Eugene Volokh's Blog, page 270

[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.

 

 

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[Eugene Volokh] Journal of Free Speech Law: "The NIH's Genomic Data Sharing Policy and the First Amendment," by Prof. Adam Candeub

[An article from the Information as Medicine symposium.]

Here's the Abstract; the full article is here:

Genome-wide association studies (GWAS) use DNA statistical analy­ses to examine the relationship between genotypic differences and phenotypic traits. Revolutionizing genetics, these studies have discovered more than 50,000 associations of genome-wide significance between genetic variants and common diseases and traits. GWAS also have transformed the study of physical anthropology, establishing the relatedness of modern and proto-humans and other primates as well as modern humans' ancient migration patterns.

The NIH's 2014 Genomic Data Sharing Policy (GDSP) governs collecting, storing, and accessing the databases upon which most GWAS research in this country relies. Many data repositories refuse access to those who pursue what the NIH categorizes as "stigmatizing" or "sensitive" research.

The GDSP does not comply with the Administrative Procedure Act (APA). The policy's "sensitive" and "stigmatizing" standard lacks any statutory basis and is perforce arbitrary and capricious.

And even assuming that the GDSP is consistent with administrative law, the policy is best viewed as a condition to obtain a government benefit or as a viewpoint-based restriction of generally available government information. So characterized, the GDSP violates the First Amendment.

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[Eugene Volokh] The Suggest-to-Me State

I just learned that, in the Missouri dialect of legalese, the arguments supporting or opposing motions are called "suggestions," e.g.,

A party filing any motion, except motions for new trial, motions for trial settings, or motions which require proof by introduction of evidence (as distinguished from proof by affidavit pursuant to Supreme Court Rules), shall serve and file at the same time brief written suggestions in support thereof, together with authorities relied upon.

The terms aren't unheard of outside Missouri, but Missouri is definitely the heartland of suggestions.

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[Eugene Volokh] Claim That Someone Is "Racist" or "White Supremacist" Is Opinion and Thus Not Libel, Though …

[claims that someone has engaged in specific conduct may be factual assertions and therefore potentially libelous.]

From Richards v. Union Leader Corp., decided Wednesday by the N.H. Supreme Court, in an opinion by Justice James Bassett, joined by Chief Justice Gordon MacDonald and Justice Patrick Donovan (for more on the general legal principle here, which emerges from mid-1900s concluding similarly as to allegation of Communist sympathies, see this post):

The plaintiff is the father of two children enrolled in the Hanover School District …. In 2021, the district "began sending parents an increasing number of communications about [its] increasing focus on 'equity' and 'anti-racism.'" The communications indicated that the district was planning "significant curricular changes around these issues." The plaintiff was "concerned by materials that he learned were in use in the school district." While he believed the curricular changes were "well-intentioned," the plaintiff believed that the changed curriculum was "deeply divisive and ultimately harmful to the goal of a quality education and a society where everyone is treated equally."

As a result of his concerns about the district's proposed curriculum changes, the plaintiff supported "legislation that prohibits New Hampshire schools from teaching children that they are 'inherently racist, sexist, or oppressive, whether consciously or unconsciously.'" The parties agree that this legislation was House Bill 544 (HB 544). The plaintiff submitted public testimony in favor of the bill.

The Union Leader published an op-ed written by defendant Azzi, titled "White supremacists reveal content of their character," and saying, among other things (I'm excerpting the allegedly defamatory statements here),

Desperate to stay bonded to America's original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology ….

Those who favor whitewashing history—favor suppressing the grievances and rights of Americans unlike themselves—favor suppressing the franchise of citizens who don't look like them—have shown they'll lie … to protect their privilege and power ….

Plaintiff sued for defamation, but the court said that, in context, these statements would be understood by reasonable readers as statement of opinion, not of provable fact:

An important criterion for distinguishing statements of opinion from statements of fact is verifiability—i.e., whether the statement is capable of being proven true or false. "Where an expressive phrase, though pejorative and unflattering, cannot be objectively verified, it belongs squarely in the category of protected opinion." The vaguer a term, or the more meanings it reasonably can convey, the less likely it is to be verifiable and hence actionable.

Although we have not had cause to consider whether characterizations like the terms "racist" or "white supremacist" can be considered actionable under a theory of defamation, numerous other jurisdictions have considered the question. See, e.g., Law Offices of David Freydin, P.C. v. Chamara, 24 F.4th 1122, 1131 (7th Cir. 2022); La Liberte v. Reid, 966 F.3d 79, 93 (2d Cir. 2020); Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248, 1261-62 (2010); Olthaus v. Niesen, 232 N.E.3d 932, 940 (Ohio Ct. App. 2023). The Ohio Court of Appeals recently concluded that the term "white supremacist" lacks precise meaning, and is an "inherently value-laden" label that conjures "a vast array of highly emotional responses that will vary from reader to reader." The court explained that "because labels like 'white supremacist' lack a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content."

The United States Court of Appeals for the Second Circuit, applying California tort law, has held that "accusations of concrete, wrongful conduct are actionable while general statements charging a person with being racist, unfair, or unjust are not." Likewise, the United States Court of Appeals for the Seventh Circuit, applying Illinois defamation law, has held that the statement "racist" is actionable "when based on identifiable conduct but [is] non-actionable when stated in general terms." So too has the United States Court of Appeals for the Third Circuit held that "derogatory characterizations without more are not defamatory," concluding that "a simple accusation of racism is not enough."

We find the reasoning of these cases persuasive. See, e.g., Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (the derogatory characterization of the plaintiff as a "racist" was non-actionable because it did not "impl[y] the existence of undisclosed, defamatory facts"); Automated Transactions, 172 N.H. at 534 ("an opinion … is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion" (quotation omitted)). Reading the op-ed as a whole, we agree with the trial court that the op-ed merely expressed the author's political opinions and beliefs that he individually held about the plaintiff and others not based on any undisclosed defamatory facts.

The first allegedly defamatory statement identified by the plaintiff (statement 2) cannot be read in isolation, but rather must be read within the context of the paragraph in which it appears. The paragraph reads in its entirety:

Desperate to stay bonded to America's original sins of slavery and genocide of indigenous peoples, Gingrich, Frank Edelblut, Dan Richards, Mike Moffett, Joseph Mendola, and others have disseminated, across multiple media platforms, white supremacist ideology to keep Americans from learning an unexpurgated American history from its 1619 origins alongside the dominant White 1776 narrative.

When read in context, the language used is unquestionably "imaginative expression." As the trial court pointed out, no rational finder of fact could read this paragraph and conclude that the author was claiming that the plaintiff "has engaged in the act of enslaving people" or that the plaintiff was desirous of committing genocide. Rather, as the trial court aptly observed, the author "made an 'imaginative expression,' which, although unflattering, reflects what Azzi believes the plaintiff desires." In addition, it is clear from the context in which it is contained that the phrase "disseminated … white supremacist ideology" falls into the realm of non-actionable derogatory characterization.

Nothing within this paragraph or the greater context of the op-ed states or implies that the plaintiff has engaged in "concrete, wrongful conduct." Rather, the paragraph speaks generally about ideology the author considers to be "white supremacist"—ideology which the author believes the plaintiff supports. As the trial court points out, such a characterization "cannot be objectively verified … because whether a statement espouses white supremacist ideology is a matter of socio-political opinion that differs between individuals." …

Likewise, the other two statements the plaintiff challenges … cannot be read in isolation. The paragraph in which the challenged statements appear states:

Those who favor whitewashing history—favor suppressing the grievances and rights of Americans unlike themselves—favor suppressing the franchise of citizens who don't look like them—have shown they'll lie, go to any lengths, propose any laws, to protect their privilege and power over others. Most repugnant are those who distort, decontextualize, and misrepresent truth-tellers like MLK and Kendi when they talk about race and oppression.

We will assume, as the trial court ruled, that the implication of the challenged statements, which are emphasized above, is directed at the plaintiff as a member of the group identified at the beginning of the op-ed. However, when read as a whole, the general tenor of the rhetoric in the paragraph, and the challenged language especially, is hyperbolic and, therefore, does not create the implication that the author is stating actual facts.

This language does not accuse the plaintiff of actual conduct—for example, as the trial court noted, it does not claim that the plaintiff prevented anyone from voting or personally lied to "protect his supposed privilege and power." Rather, the author merely expresses his opinion of the behavior of all people who hold this purported ideology and projects it onto those who, like the plaintiff, supported HB 544. As the trial court concluded, "the statements are what Azzi claims to be attributes of a group that 'favor[s] whitewashing history.'"

At its core, as the trial court noted, this rhetoric expresses the author's "socio-political opinion and cannot be verified." Accordingly, we conclude that the language falls within the realm of non-actionable opinion and, therefore, the trial court did not err.

The plaintiff next asserts that the trial court erred in concluding that "none of the challenged statements imply undisclosed defamatory facts." Although the plaintiff argues that a statement of "opinion" is actionable if it may reasonably be understood to imply the existence of defamatory facts as the basis for the opinion, as explained above, we agree with the trial court that the challenged rhetorical language does not imply the existence of any non-disclosed defamatory facts. Moreover, the author explains that his opinion derives from the plaintiff's support of HB 544, a fact which the plaintiff does not dispute. Thus, while the op-ed does not imply the existence of undisclosed defamatory facts, it also states the factual basis on which it relies. Therefore, we conclude that the trial court did not err….

[Furthermore,] "Although the appearance of the column on the op-ed page, without more, is not at all dispositive, it is nevertheless some indication that the statements made in the column are opinions." "[R]eaders of the op-ed page no doubt expect to read columnists' views and opinions as opposed to factual news stories." …

Justice Melissa Countway disagreed on this point:

The majority asserts that the phrase "'disseminated … white supremacist ideology' falls into the realm of non-actionable derogatory characterization," and that "nothing within this paragraph or the greater context of the op-ed states or implies that the plaintiff has engaged in 'concrete, wrongful conduct.'" I disagree, because I would distinguish a statement accusing someone of being a white supremacist, see Olthaus v. Niesen, 232 N.E.3d 932, 940 (Ohio 2023) (noting that the plaintiff made no argument "for how someone would plausibly go about proving or disproving one's white supremacist bona fides"), from the statement at issue here. In the present case, it would be possible to examine the information that, according to Azzi, the plaintiff has disseminated over multiple media platforms to determine whether it contains white supremacist ideology.

In concluding that the statement is "rhetorical" and "does not imply the existence of any non-disclosed defamatory facts," the majority states that "the author explains that his opinion derives from the plaintiff's support of HB 544, a fact which the plaintiff does not dispute." The majority evidently concludes that defendant Azzi's statement that the plaintiff disseminated white supremacist ideology was a statement of Azzi's opinion that by supporting HB 544 and opposing the teaching of critical race theory, the plaintiff disseminated white supremacist ideology.

Were it clear on the face of the article that this was the factual basis of defendant Azzi's assertion, I would agree that the statement would not be actionable. In such a case the reader would have had the opportunity to assess the basis on which the statement was founded, allowing the reader to draw his or her own conclusions concerning the opinion's validity.

But the article does not make that clear. While defendant Azzi asserts that the article, in electronic form, links to columns and articles written by others named in the opinion piece, specifically, Gingrich, Edelblut, and Mendoza, the defendants do not contend that the article contains links to the plaintiff's statements, writings or actions. Accordingly, it is not clear what facts defendant Azzi relies upon to support his assertion that the plaintiff disseminated white supremacist ideology.

In light of the foregoing, I would reverse and remand the case for further proceedings, including a determination of whether the plaintiff is a public figure, in which case he would be required to prove, not only that the stated or implied assertions of fact are false, but also that the statement was made with actual malice….

For another illustration of the general pejorative vs. specific allegation line that the court is drawing, see Duc Tan v. Le (Wash. 2013):

While an allegation that someone is a communist may be merely imprecise or loose language [and therefore nonactionable opinion], it is "quite another case" [and one in which a defamation claim can be made out] to accuse someone of being an agent of the Viet Cong communist government.

See also, e.g., Ollman v. Evans (D.C. Cir. 1984) (Kenneth Starr, J.) (concluding that saying someone "is an outspoken proponent of political Marxism" is opinion; Judges Robert Bork and Antonin Scalia, among others, also agreed on this point).

On a separate matter, the Justices unanimously declined to recognize the "false light" tort, which allows liability for false statements about people even when they're not defamatory but are just highly offensive. Most states recognize this tort, but some don't. (All states recognize the defamation tort.)

Kathleen C. Sullivan (Malloy & Sullivan) and Michael S. Lewis (Rath, Young and Pignatelli) (no, not the other Kathleen Sullivan and Michael Lewis) represented defendants.

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[Eugene Volokh] No, Not That David Sackler; No, Not That State Law

[Law students: Take that Choice of Law (often called Conflicts of Laws) course your law school offers; it can be tremendously important.]

From Sackler v. ABC, Inc., decided Wednesday by N.Y. trial judge Franc Perry:

[This defamation] action is based on the defendants' mistaken use of a photograph and sketch of the plaintiff, David Sackler, while reporting on the OxyContin endemic. The plaintiff is not the David Sackler of the Sackler family and Purdue Pharma. The defendant, NYP HOLDINGS, INC., publishes the "N.Y. Post" which is a daily publication that is available worldwide in hard copy and online editions….

Plaintiff alleges that the N.Y. Post used a photo of him instead of the David Sackler of Purdue Pharma in an online article about the Sackler family of Purdue Pharma published on May 12, 2019. Mr. Sackler notes that the photograph utilized by the Post he is holding a bottle of Trimwater, a beverage distributed by his company, Lifestyles Beverages, Inc. The Post's story also ran in its printed edition which featured the same photograph but had been cropped and did not show the beverage from the plaintiff's company. Mr. Sackler also alleges reputational harm when the NY. Post published a different picture of him again holding a bottle of Trimwater in a [different] online article entitled "Met to reject gifts from the Sacklers amid the fury over the opioid crisis." …

Mr. Sackler cites specific examples of reputational harm that occurred in California, Florida, New Jersey and New York due to the defendant's use of his photograph when reporting on the opioid crisis. Mr. Sackler also points to phone calls and a Facebook message received from people in Maryland, Michigan and Texas regarding the use of his image in articles reporting on the David Sackler of Purdue Pharma. In addition, Mr. Sackler alleges multiple incidents of harm and steps taken to avoid additional harm. For example, being asked in business meetings about the publications or needing to make restaurant reservations under a different name or changing his appearance to avoid being accosted or attacked and that such a fear was especially heightened when out with his family.

The question is whether the court should apply New York law, or the law of New Jersey, where Sackler resides. Under New York law that existed as of the time of the publication, private figure plaintiffs could recover demonstrated compensatory damages based on a finding of gross negligence. New Jersey, however, has long required a showing of "actual malice"—i.e., knowing or reckless falsehood—for all plaintiffs, so long as the statement was on a matter of public concern. (New York has recently joined New Jersey on this, by statute, but that statute has been held not to be retroactively applicable.) The First Amendment requirement in such situations is a showing of negligence, but states can impose higher requirements.

The court concludes New Jersey law applies:

When a publication is issued nationwide as is the case here, "the tort of [defamation] essentially lacks a locus, but rather injures plaintiff every where at once. In such cases, determining which state has the most significant relationship to the litigation requires a more comprehensive analysis" [than just focusing on where the tort took place]…. New York choice of law principles instead point not to the act as the locus of the tort but instead to the injury which is the final element that would make the defendant liable.

The plaintiff … argues that because the anti-SLAPP statute is conduct regulating that this Court should apply New York law to ensure New York media comply with its provisions. The interest in regulating "future" conduct is surely lessened after the 2020 anti-SLAPP amendments which require a plaintiff to prove actual malice and not simply negligence in future actions under this statute. In addition, the state of New Jersey has an interest in protecting its residents from tortious conduct.

Also, it is important to remember with a nationwide publication especially one issued online that the defendant disseminates such to all fifty states and the plaintiff is injured everywhere such publication is consumed….

While the plaintiff alleges specific examples of reputational harm suffered in multiple states, the Court finds that the defendant's nationwide publication of his photograph had the greatest affect to the plaintiff and his overall reputation in the state where he resides. "Under New York's choice of law rules, if the plaintiff and the defendant are domiciled in different states, the law of the situs of the injury generally applies."

The Court finds that the fact that the defendant produces its nationwide publication from New York does not provide New York with a greater interest or "more significant interest" in this matter than New Jersey where the plaintiff suffered the greatest reputational harm and had to alter his day-to-day life to not suffer more. In addition, the Court finds that how New Jersey chooses to handle defamation matters and protect its residents from harm arising out of defamation has a greater interest in this matter than the state housing the defendant's physical business where it produces a nationwide publication that is available in both New York and New Jersey….

The New Jersey actual malice requirement thus applied, and the court held that it couldn't be shown:

The plaintiff's sole allegation is that the Post did insufficient research to determine whether the plaintiff was the David Sackler of Purdue Pharma. As this Court previously determined in the underlying motion to dismiss, such an allegation is insufficient as a matter of law to show that the defendant acted with actual malice.

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