Eugene Volokh's Blog, page 286

[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.

The post Interesting Case Striking Down a Traffic Law as Unconstitutionally Ambiguous appeared first on Reason.com.

[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.'" …

The post Plaintiff Claims P. Diddy's Defamation Damaged Plaintiff's Drug Smuggling Business appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: August 15, 1938

8/15/1938: Justice Stephen Breyer's Birthday.

Justice Stephen Breyer

 

The post Today in Supreme Court History: August 15, 1938 appeared first on Reason.com.

[Eugene Volokh] UCLA Appeals Yesterday's Preliminary Injunction That Ordered It to Avoid Repetition of Exclusion of Jewish or Pro-Israel Students from Parts of Campus

As yesterday's post noted, the injunction provides,

[1.] Defendants [UCLA officials] … are prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.

[2.] Defendants are prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA's programs, activities, and campus areas, whether as a result of a de-escalation strategy or otherwise.

[3.] On or before August 15, 2024, Defendants shall instruct Student Affairs Mitigator/Monitor ("SAM") and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.

[4.] For purposes of this order, all references to the exclusion of Jewish students shall include exclusion of Jewish students based on religious beliefs concerning the Jewish state of Israel.

[5.] Nothing in this order prevents Defendants from excluding Jewish students from ordinarily available programs, activities, and campus areas pursuant to UCLA code of conduct standards applicable to all UCLA students.

[6.] Absent a stay of this injunction by the United States Court of Appeals for the Ninth Circuit, this preliminary injunction shall take effect on August 15, 2024, and remain in effect pending trial in this action or further order of this Court or the United States Court of Appeals for the Ninth Circuit.

For more on the District Court's reasoning, see here. Under Ninth Circuit rules, appeals of preliminary injunctions are generally heard within several months.

The post UCLA Appeals Yesterday's Preliminary Injunction That Ordered It to Avoid Repetition of Exclusion of Jewish or Pro-Israel Students from Parts of Campus appeared first on Reason.com.

[Eugene Volokh] Lawsuit Over Tweet Urging University to Fire Professor for Alleged "Racism, Sexism, and Transphobia" Can Go Forward

From Judge Jeffrey Schmehl's decision in Manco v. St. Joseph's University (E.D. Pa.):

On February 25, 2021, Loue tweeted at SJU  as follows: "but are you gonna fire Greg Manco who has done nothing but contribute to a hostile learning environment with his racism, sexism, and transphobia??????" SJU responded to Loue's tweet by saying, "Saint Joseph's continues to strive to be a welcoming, diverse and inclusive community. The University acts quickly to investigate reports of bias, harassment, and other incidents. Plaintiff then alleges that "Loue was never a student of Dr. Manco and knew this tweet to be false."

Similar to the motions to dismiss previously filed by the other student defendants and decided by this Court in an opinion dated January 25, 2024, Loue argues that her tweet of February 25, 2021, enjoys absolute privilege as she conveyed information that commenced an investigation pursuant to federal statute or regulations. However, the instant tweet of Loue is distinguishable from the privileged communications between students and specific individuals at SJU who were involved in the investigation process. A general tweet directed to a private university cannot be found to have intended to commence an investigation.

The examples in the January 25, 2024, opinion where I found student communications were entitled to immunity were emails and direct correspondence to specific individuals at SJU, not just random public tweets. Loue's tweet is not entitled to immunity for that reason.

Also, I find that her tweet was capable of a defamatory meaning as a person reviewing SJU's Twitter account could read it and believe that Plaintiff is racist, sexist and/or transphobic. Accordingly, Loue's Motion to Dismiss as to her February 25, 2021, tweet based upon immunity is denied.

Defendant Loue also seeks to have Plaintiff's claim of false light dismissed. Under Pennsylvania law, to establish a false light claim, Plaintiff "must allege facts showing that the published material is not true, is highly offensive to a reasonable person, and is publicized with knowledge or in reckless disregard for its falsity."

Whether the allegations contained in Loue's tweet are false is contested, but taken in a light most favorable to Manco, they can be read to imply that there is some chance that Manco is a racist, sexist and/or is transphobic. This is certainly a negative implication. In a light most favorable to Manco, even if Loue's Tweet was true, a "discrete presentation" could plausibly cast Plaintiff in a false light. Accordingly, this claim will also be allowed to remain.

Next, Loue seeks to have Plaintiff's claim of tortious interference dismissed. First, accepting all allegations in the Second Amended Complaint as true, I find that Plaintiff has pled sufficient facts at this stage of the proceedings to allow his claim of tortious interference with contract as to Loue to proceed to discovery. Manco has pled that the student defendants "engaged in activities, … to have Dr. Manco suspended and his contract terminated." It could be argued that these student activities allegedly interfered with Manco's employment contract and were not justified. Therefore, I will allow this claim to remain as to Loue….

Note that many courts have held that general accusations of racism, anti-Semitism, and the like—or for that matter of Communism—are opinions and therefore can't be libelous, but accusations that someone has done something racist or otherwise bigoted (or belongs to the Communist Party or some other group) are treated as factual and thus potentially libelous. To quote Judge Schmehl's earlier opinion,

Defamation is a state law cause of action, and as such, what statements can be considered defamatory are subject to Pennsylvania law. In Pennsylvania, "a simple accusation of racism is not enough." The accusation of racism must imply more, like suggesting "that the accused has personally broken the law in a racist manner." In MacElree, for instance, there was an actionable accusation of racism because the defendant called the District Attorney "the David Duke of Chester County," a statement that "implied that he was unlawfully abusing his power as district attorney, an elected office, to further racism." See also Wolverton v. Padgett-Patterson (M.D. Pa. 2022) (finding that plaintiff's allegations that defendant's Facebook post accused him of racism and singled him out in public as a racist are not actionable in a defamation action)….

"Pure opinions cannot defame." Opinions based on "disclosed facts are absolutely privileged, no matter how derogatory they are." This holds true "even when an opinion is extremely derogatory, like calling another person's statements `anti-Semitic'." But an opinion that can reasonably be understood to "imply undisclosed defamatory facts may support a cause of action based upon those unenumerated facts."

The post Lawsuit Over Tweet Urging University to Fire Professor for Alleged "Racism, Sexism, and Transphobia" Can Go Forward appeared first on Reason.com.

[Eugene Volokh] "Personal Protection Order" Statute May Be Unconstitutional to the Extent It Authorizes Ex Parte Orders That Restrict Speech

[The court is discussing orders "enjoining protected speech or conduct ... without an adversarial hearing or adjudication on the merits that the speech or conduct is not protected."]

From today's decision by Chief Judge Hala Jarbou (W.D. Mich.) in Booth v. Fink; seems correct to me, and applicable to other states besides Michigan:

Booth, who worked as a corrections officer for the MDOC [Michigan Department of Correcitons], alleges that in January 2022, Fink investigated him for a purported violation of the MDOC's social media policy after Booth posted a video on his Facebook account showing him being "sucker punched" by a prisoner. Booth alleges he filed a lawsuit against [MDOC internal affairs investigator] Fink challenging Fink's interpretation of the policy.

Later, in May 2023, the Michigan State Police arrested Fink in connection with a criminal investigation. On June 27, 2023, Fink was arraigned at the Livingston County District Court due to criminal charges against him related to prostitution. Booth made a post on Facebook regarding these events. The post consists of a video of Fink leaving his vehicle and walking into the county courthouse, as well as a copy of a docket sheet showing that Fink was scheduled for a probable cause hearing in a criminal case against him. In the post, Booth wrote, "Someone doesn't look to happy!!!" Booth is the one who took the video of Fink….

The day after the court hearing, Fink applied for an ex parte personal protection order ("PPO") against Booth from the Clinton County Circuit Court. According to the petition, Booth and Fink were both employees of the MDOC at the Charles Egeler Reception and Guidance Center. Booth had filed a federal lawsuit against Fink regarding Fink's investigation of Booth. Fink claimed that he was ordered to not have contact with Booth due to that lawsuit. Fink also contended that the MDOC had suspended Booth from work in April 2023 due to a "threatening" Facebook post in which Booth named Fink and other MDOC employees.

According to Fink, Booth also attended a court hearing involving Fink that had "nothing to do with [Booth], the MDOC, or [Fink's] employment with the MDOC." Fink contended that, at the hearing, Booth placed a camera in Fink's face, followed him around the courtroom taking pictures, stood next to him while Fink sat at a table, entered the courtroom when Fink did, and later followed Fink out of the courtroom. Booth then filmed Fink as he walked out of the courthouse and filmed him walking toward his vehicle and then driving away.

As further evidence to support his petition for the PPO, Fink provided a copy of a "stop order" from the MDOC prohibiting Booth from entering MDOC grounds, which Booth had posted on his Facebook page. Fink appears to have also provided the court a printed copy of the Facebook post by Booth with the comment "Someone doesn't look to happy!!!" The printed copy included one frame of the video showing Fink standing outside the county courthouse.

The state court issued the ex parte PPO on June 29, 2023, prohibiting Booth from "following or appearing within sight of" Fink, appearing at Fink's residence, "approaching or confronting [Fink] in a public place or on private property," or "photographing or videotaping" Fink. The ex parte PPO also prohibited Booth from "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to [Mich Comp. Laws §] 750.411s." …

Michigan's nondomestic PPO statute allows an individual to seek a PPO in circuit court to enjoin stalking or harassment, i.e., "conduct that is prohibited under section 411h, 411i, or 411s of the Michigan penal code, 1931 PA 328, MCL 750.411h, 750.411i, and 750.411s." Section 750.411h prohibits "stalking," which involves "a willful course of conduct involving repeated or continuing harassment of another individual[.]" Harassment involves "repeated or continuing unconsented contact," but it "does not include constitutionally protected activity or conduct that serves a legitimate purpose." Section 750.411i prohibits "aggravated stalking," which incorporates the same definitions of stalking and harassment that are found in § 750.411h. Section 750.411s prohibits posting a message on the internet or through any medium of communication if "all of the following apply:"

The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim. Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested. Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested. Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.

The latter statute

is designed to prohibit what some legal scholars have referred to as "cyberstalking by proxy" or "cyberharassing by proxy." In other words, … it is not the postings themselves that are harassing to the victim; rather, it is the unconsented contacts arising from the postings that harass the victim. In particular, the statute envisions a scenario in which a stalker posts a message about the victim, without the victim's consent, and as a result of the posting, others initiate unconsented contacts with the victim. These unconsented contacts, arising from the stalker's postings, result in the harassment of the victim. In this manner, by posting a message that leads to unconsented contact, the stalker is able to use other persons to harass the victim.

Like the stalking and harassment provisions, § 750.411s expressly permits "constitutionally protected speech or activity."

A court can issue a PPO without notice to the individual to be enjoined if the petitioner can show that "immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will precipitate adverse action before a personal protection order can be issued." … As a result of the ex parte PPO …, Booth's license to carry a concealed pistol was suspended.

Booth argues that Michigan's nondomestic PPO statute is unconstitutional because it permits a judge to enter an order enjoining protected speech or conduct on an ex parte basis, without an adversarial hearing or adjudication on the merits that the speech or conduct is not protected. According to the Supreme Court,

There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

Carroll v. President & Comm'rs of Princess Anne (1968); accord Procter & Gamble Co. v. Bankers Trust Co. (6th Cir. 1996).

Ex parte orders restraining protected speech or conduct are particularly problematic because, without "evidence and argument offered by both sides," "there is insufficient assurance of the balanced analysis and careful conclusions which are essential in the area of First Amendment adjudication." Furthermore, "[a]n order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order." "The participation of both sides is necessary for this purpose" and "the failure to invite participation of the party seeking to exercise First Amendment rights reduces the possibility of a narrowly drawn order, and substantially imperils the protection which the Amendment seeks to assure." …

Booth had an opportunity to challenge the ex parte PPO after it issued. However, "the denial of a basic procedural right … is not excused by the availability of post-issuance procedure" that, "at best, could have shortened the period" in which Booth was allegedly prevented from exercising his First Amendment rights.

To be sure, as indicated above, the relevant provisions of Michigan's PPO statute all expressly permit constitutionally protected conduct. In addition, the Michigan Court of Appeals has imposed an affirmative obligation on circuit courts to ensure that a PPO will not impact protected speech or conduct. Of particular relevance here is Mich. Comp. Laws § 750.411s, which is the statute cited by the circuit court in Booth's case when enjoining him from posting messages about Fink through the Internet. Before issuing a PPO under that provision, the Michigan Court of Appeals requires a court to find that "a prior posting violates that statute." And if the court finds such a violation, then the court must further "ensure that constitutionally protected speech will not be inhibited by enjoining an individual's online postings." The court can enjoin such postings only "[i]f the court determines that constitutionally protected speech will not be inhibited[.]" …

[T]he statute's exceptions for protected conduct mean that, to some extent, the statute is not to blame if the circuit court's order violated Booth's First Amendment rights. An order restricting protecting conduct is technically prohibited by the statute. Nevertheless, the claim Booth raises here is primarily a procedural one, i.e., whether a court can decide how a PPO would impact protected conduct on an ex parte basis, without the possibility of participation by the person who will be subject to the court's restraints. In … Carroll and Procter, courts indicated that an ex parte process does not adequately protect First Amendment rights. Yet that is the process that the Michigan PPO statute, as well as the Michigan Court of Appeals' decisions interpreting it, appear to permit.

The concerns in Carroll about ex parte proceedings are particularly salient here, where the person who sought the PPO (Fink) appears to have been a government employee attempting to restrict public comment on criminal proceedings against him. Booth plausibly contends that his video recordings and social media posts about these circumstances touched on a matter of public concern. Such speech cuts to the "heart of the First Amendment's protection."

For that reason, the Michigan Court of Appeals instructs that "when it is asserted that [online] postings involve a matter of public concern, the court must consider the content, form, and context of the … postings to determine whether they involve constitutionally protected speech on a matter of public concern." That safeguard is important, but it is unlikely that a person applying for a PPO will be the one to "assert" that the speech at issue involves a matter of public concern, which is why an ex parte proceeding may be inadequate. In Booth's case, for instance, it is possible that the state court was unaware of the full content and context for Booth's speech (including the pending criminal charges against Fink) because Booth did not have an opportunity to present it. And had the court been aware of his perspective and intent, it might have issued a different PPO at the outset rather than modifying it two weeks later….

Carroll does allude to a possible exception for "special, limited circumstances" where the speech "is so interlaced with burgeoning violence that it is not protected by the First Amendment." However, Booth's case does not appear to fit that particular exception. Moreover, the facts of Carroll are instructive. That court overturned a 10-day restraining order that the state court believed was necessary to protect community members from a white supremacist rally consisting of "deliberately derogatory, insulting, and threatening language" that could be construed by listeners as a "provocation" to black minorities and an "incitement to the whites." The restraining order prohibited a white supremacist organization from holding further meetings that would "tend to disturb and endanger the citizens of the County." The defendants argued that this restraint was "justified by the clear and present danger of riot and disorder deliberately generated by petitioners."

The Supreme Court disagreed, finding the state's interests "adequately served by criminal penalties imposed after freedom to speak has been so grossly abused that its immunity is breached." The Court "insisted upon careful procedural provisions, designed to assure the fullest presentation and consideration of the matter which the circumstances permit." If the circumstances in Carroll did not justify an ex parte prior restraint, it is difficult to see the how the circumstances in Booth's case could have justified one….

To be clear, the Court makes no final conclusion about whether the nondomestic PPO statute is unconstitutional as applied to Booth, whether Booth was engaged in protected speech or conduct, whether an ex parte proceeding was improper, or whether Booth suffered any constitutional injury. Instead, the Court finds that [defendant] is not entitled to judgment based on the pleadings alone….

The post "Personal Protection Order" Statute May Be Unconstitutional to the Extent It Authorizes Ex Parte Orders That Restrict Speech appeared first on Reason.com.

[Orin S. Kerr] A Ruling That Eliminates Important Privacy Rights in Many Stored Internet Contents—And The Legal Challenge to It

[With a petition for review now pending before the Supreme Court of California.]

18 U.S.C. § 2702, part of the Stored Communications Act, is one of those laws that you rely on every day but you have probably never heard of before.  The law blocks Internet communications and storage providers from disclosing the contents of your online accounts.  Think about the really private stuff you store online, like your emails, photos, text messages, and other communications.  Section 2702 is basically the Internet's privacy wall for all of those stored contents. Unless an explicit exception to the statute applies, such as the government coming with a warrant, your provider is not allowed to share your private account contents with others.

Or so everyone has thought.

On July 23, 2024, the California Court of Appeal handed down a surprising ruling in Snap, Inc. v. Superior Court (Pina), holding that the SCA does not apply to most remotely-stored online messages. The court interpreted the law's privacy bar to not apply if providers have a right of access to customer data for their own business purposes. In the court's view, the § 2702 disclosure bar can only apply if the companies have no right of access to user accounts beyond the access required for providing storage and processing. The court then applied that standard to the contents at issue in the case—a Facebook account, an Instagram account, and a Snapchat account—to hold that § 2702(a) does not bar their disclosure.

The case arose in a criminal prosecution, in which the defendant is trying to compel companies to turn over user messages from the victim's accounts. The defendant, Adrian Pina, is accused of murdering his brother Samuel.  Samuel purportedly had accounts with Instagram, Snapchat, and potentially other providers.  To help prepare his defense, the defendant wants the contents of his brother's accounts.  To that end, his counsel served subpoenas on Snap (which operates Snapchat) and Meta (which operates Facebook and Instagram) seeking disclosure of account contents.

Snap and Meta declined to produce account contents, however, invoking the privacy bar imposed by § 2702.  According to Snap and Meta, the privacy wall of § 2702 applies and protects their users' messages and account contents.  That's where the new ruling comes in: The Court of Appeal rejected the arguments of Snap and Meta, ordering them to comply with the subpoenas on the ground that the § 2702 privacy wall does not apply to Instagram accounts or Snapchat accounts—and perhaps lots of other kinds of accounts.

This is, I hope, not the end of the story.

I have joined the legal team representing Snap.  We have filed this Petition for Review asking the Supreme Court of California to review the Court of Appeal's decision and to reject its reasoning.  We hope that the Court will restore the proper role of § 2702 in protecting the privacy of everyone's online accounts.  Meta has also filed a Petition for Review, which you can read here.

I don't plan to blog about this case again, given my role as counsel for Snap.  But I did want to flag the case for interested readers.

The post A Ruling That Eliminates Important Privacy Rights in Many Stored Internet Contents—And The Legal Challenge to It appeared first on Reason.com.

[Eugene Volokh] Minnesota Court of Appeals Reverses Prior Restraint on TV Station's Publication of Court Document

From In re TEGNA v. Sandoval, decided yesterday by the Minnesota Court of Appeals (Chief Judge Susan Segal, joined by Judges Bratvold and Larson); seems right to me:

KARE 11 obtained a copy of [a] sentencing memorandum [in Sandoval's criminal case] from Minnesota Court Records Online (MCRO). The district court subsequently determined that the sentencing memorandum had been incorrectly designated as a public document and granted the defendant's request for a protective order, which provides that:

No additional copies of the Sentencing Memorandum or any portion of the Sentencing Memorandum shall be made by parties who had accessed it, or any other representative or agent of the parties who accessed it; Said Sentencing Memorandum shall not be used for any purpose other than consideration by the court and the parties for sentencing; Said Sentencing Memorandum shall not be publicly exhibited, shown, displayed, used for educational, research or demonstrative purposes, or used in any other fashion, except in judicial proceedings in the above-referenced action; and Said Sentencing Memorandum may be viewed only by the parties; their counsel and their counsel's employees, investigators, and experts; and as directed by the Court for judicial proceedings in the above-referenced action.

In addition to signing the written order, the district court ordered on the record that "if there were any copies that were reproduced … those should be destroyed and are not to be distributed." We refer to the district court's written and oral orders together as "the July 19 order." …

[T]he press may not be sanctioned for publishing information that it lawfully obtains, "absent a need to further a state interest of the highest order." Fla. Star v. B.J.F. (1989); [other cases]. And any such sanction must be narrowly tailored to meeting that state interest.

We conclude that the July 19 order is a prior restraint and that, on the facts of this matter, the heavy presumption against prior restraints has not been overcome….

Sandoval first identifies his right to a fair trial under the Sixth Amendment [as a supposedly compelling government interest]. In Nebraska Press Association v. Stuart (1976), the United States Supreme Court addressed a challenge by the media to an order that prohibited reporting on certain information before a jury could be impaneled in a murder case. The Court recognized that the media's First Amendment rights needed to be balanced against the defendant's Sixth Amendment fair-trial rights, which might be frustrated by pretrial publicity. The Court framed the issue as whether "the gravity of the evil, discounted by its improbability, justifies such an invasion of free speech as is necessary to avoid the danger." The Court then determined that, notwithstanding "the evil pretrial publicity can work," the probability of that evil "was not demonstrated with the degree of certainty our cases on prior restraint require." The Court also was unable to "conclude that the restraining order actually entered would serve its intended purpose." Here, Sandoval does not explain how KARE 11 reporting on the sentencing memorandum would impact his fair-trial rights. Unlike Nebraska Press Association, this case does not involve pretrial publicity or concerns about a tainted jury pool. Indeed, there was no trial, and thus no jury, in this case because Sandoval entered a guilty plea. We thus

are not persuaded that the July 19 order implicates Sandoval's Sixth Amendment rights.

Sandoval also argues that the July 19 order is justified by what he characterizes as "statutory privacy rights." He cites to statutory provisions that codify privileges between medical providers and their patients and attorneys and their clients, govern the dissemination of civil commitment treatment reports, and preserve the right of civilly committed patient with capacity to make decisions regarding access to medical records. He also cites to provisions of court rules that require or allow certain materials to be filed confidentially or under seal and allow certain proceedings to be closed to the public.

Each of these provisions no doubt serves important purposes, but the validity of the provisions is not at issue here. Rather, the question is whether, on the specific facts here, the July 19 order is necessary to meet a government interest of the highest order. We conclude that these statutes and rules, without more, do not demonstrate that necessity.

Sandoval asserts that this court should employ a less exacting test in determining the permissibility of the July 19 order. He relies on three decisions from the United States Supreme Court that, he asserts, employ a less demanding balancing test. The first is Nebraska Press Association, which we have discussed and distinguished above. This case does not involve competing constitutional rights such that Nebraska Press Association would apply to require balancing of those rights.

The second case Sandoval relies on is Seattle Times Company v. Rhinehart (1984). In Rhinehart, the United States Supreme Court addressed "the issue whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gleaned through the pretrial discovery process." The Seattle Times challenged a protective order that precluded it from reporting on information that it had obtained as a litigant during discovery. The Supreme Court applied the level of scrutiny applicable to content-neutral regulations that incidentally restrict free speech, asking "whether the practice in question furthers an important or substantial governmental interest unrelated to the suppression of expression and whether the limitation of First Amendment freedoms is no greater than necessary or essential to the protection of the particular governmental interest involved."

The Court then noted that "[a] litigant has no First Amendment right of access to information made available only for purposes of trying his suit." Thus, the Court reasoned, "continued control over the discovered information does not raise the same

 

specter of governmental censorship that such control might suggest in other situations." The Court thus reasoned that "restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information." And the Court found significant "that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny." The Court concluded that "judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a lesser extent than would restraints on dissemination in a different context." The Court's evaluation of the restraint thus "[took] into account the unique position that such orders occupy in relation to the First Amendment."

After emphasizing the "unique position" of protective orders in civil litigation, the Supreme Court next concluded that the rule authorizing such orders "furthers a substantial governmental interest unrelated to the suppression of expression," namely, limiting the potential for abuse of the liberal discovery allowed in civil litigation.  And the Court held that when "a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment."

We conclude that Rhinehart is inapposite for several reasons. First and foremost, KARE 11 did not obtain the sentencing memorandum as a party in civil litigation subject to a protective order. This case thus does not fall into the unique context addressed by the Supreme Court in Rhinehart. Second, the July 19 order is not content neutral; it prohibits dissemination of specific information—the sentencing memorandum. Third, the July 19 order precludes KARE 11 from reporting on information that it lawfully obtained from a public source. Thus, this case appears to involve "the kind of classic prior restraint that requires exacting First Amendment scrutiny."  In sum, we are not persuaded that Rhinehart applies to lessen the scrutiny that this court must apply to the July 19 order.

The third case that Sandoval relies on is Butterworth v. Smith (1990). In that case, the United States Supreme Court held that "insofar as [a] Florida law prohibit[ed] a grand jury witness from disclosing his own testimony after the term of the grand jury [had] ended, it violate[d] the First Amendment." The Supreme Court in Butterworth did discuss the need to "balance respondent's asserted First Amendment rights against Florida's interests in preserving the confidentiality of its grand jury proceedings." But the Court rejected Florida's argument to apply the less exacting standard from Rhinehart. Instead, the Court applied the principle that "where a person lawfully obtains truthful information about a matter of public significance, … state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." The Court acknowledged the state's interest in maintaining grand jury secrecy but concluded that "[s]ome of these interests are not served at all by the Florida ban on disclosure, and those that are served are not sufficient to sustain the statute." Thus, Butterworth does not provide support for the less exacting balancing test that Sandoval asks this court to apply here.

Applying the exacting scrutiny required by the most apposite Supreme Court decisions, we conclude that the July 19 order is an unconstitutional prior restraint. To be sure, Sandoval has an interest in maintaining the privacy of his medical and other personal information, and he reasonably asserts that reporting on his medical history may negatively impact him. But we are not persuaded that Sandoval's privacy interest is "of the highest order," as it must be to justify a content-based prior restraint. Moreover, it is not clear that the July 19 order will further Sandoval's asserted interest, given the reporting that has transpired even without reliance on the sentencing memorandum. Sandoval has not explained what information in the sentencing memorandum, not previously disclosed, is likely to cause him additional harm. Under these circumstances, we conclude that the "heavy presumption" against prior restraints has not been overcome….

Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Minnesota Court of Appeals Reverses Prior Restraint on TV Station's Publication of Court Document appeared first on Reason.com.

[Ilya Somin] What Milton Friedman Got Wrong About Immigration and the Welfare State

[He was wrong to think "You cannot simultaneously have a welfare state and free immigration."]

Milton Friedman. (NA)

 

Immigration restrictionists love to quote Milton Friedman's line that "[y]ou cannot simultaneously have a welfare state and free immigration." There are lots of other rationales for immigration restriction. But this one has obvious resonance to people who otherwise favorite free markets. In a helpful recent post, economist Bryan Caplan, a leading expert on immigration policy, outlines why Friedman was wrong on this point. As Caplan points out, evidence indicates that most immigrants actually contribute more to the public fisc than they take out. The Congressional Budget Office estimates that the surge in migration since 2021 will reduce the federal budget deficit by almost $1 trillion over the next decade.

In addition, as Bryan notes, if immigrants really were a fiscal drain, there is the obvious "keyhole solution" of limiting immigrants' eligibility for welfare benefits. The US already does this to a substantial extent under the 1996 Welfare Reform Act, and such exclusion could be broadened, if necessary. When asked about this possibility in the same 1999 interview where he made the more famous comment about immigration, Friedman admitted  he "ha[dn't] really ever thought" of it. That's understandable, given that immigration wasn't one of Friedman's areas of expertise, and he had never written a book or article about the subject. Even the greatest thinkers sometimes have poorly thought out views on issues they haven't studied carefully.

Bryan offers some additional well-taken criticisms of Friedman's comments on immigration, including pointing out that Friedman was wrong to suggest that "the movement of goods is a substitute for the movement of people." In some cases it is indeed a good substitute, but in many it is clearly not.

It's also worth noting that the idea that we can restrict liberty whenever doing so might substantially reduce welfare spending, has dire implications Friedman would have rejected in other contexts. Consider some examples:

"You cannot simultaneously have a welfare state and legalize alcoholic beverages."

If alcoholic beverages are legal, some people will become alcoholics, and become unable to hold down a job.  They could end up on welfare. Also, alcoholism often leads to health problems that increase government health care expenditures, in a world where we have programs like Medicaid and Medicare.

"You cannot simultaneously have a welfare state and unrestricted consumption of fatty foods."

Eating too much food of this type can lead to obesity, and obesity—like alcoholism—often causes health problems that increase welfare state spending on health care. At the very least, this can justify heavy government regulation and taxation of such foods, even if not an outright ban.

"You cannot simultaneously have a welfare state and end the War on Drugs."

Like alcoholism and obesity, drug use often leads to health problems that in turn increase government spending on health programs. Plus, some drug addicts end up on welfare because they can't hold down a job.

"You cannot simultaneously have a welfare state and unrestricted reproduction."

The children of poor people are disproportionately likely to use welfare benefits. Even those from relatively affluent families are likely to consume public education spending.

Examples like this can easily be multiplied.  Many, many exercise of liberty have potential downsides that can lead to increased welfare state expenditures in some situations.

You can consistently bite all these bullets if you're a thoroughgoing supporter of government intervention, as some conservative and left-wing paternalists are. But libertarians (and many others who value personal liberty) reject the welfare spending rationale for restricting liberty in these other cases, or at least presumptively do so (perhaps small decreases in liberty would be acceptable if they are the only way to prevent really massive spending increases). They should do the same when it comes to immigration restrictions.

Indeed, the potentially spending-minimizing regulations libertarians reject in these other cases are actually often much less severe constraints on liberty than immigration restrictions are. Most people can live a generally free and happy life even if they rarely or never drink alcohol, do not partake of any currently illegal drugs, and strictly limit consumption of fatty foods. By contrast, immigration restrictions consign millions to a lifetime of poverty and oppression. I don't know about you. But I'd much rather forego alcoholic beverages and most fatty foods than have to spend the rest of my life in Cuba or Venezuela. Immigration restrictions also severely limit the liberty (especially the economic liberty) of receiving-country natives, as well as that of would-be migrants.

Finally, it's worth noting that those who like to quote Friedman's statement on immigration and the welfare state generally overlook the fact that he was highly supportive of illegal immigration, because illegal migrants aren't eligible for most welfare benefits:

That's an interesting paradox to think about. Make it legal and it's no good. Why? Because as long as it's illegal the people who come in do not qualify for welfare, they don't qualify for social security, they don't qualify for the other myriad of benefits that we pour out from our left pocket to our right pocket. So long as they don't qualify they migrate to jobs. They take jobs that most residents of this country are unwilling to take. They provide employers with the kind of workers that they cannot get. They're hard workers, they're good workers, and they are clearly better off.

Friedman was largely right about illegal immigration. But making it legal actually improves the situation, by enabling migrants to work at a wider range of jobs, acquire more skills, and assimilate more fully. And the fiscal effects are still a net positive.

I critique the welfare-spending rationale for migration restrictions in greater detail in Chapter 6 of my book Free to Move: Foot Voting, Migration, and Political Freedom.

The post What Milton Friedman Got Wrong About Immigration and the Welfare State appeared first on Reason.com.

[Eugene Volokh] Montana S. Ct.: Abortion Parental Consent Law Violates State Constitution's Express Right to Privacy

From today's opinion in Planned Parenthood v. State, written by Justice Laurie McKinnon:

The Consent Act conditions a minor's right to obtain an abortion on parental consent unless a judicial waiver is obtained. It imposes no corresponding limitation on a minor who seeks medical or surgical care otherwise related to her pregnancy or her child. We decide today that the classification created by the Legislature violates the fundamental right of a minor to control her body and destiny as guaranteed by Article II, Section 10, of the Montana Constitution, without adequate justification from the State. The Consent Act, therefore, cannot be sustained against Plaintiffs' privacy and equal protection challenges.

Because a minor's right to control her reproductive decisions is among the most fundamental of the rights she possesses, and because the State has failed to demonstrate a real and significant relationship between the statutory classification and the ends asserted, we hold that the Consent Act violates the Constitution of the State of Montana.

The Montana Constitution expressly provides,

Right of Privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest….

Rights of Persons Not Adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.

The opinion is long and detailed; if you're interested in the reasoning, read it here.

The post Montana S. Ct.: Abortion Parental Consent Law Violates State Constitution's Express Right to Privacy appeared first on Reason.com.