Eugene Volokh's Blog, page 27

[Eugene Volokh] No Pseudonymity in Discrimination and Sexual Harassment Lawsuit Against Phoenix Suns

The alleged harassment involved unwanted advances, offensive comments, and similar matters, rather than sexual assault (a situation where many, though not all, courts would be more open to pseudonymity). From Judge Murray Snow's decision today (Doe v. Suns Legacy Partners LLC):

Anonymity is disfavored and "runs afoul of the public's common law right of access to judicial proceedings … and Rule 10(a)'s command that the title of every complaint 'include the names of all the parties.'" … [C]ourts may allow a party to proceed under an assumed name in unusual cases when the party "reasonably fear[s] retaliation and the public disclosure of their identities risks stigmatization or serious harm." …

[But w]hile a case in which Plaintiff alleges sexual harassment may always involve some embarrassment to the Plaintiff and those against whom she brings her allegations, Plaintiff's allegations in the complaint are not unusual or atypical for such claims, nor are allegations of sexual assault involved which by themselves are not sufficient to entitle a plaintiff to proceed under a pseudonym.

While the Plaintiff speculates about possible harms from bringing these claims because she works in the public relations industry in a regional market, she offers no reason to think that any harm about which she speculates are reasonably anticipated. "[S]peculative claims of physical or mental harms are insufficient to bolster a request for anonymity." Nor for that matter, does she explain how the public relations industry differs from other regional occupations to the extent that Plaintiff might suffer additional reputational harm among potential future employees by bringing such charges.

And to the extent that the Defendants may be affiliated with a local sports team of some notoriety, it is not clear that her interest in anonymity outweighs the public's right to know. This Court is disinclined to shield Plaintiff's identity while she publishes the specific identity of the persons she accuses in her public pleadings and motion papers (which she has). She cannot use Court orders as both a sword and a shield.

Nor does Plaintiff offer any reason to believe she has a particular vulnerability or susceptibility to such harm. See Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe (5th Cir. 1979) (holding that unnamed plaintiffs "face no greater threat of retaliation than the typical plaintiff alleging Title VII violations, including the other women who, under their real names and not anonymously, have filed sex discrimination suits."). In sum, Plaintiff's motion is not supported by sufficient facts to suggest that her right to anonymity overrides the inherently public nature of a lawsuit.

Eric Amdursky and Damali A. Taylor (O'Melveny & Myers) and Leah S. Freed (Ogletree, Deakins, Nash, Smoak & Stewart) represent defendants.

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[Eugene Volokh] Bozeman (Montana) Agrees to Pay Bad Boy Bail Bonds $100K for Alleged Blacklisting

From Daily Montanan (Darrell Ehrlick) Wednesday:

Looney, who owns Bad Boy Bail Bonds in Gallatin County, took two Bozeman municipal judges to court, alleging that they had unfairly and illegally discriminated against his business.

This week, the City of Bozeman has settled with him for $100,000….

Looney purchased the name of a former bail bond company, Bad Boy Bail Bonds, but didn't purchase the business itself. However, several bonds issued under the name had been forfeited, and the two municipal judges — Colleen Herrington and Karolina Tierney, ordered Looney to pay the amount, $1,585, which he originally refused.

When Looney attempted to explain that the had purchased just the name and not the company or its book of business, the judges ordered that Bozeman municipal court not accept bail bonds from Bad Boy Bail Bonds, leading him to allege that he was losing tens of thousands of dollars. At one point, other counties began to follow suit.

You can read Judge Donald Molloy's Mar. 17 decision in Looney v. Tierney (D. Mont.) denying judicial immunity, which notes that plaintiffs had alleged defendant judges "committed constitutional violations when they banned Plaintiffs from submitting bail bonds in their court until Looney agreed to withdraw a judicial ethics complaint filed against Judge Tierney."

Matthew Monforton represents plaintiffs.

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[Eugene Volokh] Alleged Retaliation by High School Coach Against Athlete Leads to First Amendment Claim

["Disputes between a high school coach and an athlete's parent are common, but most of those disputes do not lead to multiple internal investigations, a police report, and a federal lawsuit. This one did."]

From Judge James Peterson (W.D. Wis.) Aug. 14 in Whalen v. Selk, which allows the claim to go forward:

Jake Whalen played basketball for Waunakee High School from his freshman through junior year. During much of that time, Jake's father, Mark Whalen, was complaining to school officials about head coach Dana MacKenzie and assistant coach Tyler Selk. Mark says that he was primarily concerned about potential financial misconduct by the coaches related to a private basketball camp they ran. Selk says that Mark's real beef was a long-simmering disagreement about Jake's playing time.

Over the course of more than a year, Mark's complaints escalated, culminating in both school district and police investigations. Neither the police nor the school district found any misconduct, but at the end of Jake's junior year, the school district chose not to renew MacKenzie's contract—without giving a reason—and Selk became the head coach. The following year, Selk cut Jake from the varsity team.

Selk admits that Jake was a better player than other students who made the team, but Selk says he cut Jake anyway because of a concern that Jake's perception of his ability was unrealistic, and he would not have been happy with his place on the team. Jake and Mark contend that Selk was angry with Mark and Jake because of Mark's accusations and because Jake confronted Selk in front of the principal about wanting to be treated fairly….

In 2022, during the summer before Jake's junior year, Mark and other parents spoke to principal Brian Borowski and other Waunakee school district officials about multiple "concerns" they had with Selk and Dana MacKenzie, who was then the head coach for the boys' varsity basketball team and a close friend of Selk. The details of Mark's statements are hazy, but the parties appear to agree that Mark raised three allegations that implicated Selk:

MacKenzie and Selk ran private basketball camps for teens during the summer under the name Waunakee Basketball. Every year, Waunakee Hoops, a nonprofit booster club for the high school's basketball program, sent out an email promoting the camps and explaining how to sign up and pay for them, even though Waunakee Hoops did not run the camps and did not receive any money from them. Mark and some other parents believed that MacKenzie and Selk were misleading parents into believing that fees for the camps were going to Waunakee Hoops when those fees were actually going to MacKenzie and Selk.MacKenzie and Selk did not have to pay the school district for their use of the high school basketball court for the camps, even though the camps were not affiliated with the school district and MacKenzie and Selk were charging students for the camps.Mark had heard from a friend that MacKenzie and Selk were gambling on Waunakee sports.

Mark repeated similar allegations in other meetings and communications with school officials throughout the 2022–23 school year, including a closed session with the school board where MacKenzie was present….

In August 2023, Mark and an attorney went to the police with allegations about MacKenzie and Selk. Neither party identifies specifically what Mark said to the police. A police report summarized the statements as "concerns with some Waunakee High School Basketball coaches profiting from a basketball camp they hosted via a non-profit booster club that supports Waunakee Boys Basketball." Another portion of the report stated that Mark "had some concerns regarding activities of the basketball coaches that [he] believed were possibly illegal." No charges were filed….

At some point before the 2023–24 season began, Selk led a meeting with coaches, students, and parents, including Mark. During the meeting, Selk showed a series of PowerPoint slides that covered various topics, including the role of Waunakee Hoops, communications with parents, and expectations of players.

One of the slides was titled "Waunakee Basketball – Toxins." Bullet points included "Complaining, deflective & descriptive behaviors of who's done things incorrectly" and "Defame the ability of players and leaders within our program." When asked during his deposition whether the slide was about Mark, Selk said "not directly," but when a follow-up question asked whether Selk considered Mark to be "among a group of people who were toxins in the program," he said, "Absolutely." When counsel asked whether Selk thought Mark was a toxin for accusing Selk of "taking money," "gambling on high school games," and "using [Selk's] spot as a coach to get free gym time for personal gain," Selk answered "yes," and "[t]hose accusations are toxic" …

The Whalens sued Selk "contending that Selk retaliated against them for exercising their right to free speech under the First Amendment," and the court concluded that the case should go to a jury, so that the jurors can resolve the "material factual disputes about both the content of Mark's speech and the reasons for Selk's decision":

A reasonable jury could find that Mark and Jake's protected speech were reasons that Selk cut Jake from the varsity team and that Selk would have kept Jake on the team if Mark and Jake had not spoken out. As for Mark's speech, Selk admits that he knew that Mark was making accusations against him. And there is evidence that Selk was angry about those accusations and wanted to retaliate.

For example, Mark testified that Selk talked about "getting rid of" or "weeding out" what he called "toxic parents" in the context of a meeting in which he expressed disagreement with the way MacKenzie had been treated. Several members of the varsity team similarly testified that Selk said during one of the first practices after cutting Jake that he had to "get rid of the toxins" for the good of the team. Selk later said about Mark, "[H]e thinks he can say absolutely whatever he wants and it won't be held against him."

Selk denies making the first two statements, and he says that the third statement had nothing to do with retaliating against Mark. But, again, the court must construe the facts in the Whalens' favor and accept their admissible evidence as true. "[W]hether ambiguous statements are discriminatory, retaliatory, or benign is an appropriate question for a jury." If the jury were to believe the testimony adduced by the Whalens, one reasonable inference is that Selk believed that Mark was a "toxin" whose unfair accusations got Selk's friend fired and were making Selk's life more difficult, so Selk wanted Jake off the team to punish Mark and teach him that he cannot say "whatever he wants."

The suspicious statements alone are enough to create a genuine issue of material fact precluding summary judgment, but there are two other types of circumstantial evidence that Selk was treating Jake differently because of Mark's speech. First, there is evidence that Selk singled out Jake for adverse treatment without explanation. Jake says that Selk gave him the cold shoulder during the summer season after MacKenzie was terminated. And during varsity tryouts, Jake says that he was the only senior required to practice with the freshman.

One reasonable explanation for this treatment is that Selk was angry with Jake for his father's speech. Selk denies treating Jake differently from anyone else, but, again, the court must accept Jake's version of events at the summary judgment stage.

Second, Selk and the other coaches admit that Jake was better than other players who made the team. Nineteen students made the varsity team, and the coaches ranked Selk's abilities as high as tenth. Only one other senior did not make the team, and that was because he did not show up for practice. Jake did make the varsity team his junior year, and Selk does not say that Jake's performance deteriorated between junior and senior year.

Selk's response to this is that his decision was not so much about Jake's basketball skills, but more about his attitude. Specifically, Selk says that Jake's perception of his skills was unrealistic, and Selk believed that Jake would not be happy with anything less than a spot on the rotation.

A reasonable jury would not have to credit Selk's explanation, for two reasons. First, as already discussed, Mark has adduced evidence that Selk was motivated by Mark's speech when deciding whether to cut Jake from the team. Determining which reason was decisive requires weighing the evidence, something that is reserved for the factfinder.

Second, in arguing that it was reasonable to believe that Jake would not accept an auxiliary role on the team, Selk relies primarily on one statement that that Jake made during a meeting with the principal. But Jake denies making that statement, so the court cannot consider it for the purpose of deciding Selk's summary judgment motion. In any event, the statement was that Jake believed he was good enough to be part of the rotation, and a reasonable jury could find that such a statement would not have influenced Selk, for multiple reasons:

Selk and the other coaches admitted that it was common for students to want more playing time, and they would not hold it against a student for expressing dissatisfaction with his place on the team.Selk and the other coaches admitted that Jake was a good teammate who did not complain to his teammates. Despite Jake losing playing time during his junior year, Selk does not allege that Jake displayed a poor attitude with other players or had an adverse effect on team morale.Selk and the coaches asked at least three other players whether they could accept being on the team if they were not in the rotation. No one had that conversation with Jake.When Selk explained to Jake why he had not been selected for the varsity team, Selk stated his concern that Jake would not be an "all in" player. That was the same type of language Mark says that Selk used during the meeting in which he talked about getting rid of "toxic parents."

One reasonable inference from this evidence is that Selk was less concerned than he claims that Jake's attitude would prevent him from being a productive member of the team, and that the concern was more of a smokescreen for Selk's desire to get back at Mark than a genuine belief….

The bottom line is that the evidence is disputed regarding why Selk cut Jake from the varsity team, and there are reasonable inferences supporting a finding that Selk was motivated by Mark's speech [and perhaps Jake's speech] more than concerns about Jake's attitude….

Paul A. Kinne and Robert J. Gingras (Gingras, Thomsen & Wachs, LLP) represent plaintiffs.

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[Josh Blackman] ABA Releases "Core Principles and Values of Law School Accreditation"

[Does this standard create room for ideological diversity?]

The American Bar Association's section on Legal Education has released a set of "core principles and values" with regard to law school accreditation. At quick glance, this document seems largely to restate what has been said before. But one item jumped out at me.

Consistent with the rule of law, the Standards should encourage participation in the profession by students, graduates and teachers from all backgrounds and ideologies.

This is the only reference to diversity in the entire document. And they don't even use the d-word. And there are no synonyms like under-privileged or the like. What an amazing retreat from the never-ending stream of DEI  materials from the ABA? Moreover, this substantive goal can only be achieved "consistent with the rule of law." That is a roundabout way of saying "consistent with Title VI as interpreted by SFFA." I'm glad the ABA finally got the message.

Even more amazing is the reference to "ideologies." I think this is a way of saying the ABA now favors diversity of thought! That is, the ABA will now "encourage participation in the profession by students, graduates and teachers" on the political left and the right. Will overt and implicit political bias in faculty hiring now be subject to the ABA's scrutiny? I am skeptical. But this standard at least goes in the right direction.

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[Eugene Volokh] Tortious Interference / Emotional Distress Claim Stemming from Business Breakup, with Autism Spectrum Elements

From Lakefront Pictures, LLC v. Ancel, decided today by Judge Jeffrey Cummings (N.D. Ill.) (Jennifer Karum appears to be also known professionally as Jennifer Goodman, for more on The Unseen, see here); note that there's no defamation claim here, and it's not clear to me that the tortious interference claim would require a showing of falsehood:

The facts below are drawn from the allegations in the Complaint …. Plaintiff Jennifer Karum ("Karum") is an actor, writer, and filmmaker, and is the founder of plaintiff Lakefront Pictures, LLC ("Lakefront")—a film production company. Through her work, Karum—who is neurodiverse and on the autism spectrum—seeks to support and promote other neurodiverse artists, who, as a group, are underrepresented in the film industry.

In 2020, Karum began working on the script for her first feature length film titled "The Unseen." Lakefront pre-cast defendant Candice Rose ("Rose")—whom Karum knew and had worked with previously—as one of the major roles in the film. Over a year after the project started, Lakefront reached out to defendant Jordan Ancel ("Ancel") about potentially serving as a film producer. Although Ancel initially expressed "no interest" in the project, on May 31, 2021 he (through his company, defendant Rock City Road Films, LLC) entered into a Producer Agreement with plaintiff The Curse, LLC, a special purpose entity managed by Lakefront that owned the intellectual property rights related to The Unseen. Ancel, through defendant Jordan Ancel International, LLC, also executed a non- disclosure agreement with Lakefront….

Despite Ancel's "positive first impression," plaintiffs allege that he became "largely disengaged" with the project and ultimately "failed to perform competently or professionally." For example, Ancel confided in Karum about his extra-marital affairs, and abdicated his responsibilities on set to pursue a female crew member. Karum attempted to admonish Ancel for his behavior, and as the relationship soured, Ancel began to threaten Karum. For example, in a text message exchange, after Karum brought up whether Ancel's wife was aware of his extra-marital affairs, Ancel responded "If you bring that up, I'm gonna fly to Chicago and you're gonna fucking regret it."

On other occasions, Ancel would try to "weaponize Karum's autism" by buylling her— often times in front of the cast and crew in an attempt to embarrass her and incite division on set. In still other instances, Ancel would "cruelly mock Karum's autism telling her and others" that Karum used her autism as "a crutch to excuse or justify her actions." …

After the filming of The Unseen ended, Lakefront advised Ancel that his services would no longer be necessary, relieving him of any post-production responsibilities. Ancel became irate at his de facto termination and sent Karum a barrage of texts referencing his desire to "burn her life down" and "ruin" her company, calling her a "fucking moron" and "stupid motherfucker," telling her that her autism was an excuse for her "shitty behavior," "poor decision making," and "incompetence," and clarifying that he would "come after [Karum] for everything [she had]. Everything."

Ancel further responded by "telling anyone who would listen that Karum was 'dangerous'" and that she had "baselessly accused him of sexual assault"—which Karum denies. Ancel then commenced a lawsuit against Karum, repeating the allegation that Karum wrongly accused him of sexual assault. Ancel disseminated his complaint on social media and boasted to third-parties that he had a strategy for "taking down Karum in an epic way." Ancel also began to falsely represent across social media that there was a class action suit against Karum and Lakefront in the works, in an effort to mislead people into believing Karum had a history of making false accusations.

Ancel and his supporters also launched a cyberbullying or "smear" campaign against Karum and Lakefront. For example, whenever someone promoted a project with Lakefront, they were bombarded with messages and/or communications claiming that Karum and/or Lakefront were "dangerous" and that Karum was disfavored in the Chicago film community. Rose—who, again, was an actor in The Unseen—also contributed to the smears against Karum and Lakefront, despite the fact that she was never on set with Karum because their respective scenes were shot at different times.

Similar smears were sent "anonymously to [Lakefront's] clients, prospects and partners using Gmail accounts under fictitious or truncated names to avoid detection." As a result of the smear campaign, several Lakefront clients canceled their contracts with the company. Per the Complaint, Ancel was behind these "orchestrated" attacks.

Plaintiffs sued, and the court allowed their claims to go forward. As to tortious interference with a business relationship, the court reasoned:

To prevail on a claim for tortious interference under Illinois law, a plaintiff must show: "(1) they had a reasonable expectancy of entering into a valid business relationship, (2) the [defendants] knew of the expectancy, (3) the [defendants] intentionally and unjustifiably interfered with the expectancy, inducing or causing a breach or termination, and (4) they suffered damage as a result."…

The Court agrees with plaintiffs and finds that they have pleaded sufficient facts concerning the intent element of their claim for tortious interference. In particular, plaintiffs allege that Ancel sent "smears"—at times anonymously or through others—to Lakefront's "clients, prospects and partners." Plaintiff also attaches screenshots of various social media messages and emails that Ancel, or someone at his direction, sent to entities or individuals calling Karum and Lakefront "unsavory," warning them to "beware," and stating that they will "most likely be deposed" if they work on plaintiffs' projects.

Ancel's "smear campaign and direct acts," plaintiffs allege, were "inten[ded] to cause "reputational and economic harm," and have "caused the termination of [plaintiffs'] contracts, and prevented the prospective contracts and relationships from being solidified."

As such, plaintiffs have sufficiently alleged that defendants intentionally and unjustifiably interfered with their expectation of entering into a valid business relationship and induced or caused a breach or termination. Nothing more is required….

As to intentional infliction of emotional distress, the court reasoned:

To state a claim for intentional infliction of emotional distress under Illinois law, "a plaintiff must allege facts establishing: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by plaintiff was severe; and (3) that defendant's conduct was such that defendant knew that severe emotional distress would be certain or substantially certain to result." In determining whether conduct is extreme and outrageous, courts can consider "whether the plaintiff is particularly susceptible to emotional distress because of some physical or mental condition." Finally, "behavior that might otherwise be considered merely rude, abrasive or inconsiderate may be deemed outrageous if the defendant knows that the plaintiff is particularly susceptible to emotional turmoil." …

[P]laintiffs … point to their allegations that Ancel told Karum he desired to "burn her life down," that he would "fucking ruin [her],"  boasted to third- parties that plaintiffs would be "taken down in an epic way,"  weaponized Karum's autism against her by publicly mocking her in front of other cast and crew members on set and telling her and others that she used her autism "as an excuse for [her] shitty behavior," "poor decision making," and "incompetence," organized a campaign of cyber-bullying against Karum, and told "anyone who would listen that Karum was 'dangerous,'" and that "she baselessly had accused him of sexual assault" which plaintiffs allege is untrue.

Contrary to defendants' argument, plaintiffs allege far more than mere "anger," "humiliation," or "embarrassment," and their allegations are sufficient to state a claim for intentional infliction of emotional distress under Illinois law. See e.g., Summerland v. Constellation Energy Generation, LLC (N.D.Ill. 2025) (denying motion to dismiss an intentional infliction of emotional distress claim where plaintiff alleged defendants "threatened her and interfered with her treatment, despite knowing that she was particularly susceptible to emotional distress, given her known emotional disorders."); Graves v. Man Grp. USA, Inc. (N.D.Ill. 2007) (finding plaintiff's allegations that his supervisors knew he was in and out of the hospital for alcoholism, told his wife and sister that he made death threats against his co-workers (which plaintiff alleged was false), and sent the police to his father's funeral sufficient to withstand a motion to dismiss on plaintiff's IIED claim).

And the court concluded that plaintiffs had adequately alleged civil conspiracy as well.

I found the case interesting for various reasons, the chief being that  if "smears"—including not just outright falsehoods but statements of opinion such as that someone is "unsavory"—"inten[ded] to cause "reputational and economic harm" are actionable, then a lot of cancellation campaigns might be actionable, too. That would be pretty important, given the frequency of such campaigns, whether motivated by business disputes, emotional disputes, political disputes, or other things. See, e.g., Cancelers Beware: Trying to Get Person Fired by Threatening Employer with Cutting Off Your Business Relationship May Be Tortious".

This is in part because the definition of interference with business relations is so unsettled: In some states, the tort applies only to independently criminal or tortious conduct (e.g., threatening customers with violence, defaming the target, etc.). But in other states, apparently including Illinois, the tort can apply also to conduct that is otherwise legal but that the court views as ill-motivated.

And the suggestion that the intentional infliction of emotional distress tort—which is usually defined quite narrowly—can apply in such cases, at least so long as the would-be canceller is aware of the target's "particular[] susceptib[ility]," makes the case seem more relevant still. [UPDATE 8/25/25 11:46 am: I added these three paragraphs after the post went up, thanks in part to a comment from Rossami.]

George J. Spathis (Levelfeld Pearlstein, LLC) represents plaintiffs.

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[Keith E. Whittington] On the Original Meaning of Birthright Citizenship

[My new paper on the original meaning of the citizenship clause of the Fourteenth Amendment]

President Trump's executive order adopting a narrow understanding of birthright citizenship in order to exclude the American-born children of unauthorized immigrants and temporary visitors has rekindled a constitutional debate that had mostly been put to bed (my own dissertation advisor was among the earliest scholarly advocates of this narrow understanding). Co-blogger Randy Barnett and his co-author Ilan Wurman have been particularly notable in providing new legal rationales for the administration's position, though they are not alone in doing so.

The first line of the Fourteenth Amendment specifies that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside." That is to say, children born in the United States are citizens by right of birth. Or as I title my piece, they are citizens "by birth alone" (borrowing a phrase from a congressional critic of the proposed amendment who thought this was a bad idea). The text builds on an English and American common law tradition, while adding some distinctive language of its own. Both require some unpacking in order to fully understand them.

I have now posted a draft of a new paper on the original meaning of the Fourteenth Amendment's citizenship clause and birthright citizenship in the United States. The paper reaffirms the traditional view that the children born on American soil to alien parents are American citizens except in very narrow circumstances, and that those circumstances would not extend to include the children of illegal aliens. The paper focuses specifically on the common law background to the Fourteenth Amendment debates, the specific political and legal rationale for including this language in the Fourteenth Amendment, and the original meaning of the "subject to the jurisdiction" language. It explains why some particularly notable revisionist accounts of birthright citizenship are wrong as a matter of original meaning.

It is worth noting that there are two important issues with any discussion of the original meaning of the Fourteenth Amendment in this context. There is a question of what principle or rule the Fourteenth Amendment embodies, and then there is a separate question of how that rule should be applied in present circumstances. The drafters of the Fourteenth Amendment were not concerned with temporary visitors or undocumented aliens. Those were not pressing concerns for them, and the modern legal regime of border restrictions did not yet exist. There were no considered, specific original intentions regarding the cases at issue in the Trump executive order and how their principles should be applied to such cases.

An originalist seeking to apply the Fourteenth Amendment to these modern cases must first get the original meaning of the text and its principles right, and then must separately consider how that principle might apply to current circumstances. A non-originalist might not care what the original meaning is, and a living constitutionalist might be willing to depart from known original principles in order to reach a preferred outcome in modern cases. There are further questions about whether a president could unilaterally alter the traditional rule regarding birthright citizenship or whether Congress could do so through its Section V authority.

My paper is not concerned with most of those issues. I just try to get the original meaning of the principles embodied in the text correct since I believe that there are some who have claimed an originalist mantle for an incorrect understanding of those governing principles. In this paper I have nothing to say about any non-originalist moves one might want to make. There are also some tangential concerns that might be relevant to a full originalist analysis to which I might return at some future date, but the paper focuses on what I take to be the core concerns about the original meaning of the idea of birthright citizenship entrenched in the Fourteenth Amendment.

From the conclusion:

Children born under the protection of American law are citizens by virtue of the Fourteenth Amendment, as they were citizens by virtue of the longstanding common-law principles that the Fourteenth Amendment recognized and declared. Aliens within the territory of the United States are subject to and under the protection of American law except in the extraordinary circumstances in which American law cannot reach them or is withheld from them. Unauthorized aliens are not in such an extraordinary circumstance, and their newborn children are certainly not so. Unauthorized aliens within the territory of the United States are subject to the municipal law of the United States – including the law of deportation and removal – and while tolerated within the territory are subject to the protection of that law.

The United States, like any sovereign nation, may choose to discourage or minimize immigration or the presence of aliens within its territory. In addition, it may take steps through public policy to limit the set of people who can naturalize into American citizenship and can take actions to minimize the possibility that aliens will give birth within the United States. Such policy choices may be wise or unwise, difficult or easy to effectuate, but they are available choices within the constitutional order.

The Fourteenth Amendment cut off one particular policy choice, and it was thought necessary to entrench the common-law rule into constitutional text precisely because the desirability of that policy choice had in the mid-nineteenth century become increasingly contested. Chief Justice Taney's opinion in Dred Scott reflected the emerging view of the slave states that the recognition of the citizenship of those born within the country should be dependent on a political assessment of whether some categories of people born within the country were politically desirable and truly deserved to be members of the "governing population." Legislatures should, in that view, be able to determine that some natural-born inhabitants of the country could not be citizens. The Reconstruction Congress decisively and purposefully rejected that emerging view of the law of American citizenship. It left open the question of what privileges and immunities might be entailed by citizenship, but it slammed the door on the idea that the qualifications for natural-born citizenship could be determined by legislatures. That liberal rule of birthright citizenship was controversial in its day, and it has been controversial since, but it is the nature of constitutional entrenchment that subsequent controversy does not alter the original meaning of the rule.

Sometimes the conventional wisdom is simply correct and efforts at revisionist thinking are misguided. To my mind, this is such a case. A living constitutionalist could readily produce a rationale for the Trump administration's position, but I do not think there is a serious originalist case to be made for it.

Read the whole thing here.

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[Josh Blackman] Who are the Republican Appointed Circuit Judges Who Are Not Taking Senior Status Because Of Emil Bove? (Updated)

[Almost all of the judges eligible for senior status now were also eligible in 2020, long before Emil Bove.]

We have seen a steady trickle of stories about unnamed Republican-appointed Circuit Judges who are declining to take senior status because of the Emil Bove nomination. I remain skeptical of this account, and think it is more of a narrative than reality. If anything, some of these judges would not give Trump the seat, regardless of who the replacement is. In a recent National Review post, Mike Fragoso pointed out the obvious: "Nearly all the eligible, Republican appellate judges today were eligible in 2020 and still didn't go anywhere—back when Emil Bove was but a glimmer in President Trump's eye."

Let's count them up.

Here is a list of all Republican-Appointed Circuit judges who were eligible for senior status by November 2020--at that time, Trump was in the White House, and the Republicans controlled the Senate: Newman (CAFC), Wilkinson (CA4), Smith (CA5), Easterbrook (CA7), Jones, (CA5), Lourie (CAFC), Loken (CA8) Niemeyer (CA4), Henderson (CADC), Hartz (CA10), M. Smith (CA9), Prost (CAFC), Callahan (CA9), Benton (CA8), Southwick (CA5), Shepherd (CA8), Griffin (CA6), Richman (CA5), Ikuta (CA9), and Agee (CA4).

If any of these judges have decided to anonymously complain about Trump to the press, one might ask them why they didn't take senior status during prior to 2020. I think the reality is that most, if not all of these judges thoroughly enjoy their job, think they are still good at what they do, and have no interest in taking senior status. And that is their choice.

In December 2017, I publicly called on many of these judges who were eligible to take senior status. At least one of those judges publicly responded to me--he remains on active status. Another judge proudly declared at a the Federalist Society Texas Conference that he would not take senior status. And we know that Judge Newman is fighting for her life to stay off senior status. I get it. They have the lifetime commission, and they can decide when to step down.

But if any of these judges who have been eligible for years feel compelled to complain to the press, I must object. They are using their position to try to influence what is an inherently political process. And they are purporting to act under the  premise that, but for Emile Bove, they would take senior status. The Wall Street Journal, Bloomberg, and other outlets need to take some care when interviewing judges. I find that judges are good at asking questions but are unaccustomed to answering them. When they are placed under even the slightest bit of scrutiny, they get extremely defensive. If judges are now serving as anonymous sources to the media, reporters should engage in just a modest bit of vetting to determine whether there are any reasons to discount the statements.

Let's continue the count.

There are four Republican-appointed who became eligible for senior status during the Biden administration. One, Sykes (CA7), already took senior status. The remaining three have not: Tymkovich (CA10), L. Smith (CA8), and Livingston (CA2). All of these judges could have taken senior status as soon as January 2025 rolled around, long before Emil Bove was announced. Only Sykes did. Again, these judges may enjoy their job, and have no interest in taking senior status. But they have no business then to complain to reporters.

Finally, how many Republican-appointed circuit judges have become eligible for senior status between January 2025 and today? The number is zero. There are no Republican-appointed circuit judges who became eligible since the Bove nomination. [See update below--I missed one District Court judge who was elevated to the Circuit Court.]

The next Republican-appointed Circuit judge to be eligible will be Chief Judge Sutton in October 2025, but if past precedent is a guide, Sutton will serve out his term as Chief, which will run through May 2028. One judge will be eligible in 2026: Holmes (CA10). Two will become eligible in 2027: W. Pryor (CA11) and Chagares (CA3). (Pryor's stint as Chief should wrap up about a month after he is eligible for senior status.) Three will become eligible in 2028: Colloton (CA8), Gruender (CA8), and Haynes (CA5).

Perhaps one or more of the judges who will become eligible over the next four years is talking to the press. But I think they are protesting far too soon. Who knows what the caliber of nominees will look like in 2026, 2027, or 2028. Who knows what the Senate will look like after the midterm elections?

Now perhaps there are Republican-appointed district court judges who do not want to be replaced by Trump. Any enterprising reporter should check which senators signed their blue slips. The truth is that many Reagan- and Bush-appointed District Court judges in blue states simply were never conservative. They were appointed as part of some deal for a circuit court nomination. If a judge approved by Diane Feinstein and Barbara Boxer tells a reporter they will not take senior status because of Trump, the reporter should move on. Accordingly, reporters should stop reporting breathlessly that Republican-appointed judges in California, Hawaii, and Massachusetts rule against Trump.

Update: I neglected to include two circuit court appointees who previously served on the federal district court. Judge Erickson (CA8) became eligible in November 2024. And Judge Engelhardt (CA5) became eligible for senior status in April 2025.

The post Who are the Republican Appointed Circuit Judges Who Are Not Taking Senior Status Because Of Emil Bove? (Updated) appeared first on Reason.com.

[Eugene Volokh] Monday Open Thread

[What's on your mind?]

The post Monday Open Thread appeared first on Reason.com.

[Stephen Halbrook] Second Amendment Roundup: 2d Circuit Upholds License Denials by N.Y. Judge

[State Judges who deny gun licenses are held to enjoy absolute judicial immunity.]

On August 18, the Second Circuit decided Kellogg v. Nichols, a suit under 42 U.S.C. § 1983 against a New York state judge who denied applications by two individuals for firearm licenses.  The court affirmed the district court's dismissal of their individual-capacity claims as barred by absolute judicial immunity and then dismissed their official-capacity claims for injunctive and declaratory relief as lacking an Article III case-or-controversy.

As Kellogg explains, the state judge denied applicant Kellogg's permit based on his "criminal arrest history and inadequate explanations for failing to disclose that history."  The reasons for the arrests are not stated. He also "ruled that [applicant] Harmon's criminal history, including a youthful-offender adjudication for first-degree robbery, likewise demonstrated that he lacked the requisite maturity or responsibility to have a license."  The applicants then filed suit in the U.S. district court alleging violation of their Second and Fourteenth Amendment rights.

Unlike some counties, the sitting judge is the licensing officer in Columbia County where the plaintiffs resided.  As plaintiffs pointed out, under New York state law, acting on a gun permit application is an administrative function.  Kellogg mentions none of the state precedents on point, but earlier this year, in In re Guthman, the Appellate Division, 4th Dept., held: "The appropriate procedure for the review of a determination of a County Court Judge, acting in [their] administrative capacity as the firearms licensing officer for the County of [Onondaga] under Penal Law § 400.00 (11) and § 265.00 (10), is not a direct appeal, but the commencement of a CPLR article 78 proceeding in this Court."  (Bracketed items in original.)  For that proposition, the court quoted In re Shuler (A.D., 2d Dept. 2009), which applied that rule to the County Court Judge of Westchester County.  Other New York precedents consistently characterize the proceeding as administrative.

While not mentioned in the Kellogg decision, for some unexplained reason the plaintiffs did not file an article 78 proceeding in the Appellate Division to appeal the denial of the firearm license.  If the ruling there was negative, they could have then filed their constitutional claims in the federal district court.

But Kellogg would recognize no construction of New York state law by New York state courts.  Under prior Second Circuit precedent, New York state court judges act in a judicial capacity when denying gun permits.  Libertarian Party of Erie Cnty. v. Cuomo (2d Cir. 2020), abrogated on other grounds by the Supreme Court's decision in Bruen.  That decision likewise failed to cite any of the New York state court decisions that construe their own law on that point.  Whatever happened to "recognition of the role of state courts as the final expositors of state law," as the U.S. Supreme Court has often reminded us?  E.g., England v. La. State Bd. of Medical Examiners (1964).

According to Kellogg, no Article III case or controversy exists between a judge who decides gun permit applications and a litigant who attacks the constitutionality of the statute.  That is why a litigant "seeking to enjoin the enforcement of a statute on constitutional grounds ordinarily sues the enforcement official authorized to bring suit under the statute," not "the court or judges who are supposed to adjudicate the merits of the suit that the enforcement official may bring."

The court added that the judge acts in a judicial role, not an administrative role, in part because: "New York State, acting through various law enforcement officers, and not the judge who adjudicates a firearms license, is authorized to enforce the licensing regime by prosecuting the unlicensed possession of a concealed firearm."  But the same could be said for the appeals board that hears appeals of license denials from non-judicial licensing officers such as sheriffs.  (See 9 NYCRR 6059.1).  Consisting of officials from state law enforcement agencies whose proceedings are purely administrative, the appeals board also would have no role in prosecuting offenders, yet it could be sued in a § 1983 action.

However, Kellogg did not "decide whether Article III would bar a similar action brought against a New York state police commissioner or county sheriff, say, who denies a firearms license application, … where those officers possess both the authority to adjudicate such applications and the power to enforce violations of New York's firearms licensing laws."  It certainly would not bar such action, as we know from the lead respondent in the caption of a certain familiar Supreme Court decision: "Kevin P. Bruen, in his official capacity as Superintendent of New York State Police."  As that decision notes, "Respondents are the superintendent of the New York State Police, who oversees the enforcement of the State's licensing laws, and a New York Supreme Court justice, who oversees the processing of licensing applications in Rensselaer County."

When what became Bruen was in the Second Circuit, styled New York State Rifle & Pistol Ass'n v. Beach, no absolute immunity or Article III impediment was held to preclude resolution on the merits.  That decision summarily affirmed Kachalsky v. County of Westchester (2d Cir. 2012),

which similarly raised no such defenses, instead holding on the merits that the New York "proper cause" requirement for licenses did not violate the Second Amendment.  While not mentioned in the appellate decision, the district court in the case (then styled Kachalsky v. Cacace (S.D. N.Y. 2011)) noted: "The State Defendants are judges on various courts within the New York State Unified Court System and, at the times of Individual Plaintiffs' full-carry permit applications … served as handgun licensing officers under NYPL Section 265.00(10)."  Again, no qualified-immunity or Article III issue there.

It is interesting that Kachalsky was authored by Judge Richard Wesley, who was also on the Kellogg panel.  Another panel member was Senior Judge Reena Raggi, who I encountered as the district judge in Richmond Boro Gun Club v. City of New York (E.D. N.Y. 1995), which upheld the City's "assault weapon" ban (albeit we raised no Second Amendment issue).  Author of Kellogg was Judge Raymond Lohier, who was on the panel that upheld the "assault weapon" bans of Connecticut and New York in New York State Rifle & Pistol Ass'n v. Cuomo (2d Cir. 2015).

It goes without saying that the Second Circuit is a tough place to litigate Second Amendment claims.  One could at least hope for a consistent application of the law by federal and state courts when the same state law is at issue, and in particular for deference to state courts for construction of state law.  The Second Circuit should reconsider whether New York judges assigned to engage in the administrative function of considering applications for gun permits are really engaging in a judicial function, which entails a neutral arbiter who decides cases argued by adversarial parties.

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[Josh Blackman] Who Was The Fourth Vote For Cert In Chiles v. Salazar?

[In December 2023, only three Justices would have granted in Tingley v. Ferguson, which presented the same issue. ]

In December 2023, the Court denied cert in Tingley v. Ferguson. This case presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Justices Thomas, Alito, and Kavanaugh would have granted cert. There was a square conflict between the Ninth and Eleventh Circuits, as Justice Alito pointed out in his dissent. At the time, I speculated that Justice Gorsuch--a usual First Amendment stalwart--was unwilling to vote to grant cert in his LGBT-related case.

Fast-forward to March 2025. The Court granted cert in Chiles v. Salazar, on appeal from the Tenth Circuit, which presents the same issue as Tingley.

Who was the fourth vote in Chiles? Did Justice Gorsuch change his mind on the issue? Was Justice Barrett satisfied that sufficient percolation had occurred after another split with the Tenth Circuit? Perhaps Barrett or Gorsuch wanted to take this case only after Skrmetti was settled? Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable? Who knows?

Chiles will be argued on October 7, the second day of the term.

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