Eugene Volokh's Blog, page 285

[Eugene Volokh] Hiring a Research Fellow in Free Speech Law for 1 or 2 Years, at the Hoover Institution (Stanford)

This was just announced today; if you're interested, please apply, and if you know people who might be interested, please pass this along to them.

Opportunity for Post-JD Scholars

The Hoover Institution at Stanford University is seeking an outstanding early-career legal scholar interested in researching free speech law, in preparation for seeking an academic position at a law school or elsewhere.

If selected, you would work on your own research with the guidance and supervision of Senior Fellow Eugene Volokh, who has moved to Hoover after 30 years as a Professor of Law at UCLA School of Law. You would be appointed a Research Fellow with the Center for Free Expression, for one year from July 2025 through June 2026. The term may be renewed, if both you and Hoover agree, for one extra year. You would be expected to be physically present at the Institution, working full-time, with no competing major professional commitments.

There is no teaching obligation, so you would have maximum time to research and write. However, you would be expected to help organize and participate in occasional conferences, workshops, and lectures, and to work on occasional projects with Volokh or other Senior Fellows. These tasks would all be related to free speech law and are expected to help promote your own research and future career.

Eligibility Criteria:

You must have a JD or its equivalent by June 2025. You must commit to staying for at least one year (July 2025 through June 2026). The date range might be moved back slightly if required because of a judicial clerkship that will keep you occupied until July to September 2025. A judicial clerkship (past or upcoming) is not required, though it is a plus. Work experience as a lawyer is not required, though some such experience is a plus. A PhD in another discipline is not required, though neither is it frowned upon. You must have written a publishable law journal article already while in law school or shortly after. Whether it has already been published or not does not matter, so long as it is essentially complete. That article need not have been on free speech law. You must be planning to work on free speech law, understood broadly. This is not limited to First Amendment law, but includes federal or state statutes, common law rules, state constitutional provisions, transnational or international legal provisions, and rules of important private institutions—so long as they relate to the regulation (or deregulation) of speech, press, expression, assembly, expressive association, petition, and the like. Likewise, it includes doctrinal, historical, theoretical, and empirical scholarship. We prefer projects on important but insufficiently studied topics, rather than on ones that have already been heavily researched by others.

To Apply, Please Submit:

Your resume Your law school transcript Plans for at least two research projects, described in some detail; draft Introductions for what would become journal articles tend to be a good format At least one published or completed and publishable research article Any other articles, whether published or in draft Contact information for three professors or other legal scholars who can speak to your intellect, writing, or research agenda

Requirements:

The Research Fellowship position provides full Stanford benefits with a salary range of $80,000-125,000. Depending on individual circumstances, a housing and relocation allowance may also be provided.

Completed applications must be submitted online by Deadline to Apply: February 1, 2025

Please direct questions to Julie Park at julp@stanford.edu.

About Stanford University's Hoover Institution:

The Hoover Institution on War, Revolution, and Peace is a public policy research center devoted to the advanced study of economics, politics, history, political economy, and law—both domestic and foreign—as well as international affairs. It is located on the Stanford University campus and is an academic unit of the University.

The Hoover Institution is an equal employment opportunity and affirmative action employer. All qualified applicants will receive consideration without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, protected veteran status, or any other characteristic protected by law.

The post Hiring a Research Fellow in Free Speech Law for 1 or 2 Years, at the Hoover Institution (Stanford) appeared first on Reason.com.

[Eugene Volokh] Are Laws Restricting Mask-Wearing in Public Constitutional?

[1.] Some places have recently enacted restrictions on wearing masks in public. They generally stem from three related rationales:

People's wearing masks makes it harder for the police to identify who committed some crime: trespass, vandalism, assault, and more. That's especially true when there are many people wearing the same masks, and a mask rock-thrower (for instance) can feel safe that it will be hard to identify him among the other mask-wearers. Because of this, wearing masks can embolden would-be criminals. And because of this, wearing masks can therefore be intimidating to bystanders, precisely because the bystanders will think that the mask-wearers might be willing to attack them with less risk of being caught and punished.

Of course, all places have laws that ban trespass, vandalism, assault, and similar crimes. But the premise of the mask laws is that those laws are insufficient, precisely because masking can help evade detection for people who violate those laws.

Such laws have existed for a long time. The 1871 federal Ku Klux Klan Act forbade (and still forbids) people, whether Klan members or not, "go[ing] in disguise on the highway or on the premises of another" "for the purpose of" depriving people of "the equal protection of the laws, or of equal privileges and immunities of the laws." But later laws generally apply without a need for prosecutors to show a further prohibited purpose. Various laws enacted in 1900s, for instance, generally restrict mask-wearing (likewise historically usually motivated by the Klan's behavior, but not limited to the Klan). See, e.g., the 1924 Louisiana law discussed in State v. Dunn (La. 1926), the 1951 Georgia law upheld in State v. Miller (Ga. 1990), and many other such laws.

Here is the most recent such law I've seen, just enacted by Nassau County (N.Y.) (I think this is the version that was finally enacted), though other recent ones are quite similar:

This Legislature finds that masks and facial coverings that are not worn for legitimate health and safety concerns or for religious or celebratory purposes are often used as a predicate to harassing, menacing or criminal behavior.

Therefore, the primary purpose of this law is to prohibit the wearing of masks or other facial covering in public unless such mask is worn for the purposes of protecting the wearer's health or safety or for religious or celebratory purposes.

No person or persons over 16 years of age shall, while wearing any mask or facial covering whereby the face or voice is disguised with the intent to conceal the identity of the wearer, enter, or appear upon or within any sidewalk, walkway, alley, street, road, highway or other public right-of-way or public property or private property without the consent of the owner or tenant.

This law shall not apply to facial coverings worn to protect the health or safety of the wearer, for religious or cultural purposes, or for the peaceful celebration of a holiday or similar religious or cultural event for which masks or facial coverings are customarily worn.

For each exception to this law, a law enforcement officer may require a person or persons to remove the mask during traffic stops or when the officer has reasonable suspicion of criminal activity and/or intention to partake in criminal activity.

Any person that violates any provision of this law shall be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars or imprisonment of not more than one year, or both.

But there are other examples as well.

[2.] These laws have been challenged on First Amendment grounds. One common argument is that banning masking can deter unpopular (but law-abiding) speakers from speaking out. The analogy would be to the Supreme Court's holdings (e.g., McIntyre v. Ohio Elec. Comm'n (1995)) that the government generally may not require that speech (e.g., leaflets) include the speaker's name: Such requirements, the Court held, may chill speech by people who worry about "economic or official retaliation" (lost jobs, targeting by government officials even after the demonstration) or "social ostracism."

At the same time, while anonymity in writing may make it easier for people to get away with bad speech (rudeness, libel, fraud, threats), anonymity in one's physical appearance makes it easier for people to get away with bad acts (vandalism, assault, robbery, murder). Such attempts to prevent harmful physical conduct might be seen as more justifiable than attempts targeted at harmful speech.

Another First Amendment objection to the laws is that wearing a mask is itself constitutionally protected symbolic expression, especially when the mask is emblematic of a group or a movement. Yet restrictions that incidentally interfere with symbolic expression are generally permissible (to oversimplify slightly) when they are unrelated to the sup­press­ion of that expressive message—for instance, if they are aimed at preventing crime, apprehending criminals, and preventing the menace that stems from fear of crime (entirely apart of the ideological character of the symbolic expression).

Perhaps because of these uncertainties, such laws have sometimes been upheld and sometimes struck down. For examples of cases upholding such laws, see Church of the American Knights of the KKK v. Kerik (2d Cir. 2004) and People v. Bull (N.Y. App. Term 2004) (involving "self-proclaimed anarchist[]" May Day demonstrators). (These suggest that the Nassau County law would likely be upheld, given that New York is in the Second Circuit.) For examples of cases striking down such laws, see American Knights of the KKK v. City of Goshen (N.D. Ind. 1999) and Ghafari v. Municipal Court (Cal. Ct. App. 1978). My sense is that more cases have upheld them than struck them down, but there are respectable numbers on both sides.

[3.] The matter becomes still more complicated when one considers exemptions from such laws.

[a.] The holiday celebration exception, for instance (common in such laws), seems to be justified by the content of expression: The government seems to take the view that wearing a Mardi Gras mask is especially valuable, and thus should be excluded. Likewise, the message of the mask might bear on whether it's a holiday mask at all (e.g., if someone is wearing an Easter Bunny suit on Easter). Such content-based exceptions generally cause laws to be struck down (see, e.g., Carey v. Brown (1980)).

One response might be that masks worn as parts of holiday costumes are excluded not because they are valuable, but because they don't implicate the in­te­rest in preventing fear: People may be afraid of someone walking in public wearing most kinds of masks, but not of someone walking in public wearing a Mardi Gras mask on Mardi Gras; the likely benign explanation for the mask will set people's minds at ease.

But the other likely in­te­rests supporting the law—the in­te­rest in preventing crime and in facilitating the identification of criminals—are just as implicated regardless of why someone is wearing a mask. A court might therefore conclude that the holiday mask exception therefore isn't sufficiently justifiable on content-neutral grounds, and instead flows from an improper preference for speech that conveys a certain kind of holiday-related message.

[b.] The religious exemption is also common in recent laws, and may indeed be mandated under constitutional or statutory (federal or state) rules providing for religious exemptions. And there's reason for it: Some Muslim women feel religiously obligated or motivated to cover their faces in public with a niqab. Some married Hindu, Jain, and Sikh women likewise wear a veil call the ghoonghat (though at least some such veils are relatively sheer, and thus conceal the face less than opaque veils would).

But would the law with such an exemption have any practical value? Or would people who do want to commit crime also be willing to pretend to have religious motivations for wearing a mask? And if the exemption sufficiently undermines the rule, does that mean the rule as a whole may be unconstitutional?

To be sure, masks currently worn by protesters seem to look quite different from traditional religious veils. But if religious-looking masking is allowed, then presumably some protesters can shift to that. And beyond that, the design of religious veils is generally customary, and not fixed by religious law (at least in any way that police officers are likely to be able to identify). Would police officers be able to effectively sort, on the spot, people who have sincere religious objections from people who are just making up the objections in order to be free of the antimask law?

Religious veiling rules generally apply only to women, at least in the religious traditions with which we are familiar. But of course it may be impossible for police officers to reliably tell whether a person wearing a veil is a woman. And of course veil-wearing women can also commit crimes facilitated by the veils.

The Nassau County ordinance does note that police may require a person "to remove the mask … when the officer has reasonable suspicion of criminal activity and/or intention to partake in criminal activity." Presumably that refers to reasonable suspicion of some criminal activity other than just the wearing of the mask (since otherwise the "reasonable suspicion" requirement would be redundant).

But, again, the premise of the law is that the police need extra tools besides the usual criminal laws barring trespass, vandalism, assault, and the like: If fifty people wearing similar-looking outfits with masks are at some demonstration, and one of them throws a rock—but the police don't know who it is—then I doubt they'd have reasonable suspicion of rock-throwing by any particular mask-wearer. And I don't think they'd be able to arrest all the mask-wearers for violating the mask-wearing law, given the exceptions, since they don't know whether one of the exceptions applies.

Now perhaps "reasonable suspicion of criminal activity" means reasonable suspicion of criminal wearing of a mask in the absence of a suitable exception. But how is a police officer to reasonably decide whether the wearer is likely to be entitled to a religious exemption or not?

[c.] This is further complicated by the parallel exception for masks worn "for cultural purposes." If this just refers to the practices of any group, then presumably KKK masks, keffiyehs worn to cover the face, and so on would be worn for cultural purposes: They are a cultural practice of certain subgroups of American whites or of Palestinians. But if those groups don't count, because the "cultural purposes" have to be somehow more broadly shared by a larger culture, then what cultures qualify? And how would police officers be able to find that out?

[d.] Similar concerns may apply to masks worn to protect "health" as to masks worn for religious purposes. People still sometimes wear masks to diminish the risk of infection with COVID or other respiratory diseases—or just to filter smoggy air.

Again, most health-related masks look different from most of the masks that protesters wear. But if a law has an exemption (on its face or as enforced) for medical-looking masks, presumably many protesters might switch to those masks in order to take advantage of the exemption. So, here too, an exemption may practically swallow the rule.

In any event, I hope this helps show the complexity of the matter, and the difficulty of predicting whether courts will uphold these sorts of restrictions.

The post Are Laws Restricting Mask-Wearing in Public Constitutional? appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 16, 1933

8/16/1933: President Roosevelt adopts the Code of Fair Competition for the Governance of the Petroleum Industry. The Supreme Court declared those codes unconstitutional in Panama Refining Co. v. Ryan (1935).

President Franklin D. Roosevelt

The post Today in Supreme Court History: August 16, 1933 appeared first on Reason.com.

[Orin S. Kerr] The ACLU's Response to My Post on the Fifth Circuit's Smith Ruling—And My Reply to the ACLU

[A debate on a very important Fourth Amendment ruling.]

I recently posted a long critique of the Fifth Circuit's ruling last week in United States v. Jamarr Smith, and specifically the court's ruling that Google's geolocation database is too big to search with a search warrant.  It remains to be seen what might happen with the case.  Just today, DOJ filed an unopposed motion asking for 60 days to file a petition for rehearing. Also, the court has withheld issuance of the mandate on the request of at least one judge.

With that pending, I'm delighted to feature a debate of sorts over the merits of the ruling. Jennifer Granick and Brett Max Kaufman, lawyers for the American Civil Liberties Union (ACLU) who are both very active litigating in this area, wrote to me today with an ACLU response defending the Fifth Circuit's ruling and asking if I might publish it here at the Volokh Conspiracy.  Jennifer and Brett are both outstanding lawyers, and I'm delighted to host a debate on this question. With their permission, I am posting their response to my post, followed by my reply below that.

Here is their response, published in full:

The Fifth Circuit's Supposedly "Bananas" Ruling that Geofence Searches are Unconstitutional Is Correct

Jennifer S. Granick & Brett Max Kaufman, American Civil Liberties Union

Last week, the federal Fifth Circuit Court of Appeals issued a unanimous opinion that "geofence warrants"—which sweep through hundreds of millions of account holders' location data in the hopes of ensnaring people who are estimated to have been near the scene of a crime—violate the Fourth Amendment. In a blog post on this site, Orin Kerr criticized the court's holding as "bananas." But if this kind of ruling is bananas, we'll happily take more of them by the bunch.

The Fifth Circuit's decision, in a case titled United States v. Smith, is a reasonable response to the Golden Age of Surveillance ushered in by companies' unprecedented capture of previously ephemeral and unknowable facts about us. The Fifth Circuit held that police may not trawl through a database of hundreds of millions of people's sensitive location histories in the hopes that they will be able to find people who were, according to Google's computers, in the vicinity of a crime at some point in the past. The government uses this technique, geofence searching, with increasing frequency. It pulls out of the cloud people whose phones are estimated to have been near the scene of a crime—even if the person was actually somewhere else. It looks not just for suspects, but also witnesses, ensnaring a subset of individuals destined for further law enforcement scrutiny.

The Fifth Circuit held that such an overbroad search is akin to the kinds of "general warrants" that the Fourth Amendment was intended to prohibit. As a result, no warrant can make this novel surveillance technique legal.

Considering the analog equivalents of this kind of dragnet helps explain why: For example, police might know that some bank customers store stolen jewelry in safe deposit boxes. If they have probable cause, police can get a warrant to look in a particular suspect's box. But they cannot get a warrant to look in all the boxes—that would be a grossly overbroad search, impacting the privacy rights of many people as to whom there is no probable cause. (In one recent case, the government actually tried something similar, but the Ninth Circuit rejected the attempt.)

Likewise, police might know that some people sell drugs out of their homes in a certain neighborhood. If they have a target (whether an address or a person), they can get a warrant to search a house. But they may not search all the homes in the neighborhood based only on the knowledge that illegal drugs were sold in the area.

Kerr raises four main objections to the court's reasoning in Smith.

First, Kerr says that Smith is inconsistent with United States v. Karo, a 1980s case in which the Supreme Court held that law enforcement needed to get a warrant to track a radio-tracking beeper, which the government had placed inside a can of chemicals to be picked up by a suspect, into a private area like a home or locker. The government contended that that it needn't get any warrant at all to conduct this kind of surveillance, because the Fourth Amendment's particularity requirement was a poor fit for a situation in which police could never name in advance where the beeper might go. The Supreme Court swatted away that argument by explaining that it was sufficient for particularity purposes to specify the "object into which the beeper is to be placed, the circumstances that led agents to wish to install the beeper, and the length of time for which beeper surveillance is requested."

If police can get a warrant for that kind of tracking, Kerr suggests, surely they can get one for geofence searches, too. The Karo Court, he says, rejected an argument that beeper searches could never meet the particularity requirement—and that rejection should apply to geofence searches, too.

But the argument Karo rejected was the government's, and it was aimed at persuading the Court that particularity requirement was such a bad fit that the Fourth Amendment shouldn't regulate its beeper surveillance at all. Rather than permit unsupervised, warrantless beeper surveillance, the Court "articulated a way to draft warrants to allow the surveillance." But that is far cry from the argument the Fifth Circuit was evaluating in Smith—an argument from the defendants that geofence searches are so broadly invasive that they are akin to the long-reviled general searches banned by the Fourth Amendment entirely.

Not even the government, in its opposition brief on appeal, thought Karo was relevant enough to the geofence warrant issue to cite it even once.

Karo's facts are not analogous to geofence searches. While the final destination of a beeper tracker is unknown, police are tracking a particular object in real time. The government has possession of the object and installs a beeper. Only a few people subsequently will take possession of the object and it will only travel to a few places, as the police follow it. The police know what the object is, why it is relevant to the crime under investigation, who is likely to take possession of it, and for what criminal purpose.

But the Google location history database at issue in Smith contains location data from "592 million individual accounts". With geofence searches, all the police know is that a crime took place in the past, and where. Google's location history database is entirely comprised of constitutionally protected intimate location information, enabling comprehensive and retroactive surveillance of hundreds of millions of people. When the government searches the location database, it is searching through all of that information, after the fact. The people affected are all the people in the database, not just those whose information is a potential match.

Further, what the government learns is much more extensive than the location of a Karo-style beeper. When conducting a geofence search, the government doesn't even know whether the suspect's data will actually be found in the database—not that the government cares, since they are often not only looking for suspects, but for witnesses, too. The search will almost certainly rope in people who were not near the crime or merely passing by, due to the imprecision of some of the location data that Google collects. The government obtains information potentially revealing personal activities, habits, and associations about any number of people—suspicious or not. The breadth and technology involved in geofence-type database searches make them a whole new ballgame, worlds away from planting and tracking a beeper placed in a can of chemicals intended for use in drug trafficking.

Second, Kerr maintains that that the Fifth Circuit opinion clashes with United States v. Carpenter. In Carpenter, the Supreme Court held that police need a warrant to seek an identified suspect's cell phone location history. Of course, like geofence data, cell phone location data resides in a company's giant database. Kerr takes this to mean that any search through a massive database of location data must be permissible with a warrant. But there is very little in common between the targeted query pulling up one suspect's records in Carpenter, and the dragnet search for anyone whose phone was in or near a 24-acre area in Smith. Police can ask an email provider to turn over a particular person's messages with a valid warrant, but that doesn't mean police can direct the company to search through every email of every user in the hope of finding someone who was discussing a crime. And of course Carpenter did not address, let alone reject, a general warrant argument like the one at issue in Smith. To the contrary, the Court took pains to remind us that "The Founding generation crafted the Fourth Amendment as a response to the reviled 'general warrants' and 'writs of assistance' of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity."

Third, Kerr argues that whether the identity of a suspect is known at the time of a search is constitutionally irrelevant. That is generally true—some valid warrants are of course intended to gather evidence to identify a suspect. But that doesn't mean that all such searches are constitutional. In each of the hypothetical examples Kerr gives, there is a target—an account controlled by an unknown user.

In any case, the lack of a known suspect in a particular case is not what the Fifth Circuit complained about. Rather, the Fifth Circuit was describing the geofence search technique itself as an inherently suspicionless dragnet where police never have a target:

In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts—for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search.

That observation seems plainly correct to us.

Fourth, Kerr's last point is that the Smith decision may have implications for surveillance conducted by national security agencies, which regularly search through gigantic repositories and streams of data that include the private information of Americans. He predicts that we will soon read in the paper that the opinion has interfered with some presumably worthwhile national security surveillance program as a roomful of very worried national security lawyers, presumably with furrowed brows, struggle to figure out how to comply.

We have a prediction, too. We may see an unnamed national security official cited in a news story, lamenting the possible interruption to some purportedly essential surveillance program because of Smith. No one will tell us what the program supposedly is, or how exactly some limitations on the ability of law enforcement to search huge databases of private information without individualized suspicion interferes with the nation's security, but that is what the anonymous source will suggest.

Don't believe it. National security lawyers excel at exploiting legal loopholes to justify secret programs and insulate them from judicial scrutiny. We find it extraordinarily hard to believe that they will read the Fifth Circuit's opinion in an unnecessarily overbroad and self-defeating fashion to require the executive branch to shut down one of its ongoing national security surveillance programs. Instead, as they usually do, the lawyers will find a way to justify the program to themselves, even if only by saying that the Fourth Amendment applies differently to foreign intelligence surveillance than to criminal investigations. Nonetheless, advocates of Big Surveillance will still repeat the leaked, manufactured concern about national security to ensure it hangs over courts' future efforts to consider and apply constitutional protections to the hundreds of millions of individuals whose private lives are exhaustively documented in ones and zeros in gigantic corporate for-profit databases.

When it comes to national security surveillance, the government's litigation tactics are designed to prevent courts from reaching incredibly important Fourth Amendment questions, like the one in Smith, on the merits. In criminal cases, for example, the government has a long track record of improperly withholding notice of foreign intelligence surveillance from defendants. In civil challenges to national security surveillance, the government has aggressively relied on the standing and state secrets doctrines to seek dismissal at the earliest stages of litigation.

Following the Supreme Court's lead in cases like Riley and Carpenter, courts around the country have been striving to adapt constitutional privacy protections to novel surveillance enabled by advanced digital technologies. Things like conversations, reading, and travel used to be ephemeral, and were not recorded, and all-access has never been the rule. But now, law enforcement feels entitled to access all these new repositories of private information however it can. While it may be the job of government lawyers to push for access, it's the role of the Constitution and the courts to push back. That's what we see the Fifth Circuit doing in Smith.

Thanks very much to Jennifer Granick & Brett Max Kaufman for their response on these issues.  Here's my reply, taking the order of the four points I made in my initial post. (Because the reply to me was written in the authors' official capacities as ACLU attorneys, I will respond to them a bit formally as "the ACLU," instead to Jennifer and Brett.)

(1) On the Importance of United States v. Karo

First, the ACLU notes that the government did not raise Karo in its brief:

Not even the government, in its opposition brief on appeal, thought Karo was relevant enough to the geofence warrant issue to cite it even once.

It's true that the government doesn't cite Karo.  But that brings up a very interesting aspect of the litigation more broadly: Reviewing the briefs filed in the case, I don't think either side really briefed the question that the panel ruled on—whether the Google file was too big to be searched.  Reading the defendant's initial brief, the statement of issues announces that it will argue that geofence warrants are unconstitutional categorically (p.2).  But the brief never actually develops that argument, as far as I can tell.  It states the argument at the. top of page 35, and hints at it in footnote 8. But it mostly argues other issues, such as that this particular geofence warrant was too broad.  The reply brief is similar. It alludes to such an argument in passing (p.4), but it doesn't make it.  No amicus briefs were filed in the case, either.  From what I can tell, there was no serious briefing on the warrant issue that was resolved by the Fifth Circuit's opinion.

Indeed, after now listening to the oral argument, I don't think I hear the argument being made by Smith's counsel there, either.  At about the 8-minute mark, Judge Ho asks defense counsel to say specifically why this was a general warrant.  Smith's counsel does not respond that this was a general warrant because the Sensorvault database was too big, Instead, counsel makes a different argument, that the warrant sought too much data to be seized and handed over to much the government.

I should be clear that the issue of Sensorvault being too large to be searched does get discussed during the oral argument. Judge Ho raises and presses this claim during the questioning of the government, starting at about the 17:45 minute mark. And at the 23 minute mark, Judge Ho describes that claim as what, in his words, "I think" is the argument defense counsel is making. But unless I'm missing it, that's the first time it is discussed, at least more than in passing.  In the rebuttal, defense counsel again focuses on the scope of what the government was looking for, not raising the size of Sensorvault or argues that the file was too large to search. As far as I can tell, the only time defense counsel talks about that is in the last minute of the argument, when Judge Ho asks counsel to respond to the government's responses to Judge Ho's earlier questions on that.

So it's true that the government did not cite Karo.  But Karo is important as a response to a "no warrant can be issued" argument, and that's not an argument that appears to have seriously briefed by either of the litigants.

Back to the ACLU post.

ACLU next argues that Karo is distinguishable.  The key difference, the ACLU claims, is that the geofence warrant can yield a lot more personal information than the tracking beeper did in Karo.  Assuming this is true, though, I don't know how it's relevant to whether a warrant can be obtained.  The arguments the ACLU is making are arguments about why the data should be protected under the Fourth Amendment in the first place.  Assuming the panel was correct on that, those points are justifications to require a warrant, not a reason to refuse to allow a warrant.

But what about the idea that the search here is just too invasive?  It seems important to note that warrant clause does not impose a general requirement that searches be narrow. As Justice Scalia stressed for the Supreme Court (overturning 9-0 a Judge Reinhardt decision from the Ninth Circuit) in United States v. Grubbs, particularity requires two specific things:

The Fourth Amendment, however, does not set forth some general "particularity requirement." It specifies only two matters that must be "particularly describ[ed]" in the warrant: "the place to be searched" and "the persons or things to be seized." We have previously rejected efforts to expand the scope of this provision to embrace unenumerated matters.

That posed a big problem in Karo, because there really was no known "place" where the search was occurring. But in this case, everyone knows that the warrant is being sent to Google, and that it is conducting the search there, albeit of a particular very large database.  So if anything, I would think the place problem was greater in Karo than it was here.

(2) Comparisons to Email Searches and the Relevance of Carpenter

The ACLU also argues that searching through Sensorvault is very different from a traditional kind of Internet warrant search, such as for an individual email account. They write:

Police can ask an email provider to turn over a particular person's messages with a valid warrant, but that doesn't mean police can direct the company to search through every email of every user in the hope of finding someone who was discussing a crime.

This mixes apples and oranges, it seems to me. It treats an argument about the place to be searched (the database) as if it were an argument about the things to be seized (any discussions of a crime).

Here's the more interesting question, I think: If an email provider put all of its emails in a single database, with the different emails from different customers together, could it search for the emails from a single account with a warrant?

Let's think this through. Imagine a provider that has all of its emails of all of its customers in a single huge database file containing emails from all users.  Let's say there are one million customers, with a billion emails total stored in that one database.  Here's a made-up snapshot, below, of part of what the file might look like, showing you just part of a few of the billion entries in the database.  The left column is the file number, from one to a billion.  The next column is the account name, next the to address, then the date, then the subject line. Imagine other columns to the right, just out of view, with main text, attachments, and the like:

Imagine the government came to the provider with a warrant for emails in Orin's inbox that were delivered on December 6th between 11:01 and 11:03.  Because all of the provider's emails are in a single massive database file, the provider would get those specific Orin emails by doing a search through the entire file of one billion emails for those matching the query Account="Orin@" and Date="12/6 at 11:01 to 11:03″.

Is that a particular warrant that satisfies the Fourth Amendment?  I would think so.  But under the Fifth Circuit's reasoning—reasoning that I gather the ACLU agrees with—I think that would be an illegal general warrant, as it would mean searching through a million people's emails for those responsive files.  Think about it: It's like rummaging through one million homes, the argument would run, with an entire city's worth of private virtual homes being scanned through and closely scrutinized by powerful supercomputers for a match with the relevant criteria— the specific account name (Orin) and time (12/6, from 11:01 to 11:03).

But I confess I don't get this.  As a practical matter, when the searching criteria is sufficiently narrow and specific, a non-response is the same as a non-search.  If a particular email was Brett's, or Jennifer's, why should the fact that it was technically scanned by in a query looking for Orin's messages matter?  As I wrote in my earlier post, the filter is everything: How you set the aperture determines what the scope of the search is.  If you set the filter to only "hit" if the account element is "Orin@,"the size of the file through which it scans happens does not seem the relevant question.  From a Fourth Amendment standpoint, it seems to me, the result is a just seizure of the Orin@ account—and if the messages are then examined, a search of that account. But why should it matter whether the provider happens to store its database as a single database, or as multiple databases, or as lots and lots of small databases?  I don't think the Fourth Amendment regulates database administration.

Also, allow me a super-minor, technical, bordering on hopelessly-pedantic point: Although Sensorvault has files belong to an estimated 592 million people globally, I gather that the great majority of those people are non-U.S. persons who have no Fourth Amendment rights under United States v. Verdugo-Urquidez (1990).  If about 1/3 of Google users opted into Location History, and if we say (to guess) that 80% of people in the United States have some kind of Google account, we're probably in the ballpark of more like 90-100 million people who have the capacity to have Fourth Amendment rights who have their data in the database (and would therefore have rights against geofencing if the Fifth Circuit was right, and the Fourth Circuit was wrong, on the search question).  Obviously, that's still an enormously large, super big, way huge database.  And maybe, depending on your theory of virtual place, including data of people with no Fourth Amendment rights still makes your constitutional "place" bigger.  But I gather the 592 million figure is global users, not those with Fourth Amendment rights.  (Hey, I told you it was a technical and bordering on hopelessly-pedantic point.  I mean, you were warned. Okay, moving on.)

The ACLU also notes that no one argued in Carpenter that no warrant could actually be obtained for large databases.  I mean, yes, that's technically true.  But if you think back to cases like Carpenter and Riley v. California, the availability of warrants to get the information was absolutely crucial to both of them.  The Court adopted the pro-privacy position in those cases because the pro-privacy position enabled warrants.

To my mind, this raises the question of whether the ACLU's position against warrants is short-sighted.  Granted, I'm not in the position of giving advice to the ACLU. But it seems to me that there's a crucial tension between warrants-are-needed arguments and even-a-warrant-isn't-enough arguments in Fourth Amendment law. Historically, allowing warrants has been key to expanding what is covered by the Fourth Amendment.  The switch from Olmstead in 1928 to Berger and Katz in 1967, changing from a rule that wiretapping is not a search to wiretapping being a search, is an interesting example. Wiretapping is a way to obtain mere evidence— the words of those engaged in crime.  But in the window from 1921 until early 1967, in Warden v. Hayden, the Supreme Court said warrants for mere evidence were not allowed.  This is conjecture, but I think that partially explained the switch from Olmstead to Berger and Katz: Wiretapping was not a search at a time when no warrant could be obtained to engage in wiretapping, and then was treated as a search very soon after changing the warrant rules in Warden v. Hayden to allow mere evidence warrants.

There's a tension there, I think. The more you argue that a warrant cannot be used to conduct a kind of surveillance, the harder it becomes to argue that a warrant is needed to conduct that kind of surveillance in the first place.  As a practical matter, the privacy-maximizing position may be pro-warrant.

(3) The Fact That There Is Never A Known Target. 

The ACLU also suggests that geofence warrants are unique because there is never a target.  It quotes the Fifth Circuit's passage where it says the following:

Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search.

But that's how a lot of warrants work.  This is nothing new. The Supreme Court emphasized this in Zurcher v. Stanford Daily:

Search warrants are not directed at persons; they authorize the search of places, and the seizure of things, and as a constitutional matter they need not even name the person from whom the things will be seized.. . . The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific "things" to be searched for and seized are located on the property to which entry is sought.

So, for example, you can have a warrant to go seize drugs in a house, even if you don't know who owns the house, who put the drugs there, or where the people are.  To be sure, arrest warrants are about people.  But search warants are about places.

(4) The Scope of the Ruling.

Finally, in response to my last point, about the extraordinary significance and scope of the ruling, the ACLU suggests that sneaky government lawyers, especially in the national security arena, will fake concern with the case but get around Smith somehow, even possibly by engaging in sneaky tactics or even wrongdoing to do it.  I served as a lawyer at the U.S. Department of Justice myself, and that is not at all my experience with lawyers in the executive branch generally, or at DOJ specifically.  But even among those who think that is how government lawyers work, note that the ACLU does not seem to contest that the reasoning of the Fifth Circuit's decision would, if taken seriously, have tremendously far-reaching effects.  We disagree only on whether that is a bug or a feature.

The post The ACLU's Response to My Post on the Fifth Circuit's Smith Ruling—And My Reply to the ACLU appeared first on Reason.com.

[Josh Blackman] Turning The Corner Post On Vacatur

[Also, Judges Kacsmaryk and Ho seem vindicated on the statute of limitations to challenge mifepristone.]

I apologize for the delay in writing about Corner Post. I started writing this post in July, and only now had a chance to finish it up before classes start next week.

I think Corner Post was probably the sleeper case of this term with regard to impact. Much ink has been spilled about Loper Bright, and the overruling of Chevron deference. Critically, though, Loper Bright only allows affected parties to challenge new regulations that perhaps deviate from an old regulation. But Corner Post tweaked when APA suits can be filed. Justice Barrett's majority opinion explains that a claim accrues "when the plaintiff is injured by final agency action."

An APA plaintiff does not have a complete and present cause of action until she suffers an injury from final agency action, so the statute of limitations does not begin to run until she is injured.

Regulations will generally injury regulated entities as soon as they go into effect–or perhaps even before that date. But under Corner Post, new regulated entities could claim, for the first time, an injury by some agency action that went into effect much earlier. And I'm sure industry groups are scanning through the federal register to find all sorts of old regulations that can now be challenged with the Corner Post statute of limitations. Moreover, to the extent that the regulations have "flip-flopped" over the years, those rules are no longer entitled to Chevron deference.  If you combine Loper Bright and Corner Post, it is a one-two punch to challenge old, politicized agency actions. That much is clear.

But is there also a one-two-three punch? Corner Post allows you to challenge old regulations, Loper Bright eliminates Chevron, and the remedy of "vacatur" erases the rule from the federal register. The Court is divided on this third issue. Justices Gorsuch and Thomas take the Sam Bray view that vacatur is not a permissible remedy under the APA. Justice Kavanaugh takes the Mila Sohoni view that vacatur is a permissible remedy under the APA. Justice Barrett's majority opinion, which was joined in full by Gorsuch, Thomas, and Kavanaugh, tables the vacatur question.

There is a lot packed into Footnote 2:

The Board leaves open the possibility that someone could bring an as-applied challenge to a rule when the agency relies on that rule in enforcement proceedings against that person, even if more than six years have passed since the rule's promulgation. But Corner Post, as a merchant rather than a payment network, is not regulated by Regulation II—so itwill never be the target of an enforcement action in which it could challenge that rule. JUSTICE KAVANAUGH asserts that "Corner Post can obtain relief in this case only because the APA authorizes vacatur of agency rules." Post, at 1 (concurring opinion). Whether the APA authorizes vacatur has been subject to thoughtful debate by Members of this Court. See, e.g., United States v. Texas, 599 U. S. 670, 693–702 (2023) (GORSUCH, J., concurring in judgment). We took this case only to decidehow §2401(a)'s statute of limitations applies to APA claims. We therefore assume without deciding that vacatur is available under the APA.

The Court continues to dabble with the as-applied/facial challenge distinction. We've seen this line come up in Rahimi and NetChoice. This is an area of some doctrinal confusion. I think the Court will have to bring some more clarity. I'll come back to this distinction later in when I get to Justice Kavanaugh's concurrence. Far more important, and timely, is how the Court treats the vacatur debate. Justice Barrett refers only to the disagreement as a "thoughtful debate." This might be the most law-professorry-thing that Justice Barrett has ever written. "Thoughtful" is the sort of word that law professors love to use. What does it mean? The Justices simply do not agree on this issue, so they will let it linger as long as possible.

I think complicating that debate is Justice Kavanaugh's concurrence, which I found persuasive than I had expected. He writes:

Recently, the Government has advanced a far-reaching argument that the APA does not allow vacatur. See Brief for Respondent 42; Brief for United States in United States  v. Texas, O. T. 2022, No. 22–58, pp. 40–44. Invoking a few law review articles, the Government contends that the APA's authorization to "set aside" agency action does not allow vacatur, but instead permits a court only to enjoin an agency from enforcing a rule against the plaintiff.

If the Government were correct on that point, Corner Post could not obtain any relief in this suit because, to reiterate,Corner Post is not regulated by the rule to begin with. And the APA would supply no remedy for most other unregulated but adversely affected parties who traditionally have brought, and regularly still bring, APAsuits challenging agency rules

In a world without vacatur, what would happen to an entity that is injured by a regulation, but is not directly regulated? For that entity, an as-applied challenge would not be possible. The only possible approach would be to bring a facial challenge, seeking the remedy of vacatur. If the APA does not permit this sort of suit, then countless cases have been wrongly decided. Kavanaugh cites several of these leading cases, including DHS v. Regents, Department of Commerce v. New York, and Whitman v. American Trucking as examples.

Justice Kavanaugh points out that the law professoriate has not addressed this issue:

Most of the recent academic and judicial discussion of this issue hasaddressed suits by regulated parties. That discussion has largely missed a major piece of the issue—suits by unregulated but adversely affected parties.

The footnote that launched a thousand law review articles, as it were.

Justice Kavanaugh flags, but does not decide the issue of remand-without-vacatur:

In some circumstances, usually when a court rules that an agencymust provide additional explanation for the challenged agency action ormust regulate some entity or activity more extensively, some courts have remanded to the agency without vacatur. Remand without vacatur is essentially a shorthand way of vacating a rule and staying the vacaturpending the agency's completion of an additional required action, such as providing additional explanation or issuing a new, more stringent rule. I do not address that practice here, which has been the subject of some debate. See Checkosky v. SEC, 23 F. 3d 452, 462–465 (CADC 1994)(Silberman, J.) (explaining the practice); see also id., at 493, n. 37 (Randolph, J.) (noting that courts and parties alternatively may avoid any "difficulties" associated with vacatur by "a stay of the mandate").

An evergreen debate.

And Justice Kavanaugh tip-toes away from the judicial supremacy point, and the issue of whether an as-applied judgment would bind non-parties:

In that respect, eliminating the vacatur remedy would delay relief for many regulated parties. That said, in light of vertical stare decisis, the consequences for regulated parties of eliminating vacatur would not be as severe as the consequences for unregulated parties. See Labrador v. Poe, 601 U. S. ___, ___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 8–9); cf. W. Baude & S. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153,183 (2023) (when the Supreme Court "holds a statute to be unconstitutional or a rule to be unlawful, it may be as good as vacated").

Kavanaugh had me till this point, but lost me. If there is no vacatur, there is no writ of erasure. Close enough only counts in horseshoes, not judicial review. Kavanaugh cites Jonathan Mitchell on this point, though I think Sam Bray has persuaded me that Mitchell's carveout for the APA should be revisited

As noted above, the text of the APA expressly authorizes federal courts to "set aside" agency action. 5 U. S. C. §706(2). "Unlike judicial reviewof statutes, in which courts enter judgments and decreesonly against litigants, the APA" and related statutory review provisions "go further by empowering the judiciary to act directly against the challenged agency action." J. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933,1012 (2018). The text of §706(2) directs federal courts to vacate agency actions in the same way that appellate courts vacate the judgments of trial courts.

This "thoughtful debate" will continue.

One final note on the majority opinion. Justice Barrett's opinion ends with at Ledbetter punt: if it's broke, let Congress fix it!

The dissent also raises a host of policy arguments masquerading as "matter[s] of congressional intent." Post, at 18–24. And it warns that today's opinion will "devastate the functioning of the Federal Government." Post, at 23. This claim is baffling—indeed, bizarre—in a case about a statute of limitations. The Solicitor General, whose mandate is to protect the interests of the Federal Government, comes nowhere close to suggesting that a plaintiff-centric interpretation of §2401(a) spells the end of the United States as we know it. Perhaps the dissent believes that the Code of Federal Regulations is full of substantively illegal regulations vulnerable to meritorious challenges; or perhaps it believes that meritless challenges will flood federal courts that are too incompetent to reject them. We have more confidence in both the Executive Branch and the Judiciary. But we do agree with the dissent on one point: "'[T]he ball is in Congress' court.'" Post, at 24 (quoting Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 661 (2007) (Ginsburg, J., dissenting)). Section 2401(a) is 75 years old. If it is a poor fit for modern APA litigation, the solution is for Congress to enact a distinct statute of limitations for the APA.

In the past, I was amenable to these sorts of inter-branch communications. I'll admit that I've soured on them over time. Congress is perfectly capable of reading judicial decisions. They don't need the Justices to give them homework. And does anyone really think there are votes to amend the APA? Come on. I am slightly more receptive to the claim here, especially where the dissent goes full Chicken Little. But I think the opinion should end with the judgment, and let the legislative chips fall where they may.

And one note on Justice Jackson's dissent, which she read from the bench. Footnote 9 cites Alliance for Hippocratic Medicine in what might be an unexpected fashion:

As such, it says nothing about the cause of action that sucha person might bring, nor does it establish that an injury is an element of the claim, as the majority mistakenly suggests.9

9The majority puts too much stock in the fact that §702 references an injury: That reference actually does no more than highlight the distinction between what constitutes a claim and who can bring that claim. See ante, at 4–5, and n. 1. This type of distinction is commonplace in many areas of our jurisprudence. Take, for example, the constitutional standing doctrine, which limits eligible plaintiffs to those who have suffered an injury in fact that is both traceable to the defendant's conduct and redressable in court. See FDA v. Alliance for Hippocratic Medicine, 602 U. S. 367, 380–385 (2024). Whether a particular plaintiff has standingto sue says nothing about the elements of the claim itself. See Haaland v. Brackeen, 599 U. S. 255, 291 (2023) ("We do not reach the merits of these claims because no party before the Court has standing to raise them"). The distinction between what a claim is and who can bring it applies with full force here. Section 702 codifies an injury requirement for bringing APA claims.

Jackson cites AHM again:

The majority's ruling makes legal challenges to decades-old agency decisions fair game, even though courts of appeals had previously applied §2401(a) to find untimely arange of belated APA challenges. For example, a lowercourt rejected an APA challenge to the Food and Drug Administration's approval of the abortion medication mifepristone that was brought more than two decades after therelevant agency action. See Alliance for Hippocratic Medicine v. FDA, 78 F. 4th 210, 242 (CA5 2023).

You may recall that in the District Court, Judge Kacsmaryk found that the plaintiffs had standing to challenge the FDA's long-ago approval of mifepristone. His reasoning sounded in Corner Post: true enough, the agency action happened more than six years ago, but the plaintiffs only felt the injury within the statute of limitations period. And, in light of Justice Kavanaugh's concurrence, the plaintiffs were entities that were not directly regulated by the FDA, but asserted a recent injury caused by the FDA's action. On appeal, Judge Ho agreed with Judge Kacsmaryk, even as the rest of the Fifth Circuit panel ruled that the older claims were SOL (there are two relevant acronyms here). If Justice Jackson is right, then Judges Kacsmaryk and Ho seem vindicated on the statute of limitations to challenge mifepristone.

The post Turning The Corner Post On Vacatur appeared first on Reason.com.

[David Bernstein] Against "Law and Political Economy"

I have a new paper out critiquing the "Law and Political Economy" Project. The Hewlett Foundation funds the project, based at the Yale Law School, as part of its nine-figure war on "neoliberalism."

As I describe in the paper,

LPE's website announces that the Project "brings together a network of scholars, practitioners, and students working to develop innovative intellectual, pedagogical, and political interventions to advance the study of political economy and law." The Project's goal is to cultivate "ideas and proposals to democratize our political economy and build a more just, equal, and sustainable future. The movement has its own journal, student groups at many elite law schools, and regular workshops and other events. It also boasts a network of several dozen law professors and a growing network of non-law professors who are affiliated with the Project. The LPE project is unusual because it has a clear founding text: Britton, Purdy, Grewal, Kapczynski, & Rahman's Building a Law-and-Political Economy Framework: Beyond the Twentieth-Century Synthesis.

My paper reviews this article, unfavorably:

Creating and implementing solutions to social problems requires a realistic assessment of the status quo. The authors of the Law and Political Economy Project movement's ur-text instead tilt at windmills. They believe that law professors have a tremendous influence on public policy, when our influence, though greater than the average citizen's, is insignificant relative to macro-trends in politics and society. They believe that the legal academy has been captured by Posnerians in private law and by neoliberals in constitutional law. In reaching this conclusion, they grossly exaggerate the influence of law and economics, misapprehend the focus of modern law and economics scholarship, and ignore the very strong leftward ideological leanings of public law scholars.

The authors believe that the American state has been "chastened" by neoliberalism, when it spends more and regulates more than ever. They think that economic policy is the font of inequality in America, while ignoring the changes in family dynamics that are the primary driver of multi-generational poverty and economic struggle. They blame public policy since the 1970s for oppressing women and non-white Americans, even though both groups are demonstrably better off today than they were fifty years ago. And their standard for a proper egalitarian democracy goes beyond the quixotic and into the impossible.

There may be a provocative, enlightening case to be made that the US needs to move its political and economic system closer to a left-progressive ideal. There may even be some reason to believe that an organized group of law professors interested in political economy is needed to move the US in that direction. But if either or both are true, the founders of the Law and Political Economy movement fail to demonstrate it.

That's just a summary of my conclusions. You can read the whole thing at the link provided.

The post Against "Law and Political Economy" appeared first on Reason.com.

[Eugene Volokh] Thursday Open Thread

[What's on your mind?]

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

[Eugene Volokh] Public Access to FAA Hearings on Alleged Passenger Misconduct

A fine imposed on a passenger for allegedly hitting a flight attendant—the passenger says he was woken up by a cart hitting him, and accidentally swung his arm as a result—has led to a First Amendment controversy. From last week's decision by U.S. Department of Transportation Administrative Law Judge J.E. Sullivan in In the Matter of Assadourian:

On May 31, 2024, the FAA filed a Motion for Protective Order. In this May 31, 2024 Motion, the FAA requested that "any information that may identify any potential witness for the FAA … including the alleged victim and other crewmembers—not be released to anyone other than counsel for the Respondent." … [At argument on the motion], the Presiding Judge discussed the public policy favoring disclosure,[1] as well as relevant FAA Rules of Practice ("ROPs"), federal rules, and federal caselaw.

[1] It is understood that no litigant or witness wants negative allegations about them circulated in the public forum, particularly when such negative allegations may be strongly disputed. Nevertheless, common law tradition and current public policy promotes public access to federal litigation disagreements.

… [T]he Presiding Judge noted that most government prosecutions did not require protective orders, "[i]n part, because the counsel who appear before tribunals understand their obligations to manage information responsibly and respectfully." Even when counsel who appeared in media venues were simultaneously engaged in the active practice of litigation, they had repeatedly shown, in multiple jurisdictions throughout the country, that they could appear on media outlets to opine and/or "comment about matters of the day, whether political or legal," without litigation disclosure problems…. [T]he FAA's Motion was orally denied….

In [a] July 19, 2024 Renewed Motion, the FAA asserts that new evidence now supports its request that a protection order should issue that precludes the release of "any information that may identify any [FAA] potential witness … including the alleged victim and other crewmembers … to anyone other than counsel for the Respondent." In support of its Renewed Motion, the FAA proffers Attachment A as evidence, which is a July 18, 2024 informal email message by an ABC News producer/reporter addressed to the FAA's attorney. This July 18, 2024 informal email message states:

Wanted to reach out about an incident that occurred on May 2, 2023, between Vahe Assadourian, a passenger on Delta Flight 1779, and a flight attendant. We are aware of the litigation filed since then and the FAA's fine to the passenger. Does the FAA have any statement or context to provide?

… The FAA then argues that ABC News' July 18, 2024 informal email, and ABC News' possession of a motion document in this case, is proof that the Respondent has initiated his campaign "to annoy, to embarrass, to harass, and to oppress the alleged victim of the assault…and subject him to undue burden and expense." The FAA also argues that the ABC News reporter's July 18, 2024 email message is proof that Mr. Assadourian is engaged in actions that rise to "specific harm … aimed personally at the FAA's witnesses," and that the "FAA is also harmed" when its witnesses are chilled from testifying….

Mr. Assadourian [responded] that a protection order would conflict with his right to free speech under the First Amendment…. Mr. Assadourian disclosed that on July 27, 2024, he and his attorney, Ms. Azari, had appeared on an ABC News Live televised program to discuss the incident in this case and the FAA's charges…. The purpose of the ABC News Live interview was "to raise public awareness" about this case, as well as in other cases, where disputes between flight attendants and flying passengers have been reported. Mr. Assadourian argued that his case, and others like it, was a matter of great public interest….

The administrative law judge rejected the FAA's argument:

First, contrary to the FAA's Renewed Motion assertion the government is not "harmed" when a reporter contacts a government representative for comment about government action(s). Such contacts occur daily throughout the nation. They may also include inquiries about pending government litigation. In the instant case, the FAA may choose what it will or will not say or do, whenever ABC News Live (or other media workers) contacts it for comment on a pending case.

Second, … [t]he FAA's evidence shows that Mr. Assadourian has disclosed a litigation filing to the media which contains no witness information, and the media has expressed interest (on behalf of the public) in knowing more about the case. The FAA's evidence goes no farther than that. It fails to make a threshold showing on any of the FAA's assertions (as identified above). Instead, the FAA's arguments and assertions about Mr. Assadourian's motivations, and all the harm the FAA asserts to itself and its witnesses, remain speculative and assumptive, and are unsupported by any proffered evidence.

In short, the FAA has failed to carry its prima facie burden to show that: a) Mr. Assadourian's choice to engage in certain acts of public disclosure are wrong and/or harmful; b) Mr. Assadourian has malevolent intent because he contacted the press and disclosed a litigation document; c) Mr. Assadourian is trying to discourage FAA witnesses from testifying; d) any specific harm has occurred or is imminently pending to the FAA's witnesses; and/or e) any material harm has occurred or will occur to the adjudicative proceeding. Thus, the FAA's Renewed Motion should be denied, and Mr. Assadourian's responsive materials need not even be addressed….

Given the timing, content, lack of evidentiary support, and broadly worded requested relief in the FAA's July 19, 2024 Renewed Motion, the FAA appears to believe that public disclosure of any information in this case to media outlets is, in itself, a basis for a protective order. The FAA is mistaken in this belief.

It is well-established that FAA civil penalty adjudications are public proceedings. In public adjudications, the public has a right of access to litigation documents and disagreements, unless otherwise ordered by the tribunal. This general right of public access to the government public proceedings serves: a) to educate the public; and b) as a public check on government charging and prosecution decisions. The American Bar Association's ("ABA") Model Rules of Professional Conduct for lawyers appear in accord with this understanding that public policy supports reasonable disclosure of information during litigation, to the extent that such disclosure does not cause any material prejudice to the adjudicative proceeding….

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[Eugene Volokh] Interesting Case Striking Down a Traffic Law as Unconstitutionally Ambiguous

It's a 2009 case, McNair v. State (Ga.), but I just came across it. Georgia law provided:

The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle. Whenever practicable, the left turn shall be made to the left of the center of the intersection and so as to leave the intersection or other location in the extreme left-hand lane lawfully available to traffic moving in the same direction as such vehicle on the roadway being entered.

Do you see the ambiguity?

If only English had parentheses like computer languages or algebra! There are two ways of parsing the second sentence:

"Whenever practicable, the left turn shall be made to the left of the center of the intersection and so as to leave (the intersection or other location in the extreme left-hand lane) lawfully available to traffic moving in the same direction as such vehicle on the roadway being entered." "Whenever practicable, the left turn shall be made to the left of the center of the intersection and so as to leave (the intersection or other location) in (the extreme left-hand lane lawfully available to traffic moving in the same direction as such vehicle on the roadway being entered). That's the interpretation the government urged.

Under interpretation 2, you generally have to turn from the left lane to the left lane. Under interpretation 1, you generally may not turn from the left lane to the left lane, since you're supposed to leave the left lane available to traffic.

That's what the Georgia Supreme Court held:

It is the use of the verb "leave" and its interplay with "lawfully available to traffic moving in the same direction" in OCGA § 40–6–120(a)(2) that creates the ambiguity in the statute because of the two diametrically-opposite interpretations that can be given this word. The first interpretation is that a driver who wants to make a left turn onto a roadway with multiple lanes must make the turn in a manner that leaves the intersection or other extreme left-hand lane location lawfully available, i.e., open or clear, to traffic moving in the same direction on the roadway the driver has just entered. This interpretation applies "leave" in the context of its definition as "to permit to remain undisturbed … to permit to remain unoccupied… to let be without interference." Under this interpretation, OCGA § 40–6–120(a)(2) requires the driver to move into the right lane and leave the extreme left-hand lane available to other vehicles so they can travel unencumbered by the turning vehicle's presence. This interpretation is consistent with other rules of the road, particularly OCGA § 40–6–40(b), which requires all vehicles to "be driven in the right-hand lane then available for traffic" when they are "proceeding at less than the normal speed of traffic," a category that would include most vehicles that have just executed a left turn.

The second interpretation of OCGA § 40–6–120(a)(2) is that a driver who wants to make a left turn onto a roadway with multiple lanes must make the turn so that, when the driver departs from or "leaves" the intersection or other location, the turning vehicle is itself located in the lane farthest to the left that is lawfully available to traffic moving in that same direction. The interpretation applies "leave" in the context of its tertiary definition as "to go away or depart from." Hence, under this interpretation, the statute requires the driver making the left turn to exit, i.e., leave, the intersection or other location while the turning vehicle then proceeds to travel in the extreme left-hand lane lawfully available to traffic moving in the same direction. It was this interpretation of OCGA § 40–6–120(a)(2) that the State asserts as warranting McNair's conviction….

Although a criminal statute must be read according to the natural and obvious import of its language, our analysis above establishes that the language in OCGA § 40–6–120(a)(2) can be read as setting forth two directly contradictory ways for executing a left-hand turn onto a multi-lane roadway. Because of the language in the statute, both methods are equally plausible…. In light of the conflict in the language of OCGA § 40–6–120(a)(2), we conclude that a person of common intelligence could not determine with reasonable definiteness that the statute prohibits the making of a left turn into the right lane of a multi-lane roadway. Accordingly, we hold that OCGA § 40–6–120(a)(2) is too vague to be enforced against McNair, i.e., a driver of a vehicle making a left turn into a multi-lane roadway that lacks official traffic-control devices directing the driver into which lane to turn, see id. at (b), and is, therefore, unconstitutional under the due process clauses of the Georgia and United States Constitutions.

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[Eugene Volokh] Plaintiff Claims P. Diddy's Defamation Damaged Plaintiff's Drug Smuggling Business

[Plaintiff says he was "always willing to set up business deals with the rich for drugs."]

From Chief Judge Laura Taylor Swain's opinion Tuesday in Gonzalez v. Bad Boy Entertainment (S.D.N.Y.):

Plaintiff Alfredo P. Gonzalez, who appears pro se and is currently incarcerated in the Centennial Correctional Facility in Canon City, Colorado, brings this action asserting claims of defamation. He seems to allege that he is a citizen of Colorado, and he sues: (1) Bad Boy Entertainment ("Bad Boy"), which, he alleges, "is a corporation duly organized and existing under the laws of the [S]tate of New York"; and (2) Sean "P. Diddy" Combs, Bad Boy's Chief Executive Officer, whom he alleges is a citizen of the State of New York. Plaintiff seeks $666,000 in damages….

Plaintiff alleges the following: Due to what appear to be his connections with the Sinaloa Drug Cartel, on or about May 5, 2021, Plaintiff received a telephone call from an unidentified business partner of Combs. The business partner told Plaintiff that Combs "was wanting to set up some business deals with [the] Sinaloa Cartel." {Plaintiff seems to allege that he is a member of that cartel.}

Plaintiff responded by saying that he was "always willing to set up business deals with the rich for drugs." Combs's "business partner stated that [Combs] was looking to make a deal to get some young [g]irls/[b]oys for a party in New York." While Plaintiff wanted to speak to Combs himself, he told the business partner that such an arraignment "could not happen" because the cartel did "not sex traffic under age kids." The business partner told Plaintiff "that he ha[d] nothing to worry about [because] … Combs ha[d] everything on lock street slang for no one can fuck with us [sic]." Plaintiff told the business partner that there was "no money" in sex trafficking; the business partner then told Plaintiff that he was making "a big mistake for not tak[ing] the offer from … Combs," and the call ended without an agreement.

The same unidentified business partner of Combs later communicated again with Plaintiff, "asking once again if [Plaintiff] could help get some under[age] [b]oy[s] and [g]irls over the U.S. [b]order and that … [P]laintiff could come to the party and watch the shows they put on." Plaintiff refused; he told the business partner that he "want[ed] no part in their sex offender shit[,] … not to contact him[,] [and] that Sinaloa wants no part in their sex offender[ ] shit…." Plaintiff also insulted Bad Boy. The business partner then told Plaintiff "that he can make [Plaintiff's] life hell because of how much power he has in the streets." Plaintiff told him to "do what you do."

"Due to … Combs['s] [and Bad Boy's] defamation of … [P]laintiff[,] [Plaintiff] has lost all his business contacts in the [S]tate of New York…." Plaintiff was informed by his own business partner "that he cannot do business with [Plaintiff until Plaintiff] helps Bad Boy out. This has cost[ ] … [P]laintiff a lot of money." …

Plaintiff has failed to allege facts sufficient to show that he has standing to assert his claims…. "To establish injury in fact [for standing purposes], a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical."

Plaintiff appears to allege that the defendants have injured him with regard to his illegal drug smuggling and sales business by defaming him. Because Plaintiff's business is not alleged to be a legally protected interest, however, Plaintiff has not shown that the defendants have caused him an injury in fact for the purpose of establishing standing. See PharmacyChecker.com LLC v. Nat'l Ass'n of Bds. of Pharmacy (S.D.N.Y. 2024) ("The argument is perhaps best summed up in a leading civil procedure treatise: 'Standing would not be recognized for a smuggler who asserted that his drug traffic was disrupted. Although the smuggler had been injured in fact, … the asserted interest is not one the courts will protect.'" …

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