Eugene Volokh's Blog, page 304

[David Bernstein] Revisiting Hamas's Barbaric Attack on Southern Israel: Guest Post by Adam Mossoff

Note from DB: I was going to post something about my visit to the South during the lawprof fact-finding mission I attended, by my colleague Adam Mossoff posted an incredibly thoughtful and well-written account of that day on Facebook that sums up what I wanted to say and more. With his permission, it's reprinted below. If want to see the original public post on Facebook with the devastating accompanying photos, click this link.

Day 2 (July 10) of the law professor mission to Israel was incredibly difficult, as we went south to the Gaza Envelope to visit the sites of the October 7 massacres and atrocities: Kibbutz Nir Oz, the Nova festival grounds, the IDF base Nahal Oz, and the car cemetery at Tekuma. We had guides or speakers at each place, and the stories and information they conveyed made the destruction and death of that day that much more real. It is impossible to convey fully in words or pictures the full sense of destruction of homes and cars—the burned-out husks of homes, the bullet holes, the utterly destroyed vehicles. The stories of sadism committed by the Hamas soldiers and even civilian Palestinians who killed Jews with nihilistic glee – babies, children, adults of every age from 18 years old to the elderly. It was psychologically devastating and emotionally draining to see and hear of pure, unadulterated evil. The only thing worse was the 45-minute film of GoPro videos by the Hamas soldiers we watched the following morning.

As I mentioned in my first post on the first day, the World Jewish Congress did another incredible job with the logistics, including bookending this difficult day with two positive events. First, we began the day early with a stop in Ashkelon, a city of 200,000 people that is only 8 miles from Gaza. It has borne the brunt of the rocket attacks by Hamas for many, many years, and its hospital has been hit many times. But we were in Ashkelon on Wednesday morning to visit the School for the Gifted that was founded and run by Elina Lustov and to learn about the Atlas Juniors program run by Elina and Boaz Arad. The Atlas Junior program provides teenagers the specific knowledge and skills to succeed in high-tech and biotech careers, such as at startups, large companies, or as entrepreneurs themselves. We learned about their studies and the students each did short presentations on their internships at companies and the cutting-edge tech or biotech projects they worked on. It was an inspiring vision of the virtues of Israeli society that promotes education and the application of science and technology in a civil society through commercial development and the free market. The students in the Atlas Juniors are all from Ashkelon or from surrounding communities and kibbutzim that were attacked on October 7, and so we also spoke with them a bit about this. These teenagers are all still deeply affected by that horrible day, but their focus on the future, their intelligence, and their aspirations are both palpable and inspirational.

It was then on to the Gaza Envelope – the area of Israel that is within 4.3 miles (7 km) of the border of Gaza – and one of the most difficult 12-hour days I have ever had in my life.

Our first stop was at the car cemetery near Tekuma. This was not originally intended to become a memorial, as it was setup by the IDF in the days following October 7 for the purpose of collecting the literal ashes and other small body parts from cars that were either burned down to their metal frames or riddled with bullets – or oftentimes both. There are 1,650 cars at the car cemetery. We listened to a presentation by IDF Captain Adam Ittah, who explained what happened on October 7 and gave us the backstories to some of the vehicles, such as an ambulance from the Nova festival that is utterly destroyed – it's nothing but a fire-scarred metal frame riddle with bullet holes (see picture below). During the October 7 attack at the Nova festival, many people, many of whom already wounded, had taken refuge in this ambulance. Hamas soldiers attacked the ambulance (a war crime), riddling it with bullets, throwing hand grenades inside, and then shooting it with an RPG to set it on fire. Ultimately, there was nothing left inside but ashes, from which scientists identified 18 different people. Captain Ittah explained how everything that Hamas soldiers did that day was planned in advance. They brough zip ties for raping and taking hostages, and they brought accelerants with them to set fire to cars and houses so that the fires burned hotter and more intensely. Why bring accelerants?

Their purpose was to reduce their victims to ashes – literally. Judaism has very strong rules and norms about preserving for proper burial any bodies or human remains, and Hamas knew about these norms. So, many Israelis spent weeks and months carefully sweeping up ashes from utterly devastated car husks and from homes, periodically finding small body parts like a finger. They would then send these ashes or remains to laboratories for identification and proper burial. In some cases, officials had to exhume ashes already buried to test them again, because they had uncovered new evidence that the ashes were the remains of two or more people. In some cases, they heartbreakingly discovered this had in fact happened. All of this was confirmation of one of the purposes of the October 7 attacks by Hamas, as Captain Ittah carefully laid out the evidence for the case he was making to us. Hamas did not just want to kill as many Jews as possible, as well as kill others who support Jews by being in Israel, like the Thais, Druze, and Bedouins also slaughtered by Hamas. Hamas deliberately sought to humiliate and denigrate everyone they attacked on October 7 – rape, torture, murder, and then make it next to impossible even for loved ones to identify and bury the victims of these heinous war crimes.

For those of you who may know, one of the victims at the Nova festival was a disabled, wheelchair-bound 16-year-old girl (Rute Peretz). Her remains were found and identified in early November – almost a month after the attack – underneath the destroyed ambulance that I described above. It was utterly heartbreaking to hear Captain Ittah recount this story, among many other details of the October 7 attacks.

We next went to Kibbutz Nir Oz, which is only one mile from the Gaza border, and where 46 people were murdered, including several children as young as 5 years old, and 78 hostages were taken, accounting for almost 1/3 of the total hostages taken by Hamas and Gaza civilians on October 7. Whole families were murdered, along with young children, and elderly were burned alive in their beds. For those of you who have been following the continuing war-crime saga of the hostages, 9-month-old baby Kfir Bibas and his 4-year-old brother were taken hostage from Nir Oz, along with both his parents.

This visit to Nir Oz was a harrowing visit to a place of destruction and death. Although there are some places of peace and normality in the kibbutz, such as in the central yard of the kibbutz where the kibbutz's peacock still roams around, Nir Oz otherwise looks like a scene from a war with burned-out homes and buildings riddled with bullet holes. In southern Israel, homes are made of concrete, and some homes had nothing left inside of them, as even metal kitchen appliances melted from the fires set by Hamas soldiers (using accelerants to make them burn hotter, as I explained above). In other homes, the destruction seemed arbitrary or perhaps just incomplete, such as a kitchen table left perfectly untouched next to an utterly destroyed bedroom and kitchen. One destroyed home had Arabic graffiti written on the wall (see picture below).

The pictures don't convey the full sense of the war crime that occurred at Nir Oz. It has been 9 months since the attack on October 7. When we arrived, our guide took us first to the dining hall and it still has the overwhelming stench of death to this day – if you've ever smelled it, you never forget it. The smell is the result of the 46 bodies of young children, elderly, and adults who were placed in the kibbutz refrigerator right after October 7 because the residents had no other place else to put all of them. The bodies are long-since gone, but the smell remains. The kitchen in the dining hall building was burned and destroyed by Hamas and the doors were riddled with bullet holes (see pictures below).

Our guide for the kibbutz was one of the residents, Sharon Lifshitz. Sharon explained that it was clear that Hamas had advance intelligence about the kibbutz before the attack; in all the kibbutzim Hamas attacked that day, Hamas soldiers first went to the home or office of the kibbutz security officer to murder him, preventing the kibbutz from defending itself. These homes and offices are not identified on the homes or buildings themselves and so Hamas had to have had intel about these places. The sources for this intel were the many Gazans who were hired to work in these kibbutzim or were otherwise invited into them every week by the residents. Kibbutzim are socialist-style communes, and the people who live in them, including at Nir Oz, are leftists and peaceniks. Many of the kibbutz residents were activists working for the cause of the Palestinians in Gaza; at Nir Oz, there was a poster still hanging on the wall outside of the dining hall advertising a peace demonstration for the *evening of October 7* sponsored by the "Israeli/Palestinian Bereaved Families for Peace." The father of our guide at Nir Oz was prominently known to the Gazans, as he had permission to use the kibbutz's car every week to drive Gazans to hospitals in Israel for medical treatment. Her father and mother were in their shelter in their house when they were taken hostage, and their home was then destroyed. Given his prominence, it's hard not to think that her father was specifically targeted by Hamas.

Sharon further explained that there were three waves of attacks on October 7: (1) elite Hamas commandos, (2) regular Hamas soldiers, and (3) Gazan civilians who came to loot, pillage, murder, and take more hostages. She remarked that, of the three waves of attacks, they feared most the Gaza civilians. We heard from others that Hamas soldiers sometimes protected hostages from being brutally beaten or outright murdered by the Gazans. Approximately 3,000 Hamas soldiers participated in the attack on October 7, but untold thousands more Gazans followed these Hamas soldiers in the hours afterward to further pillage, murder, or take more hostages.

Our visit to Nir Oz also confirmed again what we learned from Captain Ittah about how the purpose of Hamas on October 7 was to denigrate and metaphorically spit in the faces of the Israelis whom we heard the Hamas soldiers in the film of the GoPro cameras we watched the next day repeatedly call "dogs." At Nir Oz, Hamas deliberately sought to murder and kidnap the very Jews (and their children and babies) who explicitly supported the Gazan Palestinians in their claims about "injustice" and "occupation" by Israel. The intent and clearly conveyed message of October 7 is unmistakable: it was pure genocidal nihilism.

Our visit to the Nova festival grounds was next. The area of the festival is beautiful. It's a grove of trees that were planted by Israelis and kept alive in the desert by an underground irrigation system. It's an example of the value-orientation and productive work of Israeli society that has literally turned a desert wasteland into a country of orchards, farmland, and forests.

The small field where the main stage was at the Nova festival is now filled with memorial posts with the photos of each of the murdered attendees. About 370 people at the festival were massacred on October 7. We learned that Hamas had probably not originally planned to attack the Nova festival, but when the Hamas paragliders saw it in the first wave of attacks, they radioed back to the Hamas soldiers, who then implemented a "pincer strategy" tactic in attacking the festival. The result is that when the young people ran from the Hamas soldiers in the opposite direction, they unknowingly ran to their deaths because they ran right into Hamas soldiers attacking from the opposite direction.

Much of our time at the Nova festival grounds was spent listening to the harrowing story of Bar Hinitz, a young, 23-year-old man who was lucky enough to survive the attack. He explained how he survived only by accident, because he was in a group of cars that drove away from the festival after the large rocket barrage flew overhead that was the start of the Hamas attack from Gaza. In driving away, Bar accidentally turned left and went south on the main road instead of turning right to go north. The cars that went north drove into an ambush setup by Hamas soldiers, who slaughtered hundreds of people stuck inside their cars with nowhere else to go. By the time Bar and his friends realized their mistake and turned around to go north, local police were already directing cars to get off the road and drive east across the open terrain, and thus he avoided the deathtrap further up the road. Not made for cross-country driving, Bar and his friends eventually got out and ran with the sounds of gunshots everywhere. He ran for miles that morning, stopping for breaks and hiding with others in bushes and trees, narrowly missing at times the Hamas soldiers who were hunting down the fleeing partygoers.

The field of memorial posters at the Nova festival grounds was crushingly depressing. It is not hyperbole to call this a massacre. No other word describes it. Every one of the 370 or so posters had a picture of a young, beautiful, vibrant, smiling face – young men and women in their late teens or early twenties – who were at the start of their (adult) lives. I felt like I could have just as easily been looking at the pictures of the faces of my students at Scalia Law that is given to me before class starts each semester. These young people came to a rave on October 6 to dance and party for peace with the Gazans, and 370 of them were raped, tortured, and murdered.

While we were at the Nova festival grounds, we were also reminded of the continuing war in Gaza. In a nearby grove, the IDF had setup artillery for shelling Hamas positions in Gaza. We could not see the cannons, but when those 155mm howitzers fired, the loud boom filled the air and you could feel a slight concussive force in your chest. As Bar began telling his story, we heard the first artillery shot, and we all jumped a bit, despite having been told in advance on our bus that we would hear this at the Nova festival grounds. (We could hear very muffled booms from faraway during our earlier visit to Nir Oz.) Well, I can now attest that knowing in the abstract that we would hear artillery and then in fact hearing and feeling this artillery were entirely different, just as reading about October 7 and visiting the sites of the atrocities of October 7 are entirely different experiences. This is the reason why we bear witness to October 7 by visiting these sites, just as people visit the Nazi death camps today. When we heard the first cannon fire during Bar's story, one of the people in our mission standing next to me asked, "What was that?," and without thinking, I immediately replied, "Justice."

The last thing we did was tour the Nahal Oz military base, which was attacked on October 7. There was a pitched battle at the base at the command center, which had only one door for entry, as IDF soldiers, some of them still in their underwear because they were awoken at 6:30 by the attack, battled Hamas commandos who attacked the command center with AK-47s, grenades, and RPGs. After the base was quickly overrun, 22 soldiers fought from inside the command center until Hamas soldiers threw incendiary devices into the command center, which started a conflagration that burned out the command center. Five IDF soldiers were able to escape out a small bathroom window in the back, but the rest were burned alive. (Below are some pictures from the remains of the inside of the command center.) We were also shown their new high-tech observation capabilities that replaced the observation towers they used to use and we even saw up close some Merkava tanks – no photos allowed, understandably.

Nahal Oz is also where Hamas captured and tortured female soldiers, all of them were between 19-20 years old and in training and working as lookouts at the base. Many of us have already seen videos of them by Hamas that were taken from GoPro cameras and later released by Israel (Liri Albag, Karina Ariev, Agam Berger, Daniela Gilboa and Naama Levy). Some remain hostages of Hamas to this day.

We ended the evening by joining Grilling for Israel (www.grillingforisrael.com) to assist in preparing a BBQ dinner of hamburgers and steaks for the soldiers stationed at the base. Grilling for Israel is an incredible organization, staffed by volunteers who are helping feed the IDF; please support them, if you can, and offer to volunteer if you visit Israel. After our deeply disturbing and difficult day learning the details of the Hamas atrocities and war crimes of October 7, it was wonderful to focus on something positive in preparing BBQ dinners, which we then ate along with the soldiers while we chatted with them about their lives and interests outside of the IDF, as many are reservists called to active duty like Captain Ittah earlier. They were all so friendly and joyous, and the beautiful smiles of these young men and women reflecting perfectly the spirit of Israel were a perfect tonic after a depressing day of death and destruction.

We then left Nahal Oz very late in the evening for the long drive to Tel Aviv, where we would complete our mission the next day. We arrived in Tel Aviv around midnight. It was a truly exhausting day, mentally and physically. I still have not processed everything I heard and saw. The next day would start with an even more difficult viewing of the 45-minute film of the videos from the GoPro cameras worn by the Hamas soldiers, which left me in literal shock for a couple hours. But the next day was also filled with fascinating meetings and discussions about international law with former officials, IDF lawyers, and private lawyers representing Israel or NGOs before the ICC or ICJ. We all learned more than we could have hoped for about how modern international law has been applied to the Israeli-Palestinian conflict and how it is rigged process that allows bad actors like Hamas and their supporting client states, like Iran, to use it in explicit lawfare tactics against Israel. That will be the subject of my next posts.

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[Eugene Volokh] District Court Rejects Magistrate Judges' Gag Order on Publishing Name of Retroactively Pseudonymized Litigant

["Professor Volokh may not ... publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse."]

As some readers may recall, I've been trying since 2022 to get unsealed a federal case in which all the documents were sealed. The case itself was brought using the parties' names, and the docket sheet itself was publicly available. But the only documents that I could read were an opinion that had been posted to Westlaw before the case was sealed and several opinions that had been apparently erroneously made available on Westlaw while the case was sealed. Those documents revealed that there were some interesting First Amendment questions raised by some of the orders in the case, which is why I wanted to be able to access more information from the record. (Now that the orders are indeed unsealed, I hope to write about them soon.)

My UCLA student Nora Browning and I eventually argued the matter in the Fifth Circuit, and the Fifth Circuit agreed in Sealed Appellant v. Sealed Appellee that the case should largely be unsealed, though with redactions of personal information (to which I didn't object).

The Fifth Circuit also instructed the District Court to consider whether the case should be retroactively pseudonymized, on the grounds that plaintiff had been suing in part over alleged revenge porn, and possibly that there was other highly personal information about the plaintiff in the record. I am not sure that the law authorizes retroactive pseudonymization, but I chose not to object to such pseudonymization in this particular case: I just wanted access to the court records, and I sympathized in some measure with the plaintiff, who likely would have been allowed to proceed under a pseudonym in the first place had this been requested at the outset instead of total sealing.

Back in District Court, the Magistrate Judge

ruled in favor of retroactive pseudonymization (more on that in a later post, I hope), acknowledged that it was not "imposing any obligation on Professor Volokh to retroactively pseudonymize his own writings on this case that are already in the public domain," but nonetheless ordered that "Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse."

Unsurprisingly, I objected to that no-public-disclosure gag order, and yesterday the District Judge agreed (Doe v. Friendfinder Networks, Inc., 2024 WL 3423720):

According to Volokh, "publishers like Volokh have a First Amendment right to editorial freedom in deciding whether to publish even highly private information …, so long as they acquired the information from documents that the government had made available." Accordingly, Volokh contends that the language instructing him that he may not publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse "is an unconstitutional prior restraint." Volokh is correct.

As Volokh argues, where the government has in error placed confidential information into the public domain, punishment for the republication of that information already in the public domain violates the First Amendment. Florida Star v. B.J.F. (1989). Of course, courts do have the authority to issue protective orders restricting speech. Seattle Times Co. v. Rhinehart (1984). But generally, such orders are constitutional only where they do not restrict the dissemination of information gained from sources outside of the litigation in which the protective order is sought.

Here, the language at issue broadly prevents Volokh from publicly disclosing Plaintiff's name or personal identifying information in future writings, speeches, or other public discourse—whether learned through the public domain or through his involvement in this case. This unlawfully restricts his speech. For example, the order restricts Volokh from sharing information that is publicly available through his prior writings but allows for any of Volokh's readers to share that same information.

As such, the language at issue here is an unconstitutional prior restraint. Accordingly, the Court STRIKES from the Magistrate Judge's order the following language: "Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse." …

The best news: I now have an official citation for the proposition that "Volokh is correct."

As you might gather, none of this means that I will indeed publicly mention Plaintiff's name or personal identifying information; but that is a decision that the First Amendment leaves in such situations to speakers like me, and not to judges. I should note that in an earlier iteration of the case, the Magistrate Judge had ordered, "Professor Volokh may not blog or write about this case until any renewed motion to unseal has been granted"; I likewise appealed that, and the District Judge promptly concluded, "Professor Volokh may write about this case if he so wishes." I hadn't written about the case, though, because at that point it was sealed, pending the outcome of the Fifth Circuit appeal and follow-up District Court activity.

For those interested in my argument against the gag order, here are my objections (thanks to Stanford Law School student Desmond Mantle, who worked on this draft):

The June 20, 2024 Order stating that Intervenor Volokh "may not … publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse" is an unconstitutional prior restraint. Under Florida Star v. B.J.F., 491 U.S. 524 (1989), publishers like Volokh have a First Amendment right to editorial freedom in deciding whether to publish even highly private information (in that case, the name of a rape victim), so long as they acquired the information from documents that the government had made available. Likewise, though Seattle Times v. Rhinehart, 467 U.S. 20 (1984), allows courts to issue protective orders preventing parties from disclosing information learned solely through litigation, it does not allow courts to issue orders restraining individuals from speaking about matters they learned outside litigation.

Here, Volokh learned Plaintiff Doe's name from documents available on Westlaw; and the name was also available for five years on the publicly accessible docket. Volokh cannot now be ordered by a court not to disclose the information.

Volokh therefore objects to this portion of the June 20, 2024 Order. He does not object to the pseudonymization of Doe's name in court records….

Argument

Volokh objects to the emphasized text below:

Accordingly, the Court will grant Plaintiff's request to retroactively pseudo­nymize the record and order the Clerk to amend the case caption and docket entries by replacing Plaintiff's name with "Jane Doe" to preserve her anonym­ity. The Court notes that in doing so it is not imposing any obligation on Professor Volokh to retroactively pseudonymize his own writings on this case that are already in the public domain. Professor Volokh may not, however, publicly disclose Plaintiff's name or personal identifying information in any future writings, speeches, or other public discourse.

This attempt to restrict Volokh's speech is an unconstitutional prior restraint.

In Florida Star, the Court set aside even a subsequent punishment (in that case, civil liability) for publishing the name of a rape victim drawn from a publicly released document (in that case, an erroneously released police report). "Once the government has placed such information in the public domain, 'reliance must rest upon the judgment of those who decide what to publish or broadcast'" rather than on the threat of legal liability. 491 U.S. at 538 (internal citation omitted). And that was true even though the information in Florida Star was released as a result of "the erroneous, if inadvertent, inclusion by the [Sheriff's] Department of [plaintiff's] full name in an incident report made available in a pressroom open to the public." Id.

Here, plaintiff's name was released to the public in opinions posted on Westlaw [citing opinions]. Some of the opinions may have been released to Westlaw erroneously, though the first (the June 24, 2019 opinion) had been issued before the case was sealed (by Order, ECF No. 9 (July 8, 2019)), so there may have been no error in its release. Moreover, the plaintiff's name was quite correctly part of the docket for five years before the case was pseudonymized. Thus, here too, "[o]nce the government has placed such information in the public domain," Volokh cannot be ordered not to disclose it.

That is especially so because the order here goes beyond civil liability (as in Florida Star) and imposes a prior restraint. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). "[T]he gagging of publication has been considered acceptable only in 'exceptional cases.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers).

To be sure, Seattle Times Co v. Rhinehart lets courts issue protective orders restraining the dissemination of information obtained in discovery—but precisely because such protective orders do "not restrict the dissemination of the information if gained from other sources." 467 U.S. 20, 37 (1984). "[A]n order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny," because it "prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes." Id. at 33-34 (emphasis added). The June 20, 2024 Order, on the other hand, blocks Volokh from disseminating information gained through means independent of "use of the discovery process" or any similar court process.

Likewise, in Butterworth v. Smith, 494 U.S. 624, 634 (1990), the Supreme Court ruled that a Florida law prohibiting grand jury witnesses from speaking publicly about their own testimony was an unconstitutional restraint on speech. Florida had attempted to rely on Seattle Times to argue that, because the information had been used in a grand jury proceeding, a witness could be barred from divulging it. Id. at 631. But the court rejected that rationale, citing Florida Star and related cases:

In Rhinehart we held that a protective order prohibiting a newspaper from publishing information which it had obtained through discovery procedures did not offend the First Amendment. Here, by contrast, we deal only with respondent's right to divulge information of which he was in possession before he testified before the grand jury, and not information which he may have obtained as a result of his participation in the proceedings of the grand jury. In such cases, where a person "lawfully obtains truthful information about a matter of public significance," we have held that "state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order."

Id. at 631-32 (emphasis added) (citing Florida Star and a similar case). Similarly, in June Medical Services, L.L.C. v. Phillips, 22 F.4th 512, 520 (5th Cir. 2022), the Fifth Circuit held:

In the context of publicly available documents, those already belong to the people, and a judge cannot seal public documents merely because a party seeks to add them to the judicial record. We require information that would normally be private to become public by entering the judicial record. How perverse it would be to say that what was once public must become private—simply because it was placed in the courts that belong to the public. We will abide no such absurdity.

Publicly available information cannot be sealed. In so holding, we align with the Supreme Court and our sister circuits. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) ("[A] protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, [a litigant] may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes." (emphasis added)) ….

It follows even more clearly that the dissemination of such originally publicly available information cannot be enjoined. Volokh does not object in this case to the retroactive redaction of plaintiff's name from court records, but he cannot be legally bound to redact it from his future speech. See also Marceaux v. Lafayette City-Parish Consolidated Government, 731 F.3d 488, 493 (5th Cir. 2013) (holding that a protective order requiring the plaintiffs to take down their website, on which they communicated information and views about their case, was unconstitutional, because the order "explicitly restricts the expression of attorneys and parties in this litigation as it relates to the media and prevents the Officers from expression in the Website" and thus "qualifies as a prior restraint").

Conclusion

The objected-to portion of the June 20, 2024 Order is a prior restraint on Volokh's speech. The precedents cited above, including especially Florida Star—which invalidated even subsequent punishment for the publication of highly personal information that had been obtained from records that the government had made available—make clear that it is an unconstitutional prior restraint. Volokh therefore asks that this portion of the Order be vacated….

The post appeared first on Reason.com.

[Josh Blackman] Mission to Israel Part IV: What I Learned About The Israeli Politics With Regard To The Hostages

[If you think American politics are corrosive, hold my falafel. ]

[This is the four post in my series on my mission to Israel. You can read Parts I, II, and III.]

Though I don't particularly care for American politics, I generally understand how the various systems work. With regard to foreign governments, I neither care about their political systems, nor understand how they work. I write this post about Israeli political system with some trepidation, but I think it is relevant to understand the current situation with regard to the hostages.

In December 2022, Benjamin Netanyahu (known as Bibi) formed a government in parliament. His coalition included several members from (what are known as) far-right parties. A leading charge of the new government was judicial reform. Indeed, as I wrote in Part III, these reforms were viewed as essential to liberate the people from the rule of elite lawyers. Unsurprisingly, elite lawyers who wiled this power opposed these changes. These proposals triggered massive nationwide protests. Every Saturday night, people took to the streets of Israel to oppose changing the courts. They went on labor strikes and shut down roads. Society ground to a halt. Indeed, these protests spread to America, though I suspect most of the people marching knew as much about the Israeli Supreme Court as the kids at Columbia know which river and sea border Israel. After sustained protests, the government backed away from most of the proposals. (And those proposals that were passed were later declared unconstitutional.)

But then October 7 happened. And at least for a while, the protests ceased. I think most Israelis formed a sense of solidarity. There was a collective purpose–to bring the hostages home. Throughout Israel, signs appear with the faces of the hostages. The English translation reads "Bring them home," "Bring him home," or "Bring her home." But not everyone agreed on what those signs mean. Was it a charge to Hamas to release the hostages? Or was it a charge to the Netanyahu government to negotiate with Hamas to bring the hostages home?

Soon enough, the Saturday night protests returned. During my visit, the protest on the nine month anniversary of 10/7 swept across the nation. I asked what exactly the people were protesting: the return of the hostages or the Netanyahu government. The answer was both. The dynamics here are complicated.

Some of the protestors are calling for an immediate ceasefire to ensure the release of the hostages. Their sole priority is to bring the hostages home, and they will deal with the consequences later. But if Netanyahu agrees to a cease-fire, the "far right" members would leave the coalition, which would result in the dissolution of the current government. And if Netanyahu loses power, critics say, he will become more vulnerable to criminal prosecution on a host of long-standing allegations. So, critics contend, Netanyahu refuses to agree to a ceasefire, even if one would release the hostages, in order to ensure his government continues, and he stays out of legal hot water. Critics of Netanyahu consistently repeat this refrain. See this article in the Jerusalem Post. But things are not that simple.

I asked several critics of Netanyahu to imagine that a ceasefire is reached, a new government is formed, and the hostages are released. What policy should this new government adopt towards Hamas? The answer was consistently I don't know. I ask them what should Israel do to prevent Hamas from rebuilding its terror network and infrastructure. They don't know. So as unpopular as Netanyahu's policy is now, I'm not sure that the critics really have any other idea–other than to reach a ceasefire to return the hostages. Regrettably, many Americans on the left suffer from TDS–Trump Derangement Syndrome. I think at least some Israelis suffer from a different type of BDS–Bibi Derangement Syndrome. They are so morally opposed to everything Bibi does that they are unable to see some of the value in the difficult decisions he is making.

Then there is the issue of what a ceasefire would entail. As one international lawyer explained to me, every state retains the inherent power of self defense. Even if some deal was reached with Hamas, there is a 100% chance the terrorist organization would breach that agreement and engage in future terrorist attacks. 100%. And those attacks would allow Israel to immediately resume hostilities. One lawyer told me, half-jokingly, that Israel should agree to whatever terms Hamas demands because the terrorists will promptly breach any agreement, thus allowing Israel to resume strikes.

Certainly Hamas understands these dynamics. So why would they ever release all of the hostages? This is their leverage. One lawyer told me that taking a hostage was a very cost-effective means of pressuring Israel. Keeping the hostages also ensures that the weekly protests continue, and Israeli society remains divided. This strategy allows the nation to consume itself. One of the few hostages who was freed from captivity relayed that his captor–who freelanced as a "journalist"–showed him the protests on television. These protests are being used as propaganda by the terrorists to demoralize the hostages. Similar tactics were used during Vietnam with prisoners of war.

All of this is to say that the political situation in Israel is beyond complex. About half the nation hates Netanyahu but there is no coherent strategy, other than a ceasefire that will likely not hold, and will not result in the return of all hostages, but would likely allow Hamas to rebuild its terror infrastructure.

If you think American politics are corrosive, hold my falafel.

The post Mission to Israel Part IV: What I Learned About The Israeli Politics With Regard To The Hostages appeared first on Reason.com.

[Josh Blackman] Making Sense of Justice Barrett's NetChoice Concurrence

[I don't get the random questions Justice Barrett raises, and I'm not sure why she didn't mention her reservations in Hansen..]

On Monday, I tried to make sense of the various opinions in Moody v. NetChoice. Really, nothing lines up. Everyone agrees that the lower courts failed to apply the proper standard for the facial challenge. But the Justices then sharply divide about what kind of instructions to provide the lower courts, even as they all profess some sort of minimalism. After Justice Alito (likely) lost the majority opinion, the entire case went schizophrenic.

Here, I'd like to write about the most confounding opinion in the lot: Justice Barrett's concurrence. Unlike in Trump v. United States, she joins the majority opinion in full. Presumably, she agrees with Part II concerning the facial analysis, but she doesn't say a word about that part. But she does expressly agree with the Court's First Amendment analysis:

I join the Court's opinion, which correctly articulates and applies our First Amendment precedent. In this respect, the Eleventh Circuit's understanding of the First Amendment's protection of editorial discretion was generally correct; the Fifth Circuit's was not.

I'm still perplexed by this concurrence. Justice Barrett loves to extol the virtues of minimalism, and not deciding more than is necessary. If the lower courts botched the facial analysis, that should have been the end of the road. The Court is usually not in the business of providing a preview of how the lower courts should decide the case, where the entire complaint will likely need to be refiled. Moreover, I agree with Justice Thomas that the facial analysis is jurisdictional, or at least quasi-jurisdictional. Why provide a sneak-peak on the merits after finding a jurisdictional problem?

The remainder of Justice Barrett's concurrence left me scratching my head some more. She goes through an entire discourse of how to think about issues that are not present here. For example, she describes an algorithm that, as far as I can tell, no one is putting forward:

But what if a platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like—e.g., content similar to posts with which the user previously engaged? See ante, at 22, n. 5. The First Amendment implications of the Florida and Texas laws might be different for that kind of algorithm. And what about AI, which is rapidly evolving? What if a platform's owners hand the reins to an AI tool and ask it simply to remove "hateful" content? If the AI relies on large language models to determine what is "hateful" and should be removed, has a human being with First Amendment rights made an inherently expressive "choice . . . not to propound a particular point of view"? Hurley, 515 U. S., at 575. In other words, technology may attenuate the connection between content-moderation actions (e.g., removing posts) and human beings' constitutionally protected right to "decide for [themselves] the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641 (1994) (emphasis added). So the way platforms use this sort of technology might have constitutional significance.

As I was reading this passage, my initial thought was, "why?" The thrust of the majority is the courts should only consider the claims actually presented (as applied), and not consider a sweep of technologies that are not presented (facial). Why then ponder technologies that NetChoice does not even offer? Justice Kagan's majority opinion explains that this issue is not relevant:

5We therefore do not deal here with feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards. See post, at 2 (BARRETT, J., concurring).

Then Justice Barrett goes on another detour about potential foreign ownership of tech companies.

So a social-media platform's foreign ownership and control over its content-moderation decisions might affect whether laws overriding those decisions trigger First Amendment scrutiny. What if the platform's corporate leadership abroad makes the policy decisions about the viewpoints and content the platformwill disseminate? Would it matter that the corporation employs Americans to develop and implement content-moderation algorithms if they do so at the direction of foreign executives? Courts may need to confront such questions when applying the First Amendment to certain platforms.

Is she musing about the TikTok case here? I really have no idea. Why is any of this here?

This passage reminds me of her Fulton concurrence, where she raised a host of questions that really never mattered, and which she has shown no interest in revisiting since then. It was just makeweight to avoid overruling Smith.

Here is my sense of Justice Barrett, which may not make sense to those outside academia. But her type is typical. Let me describe. At a faculty workshop, a person presents a paper. A professor doesn't like the paper, but doesn't want to say anything harsh about it, so she raises a host of random questions about something completely different than what the paper was about–the dreaded comment is "this should be two papers"–and then shows no interest in whether those questions are ever answered.

Perhaps what confounds me the most is how Justice Barrett completely ignores her opinion in United States v. Hansen on the overbreadth doctrine. I praised that decision! One year earlier, she wrote that the overbreadth doctrine is extremely problematic:

For another, litigants mounting a facial challenge to a statute normally "must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added). Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.

But in NetChoice, Barrett favorably cites Hansen, without any reservations:

The court must then find a way to measure the unconstitutional relative to the constitutional applications to determine whether the law "prohibits a substantial amount of protected speech relative to its plainly legitimate sweep." United States v. Hansen, 599 U. S. 762, 770 (2023) (internal quotation marks omitted).

One of the virtues of Justice Thomas is he will include string cites of all of his opinions explaining why doctrines should be changed. Justice Barrett's concurrences seem more like one-offs than a thread. Each case is a new day.

Justice Kagan, quite notably, does not even mention the overbreadth doctrine, even though she cites Hansen several times. Overbreadth is closely related to a facial challenge in the First Amendment context. I still think that doctrine is on borrowed time.

Update: Justice Barrett wrote the majority in Hansen. An earlier version of the post reflected that she wrote the concurrence.

The post Making Sense of Justice Barrett's NetChoice Concurrence appeared first on Reason.com.

[Ilya Somin] Biden's Badly Flawed New Housing Plan

[It combines nationwide rent control with modest supply-side measures potentially freeing up "underutilized" federal property for housing construction.]

( Andrii Yalanskyi/Dreamstime.com)

 

Today, the Biden Administration issued a new housing policy plan. It combines a really awful idea -nationwide rent control—with a modestly good one: using "underutilized" federal government property to build new housing. Here is the White House summary of the rent control proposal:

President Biden is calling on Congress to pass legislation presenting corporate landlords with a basic choice: either cap rent increases on existing units to no more than 5% or lose valuable federal tax breaks. Under President Biden's plan, corporate landlords, beginning this year and for the next two years, would only be able to take advantage of faster depreciation write-offs available to owners of rental housing if they keep annual rent increases to no more than 5% each year. This would apply to landlords with over 50 units in their portfolio, covering more than 20 million units across the country. It would include an exception for new construction and substantial renovation or rehabilitation.

Economists and housing policy experts across the political spectrum recognize that rent-control is an extremely harmful policy, because it reduces the quantity and quality of housing. Don't take my word for it. Take that of such progressives as Paul Krugman, and Jason Furman, former chair of Barack Obama's Council of Economic Advisers, who condemns the Biden proposal because "Rent control has been about as disgraced as any economic policy in the tool kit. The idea we'd be reviving and expanding it will ultimately make our housing supply problems worse, not better." A recent meta-study in the Journal of Housing Economics reviews the extensive evidence of rent control's negative effects.

In fairness, as Reason housing policy writer Christian Britschgi points out, the plan includes a number of mitigating elements that might reduce its harmful impact. It only applies to landlords with over 50 housing units, and exempts new housing construction and renovation. Also, it limits rent increases to 5% per year, instead of imposing a tighter cap. Still, the plan would apply to many millions of housing units (the White House claims the figure is 20 million), which will predictably reduce quality and supply.

If the rent control plan has a saving grace, it's that even the White House admits it would have to be enacted by Congress. This is unlikely to happen anytime soon. But, as Britschgi notes, the president putting the idea of nationwide rent control on the political agenda increases its profile, and makes it more likely it could be enacted at some point.

The Biden plan does include a countervailing good idea: the proposal to free up "underutilized" federal property to build new housing. Privatization of federal land could potentially do much to alleviate housing shortages. But it is far from clear how much land the administration actually proposes to make available for this purpose. It's also not clear whether they plan to privatize the land in order to allow private developers to build on it, or whether they envision some form of public housing, or a combination of both. Public housing has a terrible track record. Privatization is a much superior option.

Another frustrating element of the Biden plan is that the president knows - or at least used to know - that the best way to alleviate housing shortages is to cut back on zoning rules and other land-use restrictions blocking the construction of new housing. In 2020, he ran on a platform of using federal grant conditions to pressure state and local governments to do just that. But he has largely failed to carry out those ideas during his time in office.

In his article on the new Biden plan, Britschgi notes that Trump and newly minted VP candidate J.D. Vance also have some awful housing-related policies. Most obviously, their plan to implement mass deportation of undocumented immigrants would wipe out much of the housing construction work force, and thereby predictably reduce construction and make it more expensive (this effect, plus other negative impacts of deportation on housing outweighs the potential benefit of a reduction in demand). Unlike the Biden rent control plan, the GOP deportation policy could likely be enacted without major new legislation, which makes it even more of a menace. Vance's idea of restricting corporate investment in housing would also predictably reduce supply.

But the awfulness of Trump and Vance's ideas in no way justifies Biden's rent control plan.

The primary goal of the Biden rent control plan may not be to alleviate housing shortages, but to bolster the president's reelection campaign. Studies suggest rent control is popular among voters, many of whom don't understand basic economics. Exploiting widespread public ignorance is a ubiquitous, time-honored political strategy. But that doesn't make it right.

The post Biden's Badly Flawed New Housing Plan appeared first on Reason.com.

[Eugene Volokh] No Qualified Immunity When "Public Officials … Baselessly Threaten[] a Citizen-Journalist With Legal Action"

["if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law."]

From Berge v. School Committee, decided yesterday by the First Circuit, in an opinion by Judge O. Rogeriee Thompson, joined by Judges David Barron and Lara Montecalvo (though there's a lot more going on in the opinion as well):

On a motion to dismiss a case, does qualified immunity protect public officials who baselessly threatened a citizen-journalist with legal action if he did not remove a video on a matter of public concern that he made and posted on Facebook without breaking any law? We answer no …. {[A]s a heads-up for the legal neophytes out there, qualified immunity gives officials cover when they decide close questions in reasonable (even if ultimately wrong) ways—sparing them from money-damages liability unless they violated a statutory or constitutional right that was clearly established at the time (much more on all that soon).} …

Inge Berge is a citizen-journalist living in Gloucester, Massachusetts. Back in early March 2022, he went to the city's school superintendent's office—which is open to the public (during specified hours, we presume). He wanted to buy tickets to his daughter's sold-out school play. And he wanted to hear from officials why the school's COVID-19 rules still capped the number of play-goers when the state had already lifted its COVID-19 mandates by then.

Visibly filming as he went along (he kept his camera out for all to see), Berge made sure to also tell everyone he met that he was recording. And no sign banned or restricted filming in the building's publicly accessible areas either.

Talking to executive secretary Stephanie Delisi, Berge said, "I'm filming this. I'm doing a story on it. If that's okay with you." "No, no I don't want to be filmed," Delisi answered back. Berge kept openly filming. Delisi then walked into superintendent Ben Lummis's office.

Standing at the door of his office, Lummis asked Berge to stop recording. "You do not have permission to film in this area." Berge kept openly filming. "I'm happy to speak with you," Lummis added, "if you turn that off." "You do not have my permission to film here right now," Lummis said as well. Berge kept openly filming. And Lummis closed his office door.

Assistant superintendent Gregg Bach then walked over to Berge. And with Berge still openly filming, Bach took notes about Berge's bid to see his daughter's play. Unlike the others, Bach voiced no objection to Berge's filming.

Hoping to "expose" the "unreasonableness" of the district's "policy," Berge uploaded the video (along with his commentary) to Facebook that very day. And he made the material publicly viewable as well.

None too pleased, district-human-resources director Roberta Eason fired off a letter to Berge within hours. Citing Mass. Gen. Laws ch. 272, § 99(C), she accused him of violating Massachusetts's wiretap act by not getting "the consent" of all participating officials before recording and posting the film. And she "demand[ed]" that he "immediately" remove the video or face "legal action" (his supposed wiretap act violation was the one and only reason she gave for the removal demand).

Turns out she was way off base in relying on the wiretap act. And that is because this law pertinently bans "secret" recordings, which Berge's most certainly was not….

Berge did not do as directed, however. He instead sued …. According to that count, defendants threatened "bogus legal" action under the state wiretap act to "frighten him into suppressing his own First Amendment rights." …

[W]e—after taking Berge's allegations as true (though knowing that discovery or trial evidence may cast the case in a different light)—have a hard time picturing a more textbook First Amendment violation.

Berge very publicly recorded public officials performing public duties in the publicly accessible part of a public building—all to get information about the district's COVID-19 policies, in a form he could then share, with the goal (to quote again from the complaint) of "expos[ing] and comment[ing] on the unreasonableness" of those "polic[ies]." And his speech (front and center in the complaint) about COVID-19 protocols—the kind that has sparked much political and social debate (and litigation too)—strikes us as sufficiently "a subject of legitimate news interest" to come within the sphere of public concern.

If the First Amendment means anything in a situation like this, it is that public officials cannot—as they did here—threaten a person with legal action under an obviously inapt statute simply because he published speech they did not like. "[T]o prevent the pursuit of legal action in this matter," the Eason-signed letter "demand[ed]" that Berge "immediately remove the

from [his] Facebook account and/or any other communications." Which shows the complaint plausibly alleges that the individual defendants knew the legal-action threat centered on Berge's right to publish. What is more—and as already explained—the letter cited the state wiretap act as the only basis for the removal demand (no one defends the threat on any other ground). But—as also earlier noted—the wiretap act only bans "secret" recordings (in which the persons recorded did not know they were being recorded) and thus does not apply here. Which shows the complaint plausibly alleges that the individual defendants knew such action was baseless….

Shifting then from qualified immunity's step one (constitutional rights violation) to step two (clearly established law), we also think it follows naturally from the above cases that Berge has plausibly pled a violation of a clearly established right to publish on a topic of public interest when the violators acted (as a reminder, but using a different case quote, a right is "clearly established" when it is no longer among the "hazy" area of constitutional issues that might be "reasonably misapprehend[ed]"). And by "acted" we mean (as the complaint alleges) threatening Berge with an obviously groundless legal action: Surely no sensible official reading these long-on-the-books opinions could believe that that act—assuming it represents an adverse action—was not a burden on Berge's First Amendment right to publish on a matter of public concern. So given all this, Berge's complaint plausibly alleges that the threat constituted First Amendment retaliation in violation of his clearly established right….

Marc J. Randazza, Jay M. Wolman, and Robert J. Morris II (Randazza Legal Group, PLLC) represent Berge.

The post No Qualified Immunity When "Public Officials … Baselessly Threaten[] a Citizen-Journalist With Legal Action" appeared first on Reason.com.

[Josh Blackman] New in Harvard JLPP Per Curiam: What We Did and Did Not Argue in United States v. Trump

[Seth Barrett TIllman and I write about our experience in Judge Cannon's court, before the decision yesterday.]

On June 21, I presented oral argument in Judge Cannon's court on behalf of Professor Seth Barrett Tillman and the Landmark Legal Foundation. After the argument, Seth and I wrote an essay about our argument. To address some misperceptions, we discussed what we did and did not argue.

In case you are living under a rock, yesterday Judge Cannon granted the motion to dismiss the indictment. The court cited several of our arguments. We will have more to say about the court's decision in due course. But for now, we decided to publish our essay without regard for the court's decision.

Our HJLPP essay may shed some light on the court's decision. Here is the introduction:

On June 21, 2024, Judge Aileen Cannon of the United States District Court for the Southern District of Florida heard oral argument in United States v. Trump. This prosecution was brought by Special Counsel Jack Smith with regard to former President Trump's possession of certain documents at Mar-A-Lago. Blackman presented oral argument that day based on an amicus brief we had filed, with the Landmark Legal Foundation, in March.

Our goal here is to explain the lines of argument we put forward in our amicus brief, our motion, and at the hearing on Friday, June 21, 2024. We will address three questions. First, does United States v. Nixon require the District Court to dismiss the former President's motion to dismiss the indictment? Second, does the Special Counsel hold a continuous "Officer of the United States" position? And third, has Congress appropriated money to pay the Special Counsel and his staff and contractors?

And here is our discussion about United States v. Nixon. Our argument did not turn on whether a passage in that case was holding or dicta:

During oral argument, we made a different argument. We assumed for the sake of argument that the parties in Nixon had raised the issue: that is, whether the special prosecutor's position was lawful. We further assumed that the Court's decision squarely addressed that issue. We even assumed that in addressing that issue, the decision on this point was the Court's holding, and not dicta. Even with all of these assumptions in place, Nixon is not controlling in United States v. Trump. Why? A prior decision is only controlling, as opposed to persuasive, where the facts are the same. And here, the facts are not the same.

We put forward three reasons in support of our position. First, the Nixon Court repeatedly described the circumstances giving rise to the conflict as unique. The Court described the special prosecutor as having "unique authority and tenure. And finally, the Court plainly stated that the case was decided based on "the unique facts of this case." When the Court tells the parties, the legal community, and the country that the facts are "unique" and when it does so multiple times, the implication is that other cases are, in fact, dissimilar and that the holding should not be extended to different facts at a subsequent date. Nixon was the proverbial ticket good for one ride—or perhaps, one president. Bush v. Gore could be characterized in a similar fashion.

Second, the Nixon Court supported its decision by expressly relying on several statutory provisions, and on regulations put into effect in 1973 by Acting Attorney General Robert Bork. Although the former statutory provisions remain in effect, the latter regulations were superseded by the Ethics in Government Act (1978), which created independent counsels. The 1978 act, because it was not re-authorized by Congress, expired in 1999. Subsequently, new regulations were put into effect in 1999 by Attorney General Reno. The Nixon-Court-era regulations for special prosecutors and the modern, now-in-force Reno regulations for special counsels are not the same. For that reason alone, Nixon is not and cannot be controlling: Nixon relied upon federal regulations which are no longer in effect.

Third, the Nixon Court explained why the 1973 Bork regulations were significant. The Court noted:

The Attorney General will not countermand or interfere with the Special Prosecutor's decisions or actions. The Special Prosecutor will determine whether and to what extent he will inform or consult with the Attorney General about the conduct of his duties and responsibilities. In accordance with assurances given by the President to the Attorney General that the President will not exercise his Constitutional powers to effect the discharge of the Special Prosecutor or to limit the independence that he is hereby given, the Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part and without the President's first consulting the Majority and the Minority Leaders and Chairmen and ranking Minority Members of the Judiciary Committees of the Senate and House of Representatives and ascertaining that their consensus is in accord with his proposed action.

Under the 1973 Bork regulations, the special prosecutor enjoyed unique and a since unmatched level of independence. The special prosecutor was beyond the ordinary removal power of the President, who, in the ordinary course, can remove high ranking Executive Branch officers of the United States at pleasure. Under the Bork regulations, the special prosecutor could not be removed even for "good cause;" rather, he could only be removed for "extraordinary improprieties." Again, this level of independence is well beyond what appears in the Reno regulations. Finally, the 1973 Bork regulations permitted removal of a special prosecutor only after the President had consulted and sought consensus from eight high ranking members of Congress. Not only do modern special counsels enjoy no such protections against removal, any effort in this manner to insulate special counsels against presidential removal would seem to be plainly forbidden by more recent developments in Supreme Court case law. To put it simply, the Nixon decision, to the extent it validated the office of special prosecutor as lawful, did so based on a regulatory framework that is no longer in force and which could not be put into effect today by statute due to Bowsher v. Synar. Nixon was predicated on a unique and an unmatched level of independence vested in special prosecutors. By contrast, today's special counsel, including Jack Smith, enjoy no such independence against removal. Thus, Nixon is not controlling.

In making the argument above, we only conclude that Nixon is not controlling; it does remain persuasive—as do other more recent Supreme Court Appointments Clause decisions.

 See United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (William Pryor, J.) (en banc) ("Although Johnson argues that Terry is inconsistent with the original meaning of the Fourth Amendment and that we should apply it narrowly to 'limit[] the damage,' we must apply Supreme Court precedent neither narrowly nor liberally—only faithfully."); Jefferson County v. Acker, 210 F.3d 1317, 1320 (11th Cir. 2000) ("There is, however, a difference between following a precedent and extending a precedent.").

 See 418 U.S. at 691 ("unique"), 697 ("uniqueness of the setting").

 Id. at 694.

 Id. at 697 (emphasis added).

 531 U.S. 98, 109 (2000) ("Our consideration is limited to the present circumstances . . . .").

 See Nixon, 481 U.S. at 694–95, 694 n.8 (citing 38 Fed. Reg. 30738–39, as amended by 38 Fed. Reg. 32805).

 See Id. at 695 (characterizing the 1973 Bork regulations as having "the force of law"); cf. Allapattah Services, Inc. v. Exxon Corp., 362 F.3d 739, 765 (11th Cir. 2004) (suggesting that a Supreme Court holding is no longer controlling "where specific statutory language that had previously been interpreted by the Court is amended . . . .").

 Nixon, 418 U.S. at 694 n.8 (quoting the underlying regulation).

 See 28 C.F.R. 600.7(d) (1999) (permitting a special counsel's removal for "good cause").

 See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986).

We welcome any feedback or comment. As all can predict, this case is headed to a higher court.

The post New in Harvard JLPP Per Curiam: What We Did and Did Not Argue in United States v. Trump appeared first on Reason.com.

[Josh Blackman] Dean Kagan Would Rather Forget About Rumsfeld v. FAIR

[But she did smuggle in a dictum that echoes Harvard's 2005 amicus brief about expressive activity in the classroom.]

What a difference two decades make. In 2003, Elena Kagan was the Dean of Harvard Law School. At the time, many law schools had banned JAG officers from recruiting on campus, citing the "Don't Ask, Don't Tell" policy. Dean Kagan did not ban JAG recruiters, but voiced support for the ban. She articulated this position in an email to the community:

"I abhor the military's discriminatory recruitment policy. The importance of the military to our society—and the extraordinary service that members of the military provide to all the rest of us—makes this discrimination more, not less, repugnant. The military's policy deprives many men and women of courage and character from having the opportunity to serve their country in the greatest way possible. This is a profound wrong—a moral injustice of the first order. And it is a wrong that tears at the fabric of our own community, because some of our members cannot, while others can, devote their professional careers to their country."

Still, Kagan permitted the recruiters to use the Office of Career Services.

But there was also the Solomon Amendment. Under this federal law, colleges would be denied funding if they denied military recruiters access to campus. An association of law schools, known as the Forum for Academic and Institutional Rights challenged the constitutionality of the Solomon Amendment.

In 2004, Kagan joined an amicus brief before the Third Circuit, arguing that the Solomon Amendment violated Harvard's freedom of expression–in this case, excluding military recruiters as a way to protest "Don't Ask, Don't Tell." After the Third Circuit ruled for FAIR, Dean Kagan imposed the ban on military recruiters. But the Pentagon then threatened to withhold funding, and Kagan relented. (SCOTUSBlog links to many of the primary sources.)

The case was then appealed to the Supreme Court, with Kagan joining another amicus brief. The Court, per Chief Justice Roberts, ruled against FAIR by an 8-0 vote. (The case was argued in December 2005, before Justice Alito joined the bench.) The Court held that the Solomon Amendment regulated conduct, and not speech, and was constitutional. As I recall, the Dean of the George Mason University School of Law was the only Dean to file a brief in support of the Solomon Amendment. (Mason was a very special place in 2006–several months before I matriculated.)

I suspect Dean Kagan would rather forget about Rumsfeld v. FAIR. And, perhaps fittingly, in NetChoice, Justice Kagan downplayed the case. She only mentioned it briefly at the top of page 17 of the slip opinion, and in a curious footnote on page 18:

4 Of course, an entity engaged in expressive activity when performing one function may not be when carrying out another. That is one lesson of FAIR. The Court ruled as it did because the law schools' recruiting services were not engaged in expression. See 547 U. S. 47, 64 (2006). The case could not have been resolved on that ground if the regulation had affected what happened in law school classes instead.

I pulled the Harvard amicus brief in FAIR, and it included a very similar point:

Or, by the government's reasoning, Congress might use the hook of federal funding to require private universities to begin each class during hiring season by informing students of when and where military recruiters will be available for interviews. Because these conditions would not target "dangerous ideas," in the government's view they would present no constitutional problem. Plainly, however, such conditions would undermine both the principle of academic freedom and the First Amendment values that principle serves.

Dean Kagan never forgets an argument. Glad she smuggled that dicta into a majority opinion. It will be cited in contexts near and far. And, as nothing changes, Seth Waxman represented Harvard here, as he did in SFFA.

Justice Alito's NetChoice dissent points out how Justice Kagan glossed over FAIR, as well as Pruneyard.

Two precedents that the majority tries to downplay, if not forget, are illustrative. The first is PruneYard, which I have already discussed. . . .The decision in FAIR rested on similar reasoning.

Yes, Justice Kagan would rather forget about FAIR.

Of course, Justice Alito may have had some thoughts on this issue. Alito did not participate in the Third Circuit's panel opinion in FAIR. But he did serve in ROTC at Princeton. And he was affiliated with Concerned Alumni of Princeton, which was founded to bring ROTC back to Princeton, though he later disavowed that group.

The post Dean Kagan Would Rather Forget About Rumsfeld v. FAIR appeared first on Reason.com.

[Josh Blackman] Mission to Israel Part III: What I Learned About The Israeli Separation of Powers

[Ambition does not check ambition. Erudition checks opposition.]

[This is the third post in my series on my mission to Israel. You can read Parts I and II.]

As a general matter, I am skeptical of comparative constitutional law. I think it is exceptionally difficult to master one legal system. I don't even pretend I've figured out own own laws. I barely have enough time to read all of the Supreme Court's decision. (I still need to finish Jarkesy, Corner Post, and NetChoice.) I doubt a professor could purport to be an expert of both Louisiana Civil Law and Texas Common Law, even though the states border each other! How can one person possibly become an expert in multiple legal systems from different corners of the globe, and purport to compare and contrast them? I have no clue. Maybe comparativists are simply smarter than us simple-minded schlubs who are mired in a single, provincial system of laws.

With that caveat in mind, I will describe my admittedly crude crash course into the Israeli separation of powers.

Israel has no written Constitution. Yet, it has a robust separation of powers: elite lawyers separate the power from the people. Ambition does not check ambition. Erudition checks opposition.

Let me provide a brief sketch.

Israel has a parliamentary government. A coalition that obtains a majority of the seats in the parliament can select a prime minister. The prime minister, in turn, can appoint various cabinet ministers. (I think technically the cabinet makes the appointment, but that doesn't make a difference for present purposes.) One of those ministers is the Attorney General. The Attorney General serves a fixed, six-year term. The Attorney General is entirely independent–there is no removal power. Indeed, the Attorney General can take positions that are adverse to the prime minister. And those positions are binding on the government. The prime minister has to go to court to reject the Attorney General's argument. And Israel has no standing rules, so the Attorney General, as well as outside groups, can challenge virtually any policy in court. Everything goes to the courts.

Due to the fluctuations in Israeli politics, an Attorney General appointed by a left-wing government can serve during a right-wing government. Can you imagine if Attorney General Holder served under President Trump? AG Sessions under President Biden? And, in candor, even an Attorney General appointed by a conservative government will still be the byproduct of the elite legal education system in Israeli. Conservative lawyers in Israel are a discrete and insular minority.

Here is another example. The Military Advocate General (MAG) is the equivalent of the American Judge Advocate General (JAG). The MAG is appointed by the incumbent government for a fixed term. (The duration, I was told is about five years, but the lawyers seemed a bit unsure.) The MAG is entirely independent. The Prime Minister has no at-will removal power over the chief legal advisor. Moreover, the MAG is completely outside the command structure of the military. As a result, military legal advisors officers are in no way accountable to the generals on the battle field. They answer directly to another independent official who cannot be removed, or even directed by the Prime Minister. If the government wants to take a military action, and the MAG says no,that is basically the final answer. I was told that the Prime Minister could, in theory, appeal a decision of the MAG to (wait for it), the independent Attorney General, and to the independent Supreme Court. My mouth was wide open. Again, the popularly-elected government will always be subordinate to the views of elite lawyers.

I asked a MAG captain if it would at least be theoretically possible for the Prime Minister to remove MAG. He seemed almost insulted that I would even raise this possibility. How dare anyone question his boss's independent legal judgment. He replied that the Prime Minister would have to go through the equivalent of a civil service protection proceeding. I nearly fell out of my chair. I inquired if the MAG tells the Prime Minister no often. He said it doesn't happen, as the MAG can usually negotiate the proper bounds for military action. My intuition is that the risk of hearing no serves as a chilling effect, and certain requests are simply never made. Who designed this system? Remember Israel has no Constitution. So it was developed, ad hoc, by the very lawyers who seek to retain this power.

Then there is the basis of the no answer. I remain confused by the entire nature of the Laws of Armed Conflict, and the nebulous principle of proportionality. I watched video after video of legal officers calling off air strikes because the risk of too many civilian casualties. (The Times reported that Palestinians now simply ignore warnings of where and when strikes will occur.) I inquired how any legal officer can measure the value of a target against the risk of collateral damage. Needless to say, the answer was quite subjective. But at least in Israel, insulated lawyers and not accountable politicians, make these calls. Who would you prefer making these decisions: MAG or MAGA? (Sorry, I forgot to put a trigger warning on this post.)

Another example. After the Second Intifada, Israel built a border wall to protect Israelis from terror attacks. In 2004, the International Court of Justice ruled that the border wall was illegal because international law. (Imagine if the ICJ ordered the United States not to build a wall on the Southern border!) The Israeli Supreme Court, in one of its "innovative" decisions, accepted the general premise of the ICJ's ruling, but found that the facts were slightly different, and ordered Israel to build the wall in a more restrained matter. (I am grossly summarizing a complicated decision.) As it was described to me, this opinion showed the ICJ that "adults" were in charge of Israel's border policy, so it left Israel alone after that. Here, we have a double-layer of insulation: the elite lawyers in the Hague defer to the elite lawyers on the Israel Supreme Court. The poor fools in the government can just follow orders. It is unthinkable to have to govern in this sense.

Moreover, this double-insulation provided a leading argument against the judicial reform last year (which I wrote about here). One of the proposals would have made it easier for the prime minister to appoint his preferred candidate to the Supreme Court. But if the Israeli Supreme Court was less independent, the argument went, it could no longer be trusted to take care that international law is faithfully executed. (Yes, it is the court that has this responsibility, and not the executive.) Therefore, the lawyers in the Hague would take a stronger hand against Israel. Indeed, the pending case on the West Bank territory may reflect this dynamic. Again, a country with no Constitution is constrained in reforming its courts for fear of retribution from some international tribunal in the Netherlands. Does any of this make sense?

Other proposed judicial reforms could have made it harder to prosecute Netanyahu, the incumbent prime minister. If so, under the principle of "complementarity," the International Criminal Court would have even greater power to indict Netanyahu. Israel is damned no matter what it does.

During the session, I joked that Trump v. United States, which gave Trump sweeping immunity, will one day be cited as a justification for war crime charges to be brought against Trump. Jack Smith will be firmly ensconced in the Hague to finish the prosecution he could not finish here. Inspector Javert will always get his man.

One last example. The Netanyahu government adopted a few of the legal reforms. But (shocker) the reforms that were adopted were declared unconstitutional by the Israeli Supreme Court. Yes, in a country with no Constitution, attempts to amend the so-called "basic laws" were deemed unconstitutional. An unconstitutional constitutional amendment in a country with no constitution. I'll let you figure that one out. A rule by elite lawyers indeed.

These are just a smattering of how foreign the separation of powers are in Israel. One of my repeated frustration is that the lawyers who defended this system were the primary beneficiaries of the system. They see no problem with it because they are the ones making the important decisions.

To quote President Biden, I thank the Lord Almighty that our Constitution was drafted by lawyers who understood that powers must be rigidly divided, and not placed in the hands of ruling elites. Men are not angels. We need the separation of powers.

The post Mission to Israel Part III: What I Learned About The Israeli Separation of Powers appeared first on Reason.com.

[Josh Blackman] Today in Supreme Court History: July 16, 2019

7/16/2019: Justice John Paul Stevens died.

Justice John Paul Stevens

The post Today in Supreme Court History: July 16, 2019 appeared first on Reason.com.