Eugene Volokh's Blog, page 302

[Eugene Volokh] Residents' Claim That S.F. Failed to Adequately Police Tenderloin Sidewalks May Go Forward on Disability Law Theory

From today's decision by Judge Jon Tigar (N.D. Cal.) in Roe v. City of S.F.:

Plaintiffs are residents and businesses in the Tenderloin neighborhood in San Francisco. Plaintiffs allege that the City treats the Tenderloin as a "containment zone" for narcotics activities. Specifically, Plaintiffs contend that "for years the City has allowed individuals to openly buy and use narcotics in the Tenderloin, and to remain, under the obvious influence of drugs, on the sidewalks and public spaces of the neighborhood." "Addicts living on the Tenderloin's streets foreseeably support their habit by stealing (e.g., shoplifting, car break-ins, burglaries, robberies) and hawking the stolen merchandise on the sidewalks." And "as their disease progresses, their mental and physical health declines, resulting in them acting erratically, ignoring serious medical problems (e.g., open sores at injection sites), rummaging through trash, discarding garbage on the sidewalk around them, going partially clothed, and defecating in public." As a result, Plaintiffs allege "the City-owned public walkways and spaces in the Tenderloin are dangerous, unsanitary and no longer open and accessible to plaintiffs and other members of the public."

Plaintiffs sued, claiming that the failure to enforce the law was unconstitutional, but the court said no (correctly applying the existing precedents, I think):

But as the Supreme Court recently reiterated "a citizen lacks standing to contest the
policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." This is because "when the Executive Branch elects not to arrest or prosecute, it does not exercise coercive power over an individual's liberty or property, and thus does not infringe upon interests that courts often are called upon to protect."

But it allowed the case to go forward on the theory that the City's policies burdened disabled residents in violation of federal disability rights law:

Plaintiffs here allege that the "sidewalks and public spaces" in their neighborhood are impassable and inaccessible to them due to "[e]ncampments and bulky items, such as duffle bags, shopping carts, and disassembled bicycles." … [T]hese allegations put the City on notice of how the barriers prevent Plaintiffs from full and equal access—encampments and other items obstruct their path such that those with walkers and other mobility issues are unable to utilize the sidewalks. See Hood v. City of Sacramento, No. 2:23-cv-00232-KJM-CKD, 2023 WL 6541870, at *6 (E.D. Cal. Oct. 6, 2023) (finding allegations that plaintiffs were disabled and encampments and debris blocked sidewalk access which prevented access to locations within the City were sufficient to state a Title II claim).

Seems like a strange legal rule to have—courts can't intervene when the government fails to protect ordinary people from people illegally blocking sidewalks, but must intervene when the government fails to protect disabled people from the same behavior—but perhaps this is the rule we do have. (I'm not an expert on disability law, so I can't speak to how sound this decision is as a matter of current federal law.)

The post Residents' Claim That S.F. Failed to Adequately Police Tenderloin Sidewalks May Go Forward on Disability Law Theory appeared first on Reason.com.

[Ilya Somin] Podcast Interview With Jay Nordlinger of National Review

[Nordlinger's questions and my answers covered a wide range of topics on law, public policy, and more.]

Jay Nordlinger of National Review interviewed me for the latest episode of his Q&A podcast. We covered a wide range of topics, including shortcomings of the Constitution, why I don't revere any Supreme Court justices, academic freedom, Tolkien's The Lord of the Rings, American exceptionalism, and more.

It was an honor to be interviewed for a podcast whose previous interviewees include such vastly more distinguished people as Nathan Sharansky, Nobel Prize-winning economist Vernon Smith, and more. Nordlinger posted a summary of some of the issues we covered at the National Review website. I have embedded the podcast below.

Here are links to some of the writings mentioned in the podcast:

1."Things I Hate About the Constitution."

2. My critique of the Supreme Court's Trump immunity decision.

3. My 2017 exchange with future GOP VP nominee J.D.  Vance, and more recent post about his hostility to free markets.

4. post on the Enlightenment liberal ideology of the Declaration of Independence and the Founding.

5. "Immigration and the Principles of the Declaration of Independence."

6. My book Free to Move. The Introduction includes a brief discussion of how J.D. Vance's Hillbilly Elegy illustrates the benefits of empowering more people to "vote with their feet."

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[Jonathan H. Adler] En Banc Fifth Circuit Upholds Mississippi Felon Disenfranchisement

[The full court rejects an Eighth Amendment challenge to a provision in the Mississippi Constitution.]

Yesterday, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, upheld a provision of the Mississippi Constitution that deprives convicted felons of the right to vote against an Eighth Amendment challenge. The vote was 13-6. Judge Edith Jones wrote for the majority, joined by Chief Judge Richman and Judges Smith, Elrod, Southwick, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson. Judges Haynes and Ramirez also concurred in the judgment. Judge Dennis dissented, joined by Judges King, Stewart, Graves, Higginson, and Douglas.

Judge Jones' opinion for the en banc court in Hopkins v. Watson begins:

This en banc court convened to reconsider a panel decision holding that Section 241 of the Mississippi Constitution, which disenfranchises those convicted of certain felony offenses, fails the test of the Eighth Amendment, as incorporated by the Fourteenth Amendment's Due Process Clause. We reject that result because the United States Constitution cannot properly be so interpreted. The Supreme Court, in Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), reaffirmed a body of constitutional law expressly permitting States to enact felon disenfranchisement. And even if modern jurisprudence under the Eighth Amendment is applicable, which it is not, the case law cannot be stretched to outlaw Section 241.

Mississippi, like all States, imposes various restrictions on who may vote. These include mental competency, residency, age, citizenship, registration, and criminal history qualifications, all of which are laid out in Section 241 of the Mississippi Constitution:

Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector.

MISS. CONST. ART. XII, § 241. Mississippi disenfranchises these felons for life, though voting rights may be restored by a two-thirds vote of the State legislature under Section 253 of the Mississippi Constitution.

Laws like Mississippi's Section 241 have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar States from permanently disenfranchising felons, it dispensed some advice to the losing parties:

We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.

Richardson v. Ramirez, 418 U.S. at 55, 94 S. Ct. at 2671. In other words: go and convince the State legislatures. Do the hard work of persuading your fellow citizens that the law should change. The paramount lesson of the Constitution and Richardson is that the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.

The opinion concludes:

Holding Art. XII, Section 241 of the Mississippi Constitution categorically unconstitutional, even as to a limited set of offenders, is at odds with the Supreme Court's and other courts' decisions, would thwart the ability of the State's legislature and citizens to determine their voting qualifications, and would require federal courts overtly to make legislative choices that, in our federal system, belong at the State level.

The dissent begins:

The right to vote is the essence of a democratic society and "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Yet Article XII, Section 241, of the Mississippi Constitution of 1890 mandates permanent, lifetime disenfranchisement of a person convicted of "murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy."1 Disenfranchisement extends to free people who have completed all terms of their sentences. The Plaintiffs, representing a class of persons who have been convicted of Section 241's crimes and have completed the terms of their sentences, challenge the constitutionality of Section 241. The Plaintiffs are both Black and White, and their Eighth Amendment argument is independent of the "invidious" discrimination that originated Section 241.2 Rather, the Plaintiffs argue permanent disenfranchisement of free persons who have completed all terms of their sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment. Under well-settled principles of Eighth Amendment jurisprudence, the Plaintiffs have met their burden. A national consensus to this effect has now formed among a large majority of the states.

To dodge this conclusion, the majority largely conflates the Plaintiffs' challenge to the punishment at issue in this case—permanent disenfranchisement of free persons who have completed all terms of their sentences—with a challenge to felon disenfranchisement in general. Where the majority does reach the issue before us, it picks and chooses among precedents, ignoring well-established Eighth Amendment principles, while stretching the Supreme Court's Equal Protection decision in Richardson v. Ramirez, 418 U.S. 24 (1974), beyond all recognition. What is even worse, the majority finds the Eighth and Fourteenth Amendments mutually exclusive, flouting Supreme Court precedent that "provisions [granting] Congress or the States specific power to legislate in certain areas . . . are always subject to the limitation that they must not be exercised in a way that violates other specific provisions of the Constitution." Williams v. Rhodes, 393 U.S. 23, 29 (1968).

I respectfully dissent.

There may be a petition for certiorari, but this does not appear to be a likely grant.

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[Jonathan H. Adler] Climate Protestors Sentenced to Jail for Blocking Major Roadway in Britain

[Organizers of the highway obstruction will spend years in jail for their anything-but-peaceful protest.]

A group of protestors with a group called "Just Stop Oil" seeking to force greater action on climate change conspired to block the M25—basically the London beltway—in November 2022. The protestors were prosecuted for their efforts, and have now been sentenced to several years in jail. The BBC reports:

Five environmental activists who organised protests that brought part of the M25 to a standstill over four days have been jailed. . . .

Judge Christopher Hehir said Roger Hallam, 58, Daniel Shaw, 38, Louise Lancaster, 58, Lucia Whittaker De Abreu, 35, and Cressida Gethin, 22, had "crossed the line from concerned campaigner to fanatic".

At Southwark Crown Court, Hallam was sentenced to five years' imprisonment while the other defendants each received four-year jail terms.

Obstructing a highway is not simple political expression, and it is far from "peaceful protest." It involves the physical obstruction of others' freedom of movement. It is also disruptive and potentially tortious conduct that can have severe consequences. In this case, those seeking to "just stop oil" have done little to advance their cause (traffic congestion results in worse fuel economy and increases emissions), but and managed to cause significant harm to others. From the BBC report:

The action resulted in chaos on the M25 over four successive days, causing nearly 51,000 hours of driver delays, the court heard. The protests closed parts of the motorway in Kent, Surrey, Essex and Hertfordshire.

People missed flights, medical appointments and exams. Two lorries collided, and a police motorcyclist came off his bike during one of the protests on 9 November 2022 while trying to bring traffic to a halt in a "rolling road block".

Prosecutors alleged the protests led to an economic cost of at least £765,000, while the cost to the Metropolitan Police was put at more than £1.1m.

The activsits and their allies also sought to disrupt the trial, but to no avail.

If activists wish to engage in such conduct as civil disobedience, so be it. They must remember, however, that civil disobedience involves the knowing and deliberate violation of law and (as traditionally practiced) a willingness to suffer the consequences.

In this case, those seeking to "just stop oil" didn't, and will just go to jail instead.

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:@WilliamBaude: New Article: General Law and the Fourteenth Amendment

What is the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment?

There have been many great books on this question, but I have never been totally satisfied with their answers. Co-blogger Steve Sachs and I, along with Professor Jud Campbell, have a new article out in the Stanford Law Review on this question: General Law and the Fourteenth Amendment. We argue that the fundamental rights protected by the Amendment have to be understood in light of the unwritten common law of the time, especially the fact that it was enacted in the era of Swift v. Tyson and before Erie R.R. v. Tompkins.

Here is the introduction:

What kind of law defines Fourteenth Amendment rights? The answer seems obvious. Section One of the Amendment confers federal constitutional rights: to "due process," to "equal protection," to the "privileges or immunities of citizens of the United States." So the content of these rights must be defined by federal constitutional law, to be divined and explicated by federal courts.

Yet this seemingly obvious answer has serious flaws. The Privileges or Immunities Clause was once the core of Section One, before it was rendered a dead letter in the Slaughter-House Cases. And this Clause is often read to have guaranteed a vast swath of substantive rights, including common-law rights of property and contract—the sort of fundamental rights secured against interstate discrimination under Article IV's Privileges and Immunities Clause, or against racial discrimination in the Civil Rights Act of 1866. But the moderate Republicans who championed the Amendment in the Thirty-Ninth Congress also staunchly opposed anything that might have upended American federalism by nationalizing the common law. So how could the Amendment have turned all of these ordinary rights into federal constitutional law?

Equally perplexing is how the drafters and supporters of the Fourteenth Amendment could have displayed such confidence about its importance while remaining so agnostic about what it actually did. Discussing an early draft in the House, Representative John Bingham urged that "you must amend the Constitution" to assure "the immunities and privileges of citizens" to "the loyal minority of white citizens and the disenfranchised colored citizens." Yet when introducing the measure in the Senate, Jacob Howard described "the privileges and immunities of citizens" as "a curious question," adding that they "cannot be fully defined," "whatever they may be." How could members of Congress have expressed so much confusion about Section One's likely effects and yet have voted in supermajorities to pass the Amendment anyway? And although Section One dominates the practice of constitutional law today, it received relatively scant attention in the voluminous debate over the Amendment in Congress, at least as compared to Sections Two and Three. How could such a fundamental measure have skated by with so little controversy?

Something in the "fundamental rights" reading has to give. Maybe the Clause protects federal-law rights, but only those enumerated elsewhere in the Constitution. Or maybe it requires only equality with respect to state-law rights; or maybe it is just indeterminate or internally contradictory. Each of these views has its supporters, but each has its flaws as well.

To solve these puzzles, we need to recover a missing piece. Fourteenth Amendment rights need not have been defined solely by federal law or by state law. Americans in the 1860s recognized a third option: what we now call general law. Though referred to by different names, this shared body of unwritten law was not derived from any enactment by a single sovereign but instead "existed by common practice and consent among a number of sovereigns." As a result, it was available to courts in many different Anglo-American jurisdictions. When no other source of law applied, these courts could draw from "known and settled principles of national or municipal jurisprudence," including "the common law," "the law of equity," and "the law of nations." Historical scholarship about general law is in the midst of a renaissance, including works on the general-law grounding of many parts of the Bill of Rights. But while Fourteenth Amendment scholarship is also flourishing, the role of general law in the Amendment's design has been largely overlooked.

This Article contends that Section One was premised on the existence of fundamental rights that the Fourteenth Amendment secured but did not confer: The rights were present already, defined by general law. What the Privileges or Immunities Clause, the Equal Protection Clause, and the Due Process Clause did was not so much substantive as it was jurisdictional. These Clauses provided for the federal enforcement of general-law rights that already limited state power but that had been beyond the power of Congress and federal courts to protect. The Amendment thus provided for federal remedies without supplying the underlying rights; the rights themselves were still grounded in general law.

The idea that the Constitution can secure rights without conferring them, and without nationalizing or constitutionalizing them either, might seem odd today. But this was a routine aspect of rights enforcement when the Fourteenth Amendment was adopted. Most importantly, many Republicans understood Article IV's Privileges and Immunities Clause to protect out-of-staters' citizenship rights, which were commonly defined by general law and linked to a status called general citizenship. Such understandings played a crucial role in the decision to protect in-staters, too, against state abridgment of these "privileges or immunities of citizens of the United States."

Bringing general law back into view helps solve some of the puzzles noted above. It explains why the Fourteenth Amendment's adopters thought that their work was so significant for the nature of the Union, why moderate Republicans felt so comfortable supporting the Amendment while demanding distinct roles for state and federal governments, and why the Amendment's supporters could have been, to modern ears at least, so maddeningly vague about which rights they were insulating from state interference or which kinds of equality they were guaranteeing to all. There was no need to spell out the fundamental rights to be protected or the equal citizenship to be guaranteed; those things were to be found outside the Constitution's text.

This Article seeks to recover this older way of thinking about how the Fourteenth Amendment protects fundamental rights. Part I summarizes what we call the "general-law approach." It begins with a survey of rights discourse prior to Reconstruction and explains how, in our view, the Fourteenth Amendment altered that legal landscape. Though this Part's discussion is grounded in history, our aim is primarily conceptual; that is, we describe how the general-law approach fit within the constellation of nineteenth-century legal concepts.

Part II then reexamines key pieces of historical evidence from the 1860s, focusing on debates in the Thirty-Ninth Congress. The general-law approach explains Congress's debates about the Civil Rights Act of 1866 and Bingham's subsequent drafting of Section One of the Fourteenth Amendment. General law also provides a framework for the recurring references in Congress to fundamental rights, unwritten law, and the continuing police power of the states. This Part further describes how the Supreme Court in Slaughter-House came to reject the general-law view (and thus to undermine Section One), as well as how general law was central to the Slaughter-House dissents.

Part III then turns to potential implications for equality jurisprudence, for congressional powers, for state-action doctrine, and for fundamental rights, including the incorporation of the Bill of Rights. To the modern interpreter the imprecision and woolliness of general-law reasoning, including its reliance on custom and tradition, might seem an inappropriate basis for constitutional law. But the Fourteenth Amendment was made by people in the past during the heyday of general law—and their comfort with imprecision, woolliness, and customary background principles are among the most notable features of the historical debates. In any case, recovering the centrality of general law helps resolve several persistent historical puzzles about the original meaning of the Fourteenth Amendment, and it may point us in the right direction to resolve many more.

You can read the whole thing here.

This piece sets up a framework for understanding the Fourteenth Amendment, but tons of more specific questions has to be left for future work—and may well implicate issues on which the three of us do not completely agree or have sufficient knowledge. But if you're interested in some related projects, you can also read my The General-Law Right to Bear Arms (with Robert Leider) and Steve's Dobbs and the Originalists as well as the "prequel" Jud's General Citizenship Rights.

The post New Article: General Law and the Fourteenth Amendment appeared first on Reason.com.

[Josh Blackman] More Evidence That "Direct Taxes" Include Levies on Wealth and Income

[Another guest post from Professor Rob Natelson]

[I am happy to post this follow-up essay from Professor Rob Natelson].

My July 12 entry provided links to Founding-era sources showing that the Constitution's category of "direct taxes" included levies on all kinds of wealth and on business profits and income. Direct taxes were not, as often claimed, limited to capitations and real property levies. Nor were they limited to taxes on "persons and property," as stated in the Supreme Court's opinion last month in Moore v. United States.

This post supplements the entry of July 12. Below you will find (1) citations to the four ratification-era comments mentioned in the earlier entry, (2) several additional ratification-era comments, with citations, and (3) links to more pre-Founding-era and Founding-era direct tax statutes.

If you manage to get to the end of this post, I think you will agree: In light of the evidence, it is astounding that confusion over the Constitution's categories of direct and indirect taxes still persists.

Four Ratification-Era Remarks

The July 12 essay listed four comments by participants in the 1787-90 constitutional debates showing that direct taxes included levies on personal property, business profits, and income. I'll provide the citations here, so you can examine them for yourself. They are in the form "14 DH 424." This means "Volume 14 of the Documentary History of the Ratification of the Constitution, page 424." An electronic version of the Documentary History is available at this link.

The comment by John Marshall at the Virginia ratifying convention stating that the contours of direct taxes were "well understood" and listing some covered items of personalty is at 9 DH 1122-23. The comment from the "Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania" (listing land, cattle, trades and occupations) is at 2 DH 636. The pertinent discussion by Oliver Ellsworth (including business tools and family utensils within the scope of direct taxes) is found at 3 DH 549. The description of direct taxes by the "Federal Farmer" (including "labour, &c.") is located at 17 DH 294.

More Ratification-Era Remarks

Patrick Henry at the Virginia ratifying convention identified the subjects of direct taxes as "lands, tenements, and other property" (emphasis added). 10 DH 1464. The Virginia writer known as "A Freeholder" distinguished direct taxes from duties and listed among the subjects of direct taxation "doctors, lawyers, clerks, wheel carriages, and on lots in town." 9 DH 724. As mentioned in the July 12 post, the reference to "doctors, lawyers, clerks" refers to direct "faculty taxes," usually tied to income.

The New York Antifederalist "Brutus" listed as objects of direct taxation polls, land, houses, buildings, windows, fireplaces, cattle and "all kinds of personal property." 14 DH 424.

In Maryland, William Paca proposed an amendment to the Constitution specifying that "Congress shall not impose direct taxes on land or other property." 17 DH 241.

At the first North Carolina ratifying convention on July 26, 1788,  Samuel Spencer asked "How are direct taxes to be laid? By a poll-tax, assessments on land or other property?" 30 DH 296.

It appears that James Madison believed even postal charges were form of direct tax. See The Federalist No. 39, 15 DH 403, 406. I think, however, that most people would have considered them a species of indirect tax ("duty").

There are other examples from the ratification record, but those should be sufficient: Americans understood that direct taxes comprehended far more than capitations and land levies.

18th Century Direct Tax Statutes

The July 12 post provided links to 18th century direct tax statutes from Great Britain (1713), Massachusetts (1780), Connecticut (1777), New Hampshire (1788), and South Carolina (1788). The South Carolina statute taxed realty and some items of personalty. The others included realty and personalty, but added various combinations of business profits and income.

Now let's examine the prototype British direct tax law and four additional American statutes.

The Granddaddy of them All

The prototype for American direct tax statutes was the British Parliament's misnamed "Land Tax," first enacted in 1692. It was misnamed because it covered far more than land. A copy of the 1692 Land Tax Law, found in the British Statute at Large, is at this link.

Notice that the subjects of the tax included all items of personal property other than those excepted. They also encompassed income from many different sources, including but not limited to, public offices, mines, iron works, and parks. I was surprised to see that the text of the statute listed these items even before addressing the taxation of land.

The Land Tax Law was amended from time to time. Here is how Ephraim Chambers' Cyclopaedia described its configuration in 1778:

. . . from the year 1693 to the present, the land-tax has continued an annual charge upon the subject . . . The method of raising it is by charging a particular sum upon each county, according to the valuation of 1692; and this sum is assessed and raised upon the personal as well as the real estates of individuals . . . the assessment on personal estates shall be 4 s. [i.e., four shillings] in the pound, according to the true yearly value of them; i.e., for every 100l. [i.e., £100] of ready money and debts, and for every 100l. worth of goods, 20 s. . . . and excepting stock upon lands and household stuff, and debts and loans owing to his majesty. Every person having a public office or employment, and their substitutes, shall pay 4 s. for every 20 s. of their salaries . . . Every person having an annuity or pension out of the exchequer, or out of any branch of the revenue shall pay 4 s. for every 20 s. except salaries charged upon lands which pay to the full, and annuities exempted by act of parliament . . . .

Thus, not merely real estate, but cash, accounts receivable,  other personal property, and income were subjects of direct taxation. The provision taxing rental income added a withholding requirement: "The land-tax shall be paid by the tenant, who shall deduct it out of his rent."

Additional American Direct Tax Statutes

The statement of the Pennsylvania dissenters (mentioned above) as to the scope of direct taxes ("land, cattle, trades, occupations, etc.") is supported by a 1781 direct tax statute from that state, linked here. Besides assessing a wide range of real and personal property, it included "all offices and posts of profit" and "all professions, trades and occupations." These categories effectively rendered it an income tax.

When Justice Samuel Chase opined in Hylton v. United States (1796) that direct taxes included only levies on heads and land, he should have known better. Although his home state of Maryland had relied mostly on capitations during the colonial era, after Independence it moved to direct taxes on property of all descriptions, with specified exceptions. Here is a link to a 1782 Maryland direct tax statute.

It is not clear why Chase was so mistaken. His guarded language ("I am inclined to think, but of this I do not give a judicial opinion") suggests he was merely guessing. Or his dictum may have been a product of his notorious pro-Federalist partisanship—partisanship that ultimately led to his impeachment, although not removal.

Here is a link to a New York statute passed in 1788 and effective in 1789, which requires Assessors to examine the "Value of the real and personal Estate" of every inhabitant of their district for taxation purposes. Like most other direct tax statutes—and like the Constitution itself—it provides for apportionment of revenue among political subdivisions.

Parting Comments

First: A point of vocabulary. As observed in my 2015 article on the subject, Americans used the term "duty" to mean any exaction other than a direct tax. The British usage of the word was broader, and could include direct taxes.

Second: In Hylton, Justice Chase suggested that capitations were imposed equally on all persons. In NFIB v. Sebelius (the 2012 case upholding the Affordable Care Act's health insurance mandate), the court was misled by Chase's comment. In writing for the Court, Chief Justice John Roberts stated:

"Capitations are taxes paid by every person, 'without regard to property, profession, or any other circumstance.' Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered)."

My July 12 post corrected the misconception. In fact, capitations frequently were adjusted for wealth, status, sex, and other factors. Linked here is a 1733 Delaware capitation law providing for such adjustment.

Like Maryland, after Independence Delaware moved away from capitations toward direct taxes on property. Delaware's 1796 tax overhaul measure is linked here.

####

Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor at the University of Montana. He is the author of "The Original Constitution: What It Actually Said and Meant" (3rd ed., 2015) and a contributor to the Heritage Foundation's "Heritage Guide to the Constitution." A more thorough examination of this subject is at Robert G. Natelson, What the Constitution Means by "Duties, Imposts, and Excises"—and Taxes (Direct or Otherwise), 66 Case Western Res. L. Rev. 297 (2015).

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[Eugene Volokh] Disgrantle: A New Legal Nonce Word

From footnote 1 to Judge Lawrence VanDyke's dissent from the grant of rehearing en banc (recall that "dissental" is a relatively new legal term meaning "dissent from denial of rehearing en banc," which has enjoyed some popularity):

While dissentals are more common, judges on both this and other courts have, on
occasion, penned dissents from the grant of en banc review. See, e.g., Feldman v.
Ariz. Sec'y of State's Off., 841 F.3d 791, 794 (9th Cir. 2016) (O'Scannlain, J.,
dissenting from the grant of rehearing en banc); United States v. Bowen, 485 F.2d
1388, 1388 (9th Cir. 1973) (Chambers, J., same); United States v. Seale, 550 F.3d
377, 377 (5th Cir. 2008) (Smith, J., same). These disgrantles are understandably
rare because in every circuit other than ours en banc rehearing involves the full court,
where any active judge disagreeing with the court's decision to rehear the case may
ultimately express that disagreement in the en banc decision itself. But because the
Ninth Circuit's peculiar en banc procedures do not guarantee participation in the en
banc panel to all active judges, a disgrantle is the only guaranteed way a judge on
this court can publicly explain why it was inappropriate for our court to take a
particular case en banc.

I assume that "disgrantle" isn't an attempt to coin a lasting term, but a humorous play on dissental, intended to be understood in this particular context by readers. That, I think, makes it a "nonce word," defined by the Oxford English Dictionary as "A word apparently used only 'for the nonce,' i.e. on one specific occasion or in one specific text or writer's works." But perhaps I'm mistaken, and it too will make its way into legal English.

The underlying case is U.S. v. Duarte; the panel opinion there held that some felons may have Second Amendment rights, and the Ninth Circuit has just decided to take the case en banc.

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[Eugene Volokh] First Amendment Doesn't Protect Being "Foreign Government [Agent] Without Notice to the Attorney General"

From U.S. v. Liang, decided Tuesday by Judge Indira Talwani (D. Mass.):

Defendant Litang Liang is charged with acting as an agent of a foreign government without notice to the Attorney General, in violation of 18 U.S.C. § 951, and conspiracy to act as an agent of a foreign government without prior notification, in violation of 18 U.S.C. § 371. The Indictment alleges that between July 2018 through at least 2022, Liang acted under the control or direction of officials of the People's Republic of China ("PRC") without notifying the Attorney General of his status as an agent of a foreign government….

[I.] Facts as Alleged in the Indictment

[A.] Liang Provides Information Regarding Boston Individuals and Organizations to PRC Officials

In July 2018, Liang reported to a PRC official ("PRC Official 1") that someone had destroyed PRC flags in the Boston neighborhood of Chinatown. Liang provided PRC Official 1 with the name of the individual he believed to be responsible for the destruction.

In or around August 2018, Liang informed an associate that the PRC Consulate in New York wanted to know about the "political standing" of a local lawyer, and asked if the associate knew the lawyer. Liang also informed the same associate that the "Consulate" was coming to Boston and asked if the associate wanted to meet with the Consulate to discuss the "blacklist." Liang also informed the associate that PRC Official 1 wanted "something done" about the removal of the PRC flags. Approximately six days later, the associate sent Liang an email titled "Black Name List."

In or around September 2018, Liang helped to organize an event that was attended by PRC Official 1 and a high-ranking official at the PRC Consulate of New York ("PRC Official 2"). A few days later, PRC Official 1 asked Liang for the name of an individual who had attended the event and who worked for a Boston elected official. Liang provided PRC Official 1 the name and title of the individual.

On or about October 5, 2018, Liang shared photographs and videos with PRC Official 2 of the individual he claimed had "sabotaged" the PRC flags in July. Liang claimed to have held a press conference to denounce the individual.. Three days later, Liang shared an article with PRC Official 2 that accused a member of a local Chinese community organization with pro-Taiwan leanings of being the person who "sabotaged" the PRC flags.

On or about December 6, 2018, PRC Official 1 requested from Liang how many individuals worked for the pro-Taiwan community organization. Later that day, Liang and PRC Official 1 had a 15-minute phone conversation.

On or about February 10, 2019, Liang and PRC Official 1 had an approximately 12-minute phone conversation. Several days later, Liang sent PRC Official 1 a list of members of another pro-Taiwan community organization.

On or about February 21–22, 2019, Liang sent PRC Official 1 information about three other local Chinese family associations in New England and New York, including the size of each group's memberships and the names of some group leaders.

[B.] Liang's 2018 Travels to the PRC to Attend a Conference and Meet with Government Officials

In or around October 2018, PRC Official 1 connected Liang with another PRC government official ("PRC Official 3"), the director of a subsidiary entity of the United Front Work Department. The subsidiary entity's goal was to promote the unification of Taiwan with the PRC, which is a core PRC national security goal. PRC Official 3 sent information to Liang regarding the subsidiary entity, including a form to attend a conference for the organization in the PRC. Liang returned the completed form. During this time, Liang also communicated with PRC Official 4, who asked Liang to supply the names of the other individuals who would be attending the conference as well as the most influential organizations who would be traveling with Liang.

Liang traveled to the PRC twice over the next few weeks: once from October 23–27, 2018, and again from November 4–15, 2018. On October 24, 2018, while Liang was in the PRC, PRC Official 4 asked Liang to provide information on Chinese nationals living in the Boston area and further information on the pro-Taiwan community organization in Boston. Liang informed PRC Official 4 that he had communicated his request to another individual, who would contact PRC Official 4 directly.

On November 2, 2018, Liang sent PRC Official 3 a message expressing regret that they had been unable to meet during Liang's October visit and providing details about Liang's November visit itinerary, including meetings with the United Front Work Department and the Taiwan Affairs Office of the State Council, a PRC government agency that promotes the unification of Taiwan with the PRC.

[C.] Liang Coordinates with PRC Officials to Establish the New England Alliance for a Peaceful Reunification of China

In or around December 2018, Liang communicated with another government official ("PRC Official 5") who worked as part of the Taiwan Affairs Office of the State Council at the Consulate in New York. Later that same month, PRC Official 5 traveled to Boston with other Consulate members, including PRC Official 2, and met with Liang and others. On or about December 20, 2018, Liang informed PRC Official 2 that the work for setting up a new reunification organization was ready and the "core team" had been identified.

In or around January 2019, Liang co-founded the New England Alliance for the Peaceful Reunification of China ("NEAPUC") and subsequently served as its Vice President. A similar organization had previously existed in Boston ("the Boston Group") and two individuals associated with the Boston Group ("Boston Group Individual A" and "Boston Group Individual B") had left the United States for the PRC and not returned at the time of their involvement in events described below.

On or about April 18, 2019, Liang sent a WeChat message to the leader of another reunification organization in the United States ("Individual 4") informing the individual that NEAPUC consisted of chairmen of local community organizations and had high standards for accepting new members. Liang informed the individual that he would rather discuss details over the phone.

On or about April 22, 2019, Liang sent NEAPUC's logo to PRC Official 1 and sent the logo as well as the incorporation documents to PRC Official 5. Liang also informed PRC Official 5 that NEAPUC had developed a "core team" from local organizations, that it had strict membership requirements, and that Liang could provide more details over the phone.

[Further factual details from the sections below omitted; see the opinion for more. -EV]

[D.] Liang Coordinates a Counter-Protest to the "Boston Stands with Hong Kong" Rally …

[E.] Liang's 2019 Visit to the PRC …

[F.] Liang Provides Updates on NEAPUC to PRC Officials …

[G.] Liang Exchanges Information with PRC Officials Regarding Chairmen of Local Organizations …

[II.] Whether Section 951's Definition of "Agent" Is Unconstitutionally Vague

Liang argues that Section 951 fails to clearly define the term "agent," which renders the statute unconstitutionally vague….

First, Section 951 sufficiently defines the proscribed conduct on its face. Section 951(d) defines "agent" as "an individual who agrees to operate within the United States subject to the direction or control of a foreign government." Liang argues that this definition is so broad as to potentially penalize any person "who communicates with embassies on a regular basis." But that is plainly not true. A person is not considered an "agent" under the statute when he is merely "communicating," but only when the individual "agrees to operate … subject to the direction or control" of a foreign government….

Second, Section 951's definition of "agent" does not invite arbitrary enforcement. Liang's argument on this point is largely based on his interpretation of the Foreign Agent Registration Act ("FARA"), which is a related—but distinct—statute from the one at issue in this case. FARA's definition of "agent" is much broader than Section 951's definition of "agent," and embodies a "concept of agency that [includes] less formally defined (and more episodic) behavior [undertaken] 'in any other capacity' at the 'order' [or] 'request'" of a foreign principal, rather than actions undertaken only "under the direction or control" of a foreign government. Because Section 951 expressly defines "agent" in narrower terms, Liang's FARA-specific arguments are not persuasive.

[III.] Whether the Indictment Alleges Facts to Support that Liang was an "Agent" of the PRC

Liang also argues that the Indictment is devoid of facts suggesting he was "being paid or compensated in any way" or that he had an "explicit agreement" with the PRC…. [But] Section 951 does not contain any requirement that the government prove compensation or an explicit agreement between the individual and the foreign government in order to establish that the individual was operating under the direction or control of the foreign government…. [T]he Indictment sufficiently alleges facts that could support a finding that Liang "agree[d] to operate subject to the direction or control of a foreign government." …

[IV.] First Amendment Violation

Liang argues that the Section 951 charge penalizes him for "communicating … with PRC officials" and therefore violates his First Amendment rights to free speech….

[But] Section 951 does not inherently criminalize pro-foreign government sentiment or regulate in any way the content of any speech or expressive act. Nor does the statute belong to the second category of laws which, although facially content neutral, cannot be "justified without reference to the content of the regulated speech," or were adopted by the government "because of disagreement with the message [the speech] conveys."

Instead, the dividing line between lawful and unlawful speech under Section 951 has to do with the relationship between the speaker and a foreign government, and whether, if the speaker is an agent of that foreign government, the speaker has notified the Attorney General of that relationship. Neither of those factors turns on the content of the speech itself. As a result, Section 951 is subject to intermediate scrutiny, which requires that "the law must not 'burden substantially more speech than is necessary to further the government's legitimate interests.'"

By enforcing a system to keep track of foreign agents working domestically, Section 951 furthers an undisputedly important governmental interest—that of national security. And Section 951's purported restriction on speech is avoidable—if an individual notifies the Attorney General prior to acting as an agent of a foreign government, then Section 951 carries no penalty for any speech in which that individual might subsequently engage. Finally, Section 951 leaves open ample channels of information between U.S. citizens and representatives of foreign governments. The statute does not prohibit U.S. (or foreign) citizens from communicating with embassies or from communicating with each other. Any incidental restriction on speech is therefore "no greater than is essential" to protect the government's national security interest. As a result, Section 951 satisfies the criteria for a reasonable restriction on the manner of speech….

The government is represented by Assistant U.S. attorney Timothy Kistner.

The post First Amendment Doesn't Protect Being "Foreign Government [Agent] Without Notice to the Attorney General" appeared first on Reason.com.

[Eugene Volokh] Discrimination Lawsuit Against N.Y. City Official Can't Be Totally Sealed at Plaintiff's Behest

From Doe v. City of New York, decided today by Judge Gregory Woods (S.D.N.Y.):

One distinguishing facet of the American legal system is its commitment to public access to the trial process. This legacy of "open justice" is as old as America itself. The plaintiff in this action asks that the Court deviate from that legacy and to permit her to litigate her case under seal in complete secrecy. Because the plaintiff has not overcome the strong presumption to public access that attaches to judicial documents—including her complaint and the existence of the case itself—her motion to seal the case is DENIED….

In her complaint, the plaintiff asserts claims of discrimination, failure to accommodate, and retaliation under the Americans with Disabilities Act, as well as a series of claims under New York State and New York City law. In the complaint, the plaintiff describes her status as a victim of domestic violence, and asserts that the defendants failed, among other things, "to address the harassment stemming from [her] domestic violence victim status." And she describes certain of her health conditions—principally her "anxiety-triggered acid reflux," which, she asserts, the defendants failed to accommodate.

The complaint contains a number of redactions. Those redactions obscure the identity of the office for which the plaintiff worked, and her job position and responsibilities. The redactions also protect the identity of one of the actors who allegedly discriminated against her—namely, the elected public official who the plaintiff wishes to be known only as "Sealed Defendant 2." …

[P]laintiff [also] argues that she should be permitted to pursue this litigation under seal in its entirety. She contends that public litigation of the case will further expose sensitive details about her life: "[I]f this case is not permitted to be filed completely under seal, there is a substantial risk of further harm to Ms. Doe by exposing sensitive details to the public, mirroring the very violations at the lawsuit's core—where Defendants are accused of, among other things, improperly disseminating Ms. Doe's domestic violence status." …

[Total sealing:] The plaintiff has failed to meet her burden to show that this case as a whole should be sealed. "[S]ealing an entire case file is a last resort." …  The plaintiff is seeking to shield from the public everything about this case—including all future decisions by the Court, and presumably, should it reach that point, its trial. The public cannot evaluate the case without having any awareness of its proceedings…. The Court is empathetic to [plaintiff's] concerns, but they do not justify permitting her to litigate her case in secret—as a special exception to the many other plaintiffs who pursue their discrimination and disability cases in the public eye..

[Redaction:] The plaintiff has redacted from the complaint information that (1) identifies two of the defendants, including their names on the caption of the case, and (2) identifies her place of work. The plaintiff has not made a sufficiently substantial showing to justify sealing that information in the complaint….

The information that the plaintiff seeks to redact … has very substantial weight. It is important for this purpose for the public to have access to the identity of the defendants. That is particularly so here because the defendants are a governmental entity and an elected representative. The public has a substantial interest in alleged misconduct by such defendants. And awareness of the identity of the defendants has substantial value to those monitoring the federal courts to ensure that such defendants receive equal treatment under the law. Therefore, the weight of the presumption is high.

Finally, the plaintiff has not identified countervailing interests with sufficient weight to overcome the presumption of public access to that information. She has proffered few specific facts to support her request; she relies largely on generalized concerns regarding her privacy and the potential impact on her of disclosure of the case as a whole. The Court recognizes the plaintiff's privacy interests, and that the allegations in this case involve sensitive, personal matters. And the Court has considered that the disclosure of the identity of the defendants that she has named in this case is likely to enhance the attention on her case.

The Court is not at this point on its own initiative reexamining Judge Koeltl's decision to permit the plaintiff to litigate this case under a pseudonym, which safeguards her privacy to a meaningful extent. {The Court is not revisiting this decision on its own initiative at this point, but it may do so on motion or at a later stage of the case.} At the same time, the Court recognizes that by identifying her employer, and place of work, it is more likely that a researcher would be able to ascertain her identity….

The effect of granting the plaintiff's motion in this context would be not only to protect the plaintiff's privacy interests, but also the defendants from public exposure regarding their alleged misconduct. A reasonable balance of the competing interests of the public in this case and its proceedings and the plaintiff's privacy interests is struck by permitting the plaintiff to continue to maintain the action under a pseudonym at this time, while rejecting her other redactions to the complaint….

Because the plaintiff has not rebutted the presumption of public access, her motion to seal this case in its entirety is denied. Moreover, her request to seal the names of two of the defendants is denied, and the Court rejects the redactions to the complaint that obscure the place of her work and the alleged conduct by her employer. The plaintiff must file an amended complaint naming those defendants and omitting those redactions no later than July 24, 2024. The plaintiff may continue to use a pseudonym to identify herself in that filing.

The Court authorized the plaintiff to file a motion to seal the case. But it did not authorize the plaintiff to file that motion under seal. Accordingly, the Court expects to issue a separate order directing the Clerk of Court to make the documents filed on the docket at Dkt. No. 6 visible to the public on July 26, 2024. To the extent that the plaintiff wishes to propose targeted redactions to those submissions, she must do so no later than July 24, 2024….

The post Discrimination Lawsuit Against N.Y. City Official Can't Be Totally Sealed at Plaintiff's Behest appeared first on Reason.com.

[Eugene Volokh] No Pseudonymity in Libel Case Alleging False Domestic Violence Claims

From Doe v. Roe, decided today by the Ohio Court of Appeals, in an opinion by Judge Emanuella Groves, joined by Judges Eileen A. Gallagher and Sean Gallagher:

Ms. Doe filed a seven-count complaint against the Roes … [alleging defamation, invasion of privacy, and related torts]…. The allegations stemmed from the Roes['] purported reporting of false domestic violence claims involving Ms. Doe and the children of Ms. Doe and Mr. Roe to authorities and Ms. Doe's employer….

The trial court at first allowed Doe to proceed pseudonymously, but then concluded otherwise, and Doe appealed. The appellate court concluded that the trial court didn't abuse its discretion:

According to Civ.R. 10(A), the names and addresses of all parties must be included in the complaint. The rule's requirement ensures that judicial proceedings are conducted in public and supports the long-standing principle that the public has a right to know a litigant's identity…. "Identifying the parties to the proceeding is an important dimension of publicness." … "It is the rare exception for a litigant to be allowed to proceed anonymously." ….

Ms. Doe [argues] that pseudonym status is warranted because her lawsuit involves "intimate personal details of the family dynamic" and "the litigation of this matter is inherently tied to information contained in [the civil protection order] and juvenile court dockets." … Ms. Doe asserts that further grounds for pseudonymity include the likelihood of retaliation; amplification of pain, suffering, and personal embarrassment; and potential misuse of information to cause personal and professional harm….

In response, … [t]he Roes argue that the involvement of minor children does not make the information in the complaint highly personal or sensitive in nature, noting that the children are not parties to the litigation and less restrictive means are available to protect their privacy, e.g., protection orders or the use of the children's initials…. Finally, the Roes emphasize that Ms. Doe cannot expect to maintain anonymity from her employer when she voluntarily initiated a civil action that made her relationship with her employer an issue in the case….

While we appreciate the personal nature of family dynamics and the potential stigma surrounding false claims of domestic violence, we cannot say that identification of the parties discloses "information of the utmost intimacy" that exceeds the public's right to open judicial proceedings and overcomes the requirements of Civ.R. 10(A). See, e.g., Doe v. Bruner (Ohio Ct. App. 2012) (finding that disclosure of facts surrounding a sexual assault, while likely to include information of the "utmost intimacy," is insufficient to allow plaintiff to proceed pseudonymously based on that factor alone); Doe v. Cedarville Univ. (Ohio Ct. App. 2024) ("While Doe could suffer some stigma through the revelation that she was involuntarily committed for over three days, we cannot conclude that the trial court abused its discretion by finding that this detail of Doe's private life was insufficient to rise to the level of a matter of 'utmost intimacy."' (Emphasis in original.))….

[W]e find that Ms. Doe's arguments regarding alleged fears of retaliation are insufficient to overcome the presumption against pseudonymity. A plaintiff seeking anonymity based on this [argument] must show that the filing of the lawsuit creates a risk of retaliation. Ms. Doe has not shown that any risk of harm against her or her family would increase if she were required to identify the parties by name. Rather, Ms. Doe's fears of retaliation appear to stem from the Roes themselves, the parties she claims should already be aware of their involvement in the lawsuit based on the information contained in the complaint despite being named pseudonymously.

We further find that the use of pseudonyms will hinder the Roes' ability to litigate, conduct discovery, and explore the veracity of Ms. Doe's claims in this matter, prejudicing them in their defense. While the Roes may be able to identify the anonymously named parties based on the information contained in Ms. Doe's complaint, their efforts to secure information from third parties will be limited by the use of pseudonyms.

Based on the foregoing, we cannot say that this is an exceptional circumstance requiring the use of pseudonyms and agree with the trial court: Ms. Doe's privacy interests do not substantially outweigh the presumption of open judicial proceedings.

{[W]e emphasize that the instant appeal does not involve a civil protection order, juvenile, or domestic violence case and contemplates only the identification of the adult parties in Ms. Doe's civil lawsuit….}

Fun fact: The 12-member Eighth District Ohio Court of Appeals, which covers the Cleveland area, includes three Gallaghers, including two Eileen Gallaghers (Eileen A. Gallagher, who was on the panel, and Eileen T. Gallagher, who was not).

Note that I filed an amicus brief opposing pseudonymity, with the invaluable help of local counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson, Co., L.P.A.)—many thanks to him for his help here and in other past cases, including the Ohio Supreme Court pseudonymous police officer libel case. UCLA School of Law LL.M. student Bhavyata Kapoor also worked on the brief. The Roes are represented by James E. Boulas and Panagiota D. Boulas (James E. Boulas Co., LPA).

Here, by the way, is what we argued in our amicus brief:

[* * *]

This is a garden variety defamation lawsuit of the sort that is routinely litigated in the parties' own names. Many defamation litigants would prefer to avoid being linked with the accusations over which they are suing—just as many plaintiffs and even more defendants would prefer to avoid being linked with the allegations in many kinds of cases, allegations that may reflect badly on one or both parties. But our legal system has chosen to adopt a strong norm of public access to court records, including to the names of the parties, so that the public and the press can better supervise how the legal system operates. And this is not one of the rare cases in which an exception from this norm is warranted. The trial court thus did not abuse its discretion in ultimately deciding to deny pseudonymity. See Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 18, __ N.E.3d __ (2d Dist.) ("[A] trial court's ruling regarding a party's request to proceed pseudonymously will not be overturned absent an abuse of discretion.") (cleaned up)….

[I.] There is a strong presumption against pseudonymous litigation

"It is the rare exception for a litigant to be allowed to proceed anonymously." State ex rel. Cin. Enquirer v. Shanahan, 166 Ohio St.3d 382, 391 (2022). "Civ.R. 10(A) requires plaintiffs to provide their names and addresses in the captions of their complaints." Id. at ¶ 30. "The rule ensures that judicial proceedings will be conducted in public, and it supports the principle that 'the public have a right to know who is using their courts.' The public's right to know a litigant's identity derives from the United States and Ohio Constitutions and the common law." Id. at ¶¶ 30-31 (cleaned up) (quoting Doe v. Blue Cross & Blue Shield United of Wisconsin, 112 F.3d 869, 872 (7th Cir.1997)).

The right of access to parties' names is a facet of the broader right of access to court records more generally. "[I]dentifying the parties to the proceedings is an important dimension of publicness." Doe v. Blue Cross & Blue Shield, 112 F.3d at 872. The right to public access "protects the public's ability to oversee and monitor the workings of the Judicial Branch," and "promotes the institutional integrity of the Judicial Branch," Company Doe v. Pub. Citizen, 749 F.3d 246, 263 (4th Cir.2014), and that includes the presumption against pseudonymity, id. at 273-74. Ohio law is consistent with federal law on this strong presumption against pseudonymity. See id. at ¶ 31 (citing federal appellate cases in explaining Ohio law).

In particular, the names of the parties are often key to investigating the case further—for instance, by helping reporters and researchers who are considering writing about the case (and who are thus "oversee[ing] and monitor[ing] the workings" of the court system in the case) answer questions such as:

Is the case part of a broad pattern of litigation by, say, an ideological advocate, a local businessperson or professional with an economic interest in the cases, or a vexatious litigant? Is there evidence that the litigant is untrustworthy, perhaps in past cases or in past news reports? Do past cases brought by the same litigant reveal similar allegations made by the litigant, which past authorities have concluded were not corroborated? Does the litigant have a possible ulterior motive—whether personal or political—that isn't visible from the court papers? Was the incident that led to the lawsuit covered or investigated in some other context? For instance, if the plaintiff is suing for libel, wrongful firing, or wrongful expulsion based on accusations that the plaintiff had committed a crime, had the plaintiff been arrested for the crime? How did the police investigation or criminal prosecution turn out? Is there online discussion by possibly knowledgeable people about the underlying incident? Is there some reason to think the judge might be biased in favor of or against the litigant?

Knowing the parties' names can help a reporter or an interested local activist quickly answer those questions, whether by an online search or by asking around. The parties themselves might be willing to talk; but even if they aren't, others who know them might answer questions, or might voluntarily come forward if the party is identified. See generally Eugene Volokh, The Law of Pseudonymous Litigation, 73 Hastings L.J. 1353, 1370-71 (2022).

Indeed, based on some public records searches using the addresses included in the trial court docket in this case, it appears to amicus that the parties had litigated against each other before in a matter that may be related to their family relationship. Indeed, this litigation appears to have yielded five Court of Appeals (Eleventh District) opinions, plus one U.S. District Court opinion, and nine short orders from the Ohio Supreme Court. Any coverage of how this case progresses could thus be enriched by the backstory that the previous litigation provides.

But in the absence of the parties' names in the record, such a link with past litigation is merely conjecture and potentially unreliable. Indeed, if the parties' names aren't in the public record, any reporter writing about this case likely cannot take advantage of the fair report privilege in drawing the likely link to the past litigation. The norm of open access is meant to allow the public and the press to comment on cases safely and based on fact, rather than at some risk and based on conjecture. More broadly, "the public (not just the [intervenors] in these cases) has a right to know who is using the court. Except in rare cases, the public has a right to learn that information from the court itself." Cin. Enquirer, 166 Ohio St. 3d at 392.

And defamation cases are fully governed by the presumption of public access to party names. See, e.g., Cin. Enquirer, 166 Ohio St. 3d at 389-90 (refusing to allow pseudonymity in a libel case); Doe v. Doe, 85 F.4th 206, 217 (4th Cir.2023) (likewise). Indeed, defamation cases especially implicate the First Amendment, because the defendants may argue that their speech is true and thus constitutionally protected. It is thus especially important that the public be able to monitor how courts deal with defamation litigation.

Naming the parties also helps promote accuracy of the judicial process. See Volokh, supra, 73 Hastings L.J. at 1384-92. A named witness "may feel more inhibited than a pseudonymous witness from fabricating or embellishing an account." Doe v. Delta Airlines, Inc., 310 F.R.D. 222, 225 (S.D.N.Y.2015), aff'd, 672 F. App'x 48, 52 (2d Cir.2016); see also Roe v. Does 1-11, No. 20-CV-3788-MKB-SJB, 2020 WL 6152174 (E.D.N.Y. Oct. 14, 2020). "Public access creates a critical audience and hence encourages truthful exposition of facts, an essential function of a trial." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir.1983) (so stating in opposition to sealing generally).

Likewise, "it is conceivable that witnesses, upon the disclosure of Doe's name, will 'step forward [at trial] with valuable information about the events or the credibility of other witnesses.'" Doe v. Del Rio, 241 F.R.D. 154, 159 (S.D.N.Y.2006) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 596-97, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring) ("Public trials come to the attention of key witnesses unknown to the parties.")); see also Rapp v. Fowler, 537 F. Supp. 3d 521, 531 & n.56 (S.D.N.Y.2021) (same); Doe v. Univ. of Vermont, No. 2:22-CV-144, 2022 WL 17811359 (D.Vt. Dec. 19, 2022) (same). If the parties are allowed to proceed pseudonymously, this opportunity for witness testimony may be lost.

[II.] The presumption against pseudonymity is not rebutted here

As with Doe v. Doe, 85 F.4th at 217, "[t]his case is no different than a garden variety defamation case, and it does not present the exceptional circumstances necessary for Appellant to proceed by pseudonym." In considering whether the presumption against pseudonymity is rebutted, courts consider "(1) whether the plaintiff seeking anonymity is suing to challenge governmental activity; (2) whether prosecution of the suit will compel the plaintiff to disclose information 'of the utmost intimacy'; (3) whether the litigation compels plaintiff to disclose an intention to violate the law, thereby risking criminal prosecution; … (4) whether the plaintiff is a child," Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 17, and "whether threats of retaliation have been made against the plaintiff and the potential prejudice to the opposing party," id. at ¶ 17 (cleaned up).

Factors 1 and 3 do not cut in favor of pseudonymity here, and appellants do not claim any threats of physical retaliation. Nor is "exceedingly intimate information" present here; to be sure, many people would prefer not to have their names linked with allegations of criminal behavior, especially when that might come to the attention of employers, but that is not itself a basis for pseudonymity in cases where the central factual dispute is about such allegations. Cf. A.B.C. v. XYZ Corp., 282 N.J.Super. 494, 503 (App.Div.1995) ("Plaintiff's arguments … that he and his family might be isolated from society and that his employment would be in jeopardy are not only somewhat speculative, but any such ramifications are due to his actions and his election to institute litigation over a perceived wrong."). "[W]here the stated purpose is to avoid personal embarrassment or potential damage to future professional or economic well-being, federal courts have denied requests to proceed anonymously." Doe v. Doe, 282 Ill. App. 3d 1078, 1084 (1996). See also A.K. v. Ill. Dep't of Children & Family Servs., 2017 IL App (1st) 163255-U, ¶ 24 (refusing to allow pseudonymity in challenge to child abuse findings, because "the privacy concerns that plaintiffs raise exist in many cases in which a party is accused—perhaps wrongly—of some misconduct"). "[M]ost lawsuits will bring up matters that plaintiffs and defendants would prefer to keep private, including sometimes the identities of the parties. It is well-established, however, that only the 'exceptional circumstance' will allow a plaintiff to proceed under a pseudonym." Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 26.

Nor is this a lawsuit brought on behalf of a child, or involving exceptionally private allegations related to a child, such as allegations of sexual abuse. Rather, it is an ordinary lawsuit in which adults sue other adults for injury to themselves, though the injury stems from a statement about the children. The children's names may be redacted in such a situation. Cf. Doe v. Cedarville Univ., 2024-Ohio-100, ¶ 36 (noting that specific factual details could be "protected … through the use of a protective order"). But such cases are routinely litigated with the adults' names disclosed, even where someone might be able to infer the child's name by knowing the adults. See, e.g., Johnson v. Brown, No. CV2012020942, 2012 WL 12542161 (C.P. Dec. 14, 2012) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's and defendant's child); Myers v. Steiner, 2011-Ohio-576, ¶ 1 (9th Dist.) (defamation lawsuit stemming from allegations that plaintiff had abused plaintiff's child); Peoples v. Lang, 2009-Ohio-2693, ¶ 2 (5th Dist.) (likewise); Cox v. Cox, 2009-Ohio-1446, ¶ 2 (12th Dist.) (defamation lawsuit stemming from false allegations that plaintiff had sexually abused his stepsister when they were children).

Conclusion

For good reason, the Ohio civil litigation system is characterized by openness, including openness as to the names of parties. The plaintiff in this case is no more entitled to an exception from this rule than are the vast range of other litigants who routinely have to litigate under their own names, and who have to do so despite the personal and professional difficulties that such litigation may cause.

The post No Pseudonymity in Libel Case Alleging False Domestic Violence Claims appeared first on Reason.com.