Eugene Volokh's Blog, page 269

[Steven Collis] Israel, Hamas, and the Need for Neutral Free Speech Principles

[The Israel-Hamas war has sparked ideological swaps in many places regarding freedom of speech, confirming more than ever why we need neutral free speech principles.]

With the launch of my new book Habits of a Peacemaker: Ten Habits to Change Our Potentially Toxic Conversations into Healthy Dialogues, I will be guest blogging here on some themes from the book. Its aim is to provide practical skills to help readers become the type of people who can use their free speech rights effectively to have productive conversations about hard topics.

One of those skills peacemakers engage in regularly is searching for the best argument against their position on any issue. They may not find that argument persuasive, but learning it and knowing it helps them nuance and strengthen their views.

Sadly, the Israel-Hamas conflict, and government and university reactions to speech around it, serve as a stark reminder that too often, too many are not committed to that norm. Rather, for certain topics they hold most dear, most people prefer to silence opposing views, instead of grappling with them. And that instinct is why we need neutral principles for the freedom of speech.

I want to be very clear that I am not referring in this post to the occupy-campus protests that erupted at the end of the last academic year. Those events and the responses to them deserve a separate analysis. I am talking here about the peaceful speech related to Israel, Hamas, Palestinians and related issues.

Prior to October 7, 2023, the common narrative from the political right was that left-wing academics and administrators were silencing speech on university campuses. And there was some truth to these accusations. Repeatedly, left-wing actors expressed skepticism of the First Amendment and its related freedoms. It seemed to be getting in the way of their desired goals and policy choices. They labeled defenses based upon it as mere "weaponization" of traditional First Amendment freedoms to allow oppressors to continue oppressing. In their effort to combat this, they tried to compel speech, to silence those who disagreed with their aims, or to force campuses to restrict what they deemed as "hate" or "discriminatory" speech.

Their methodologies were straightforward. Consider LGBT+ rights and race, although we could explore other examples as well. To silence anyone who disagreed with their proposals, leftwing actors attempted to label speech rather than deal with its substance. They labeled as "racist" any argument against their race-related proposals. Any proposals related to the LGBT+ community with which they did not agree, they labeled "homophobic" or "transphobic" or "anti-LGBT." They tried to label all of this speech as "hate" or "harassment."

Once they had applied the labels, it was easy for them to try to silence the speech or cancel speakers. After all, most reasonable people of good will do not want "hate" or "harassment" on campuses.

But critics, especially those on the political right, rightly pointed out that the definitions of the labels were doing all the work. If the labels were defined too broadly, or left undefined, they could be used to stifle all sorts of speech on any number of important topics. If a university administrator wanted to punish someone for certain content or viewpoints, they needed only say they were not regulating speech; they were merely preventing "racism" or "homophobia" or "harassment" or "hate."

Until recently, these were the dynamics, and they defined many of the disputes around freedom of speech in institutions of higher education. In the past year, however, since the October 7 attacks, we have journeyed into a mirror dimension. The groups and their positions have swapped. We have seen right-wing lawmakers, journalists, and some university administrators engaging in the very same tactics they have been deriding for years. And we have seen actors on the left become newborn champions of free speech fundamentals.

Republican actors have pushed for the silencing of speech they deem "hateful," "bigoted," "genocidal," or "antisemitic." Some have expressed worry that students don't "feel safe" on campus. But the words doing most of the work are "antisemitic" and "genocidal." Using those labels, universities have cancelled Pro-Palestinian events with speakers wanting to highlight the plight of Palestinian civilians or criticize the nation-state of Israel. Universities have silenced graduation speakers who would have criticized Israel's government. Pro-Palestinian student groups have seen their designations as official student groups stripped.

One of the more public acts along these lines came from Texas Governor Gregg Abbott. In an executive order dated March 27, 2024, Abbott ordered "all Texas higher education institutions" to:

"1. Review and update free speech policies to address the sharp rise in antisemitic speech and acts on university campuses and establish appropriate punishments, including expulsion from the institution.

"2. Ensure that these policies are being enforced on campuses and that groups such as the Palestine Solidarity Committee and Students for Justice in Palestine are disciplined for violating these policies.

"3. Include the definition of antisemitism, adopted by the State of Texas in Section 448.001 of the Texas Government Code, in university free speech policies to guide university personnel and students on what constitutes antisemitic speech."

As with all the examples I gave from the political left, all the work in this executive order is being done by the definition of "antisemitism." If too broad, it will silence all sorts of speech related to some of the most salient political questions in the world today. And it will guarantee that the strongest arguments will go unheard on college campuses. This paternalistic use of government power likely violates First Amendment precedent, but, more importantly, it will stifle speech in the exact same way the banishment of "harassing," "racist," or "hate" speech would.

But the ideological flipping is not one sided. Many faculty and political actors who can see the problem of banning "antisemitism" and "genocidal" speech if those terms are defined too broadly are the same people who previously pushed for speech codes that banned "harassment" and "hate" speech. They have suddenly become champions of free speech when they were previously hostile to it.

In short, both sides of the political spectrum flip their position based on which speech they want to protect and which they want to suppress.

This is nothing new. That instinct has persisted perhaps as long as there has been speech and a government to regulate it. But the Israel-Hamas conflict and the flip-flopping it has spurred has proven, once again, why we need neutral principles of law to govern speech regardless of which speech it is. None of this is to suggest we want hate or antisemitism or racism on college campuses. Of course we do not. But we do want to hear and explore the most sophisticated arguments surrounding the critical issues of the day, from all viewpoints. Neutral principles of free speech doctrine, applied to all regardless of the issue, will allow that to happen.

If universities and lawmakers can put such principles into place, then we will be able to engage in one habit critical to having productive discourse about hard topics: hunting for, processing, and responding to the strongest arguments against our beliefs.

 

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[Eugene Volokh] Pennsylvania Sen. Douglas Mastriano's Libel Claims Made Clear

Mastriano v. Gregory (W.D. Okla.) involves a lawsuit that's mostly about a controversy related to Pennsylvania state senator Douglas Mastriano's Ph.D. thesis (in military history). Some backstory, from the Canadian Broadcasting Corporation (Aidan Cox):

The University of New Brunswick has become the target of legal action by a Republican politician in Pennsylvania who's accusing the school of leaking his doctoral thesis and of participating in a scheme to discredit his research on a First World War hero.

Doug Mastriano, a U.S. Army veteran and state senator, is suing UNB and several of its faculty members following a wave of criticism directed at the thesis he wrote on Sgt. Alvin C. York that earned Mastriano a PhD from the university in Fredericton.

"Defendants embarked on a racketeering enterprise to deprive Col. Mastriano of his intangible property interests in his PhD, his books, and his speaking engagements," says the lawsuit, filed in Oklahoma by lawyer Daniel Cox….

The lawsuit says it was filed in that court because James Gregory …, one of the named defendants, lives in that jurisdiction….

The lawsuit also includes a libel claim, but the alleged libel at the heart of Mastriano's libel claim (one of several claims in the case) was sealed, and parts of an online article that is claimed to be the basis for the lawsuit was redacted. I successfully moved to intervene and unseal those exhibits (you can see them here and here), and it turns out that the libel claim isn't about the thesis after all. Rather, it stems from a letter sent in the name of UNB History Department faculty that condemns Mastriano on ideological grounds, e.g.,

Mastriano's public statements reflect an anti-2SLGBTQQIA+, Islamophobic, sexist, racist, anti-science, violently authoritarian ideology antithetical to our values.

The letter goes on to generally denounce anti-transgender policies, and proposes a Queer History Month event, sets forth plans for a new graduate scholarship "which recognizes the importance of lived experience that equity-seeking groups bring to historical studies," and says students will be invited in Queer and Black History months programs and the like.

It seems to me that these claims will go nowhere, because general allegations of racism, sexism, Communism, Marxism, etc., are treated as opinions—and thus not legally actionable—rather than as provable or disprovable factual assertions. For more on that, see this post from Friday, this post from 2021, and this amicus brief that discusses the Pennsylvania law on the subject (the law that is likely to be applied to a Pennsylvania politician's libel claims). The letter is also apparently unconnected to James Gregory, the one defendant who resides in Oklahoma and may thus be within the jurisdiction of the federal court in Oklahoma (to oversimplify slightly).

But in any event, now we can understand the claims that Sen. Mastriano is bringing.

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[Eugene Volokh] Monday Open Thread

[What's on your mind?]

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[Jonathan H. Adler] A Conversation on Climate Change, Catastrophism, and Illiberalism

[A panel discussion from the Liberalism for the 21st Century conference]

Climate change seems to provoke illiberal reactions from both Right and Left. The former falls prey to know-nothingism in its efforts to deny the existence of a problem that would justify a governmental response. The latter's tendency to catastrophize climate change fosters support for illiberal responses. Neither is a productive response to a serious problem.

This concern was the focus of a panel on which I participated at the ISMA's inaugural Liberalism for the 21st Century conference this past July. Joining me on the "Climate Change: Liberal Solutions" panel was Nils Gilman of the Berggruen Institute, Joseph Majkut of CSIS, and Slow Boring editor Matt Yglesias. The video is below.

An edited transcript (omitting the Q&A) is also available here.

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[Josh Blackman] Today in Supreme Court History: September 8, 1953

9/8/1953: Chief Justice Fred Vinson dies.

Chief Justice Fred Vinson

 

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[Cass Sunstein] Free Speech and the Educational Mission

[Some of the hardest free speech issues arise when a university argues that restrictions are justified by its "educational mission."]

 

Public colleges and universities are bound by the First Amendment. Their private counterparts are not (though a state might choose to apply the requirements of the First Amendment to them, as California has largely done). But if private universities choose to follow the First Amendment, they will make life a lot easier, and also a lot better, for faculty, administrators, and students alike.

One reason is that First Amendment principles make most cases easy.

The First Amendment does not protect plagiarism, sexual harassment, or true threats ("I will hurt you if I see you in the dining room again"). At the same time, the First Amendment protects a wide range of viewpoints, including those that many consider, or that just are, offensive,  hurtful, insulting, or humiliating.

If someone on campus says, "Capitalism is racism," or "Israel should never have been created," or "Democrats are communists," or "January 6, 2021 should be a national holiday," or "Russia all the way," or "Affirmative action is the worst form of race discrimination," the First Amendment doesn't allow regulation.

Still, there are plenty of hard cases. Many of the hardest arise when a college or university claims that restrictions are justified by its educational mission.

In some cases, such restrictions really can be so justified. A university can direct a history professor to teach history, not physics, in a history class. That's a form of content discrimination, and it's okay.

A university can deny tenure to a law professor whose published work consists entirely of science fiction. That's also a form of content discrimination, and it's also okay. A university can tell students that they have to write papers and exams on assigned topics, not on whatever interests them.

We can go a lot further. A college or university can require students and faculty to treat each other with respect. If a student repeatedly tells other students, in class, that they are fools or idiots, discipline is almost certainly permissible. If professors repeatedly say the f word  in class, in response to student comments that they find confused or unhelpful, they can almost certainly be disciplined.

A government cannot mandate civility, considerateness, or respect. But an institution of higher education can do something like that, at least if it specifies what it has in mind, and at least if it is dealing with extreme cases.

You can even imagine cases in which viewpoint discrimination, which is ordinarily anathema, is acceptable. Again the reason is the educational mission.

Suppose a law school thinks that its faculty is dominated by people with left-of-center views, especially in constitutional law. Can the law school decide that in hiring, it will give a preference to people with right-of-center views?

The answer is almost certainly yes. A law school can decide, without offense to First Amendment principles, that it wants to ensure diversity of viewpoints, for the benefit of faculty and students alike.

But there are harder cases.

Suppose that a physics professor says that "men are just better than women in physics; the subject is much easier for them." Suppose the professor says that in class. A university might think that the professor cannot do his job if he tells his women students that they are likely to struggle with the course.

First Amendment principles do not forbid a college or university to take steps to ensure that professors are able to do their jobs. Perhaps certain kinds of comments, made in class, can be restricted, even if the restriction is a form of viewpoint discrimination. (A professor certainly could not be disciplined for saying that men and women students are equally able to do well in physics.)

That argument is weakened if a professor says something like this outside of the classroom. Professors do not lose their right to express their opinions. But there is not a lot of law on such questions. (I discuss much of what there is in Campus Free Speech.)

We know that governments can restrict the speech of their employees if the restriction is reasonably justified by reference to the government's legitimate interests as employer. If an official in a policymaking role at the State Department  says that the United States is horrible in every way, and that China and Russia are both wonderful and blameless, the First Amendment does not forbid suspension or discharge.

So if professors say something that, in the university's reasonable view, makes it hard for them to teach their students, we might have a hard question.  But the slippery slope problem here is serious. A host of imaginable views, expressed outside of class, might upset some students or make them feel in some sense excluded or demoralized. Consider these: (1) "Religion is the opiate of the people." (2) "Atheists have no morality." (3) "Liberalism is a disorder." (4) "Hunting should be a crime."

I have been focusing on speech by faculty members, but the question whether the educational mission justifies special restrictions can be asked about administrators and students as well.

Suppose that a dean of admissions makes a sexually explicit video. Or suppose that students form a society for celebration of the Confederacy or in defense of Hitler. In such cases, we can easily imagine a claim, by some or many at the institution, that the relevant speech really does compromise its educational mission.

In my view, colleges and universities do best to begin with a presumption in favor of freedom. But as they say, general propositions do not decide concrete cases. Adoption of First Amendment principles makes most cases easy—but not all of them.

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[Josh Blackman] Today in Supreme Court History: September 7, 1958

9/7/1958: The U.S. District Court for the Eastern District of Arkansas denied the Little Rock School Board's petition to suspend its integration program. In Cooper v. Aaron (1958), the Supreme Court ordered the integration of Central High School.

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[Eugene Volokh] QAnon "Patriot Reporter" Claims Newspaper Libeled Him by Saying He Had Admitted to "Sexual Relationship" with 15-Year-Old

[But he loses: "As a result of Godlewski's guilty plea to 'inappropriate text [m]essages' and 'contact' ..., as set forth in the Affidavit of Probable Cause quoting the offending text messages admitting and memorializing a sexual relationship with a 15-year-old minor, Godlewski is collaterally estopped from denying his participation in [the] sexual relationship ...."]

From Godlewski v. Kelly, decided last week by Judge Terrence Nealon (Pa. Ct. Common Pleas, Lackawanna County); the opinion is over 13,000 words long, so this is just an excerpt:

A self-proclaimed "patriot reporter," who claims to be "one of the highest Anons" in the QAnon movement and to earn $5,000,000.00 per month from his QAnon broadcasts on social media, has instituted this litigation advancing claims for defamation and false light invasion of privacy against a newspaper and its op-ed columnist based upon an article that they published on February 14, 2021.

The ironic gist of the opinion column at issue was that the QAnon broadcaster, who affirmatively states in his published videos on social media that certain high-ranking elected and public officials are satanic, cannibalistic pedophiles sexually abusing children and drinking their blood to ingest the life-extending chemical adrenochrome, previously pled guilty in this county to corruption of a minor resulting from a sexual relationship with a 15-year-old girl while he was a 27-year-old baseball coach at her school….

Godlewski contends that the article of February 14, 2021, contains three factual statements that are false and defamatory. First, he alleges that the article falsely stated that he "had a sexual relationship" with Ms. DuBorgel when she was a minor. Second, Godlewski asserts that by using the word "Unreal-tor" to describe him, the article falsely made an "imputation that [he] was not fit to be a realtor." Third, he avers that Kelly's article falsely tied "Godlewski to the criminal insurrection at the Capitol on January 6" where there "were criminal acts for which people have been criminally prosecuted and criminally convicted." {Godlewski does not allege that Kelly's representations relating to Godlewski's active involvement with and support of the QAnon movement are untrue or defamatory.} …

Godlewski's guilty plea and sentencing in Godlewski I, his arrest in Godlewski II, and his above-quoted social media QAnon broadcasts predated the publication of Kelly's article on February 14, 2021. As noted above, the only text messages quoted in the Affidavit of Probable Cause in Godlewski I are those in which Godlewski acknowledged and described oral sex with Ms. DuBorgel, the presence of her hair in his "crotch area," and his sexual activity with her in 2010 when she was 15 years of age. Those text messages served as the factual predicate for the single count of Corruption of Minors, 18 Pa. C.S. § 6301(a)(1), contained in the Criminal Information charging that Godlewski "did repeatedly have inappropriate text [m]essages and contact with a minor" in 2010. Docket Entry No. 6. Indeed, Godlewski's counsel conceded at the time of oral argument that "[t]he corruption of minors count in the complaint was consistent with the information in the affidavit."

In his guilty plea colloquy in Godlewski I, Godlewski admitted that his executed colloquy was a "signed statement," that he "kn[e]w exactly what you are charged with and what you are pleading to," that he understood "that by pleading guilty you are admitting that you did the things you are charged with," that he understood "the elements of the crime charged that you are pleading to," and that he "admit[ted] that you did the above stated act" constituting corruption of a minor. The following clause appears directly above his signature on his guilty plea colloquy:

I affirm that I have read the above document in its entirety and have reviewed it with my attorney. I affirm that I am aware of the full implications of pleading guilty and nevertheless wish to plead to the specified offense(s). I further affirm that my signature on this Guilty Plea Colloquy and initials on each page of this document are true and correct.

Based upon the truthfulness of Godlewski's attestation, Judge Geroulo accepted Godlewski's guilty plea and sentenced him to three months to 23 months house arrest. It is "well settled that a guilty plea constitutes an admission to all of the facts averred in the indictment," and that a trial court may grant summary judgment based upon such an admission….

Godlewski claims that Kelly falsely reported that he "pleaded guilty to corruption of minors and admitted to having a sexual relationship with a 15-year-old girl." Based upon the content of Godlewski's text messages which served as the factual basis for the corruption of a minor charge set forth in the Criminal Information, and Godlewski's sworn plea to that specific crime in a court of law, both of the foregoing statements made by Kelly in his article are true. As a result of Godlewski's guilty plea to "inappropriate text [m]essages" and "contact" with Ms. DuBorgel, as set forth in the Affidavit of Probable Cause quoting the offending text messages admitting and memorializing a sexual relationship with a 15-year-old minor, Godlewski is collaterally estopped from denying his participation in a sexual relationship with Ms. DuBorgel in 2010. Thus, Godlewski has failed to come forward with sufficient evidence creating a genuine issue of material fact concerning the claimed falsity of Kelly's statement that Godlewski "pleaded guilty to corruption of minors and admitted to having a sexual relationship with a 15-year-old girl." …

Godlewski alternatively alleges that Kelly made false factual statements by indicating that Godlewski was "selling rabbit holes" and by displaying an image of an "Unreal-tor" sign in the accompanying cartoon, thereby suggesting "unreality" on Godlewski's part and questioning his fitness as a realtor in the process. Kelly testified that he viewed Godlewski's QAnon videos before he authored "an opinion column" about Godlewski. Kelly stated that his article did not "raise an inference that Mr. Godlewski is not fit to be a realtor" because of his QAnon activities, but agreed that he utilized a "rabbit hole figuratively" to reference "the QAnon movement and the rabbit holes people go down believing all this nonsensical stuff." Kelly considers the illustration prepared by The Scranton Times' John Cole depicting a rabbit hole and "Unreal-tor" sign to be "a very clever parody on [Godlewski's] job as a realtor and what he was doing" in broadcasting baseless QAnon conspiracies.

It is noteworthy that the phrase "rabbit hole" has been used in other court proceedings and legal publications to describe the effect of the QAnon movement on its adherents. Other legal journals have similarly noted the detachment from reality of QAnon's conspiracy theories. Hence, Kelly and The Scranton Times are not alone in using the word "unreal" and the phrase "rabbit holes" in describing the QAnon movement and its activities.

Prior to the publication of the article at issue, Godlewski had publicly broadcasted on social media that United Airlines Flight 93 never crashed in Somerset County on September 11, 2001, that Stephen Paddock did not shoot and kill 60 people and wound another 413 individuals in a mass shooting from the Mandalay Bay Hotel in Las Vegas, that former President Donald Trump had authorized and presided over the executions of President Biden, Hillary Clinton, and other public figures by military tribunals, that the late President George H. W. Bush was also executed by a military tribunal due to the Bush family's involvement with children sex-trafficking, that various Democratic officials were molesting children and drinking their blood to ingest adrenochrome in the basement of a Washington pizzeria, and other equally absurd representations. Such public pronouncements reflect a declarant who is untethered from reality, and Kelly has testified that he viewed those videos prior to preparing his article.

Even when the summary judgment record is viewed in a light most favorable to Godlewski as the nonmoving party, it demonstrates that the "sells rabbits holes" reference in the title and the "UNREAL-TOR" sign and rabbit hole appearing in the cartoon illustration are mere parody rather than actionable statements of fact….

Godlewski's final claimed statements of fact concern Kelly's representation that Godlewski "happily calls out the cadence" of the QAnon movement and is "a purveyor of a poison," which Godlewski asserts conveys that he bears some responsibility for the "criminal acts" committed during the Capitol riot. Kelly testified that the words "happily calls out the cadence" constituted "figurative language" that referenced Godlewski's broadcasts on January 6, 2021, when he "said that [Vice President Mike] Pence had been arrested," which statement "got [Godlewski] in U.S.A. Today," and Godlewski's "rallying cry" that the Democratic legislators should be "arrested" and "get executed at top levels." As for the phrase "purveyor of a poison," Kelly indicated that he was referring to "the lies and nonsense and disinformation and misinformation that [Godlewski] was spreading on the Internet," such as representing as true that "the real Joe Biden has been executed and the guy who's in the White House is a body double … in a studio out in Arizona," and "that [Godlewski] had traveled in time and talked to Nikola Tesla."

The role of the QAnon movement and its followers in the events at the Capitol on January 6, 2021, has been widely reported in legal literature. However, Kelly "never said [Godlewski] was at the rally" in his article. To the contrary, Kelly's article expressly states that "Godlewski told me he wasn't at the Capitol on January 6, but he showed up in USA Today's coverage of riot" after "Godlewski posted on Facebook that Vice President Mike Pence had been arrested."

Once again, Godlewski has not identified sufficient evidence indicating that Kelly made false factual statements "tying Mr. Godlewski to the criminal insurrection at the Capitol on January 6." Kelly's reference to Godlewski happily "calling out the cadence" of the QAnon movement is supported by the plethora of QAnon conspiracies broadcasted by Godlewski on social media and viewed by Kelly prior to authoring his article. The other description of Godlewski as a "purveyor of poison" constitutes satirical commentary by Kelly based upon Godlewski's above-quoted QAnon broadcasts, rather than an actionable false statement of fact. Therefore, Kelly and The Scranton Times are entitled to summary judgment due to the absence of sufficient evidence in the record that Kelly or The Scranton Times made a false statement of fact regarding Godlewski in the article published on February 14, 2021.

J. Timothy Hinton, Jr. (Haggerty, Hinton & Cosgrove, LLP) represent defendants.

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[Eugene Volokh] Prof. Robert Leider (GMU): Are Parents Responsible for School Shootings Committed by their Children?

I'm delighted to be able to pass along this item by Prof. Leider, who is an expert on criminal law:

On Wednesday, an all-too-familiar tragic scene played out, when a student at a Georgia high school opened fire on his teachers and classmates. The student killed four and injured nine others with a semiautomatic rifle. He stands charged with murder. But police also promptly arrested his father and charged him with four counts of involuntary manslaughter and eight counts of cruelty to children. Police have alleged that the father "knowingly allowed him to possess" the rifle. Although police have not released the full details of the case against the father, this case has the potential to drastically expand criminal liability against parents for the criminal acts of their children.

The law traditionally has not imposed a general duty upon parents to protect third parties against the criminal acts of their children. And for good reasons. Parents are not in a position to control their children's behavior at all times. Although parents may choose to have children, they do not choose the children that they get. Unlike the employer-employee relationship, parents cannot terminate a child who exhibits problematic behavior.

But there are some exceptions where parents may violate duties of their own. A parent can become liable when he fails to exercise control over the child and the child's wrongful act is reasonably foreseeable. Even here, however, courts (usually in the tort context—criminal cases are rare) have imposed a strict standard for what qualifies as reasonably foreseeable. To quote the Alaska Supreme Court:

A plaintiff must show more than a parent's general notice of a child's dangerous propensity. A plaintiff must also show that the parent had reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm.

Dinsmore-Poff v. Alvord, 972, P.2d 978, 986 (Alaska 1999).

Other courts have formulated similarly stringent tests. See, e.g., Wells v. Hickman, 657 N.E.2d 172, 178 (Ind. 1995) ("Imposition of a duty is limited to those circumstances where a reasonably foreseeable victim is injured by a reasonably foreseeable harm.… Specifically, the parent must know or should have known that the child had a habit of engaging in the particular act or course of conduct which led to the plaintiff's injury.") (citing Parsons v. Smithey, 504 P.2d 1272, 1276 (Ariz. 1973) ("On the subject of parental liability for failure to control children, it appears that the parents must have knowledge of the child's habitual conduct manifested by evidence of prior acts which are the same or similar to the act complained of.")).

In the Georgia case, liability would depend on what precisely the parents knew. It has been reported that the FBI previously interviewed the school shooter because of online threats. Certainly, if the parents were aware that the teenager represented a credible danger to the school, they would have had the obligation to control him, including (most obviously) by not supplying the child with a rifle. But reports indicate that the child denied making the threats and the FBI could not find probable cause (a very low evidentiary standard) that he did so. It is doubtful that one unsubstantiated allegation months earlier that a child made threats would place parents on notice that a child may be violent now.

With respect to the publicly known facts, the lack of specificity separates this case from the Michigan cases of Jennifer and James Crumbley, to which it has been compared. In the Michigan case, the Crumbleys were convicted of involuntary manslaughter for supplying a handgun to their child while ignoring his mental health problems. The child later used the handgun in a school shooting to murder four students and wound six others.

But the Crumbleys were on extensive notice that their son was troubled and potentially an immediate danger. Indeed, the Crumbleys met with school officials on the morning of the shooting in response to artwork by their son depicting violence and pleading for help. Yet, they did nothing to alert school officials about his possible access to a weapon, nor did they check to make sure their firearm was still in their possession. They simply left him at school. (Their case remains on appeal. Given how high the standard is for parental liability, they have a reasonable chance to succeed.)

Of course, police have not released all their evidence, and they are still investigating. When more evidence comes to light, prosecutors may have substantial other evidence that the Georgia parents were on specific notice of the danger.

As of now, however, the director of the Georgia Bureau of Investigation has framed the case as one of a parent "knowingly allowing his son to possess a weapon." But another major difference between the Georgia case and the Michigan case is that the Georgia case involved a rifle while the Michigan case involved a handgun. The differences in weapons matter legally. Because handguns are more susceptible of criminal misuse, federal and state laws more tightly regulate the possession of a handgun by a minor. In general, it is unlawful for a minor to possess a handgun. There are exceptions (e.g., target shooting and hunting), but many states additionally require that, even then, adults directly supervise minors. In contrast, federal law does not prohibit minors from possessing rifles and shotguns, nor do many states (including Georgia). Unlike with handguns, it is more common to permit minors unsupervised access to rifles and shotguns for hunting and target shooting.

Granted, this case involved an AR-15 type rifle. A few jurisdictions (e.g., Virginia) separate some semiautomatic rifles (designated as "assault weapons" or "assault firearms") and restrict juvenile possession in the same manner as handguns. But most states treat rifles and shotguns as a class, and do not separate rifles by type. Georgia is among them.

It is also unclear exactly how the Georgia child gained access to the firearm. A parent can also be liable for the acts of his child if he negligently entrusts a dangerous instrumentality to his child. The particular facts will likely be highly significant. Did the parent in this case consent to his son having possession of the rifle? Or did the child take the rifle without permission?

At the end of the day, however, it is not clear whether these legal technicalities will matter. We may be witnessing a development in the law of parental responsibility. Although school shootings and mass shootings are rare (they make up a small fraction of all homicides), they terrify the population far more than ordinary street violence. Americans may have had enough, and they may want the law to develop in a direction to impose a more substantial duty on parents to keep firearms away from minors. Guns are not the only dangerous instrumentality to which minors have access; cars cause thousands of deaths each year, too. If the law evolves, it remains to be seen whether it will be a "gun exception" to normal rules of parental responsibility or whether the law will impose stronger duties on parents in other domains as well.

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

[Pizza wiretapping, free books, and a search during childbirth. ]

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

Law students! We haven't met you, and this is crazy, but maybe come join us at one of our upcoming Legal Intensives, which feature interactive sessions on constitutional and public-interest law led by experts at IJ. You'll gain practical skills, learn practical strategies, and connect with like-minded peers and pros. Click here to learn more about the intensive in Malibu, Calif. on Nov. 9, 2024, which will focus on First Amendment Retaliation. And click here to learn more about our event in Arlington, Va. on Jan. 25, 2025, on Unconstitutional Zoning. Space is limited and competitive.

The Clear Air Act says "new" pollution sources are those built after EPA promulgates the relevant pollution standard for that source. In 2022 EPA came up with some standards for certain industrial boilers and said they applied to the boilers even though the boilers were built before the standards had been proposed. D.C. Circuit: Which means the boilers aren't "new." Maine law and jail policy prohibit officers from being in the delivery room while a prisoner is in labor or giving birth, absent a request from medical staff. First Circuit: And it's clearly established that, absent an emergency, the Fourth Amendment prohibits observing the prisoner's naked body, unless "inadvertent, occasional, casual, and/or restricted." So no qualified immunity for these officers, both of whom also allegedly have histories of inappropriate conduct with female inmates. (IJ filed an amicus brief, with our friends at the MacArthur Justice Center, urging this course of action.) "Is it 'fair use' for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors?" Second Circuit: We have a 64-page opinion you can read, but—from that description of the question—we're pretty sure you can guess the answer. Man is arrested after causing traffic accident and appearing unsteady on his feet. He's got no alcohol in his system, so maybe drugs? Yikes! Turns out he'd had a stroke. Can he sue an NYPD officer who pursued charges (that required him to come to court several times before they're dismissed) even after learning of the stroke? Second Circuit (unpublished): No, he could have had the stroke after the accident, so the officer had at least arguable probable cause, which defeats a malicious prosecution claim. FullStory Inc. sells a script of computer code that allows businesses to collect data about how visitors interact with their websites. E.g., Papa John's uses the code to capture website visitors' mouse movements, clicks, scrolls, zooms, window resizes, keystrokes, and text entries. Mamma mia! Two class actions filed in Pennsylvania allege that FullStory (produces the code) and Papa John's (uses the code) violated the state's wiretapping and privacy laws. The district court dismisses both cases for lack of personal jurisdiction over the out-of-state corporations. Third Circuit (over a dissent): Dismissal of Papa John's is affirmed, but dismissal of FullStory is vacated and remanded for district court to apply the correct test. Allegation: Man in Houston drives in the early morning to help his girlfriend in a fender bender and is getting along well with assisting officers until police sergeant barrels in, escalates the situation, and then chokeslams man on a car hood, leading to a scuffle in which the man is tased and arrested. Fifth Circuit: If the facts are as alleged, no qualified immunity. Dissent: "This is an absurd result." Bodycam video shows man assault sergeant, so sergeant should get qualified immunity. Concurrence: I don't see that in the video at all, so this should be decided at trial, "not by three appellate judges playing junior-varsity jury." Driver pleads guilty to felony fleeing after high-speed chase and then sues Hernando, Miss. officers for excessive force. District court: Heck bar precludes claims and, alternatively, driver hasn't identified a constitutional violation. No attorneys' fees for prevailing defendants. Fifth Circuit (unpublished): Driver's counsel has inexplicably failed to appeal the alternative holding so he loses, but also no fees because civil-rights defendants can only get those when claims are frivolous. Concurrence: The text of the fee-shifting statute for civil rights cases doesn't differentiate between plaintiffs and defendants, so maybe precedent that treats plaintiffs more favorably is wrong? In 2001, when the Supreme Court's deference to campaign finance laws was at its zenith, the Court upheld federal limits on the amount of spending political parties could do in coordination with their candidates. Twenty-three years later, has the legal landscape changed so much that the Sixth Circuit can strike down the limits? Sixth Circuit (en banc): If we were writing on a blank slate, we'd probably say yes, but vertical stare decisis is absolute. Concurrence(s): SCOTUS should abandon tiers of scrutiny and adopt Rahimi-style historical review. Other concurrences: Why are we even opining on this? Just uphold the law and send it to SCOTUS. Dissent: We can strike it down. Murder suspect holes up in his parents' house (where he does not live). His mother offers to persuade him to come out peacefully, but Smyrna, Tenn. officers instead fire chemical munitions into the home, causing massive damage. Was the damage a Fifth Amendment taking requiring just compensation? Sixth Circuit: No. Historically, officers have had the privilege to kick in a door or break a window to carry out a lawful arrest without any Fourth Amendment liability, so there's no Fifth Amendment liability against municipalities when innocent people's houses are destroyed during a lawful arrest. (This is an IJ case.) Three Republican Party county executive committees in Kentucky would like to spend money in support of a state constitutional amendment (on school choice) that is on the ballot this November. But state campaign finance officials, in an official opinion, say that would be illegal. Officials: But we might not enforce the law, so you can't sue us yet. Sixth Circuit: Not only can the committees sue, but they'll also probably win. So we're taking the extraordinary step of granting an injunction pending appeal. At George Floyd protest in Des Moines, Iowa, a bunch of different officers arrest a bunch of different protestors spread over several blocks. Officers: We had blanket authority to arrest everyone in the area for unlawful assembly, failure to disperse, or participation in a riot. Eighth Circuit: No, you need at least arguable probable cause to suspect individual arrestees did any of those things. Many of these officers did not and thus are not entitled to qualified immunity. At George Floyd protest in San Jose, Calif., officer shoots non-threatening protestor in the groin with a foam baton round, which causes serious injury. (The protestor is a community activist who had for years trained police recruits about implicit bias.) Ninth Circuit: To a jury these First Amendment retaliation and Fourth Amendment excessive force claims must go. At George Floyd protests in Los Angeles, officers allegedly injure people who didn't have it coming, arrest people who didn't have it coming, gave dispersal orders people couldn't hear, zip-tied people too tightly, packed arrestees on busses too tightly without access to water or bathrooms, and more. Ninth Circuit: Doesn't seem like plaintiffs' injuries in the four classes the district court certified are common enough for a class action. Vacated and remanded for another look. If you move from Hawaii to the Commonwealth of the Northern Mariana Islands (CNMI), you get to continue voting absentee in Hawaiʻian federal elections. But if you move from Hawaiʻi to Guam, about 37 miles southwest of CNMI, you don't (same goes for Puerto Rico, the U.S. Virgin Islands, and American Samoa). Former-Hawaiʻian-now-Guamanian sues, alleging this disparate treatment violates the right to vote. Ninth Circuit: That's a little weird, but it's not irrational. Dissent: I think the standard is a little more demanding than that, and the district court should take another crack at it. California wants large social media companies to file semi-annual reports about their content-moderation policies and practices. The social media company formerly known as Twitter objects that this violates the First Amendment and moves for a preliminary injunction. The district court denies the injunction, concluding that the reports are permissible compelled commercial speech. Ninth Circuit: "The Content Category Report provisions would require a social media company to convey the company's policy views on intensely debated and politically fraught topics, including hate speech, racism, misinformation, and radicalization, and also convey how the company has applied its policies." That ain't commercial speech. Injunction granted. Montana enacts a law that makes it a crime—punishable by up to 18 months in prison and $5,000 in fines—for any person to "purposefully remain registered to vote in more than one place in this state or another state any time" or to fail to "provide . . . previous registration information on the Montana voter registration application." Voter registration group sues and gets a preliminary injunction. Montana: But there's no First Amendment right to maintain multiple voter registrations! Ninth Circuit (unpublished): You didn't raise that argument below, so we won't consider it now. Preliminary injunction affirmed. LGBTQ+ students who applied to or attended various religious universities sue the federal government for allowing the schools to discriminate against them and still get a tax break. Ninth Circuit: Tax breaks for religion are as American as apple pie. Maricopa County, Ariz. officials post all arrestees' mugshots on its "Mugshot Lookup" website, regardless of whether it ends up charging them with a crime. Embarrassing! But does it violate the Due Process Clause? Ninth Circuit: It just might maybe could! Case undismissed! To litigants, it may feel unfair when a case is randomly assigned to a new judge who suddenly announces the previous judge's rulings were super-wrong, but the Ninth Circuit reminds us that this is totally allowed when the previous rulings were, in fact, super-wrong. Mesa County, Colo. police suspect they'll find a stolen Sno-Cat vehicle in plaintiff's garage. When no one answers the front door, SWAT officers fire chemical munitions into the house, causing $50k in damage. Yikes! Turns out no one was home except for a dog. Tenth Circuit: The Sno-Cat could only have fit in the garage; the search warrant therefore did not authorize entry into—much less tear gassing—the rest of the home. Fourth Amendment claims undismissed. The Eleventh Circuit holds that a robber pointing a gun at, but not touching, a cashier has "physically restrained" the cashier. Concurrence 1: But only because of prior caselaw that is dumb. Concurrence 2: I welcome our new AI overlords' help in this case (as I said previously (and as your humble podcasters discussed in a thrilling episode)). Christian school in Tampa, Fla., wants to say a prayer over the PA system at the 2015 Florida High School Athletic Association state championship game, but is denied the right to do so. It sues, alleging a violation of the Free Speech and Free Exercise Clauses of the U.S. and Florida Constitutions. Eleventh Circuit: Your retrospective claim for nominal damages is barred because announcements over the PA system at FHSAA games are government speech to which the First Amendment does not apply. Your prospective claims for declaratory and injunctive relief are barred because, frankly, it doesn't seem like you're going back to the big game anytime soon. First Circuit (2022): You might think a multimillion-dollar monetary penalty imposed by the federal gov't would be a "fine" within the meaning of the Eighth Amendment's Excessive Fines Clause, but you'd be wrong, because, see, it's a "penalty," not a "fine." We at IJ (cert petition): That seems wrong. Justice Gorsuch (dissenting from denial of cert): Indeed, that seems wrong, and we can only hope future courts don't repeat the First Circuit's mistakes. Eleventh Circuit (2024): Yeah, that was a real swing and a miss from the First Circuit. In considering the same penalty scheme, we think these penalties absolutely qualify as fines. And of the $12 mil imposed on this particular guy, $300K was unconstitutionally excessive. And in en banc news, the Ninth Circuit will not reconsider its decision to allow practitioners of Falun Gong to move forward with their lawsuit against Cisco Systems, alleging that the company facilitates human-rights abuses by the Chinese Communist Party and Chinese government officials. Judge Bumatay, joined by five other judges, sees troubling separation-of-powers implications in allowing U.S. courts to hear cases about alleged human rights violations committed in China against Chinese nationals by the Chinese government. And in more en banc news, the Ninth Circuit will not reconsider its decision that certain suspects awaiting trial can be disarmed in a way consistent with the Second Amendment. Dissent: "This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans."

Victory! Friends, Wilmington, Del. officials engaged in some very predatory vehicle impound practices. As just one example, they repeatedly ticketed IJ client Ameera Shaheed's legally parked car, towed it based on those bogus tickets, and then—when she couldn't pay the full sum—let the city's contractor keep the full value of the car. We filed a lawsuit in 2021 and were set to go to trial last summer, but this week reached a settlement agreement that will allow the city to enforce its laws but will also provide vehicle owners with substantial protections against abuse, requiring repeated notice, very liberal and easy payment plans for parking tickets, and convenient hearings. Click here to learn more.

 

 

The post Short Circuit: A Roundup of Recent Federal Court Decisions appeared first on Reason.com.