current court.

Here is the abstract:

Is there a "crisis" in teaching constitutional law? In our view, there is not. Still, we can empathize. As libertarian-conservative-ish law professors, for years we taught Supreme Court decisions that we disagreed with. We teach constitutional law as a historical narrative that began at the founding and continues to this day. The narrative approach underscores the contingent nature of what at any given time appears to be fixed and unchangeable. The narrative also remains remarkably stable from year to year even as new cases are added. This approach also makes preparing one's syllabus relatively easy to do each year, regardless of what the Supreme Court may have decided in its most recent term.

The pedagogy we developed was premised on a Supreme Court jurisprudence we largely disagreed with. Indeed, we still disagree with much of this jurisprudence, especially the cases that were decided right before, during, and after Reconstruction. While some of these cases, like Prigg, Dred Scott, and Plessy are now in the anti-canon, others like Slaughter-House, Cruikshank, and the Civil Rights Cases remain good law. This pedagogy worked before 2016 and it will continue to work no matter what happens in the future. We submit that the time is ripe for liberal and progressive professors, especially those who are having trouble coping with the current Supreme Court, to consider adopting our narrative approach to the constitutional canon and anticanon.

Part I of this essay focuses on our approach to teaching the constitutional cannon. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and previews the forthcoming Fifth Edition. We demonstrate that the narrative about the development of the constitutional canon has remained remarkably stable. Even after accounting for the recent terms, our syllabus will be about 90% the same as it was in 2019. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with. For those professors who are pained by the Supreme Court's current doctrines, our narrative approach provides succor. Such professors can, for example, teach what they believe to be "the good old days" of the Warren and Burger courts in contrast to what now exists. Students can then decide for themselves which era they prefer.

We welcome comments. And if any professors are interested, we are happy to provide review copies of our casebook for adoption.

We are also pleased to report that the twelve-hour video library from An Introduction to Constitutional Law will soon be posted on YouTube at no-cost, courtesy of the Foundation for the Constitution.

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[Josh Blackman] Today in Supreme Court History: September 12, 1958

9/12/1958: Cooper v. Aaron is decided.

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